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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> W v L (Forum Conveniens) [2019] EWHC 1995 (Fam) (19 July 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/1995.html Cite as: [2019] EWHC 1995 (Fam) |
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FAMILY DIVISION
Strand, ![]() ![]() ![]() ![]() |
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B e f o r e :
____________________
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Applicant |
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- and - |
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Respondent |
____________________
The Respondent appeared in person
Hearing dates: 18 and 19 July 2019
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
i) A declaration that M is habitually resident in the jurisdiction of England andWales;
ii) An order that M be made award
of the High Court;
iii) An order prohibiting the father from removing M from the care of the mother;
iv) An order prohibiting the father from removing M from the jurisdiction of England andWales;
v)
An order prohibiting the father from pursuing any further applications in respect of M in the courts of the Hashemite Kingdom of Jordan.
i)Whilst
the father stated he had not appreciated the need to instruct
lawyers,
on 24 May 2018 the
letter
by
which
the mother's solicitors served the father
with
her application and evidence contained a clear statement that he should seek
legal
advice and a
link
to a
list
of qualified
lawyers.
The father represented himself at the hearing on 10 June before Ms Fottrell QC and has not, in the nearly two months since the
letter
![]()
was
sent, instructed
lawyers.
ii) More fundamentally, the father stated he had not instructedlawyers
due to the prohibitive cost,
which
cost he had not been able to afford.
When
the court enquired
whether
he could now afford to fund
lawyers
he replied that he could not. In the circumstances, an adjournment to enable the father to instruct
lawyers
![]()
would
have been of no effect.
iii) The issueswith
![]()
which
the court is concerned at this hearing are straightforward, namely (a)
whether
M is integrated into a social and family
life
in this jurisdiction and (b) if so,
whether
it is more
convenient
for the English court or the Jordanian court to determine the
welfare
issues between the parents. In circumstances
where
the
law
governing both issues is clear and
where,
in any event, the first question is a question of fact and (given the mother did not seek to take any point regarding the relative merits of the English and Jordanian systems of
law)
the second question centred
largely
on practicalities, I
was
satisfied that the father
would
not be prejudiced by being required to deal
with
these two issues today as a
litigant
in person.
iv) The courtwas
able to take full account of the fact that the father
was
a
litigant
in person and to assist, in so far as appropriate and fair, the father to understand the issues before the court and to address them fully.
v)
The matter had been
listed
for a two day hearing in the High Court since 10 June
2019.
An adjournment
would
result in a significant
waste
of
valuable
court time and public funds.
BACKGROUND
"Whereas
the respondent neither provided a medical allowance nor a medical insurance for the therapy of his young son "M" born in 8/11/2012 didn't comply
with
the contact order
with
his said young son M, and travelled abroad in 7/5/2015. Further, he didn't allow his young son's affairs or consider young M's interests
who
is suffering from "Auditory Neuropathy".
Whereas
the young son, and his mother, the claimant, holds the British nationality, and the British government has provided free treatment to said young M, as
well
as disbursing a salary allowance for him and his custodian mother, the claimant. Therefore, based on the case, the official
written
evidence submitted, and in consideration of the child's best interest, and pursuant to articles 75 of Sharia Proceedings
law
and 177 of Civil Procedure
Law;
the court decides to indefinitely extend the travel permission; self-executed immediately according to the ruling notification No. 4/9/187 dated 04/08/2015 issued in this case till the respondent the child's father, provides a health insurance coverage or medical allowance for his therapy insider the country; or rather incurs the costs of his son's therapy at one of the private centres in Jordan. Respondent shall further provide guarantees to the said; and after providing these guarantees; respondent may then prosecute the person named [name given], the claimant's brother, in order to return the child to the country. Ruling has been publicly explained to the attendees and edited in 14/2/1437H corresponding to 26 November 2015."
i) The father providing health insurance or medical allowance for M's treatment in Jordan or funding the cost of the same;
ii) The mother's brother providing a guarantee exposing him to the risk of prosecution in the event Mwas
not returned to the Hashemite Kingdom of Jordan.
