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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K (A Child), Re [2015] EWCA Civ 352 (13 March 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/352.html Cite as: [2015] EWCA Civ 352 |
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ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Justice Newton)
Strand London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MCFARLANE
SIR DAVID KEENE
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IN THE MATTER OF K (A CHILD) |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr H Setright and Mr M Jarman (instructed by Landmark Legal LLP) appeared on behalf of the Respondent Mother
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Crown Copyright ©
LORD JUSTICE MCFARLANE:
Introduction:
"As the judge made clear, this did not preclude a consideration at a later stage of more general welfare issues or, indeed, of issues of forum."
Maurice Kay LJ and I gave concurring judgments.
"All issues in these proceedings are adjourned to 31 October 2014."
Nothing else on the face of the order would alert the reader, in particular the judge who was to take the hearing on 31 October, what it was that was to be determined at that hearing.
The hearing on 31 October 2014
"The following issues fall to be considered:
i) Whether further orders should be made against the father to return [M] or whether he be entitled to leave the jurisdiction with his passport.
ii) Which forum should determine the parties divorce petition.
iii)Should the passport order be discharged."
"WARDSHIP ISSUES WELFARE FORUM CONVENIENS"
And the text continues:
"As Holman J observed neither the welfare issues nor the issues of appropriate forum in this case have been determined by the Court and now must be determined in the light of the obvious fact that this child now aged 2 years 3 months has now spent the last 15 months with the paternal grandparents in Singapore."
And then further points are made.
"MR ARMSTRONG: I am not going to seek to overturn the view that was expressed at the time both by Ms Justice Russell and endorsed by the Court of Appeal that there was habitual residence, but I am bound to say that that is not the end of the matter --
MR JUSTICE NEWTON: No, no, I am well aware of that.
MR ARMSTRONG: The court has then to determine the issue of welfare and, in the course of determining the issue of welfare, it has also got to determine the issue of the convenient forum."
Later, at around the same stage of the hearing, Mr Armstrong says this:
"But I think the difficulty that faces my Lord is in terms of the evidential basis before the court. There are matters about which the court has insufficient information to conduct an effective hearing."
Then the only other quotation I will take from the transcript is some few pages later, where Mr Armstrong is recorded as saying this:
"MR ARMSTRONG: ... In relation to the welfare and forum conveniens, the court simply does not have the information currently available to it to make the appropriate determinations on those matters.
MR JUSTICE NEWTON: So what you are asking me to do, just so I am clear about it, is to give your chap the passport back today and to adjourn all the other issues for further evidence. Is that what you are asking me to do?
MR ARMSTRONG: Effectively.
MR JUSTICE NEWTON: I see."
35. This appeal
"Today, the applications made on the part of the father by Mr Armstrong are that the court should reconsider, or incorporate into its consideration of habitual residence (the matter already having been determined by the court as long ago as 14th March 2014), both welfare and the 'convenient forum' for the parties and the child, for the determination of the many issues that appear to have arisen between the parents. That has certainly formed the expressed foundation of the application. Tied up in it, and actually the real burden of the application underlying it, is that the father has a burning wish to have his passport returned to him."
"Although not extensively trailed, I apply the principle enumerated by Baroness Hale in Re A v A:
' .. the place which reflects some degree of integration by the child in a social and family environment in the country concerned. This depends upon numerous factors, including the reason for the family's stay in the country in question.'"
The passage that I have just quoted sets out the entirety of the text under the heading of "The Law".
The quotation from A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1 is a surprising one. The first sentence is a recital of the test adopted by the European Court of Justice on the issue of habitual residence; the second sentence is an observation upon the European test offered by Baroness Hale. In no manner can that authority, or certainly that part of that authority, have any relevance at all to the issues that the judge had to determine on 31 October. Re A v A relates to habitual residence. That, as the judge accepted during submissions, had been determined by the High Court and the Court of Appeal and it was not an issue before him.
"There are a number of live applications and very different contentions. Mr Armstrong, on behalf of the father, invites the court to look again to the current position, and in particular to reconsider habitual residence, bearing in mind the issues of welfare and 'convenient forum' - that is to say in particular that the child has been looked after by the paternal grandparents for now a year or more, he is in Singapore, that he has been the subject of what, on any view, must be frightening and disturbing conduct and that the police, the courts and the local authority or social services, the Singaporean equivalent, have been involved. In support of that, underlying what seems to me to be in fact the real nub as far as the father is concerned, since it has formed the consistent contention and refrain that has arisen from time to time through the proceedings, is the return to the father of his passport."
