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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 2192 (Fam)
||Case No: FD14P00124
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
||24th July 2015
B e f o r e :
MRS JUSTICE ROBERTS
||- and -
Mr Edward Devereux of counsel(instructed by Bindmans LLP) for the Applicant
Mr Grant Armstrong of counsel(instructed on a direct access basis) for the Respondent
No appearance by the Third or Fourth Respondents
Hearing dates: 14th May 2015, 15th May 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Roberts :
- In this case, a father seeks a stay of English wardship proceedings on the basis that Singapore is clearly the more appropriate forum in which to resolve proceedings relating to the future care of his son. I am concerned in this case with a child called M. He was born on 5 July 2012 and will shortly celebrate his 3rd birthday. He is the only child of the applicant mother, MB ("the mother") and GK, the respondent father ("the father"). The mother is a Mongolian national. The father is a national of Singapore although throughout the relevant period since 2011 both have been living in London where the father was employed as a quantitative analyst by a well-known international bank. These parents were married in Singapore in June 2011. The father was then already living and working in London where he owned a property in Lancaster Gate, W2. The mother lived in Mongolia until 2010 where she obtained a degree in finance and economics. Having obtained a visa as a dependent of F, she arrived in London some four months after the marriage in order to live with the father in the London property which was to become the matrimonial home. M was born in London in July 2012. He has a congenital lung condition known as cystic adenomatoid malformation (CCAM) for which he has been receiving treatment at the Royal Brompton Hospital in London.
- In circumstances to which I shall come, M is presently in the care of the paternal grandparents in Singapore. There is ongoing litigation concerning the arrangements for his future both in this jurisdiction and in Singapore. The English litigation commenced as long ago as January 2014 and has had a complex history. In the context of the mother's application in wardship under this court's inherent jurisdiction, there have been several hearings before various judges of the Family Division and the matter has travelled up to the Court of Appeal on at least two occasions. On numerous occasions, there have been orders providing for the return of M to this jurisdiction. None has been complied with by the father who says that he is powerless in the face of his parents' opposition to any attempt to remove the child from their care. Before me over the course of two days on 14 and 15 May 2015 was the father's application issued on 17 April 2015 for a stay of these English wardship proceedings. He has been represented in that application on a direct access basis by Mr Grant Armstrong of counsel. It is his case that all matters concerning the future welfare of M should be dealt with by the court in Singapore. That court, he contends, is already seised of both divorce and financial matters. It is the forum where the paternal grandparents have launched their own freestanding applications for orders in respect of their continuing care for M, and all future decisions about his welfare can and should more appropriately be decided in that jurisdiction.
- The mother is represented by Mr Edward Devereux of counsel. She resists the father's application for a stay of these English proceedings and contends that this court has jurisdiction as of right because of findings in relation to M's habitual residence. She contends that this court should exercise a discretion to retain jurisdiction in relation to M who has been a ward of this court throughout the last 18 months. Of very significant concern is the fact that the mother has had no direct contact with M since the beginning of 2014, apart from one very brief period in August 2014. On that occasion she travelled to Singapore in order to try to effect his return to this jurisdiction by means which, on one view, might be seen as unilateral and desperate actions of 'self-help' but, on the other, as an illegal attempt to snatch M from the care of his grandparents. That is certainly how it has been viewed by the father, his parents and the court in Singapore: the mother was incarcerated in Singapore for 10 weeks as a result of those actions which breached local immigration law. She was deported from Singapore at the end of her custodial sentence and returned to this jurisdiction on 22 October 2014.
- In the context of M's welfare and the fracture in his relationship with his parents, it is of equal concern that these proceedings have unfolded over the course of such a lengthy period of time. In the context of this child's young life to date, he has been the subject of bitterly contested litigation since he was 18 months old. He has been separated from each of his parents (both of whom continue to live in London) since the end of January 2014.
- The paternal grandparents are parties to the wardship proceedings but have chosen to take no active part in them. However, before me on 14 and 15 May was a substantial bundle which included their evidence filed in the Singapore proceedings. To that extent, their voices have been heard in this court by me despite their unwillingness to engage in the English proceedings in any formal sense. Whilst the father has not, as yet, issued any proceedings in Singapore concerning M, he is separately represented in his own parents' litigation and the position documents which his Singapore lawyer has prepared for the purposes of those proceedings leave me in no doubt but that he is supporting their wish to retain M in Singapore.
- One of the issues at the hearing before me in May was the mother's ability to re-enter the Republic of Singapore for the purposes of participating in the litigation ongoing in that jurisdiction. The evidence of her ability to do so was by no means clear when the case began. It was still inconclusive by the time the case ended on the second day of the hearing. Counsel made it plain that each intended to seek clarification on this issue and I agreed to adjourn handing down a judgment for a short period whilst that evidence was obtained. Whilst a prospective determination of the issue was unlikely to materialise, its relevance is both obvious and important in the context of a debate about where decisions relating to M's future arrangements should be determined.
- On 1 June 2015, I was sent a copy of a letter from the Singapore Immigration & Checkpoints Authority which provided further information as to the mother's immigration status and her ability to re-enter that country. I was told by counsel in an email exchange that a number of further questions were being addressed to that authority seeking further clarification. It appears that there is now a joint approach in the form of a further letter to which, as yet, there has been no response.
- I am not prepared to allow matters to continue any further. There needs to be a swift resolution of these proceedings (and the father's current application for a stay) in order for matters to move on for this child. He cannot wait any longer and I am going to deliver judgment in relation to the forum issue on the basis of all the evidence which is currently before me.