THE PARTIES SUBMISSIONS
The Mother
i) The mother and Mlive
in secure, rented accommodation and have
lived
in the same accommodation since September 2015;
ii) M has received all of his schooling and education in England, attending nursery and primary school in this jurisdiction;
iii) Since September 2015 M has spent timewith
a child minder three days a
week
![]()
who
is a specialist in speaking therapy and
language
delay. He continues to spend time
with
her two days per
week.
iv) M has been under the care of a speech andlanguage
therapist at the
local
hospital,
where
he has been attending since December 2015. M is registered
with
a GP and a dentist;
v)
English is M's first
language,
although he does speak and understand Arabic and attends Arabic
lessons
at school;
vi)
M is a member of the
local
gym and
leisure
centre and has been a member of the swimming club since January 2017;
vii)
M benefits from a
large
group of friends at school and regularly attends playdates
with
friends.
viii)
M takes part in extra-curricular clubs and is a member of a
local
football club.
ix) During the course of his nearly seven years, M has spent only 16 months in Jordan and has notvisited
that jurisdiction since 2015. The remainder of time has been spent
living,
being educated and socialising in England.
i) It is unclear from the order of 3 April2019
![]()
whether
it resulted from a judicial process or an administrative process. The mother's understanding is that it
was
issued as the result of an administrative process.
ii) The order of 3 April2019
![]()
was
made in the context of an application by the mother's brother to be released from his guarantee. There is accordingly no
live
application before the Jordanian court
with
respect to M's
welfare.
Rather, there is only a procedural application in respect of the mother's brother's guarantee.
iii) The order of 3 April2019
![]()
was
made
without
notice to the mother and the mother did not have the opportunity to be represented or make submissions in respect of the same.
iv) This court has been providedwith
no reasons for the granting of the order of 3 April
2019.
It thus does not appear that the Sweileh Sharia Court undertook a
welfare
analysis prior to ordering the mother to give M to the father and in any event did not have information regarding the change of circumstances for M between 25 November 2015 and 3 April
2019.
v)
In any event, the Sweileh Sharia Court has adjourned the proceedings in
which
the order of 3 April
2019
![]()
was
made in order to the middle of September
2019
to await the decision of this court.
The Father
i)Whilst
making clear he had the utmost respect for the English court, the father prayed in aid the fact that the Sweileh Sharia Court has already made an order requiring the mother to hand M to him. He submitted that this court should respect the decision of the court of the Kingdom of Jordan rather than taking upon itself jurisdiction to decide matters in respect of M.
ii)Within
this context, the father further pointed out that the order that permitted the mother to take M to England
was
a conditional order.
iii) The father relies on the fact that there have been previous proceedings in Jordan regarding thewelfare
of M,
which
proceedings resulted in the father obtaining an order for contact. In 2015 there
were
further proceedings in Jordan concerning the mother's application for permission to travel. Each set of proceedings
was
dealt
with
swiftly.
iv) In his submissions and in his statement of evidence the father emphasised that Jordan is a state of institutions, a state oflaw,
a democratic and pluralistic state that respects human rights, the right to make a decent
life
and a state that enjoys security. He observes that the Jordanian courts are as impartial and fair as the courts of England and
Wales.
v)
The father reminded the court that M holds Jordanian nationality as
well
as British nationality.
i) It is upon the party seeking a stay of the English proceedings to establish that it is appropriate;
ii) A staywill
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 considerwhat
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 anotherforum
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 nolimit,
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 oflaw
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 partieswish
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
[1987] AC 460.
[28] Again, as a matter of structure, the normal approach is for the party asserting that England andWales
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 thewelfare
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 offorum
![]()
conveniens
considerations, then the court is free to go on to make more generally based
welfare
determinations
with
respect to the child's future."
"In assessing the appropriateness of eachforum,
the court must discern the
forum
![]()
with
![]()
which
the case has the more real and substantial connection in terms of
convenience,
expense and availability of
witnesses.
In evaluating this
limb
the following
will
be relevant; a) the desirability of deciding questions as to a child's future upbringing in the state of his habitual residence and the child's and parties' connections
with
the competing
forums
in particular the jurisdictional foundation; b) the relative ability of each
forum
to determine the issues including the availability of investigating and reporting systems. In practice judges
will
be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give
way
to the evidence in any particular case; c) the availability of
witnesses
and the
convenience
and expense to the parties of attending and participating in the hearing; d) the availability of
legal
representation; e) any earlier agreement as to
where
disputes should be
litigated;
f) the stage any proceedings have reached in either jurisdiction and the
likely
date of the substantive hearing; g) principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision
which
the court has to make; h) it has also been held that it is relevant to consider the prospects of success of the applications."
DISCUSSION
Jurisdiction
i) M is habitually resident in England. It is an established principle of international privatelaw
that it is desirable to decide questions as to a child's future upbringing in the state of his or her habitual residence.
Within
this context,
whilst
not a conclusive factor, the court
with
the pre-eminent claim to jurisdiction in respect of matters of parental responsibility
with
respect to a child is the place
where
the child habitually resides;
ii) Both the mother and the father hold dual British and Jordanian nationality. Both parents currently reside andwork
in this jurisdiction and have done so on an uninterrupted basis since 2015.