Again what is of note in that passage of the judge's judgment is that the judge apparently understood that he was being asked to "reconsider habitual residence bearing in mind the issues of welfare and 'convenient forum'". Again, as I have already indicated, that displays a lack of clarity and an incorrect understanding of the law.
"Fourthly, Mr Armstrong says that within the proceedings of divorce in Singapore, and this being a major impediment, a decree, or the equivalent of a decree, was granted on 9th July."
That is factually correct but it related to a separate issue with respect to orders for disclosure in the English divorce proceedings and can have had no relevance at all, in my view, to the issues of convenient forum or M's welfare.
"Mr Armstrong argues that the issues of welfare and convenient court are intertwined with habitual residence. In my judgment, they are all connected. The issue is one which is not necessarily straightforward, but the principles are clear. On any view, the parents, having requested the grandparents to look after their son for a limited period, went back to Singapore in January of this year to bring him back to this jurisdiction. It is reasonable to assume that the grandparents agreed with that course until the father articulated different intentions towards the mother."
It is not necessary for me to labour the points I have already made. The judge's words, I am afraid, speak for themselves.
"43. However, I have got no reason to think that the proper forum is not, in fact, the forum here. The court has already made a declaration as to the proper forum. I am confident that this is the right jurisdiction for determining that issue. It might be open to the paternal grandparents to come back to this jurisdiction and care for him here. Those are not arrangements that concern the court. It has already made orders and they must be complied with. I see no basis for reviewing the orders of Russell J.
44. So far as convenient forum is concerned, I can deal with that very shortly. It is said that, as a result of the evidence of August, it would be at least more convenient to deal with disputes in Singapore. He has, after all, been cared for by his grandparents in that jurisdiction for some significant time and both the police and the local authority are involved. Equally, as things currently stand, both the mother and the father are before me and are in this jurisdiction. I am not satisfied that the mother would be able to go back to Singapore and litigate in person. I am however sure that the father will use every device available to him, as indeed he has during the course of argument today, in order to make it as difficult as possible for the mother. That, after all, was the burden of the submissions made first thing this morning when Mr Jarman had only just risen to his feet. Complaints were made about procedural issues and other issues, preventing, it was said, the court from dealing with the matter today. It was legal filibustering.
45. It seems to me that, having regard to those aspects together, I am quite satisfied that:
(a) The habitual residence declaration should remain. I take into account the issues of welfare and forum, but my view is precisely the same as every other judge who has dealt with this case throughout, and for the same reasons.
(b) It would be curious if it were otherwise, since it would mean that if a parent deliberately subverted a court order (as here) and thereby delay was caused, as has happened, that a parent would be able then to turn round and say to the court that as a result of what has taken place, whilst the court may have had jurisdiction in March, it no longer has jurisdiction in October. I do not think that it is a satisfactory argument at all. It is precisely analogous to the subterfuge cases in Hague disputes."
"MR JUSTICE NEWTON: ... Anyway, if there is an issue about it that needs to be re-listed, does it not?
MR ARMSTRONG: It is not appropriate for me to develop further submissions.
MR JUSTICE NEWTON: Frankly at half-past 3, it is not the best moment.
MR ARMSTRONG: Indeed. But can I just say this, the power to make orders in relation to financial remedies, my learned friend is asking for a Form E from the husband, can only exist in relation to an English divorce.
MR JUSTICE NEWTON: It is up to you. Previously the father said without prejudice to jurisdiction, as I had understood it, he would comply with the order made by the District Judge. It would have been of assistance to me had he do so and probably to him. Without prejudice.
MR ARMSTRONG: Yes, that is one point.
MR JUSTICE NEWTON: It is a point. Quite a strong point actually, where I am sitting, because I would have liked to have known a bit more about -- The trouble is, when I am presented with a situation and all I get are bits of figures, I have no idea what I am dealing with. Your point about the father giving security would have had, with respect, more force had I known what his financial situation was to date. He says he is sofa-surfing and he is broke.
MR ARMSTRONG: My Lord, the short point I was making was that there is a real issue as to whether this court does have now jurisdiction to --
MR JUSTICE NEWTON: Got that, got that.
MR ARMSTRONG: I was not going to develop that further.
MR JUSTICE NEWTON: No, I have got that."