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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> SF v HL  EWHC 2891 (Fam) (08 October 2015)
Cite as:  EWHC 2891 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Philip Squire (instructed under the Direct Access Scheme) for the Respondent
Hearing dates: 7 October 2015
Crown Copyright ©
Mr Justice MacDonald:
i) Upon the parents reconciling they developed a settled intention that they would return to England for an extended period of time. Dr George submits that in circumstances where the mother concedes that she intended to remain in England for a period of up to two years it matters not that the parents do not agree on the period of time they planned to return to England for, Dr George submitting that it was in any event for a significant period;
ii) The plan the parents developed and agreed on for their return to England included the setting up of a business, leasing a property for a period of a year, enrolling R in nursery and registering R with a general practitioner. Dr George concedes that R had not commenced nursery nor used the services of her general practitioner at the time these proceedings were issued.
iii) When the parents arrived in England, whilst they were only together for a period lasting a little under two weeks, they put their joint plan into effect by moving into a property, enrolling R in nursery and registering R with her general practitioner;
iv) The settled intention of the parents to remain for an extended period in England is a very significant factual element in the court's determination of the question of habitual residence (AR v RM  UKSC 35);
v) Whilst the period of time R was in England prior to the issue of proceedings was a little under three weeks, it is possible to acquire habitual residence in a new jurisdiction in one day;
vi) The foregoing factors combine to mean that R is now integrated into a social and family environment in England to a degree which satisfies the test for habitual residence set out in Re A (Area of Freedom, Security and Justice) (C-532/01)  2 FLR 1 and endorsed by the Supreme Court in Re A (Jurisdiction: Return of Child)  1 AC 1.
i) The mother's intention in making plans ahead of her return to England must be seen in the context of her wishing to see if her relationship with the father would work. Once in England it became plain to the mother in under three weeks that the relationship was as bad as it ever had been and that the intention of the parents to resume their relationship and spend a significant period in England were not going to work.
ii) In any event, the parents' plans were hardly in a concrete form. Beyond the provision of schooling and medical care for R, Mr Squire points to the fact that the plans were not well formed in relation to the idea that the parents would pursue a business together in this jurisdiction. In particular, Mr Squire points to the fact that the only mention in the father's statement of any type of business is the father's allegation (vehemently denied by the mother) that the mother wished to set up a brothel in England when she was in this jurisdiction in 2013.
iii) Within this context, whilst the parents had made some plans for R and taken preparatory steps to implement those plans, including enrolling R in a nursery and registering her with a general practitioner, those plans had not been the subject of implementation and constant re-affirmation. By the time proceedings were issued a little under three weeks after the arrival of R in the jurisdiction she had neither attended nursery nor used the services of the general practitioner.
iv) The nature of the parents' relationship once in England and over the period of a little under three weeks prior to the issue of proceedings was hardly conducive to the development for R of a social and family environment in which R could become integrated. In this regard, Mr Squire points to the fact that on the accounts of both parents their relationship was volatile and characterised by domestic discord and abuse during the very short period they were together in August 2015.
v) R was in this jurisdiction a little under three weeks before proceedings were issued by the father and did not become integrated in a social and family environment during that brief period sufficient to change her habitual residence.
i) It is upon the party seeking a stay of the English proceedings to establish that it is appropriate;
ii) A stay will only be granted where the court is satisfied that there is some other forum available where the case may be more suitably tried for the interests of all parties and the ends of justice. Thus the party seeking a stay must show not only that England is not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate;
iii) The court must first consider what is the 'natural forum', namely that place with which the case has the most real and substantial connection. Connecting factors will include not only matters of convenience and expense but also factors such as the relevant law governing the proceedings and the places where the parties reside;
iv) If the court concludes having regard to the foregoing matters that another forum is more suitable than England it should normally grant a stay unless the other party can show that there are circumstances by reason of which justice requires that a stay should nevertheless be refused. In determining this, the court will consider all the circumstances of the case, including those which go beyond those taken into account when considering connecting factors.
"There is no limit, in legal theory, to the jurisdiction of the court in England to act in the interests of any child who happens to be within the jurisdiction for whatever purpose and for however short a time. In practice, however, if the child is not habitually resident in this country and there are legal procedures in the country of habitual residence available to achieve a fair hearing of competing parental claims regarding the child's upbringing, the English court will decline jurisdiction, except for the purpose of making whatever orders are necessary to ensure a speedy and peaceful return of the child to the country of habitual residence. The practice thus is to follow the spirit of the Convention, even though its formal terms are inapplicable."
26. In setting the scene, I should also make the following observation as a matter of law and structure. It is not necessary for me to descend to detail. The legal structure for these issues in an international private family case is plain. The court first determines whether or not the court in England and Wales has jurisdiction. It does so, depending on the countries involved, with or without reference to various international provisions. In a case such as this, which is not one between Member States of the EU, the approach is straightforward. The court decides jurisdiction and decides it with regard to the habitual residence of the child at the relevant time. That determination in this case has been made and is not open to review or challenge and was not open to review or challenge at the hearing before Newton J.
27. It is then possible, if parties wish to do so, for the English court to be invited, despite a finding that it has jurisdiction, to consider the question of convenient forum. The court, if required to do so, approaches that on the well-known basis applicable to civil proceedings generally which is set out in Spiliada Maritime Corp v Cansulex Ltd  AC 460.
28. Again, as a matter of structure, the normal approach is for the party asserting that England and Wales is not the convenient forum to apply for the English proceedings to be stayed. The burden is upon the applicant for such a stay to persuade the court, on the principles of Spiliada and related cases, that the stay should be granted and that, despite having jurisdiction, England and Wales should cede to another court which is the more convenient forum.
29. It is established that the welfare of the child is a relevant consideration in determining the question of convenient forum but it is not an issue, that determination, to which the paramount principle in section 1 of the Children Act applies.
30. The final structural step is that, if jurisdiction is established and if a stay is not imposed because of forum conveniens considerations, then the court is free to go on to make more generally based welfare determinations with respect to the child's future.
Presence in England