Whilst
the father evinced an intention to return to Jordan, possibly as a result of his
work
commitments, there is no clear evidence before the court that his departure is imminent.
Within
this context, and given the
length
of M's residence in this jurisdiction, the
vast
majority of the matters that
will
bear on the
welfare
decision in respect of M have arisen in this jurisdiction by reason of the parties
long
and close connection
with
the same.
iii) Related to this point, thewitnesses
![]()
who
are
likely
to be required to give evidence in a hearing to determine the
welfare
issues in respect of M reside in this jurisdiction and are available to come to court in this jurisdiction if required. In circumstances
were
both parties and M
live
in England the English court is plainly the most
convenient
and
will
incur the
least
expense in attendance. In circumstances
where
the mother
was
given specific and indefinite permission by the Jordanian court to travel to England to secure medical treatment for M, all of the evidence and
witnesses
that speak to that issue
within
the context of the
welfare
dispute are in this jurisdiction.
iv) No point is taken by either party on the relative ability of the English and Jordanian courts to determine the issues or the availability of investigating and reporting systems. One relevant factor however is that reporting system employed by the English court in the form of the Children and Family Court Advisory and Support Service (CAFCASS) is the reporting system thatwill,
as a matter of practicality, have the readiest access to information concerning M's
welfare
in circumstances
where
he has spent the majority of his childhood in this jurisdiction and
where
both his parents
live
in this jurisdiction.
Whilst
the father has not instructed
lawyers
in this jurisdiction in the circumstances I have set out above,
legal
representation is available to the parties in both jurisdictions.
v)
I am cognisant that the order of the Jordanian court in November 2015 that permitted the mother to travel to England
with
M
was
conditional and provided a mechanism for the return of M to the jurisdiction of Jordan. Against this however, I note that this order
was
made during a period
when
the mother and M had travelled to Jordan temporarily for the purpose of the mother initiating divorce proceedings. Further, and importantly,
whilst
the father has responded to proceedings brought in Jordan by the mother's brother for the
latter
to be released from his guarantee, there is no evidence that the father has satisfied the conditions set out in the judgment of 26 November 2015 such as to trigger the return provisions in the order of that date, namely ensuring medical insurance or funding for M in Jordan.
vi)
I am
likewise
cognisant of the fact that there are proceedings on foot in Jordan. I have paid careful regard to the fact that, on the face of it, on 3 April a judicial (or possibly administrative) decision
was
made
which
resulted in a
without
notice order requiring the mother to hand M to the father. However, against this, I note that those proceedings
were
instigated by the mother's brother in order to seek release from his guarantee and do not directly concern the
welfare
of M. There is accordingly no
live
application before the Jordanian court
with
respect to M's
welfare.
Rather, there is only a procedural application in respect of the mother's brother's guarantee. I have also had regard to the fact that the order of 3 April
2019
![]()
was
made
without
notice to the mother and the mother did not have the opportunity to be represented or make submissions in respect of the same. Further, on the information currently available to this court, it is not yet clear that the Sweileh Sharia Court undertook a
welfare
analysis prior to ordering the mother to give M to the father and, in any event, did not have information regarding the change of circumstances for M between 25 November 2015 and 3 April
2019.
Finally, and importantly, this court understands that the Sweileh Sharia Court has adjourned the proceedings in
which
the order of 3 April
2019
![]()
was
made in order to the middle of September
2019
to await the decision of this court on the issues before it today.
vii)
![]()
Whilst
the father submits that the time it
will
take the Jordanian court to complete
welfare
proceedings in respect of M
will
be short, it is apparent from the dates of the orders made by the Jordanian court that are before the court that the timescales in the respective jurisdictions are comparable.
viii)
I have of course borne in mind
very
carefully the principles of international comity. In this case M is habitually resident in this jurisdiction but is also the subject of a recent order made by the Sweileh Sharia Court. However, once again I bear in mind that it is an established principle of international private
law
that it is desirable to decide questions as to a child's future upbringing in the state of his or her habitual residence. I also once again bear in mind that Jordanian court has adjourned proceedings to await the outcome of the decision of the English court on the issues
with
![]()
which
I am concerned at this hearing.
ix) Finally, as I have noted, M's best interests are not paramount but are important. It is accepted that it is ordinarily in a child's best interests to have their future decided in the country of their habitual residencewhere
issues
with
respect to their
welfare
arise. In this case, it is in my judgment also in M's best interests for the English court to decide the
welfare
issues between the parents in circumstances
where
it is the English court that is in the best position to ensure a comprehensive examination of those issues given it has the easiest access to the evidence relevant to the determination of those issues and is the court to
which
the parties
will
have easiest access in circumstances
where
they both reside in England.
CONCLUSION