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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> ZZ v AA [2024] EWHC 1411 (Fam) (06 June 2024) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2024/1411.html Cite as: [2024] EWHC 1411 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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ZZ |
Applicant |
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- and - |
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AA |
Respondent |
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The respondent did not appear and was not represented
Hearing date: 22 May 2024
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Crown Copyright ©
Ms Victoria Butler-Cole KC:
Orders sought
a) a declaration that the courts of England and Wales have jurisdiction to determine the father's application for the return of the children from India;
b) a declaration that this jurisdiction is the appropriate forum to make determinations about the children's welfare more generally;
c) that the children remain Wards of Court;
d) a Hemain injunction against the mother, until further order;
e) continuation of the order requiring interim contact with the children by way of video calls twice per week:
f) permission given to disclose the order from this hearing to the Indian authorities;
g) the application for a return order to be listed for a final hearing.
a. Does this court have jurisdiction to entertain Mr ZZ's application?
b. If it does, which is the appropriate forum for the dispute between the parents to be determined?
Applicable legal framework - jurisdiction
Habitual residence
"(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."
a. Both boys are British citizens. They were born in City W and have lived there for their whole lives. They speak English as their first language. CA attended primary school in City W for over four years and had friends in City W. They had a stable life in City W and were fully integrated into their community prior to the trip to India.
b. The children had been cared for by both parents, living as a family together. Mr ZZ has provided a letter from the head teacher of the primary school that CA attended which confirms that Mr ZZ was the school's main point of contact. Mr ZZ says that he provided the majority of the care to the boys in 2021-22 when their mother was unwell and after that arranged his work shifts so that he was able to be a part of their daily routines.
c. Neither child had ever visited India previously. They met their aunt AB for the first time when she visited and stayed with them for around 2 months immediately before they went to India. They had not met their other relatives in India.
d. The trip to India was, so far as the boys were aware, a short term holiday. They had visas that expired in November 2023. They remained enrolled in their online school based in England until November or December 2023. Their visas were subsequently extended to mid-February, but as Mr ZZ has not provided consent to any further extension, it appears they may not have a lawful basis to remain in India.
e. Ms AA is staying with her sister, and, according to Mr ZZ's understanding, her sister's husband and adult daughter, and another sister. The documents I have seen include an Indian document described as 'Article 35(i) Lease – Rent deed up to 1 year', and a 'Rent Agreement' which say that Ms AA's sister has agreed to let out part or all of her property in Delhi to Ms AA for 10,000 rupees a month rent, for eleven months from 1 September 2023 to 31 July 2024. The Rent Agreement is dated 1 November 2023 and says that AB had 'let out the above premises to '[Ms AA] on dated 01.09.2023 but due to some reasons the parties could not executed the Rent Agreement at that time, therefore now the parties are executing this Agreement' (sic). Either party can terminate the agreement on one month's notice.
f. No advance arrangements were apparently made for the children to enter into schooling in India. Ms AA's documents for the Indian proceedings state that she has 'secured them an admission in Birla Brainiacs in Collaboration with Birla Open Minds International School'. No further information is given. The Birla Brainiacs website suggests it is a provider of online learning.
g. The children have now been present in India for nearly 9 months. It is not clear what they have been told about why they have not returned to City W, or whether they have been told they will be remaining in India.
Applicable legal framework - forum conveniens
i) Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, [1986] 3 All ER 843, HL, and
ii) De Dampierre v De Dampierre [1988] AC 92, [1987] 2 All ER 1, HL
''… the court's first task is to consider whether the defendant who seeks a stay is able to discharge the burden resting upon him not just to show that England is not the natural or appropriate forum for the trial but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is had to the fact that jurisdiction has been founded in England as of right (see the Spiliada case [1986] 3 All ER 843 at 855, [1987] AC 460 at 477). At this first stage of the inquiry the court will consider what factors there are which point in the direction of another forum (see the Spiliada case [1986] 3 All ER 843 at 855, [1987] AC 460 at 477; Connelly v RTZ Corp plc[1997] 4 All ER 335 at 344, [1988] AC 854 at 871). If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, that is likely to be the end of the matter. But if the court concludes at that stage that there is some other available forum which prima facie is more appropriate for the trial of the action it will ordinarily grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum (see the Spiliada case [1986] 3 All ER 843 at 856, [1987] AC 460 at 478; Connelly's case [1997] 4 All ER 335 at 344–345, [1988] AC 854 at 872) but on whether the plaintiff will obtain justice in the foreign jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum (the Spiliada case [1986] 3 All ER 843 at 859, [1987] AC 460 at 482; Connelly v RTZ Corp plc[1997] 4 All ER 335 at 345, [1988] AC 854 at 872). It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused (the Spiliada case [1986] 3 All ER 843 at 859, [1987] AC 460 at 482; Connelly v RTZ Corp plc[1997] 4 All ER 335 at 345, [1988] AC 854 at 873). This is not an easy condition for a plaintiff to satisfy, and it is not necessarily enough to show that legal aid is available in this country but not in the more appropriate foreign forum.''
i) the burden is upon the applicant to establish that a stay of the English proceedings is appropriate;
ii) the applicant must show not only that England is not the natural or appropriate forum but also that the other country is clearly the more appropriate forum;
iii) in assessing the appropriateness of each forum, 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.
iv) If the court were to conclude that the other forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and
v) In the exercise to be conducted above the welfare of the child is an important (possibly primary), but not a paramount, consideration.
Forum conveniens
Conclusion