- I shall come to that evidence shortly.
- At this point, it is important to note that each of these parents advances their case on the basis that each will continue to live in this jurisdiction at least for the foreseeable future. At the present time, despite his wish to return to Singapore, the father is not able to leave London because of a passport order made in these proceedings and bail conditions imposed by the Southwark Crown Court. He is the subject of serious pending criminal charges which concern allegations of rape and violence perpetrated against the mother during the course of their marriage. The charges were formally laid on 9 March this year and his trial is due to commence in October 2015. Should he be convicted at its conclusion, he is likely to receive a significant custodial sentence. He resigned from his employment with the bank in March last year (2014) and is currently unemployed. He tells me that he is reliant on the financial support which he receives from his family and friends. The mother has returned to the former matrimonial home in Lancaster Gate and intends to remain there. The property is subject to a significant mortgage which is now in arrears since the father stopped making payments to the mortgage lender. She is currently a student at Birkbeck College in London where she is enrolled for a two year Masters degree in accounting and financial management. At the present time, she has permission to remain in this country until October 2016 on a student visa. The father says that there is a very real question mark over her ability to remain beyond that date. She, too, is dependent on the generosity of friends although she has some dwindling savings which would have been sufficient to see her through to the end of her current course. She is now in receipt of a public funding certificate and has recently changed solicitors. From the beginning of May this year (some two weeks before the hearing before me) she has been represented by Bindmans LLP.
- That these proceedings have taken their toll emotionally and financially on each of these parents was plain to see as they sat in court over two days of the hearing. The mother, in particular, has been distraught (as was clear to me) by her separation from M and the apparent unwillingness of the paternal grandparents to allow her any form of indirect contact with him. The father, it appears, does have regular Skype and telephone contact with their son. I was told about some psychological support which the mother had been receiving which, she tells me in her written evidence, has been of some assistance in enabling her to cope with the pressure of this ongoing litigation. I have little doubt that the father, too, is under a very heavy burden at the present time coping as he is with this litigation and the pending criminal proceedings. Each appeared to me to be physically exhausted by the legal process to which they are currently exposed.
- The paternal grandparents were made parties to the English wardship proceedings on 30 April 2014 by order of Ms Justice Russell. As I have said, thus far they have declined to participate. They have yet to be served with all the proceedings and evidence filed to date. I am told that the father's family has the financial means to secure in Singapore the services of specialist family lawyers. The father has his own representation, Mr Adrian Tan of August Law Corporation. The mother has no such representation.
B. The litigation
- The course which this litigation has taken is set out in some detail in the judgments given (i) by the Court of Appeal and handed down on 15 July 2014 with the neutral citation  EWCA Civ 905, and (ii) by McFarlane LJ on 13 March 2015 and reported at  EWCA Civ 352.
(i) Findings made by the English court in relation to M's habitual residence
- In the first of those judgments, the Court of Appeal was dealing with the father's appeal from the decision of Russell J in relation to M's habitual residence immediately prior to what she found to have been his wrongful retention in Singapore by the father in January 2014. The judge had sentenced the father to a term of imprisonment in respect of what she found to be his contempt in not taking steps to ensure the prompt return of M to England. The Court of Appeal allowed his appeal in respect of the contempt and granted the father his immediate liberty. However, their Lordships dismissed his appeal in relation to Russell J's findings in relation to habitual residence and jurisdiction.
- Those findings are important. I set them out below since, as is accepted by counsel for both the mother and the father, they are binding on me. Put shortly, the issue in relation to habitual residence arose in these circumstances, as is clear from the judgment at  EWHC 963 (Fam), page 2 (per Russell J):
'4. It is clear, and not a matter of dispute, that the marriage had difficulties. The reasons for the difficulties are disputed but in February 2013 the police were called and there were concerns that [the mother] had been the victim of domestic abuse and [the father] was taken into custody. Further concerns were raised that [the mother] was then minimising the incident. These concerns led to an assessment by Westminster social services. [The mother] was then studying as well as looking after M full time and needed more assistance than she was getting from her husband; they were said to be arguing about whether to have a nanny or have the paternal grandparents involved.
- This assessment is the only independent evidence that is before the court, and while I cannot place too much weight on it, it was largely unchallenged by either party and provided some further background to the case. The author records that there were no concerns as to the standard of care provided by [the mother] and that she appeared to be very well informed on child care.
- The couple were reported as intending to remain in the UK. They owned their home and were working and studying here. [The mother] said that returning to Mongolia was not an option and that as a dependant of her husband she felt that there was no guarantee that she would be able to return to Singapore. This is a telling piece of evidence as it would not support the Respondent's case that there was a long standing agreement to return to Singapore.
- In 2013 [the mother] took up a language access course which had classes lasting 3 hours most, but not every, weekday. The paternal grandparents visited again in 2013 and stayed for a few months during which time they certainly took care of M when his mother was at classes. [The father] continued to work full time. He says his parents undertook the bulk of M's care which [the mother] denies. [The father] was not there and I have not heard from them.
- [The mother] had to take exams in October 2013 which would have been time consuming. It was undoubtedly agreed that M would travel to Singapore with is parents in July and that they would leave him there in the care of his paternal grandparents. M's mother says she expected to him [sic] to return to England in November, but that [the father] said he could not take any time off work then. He booked and paid for flights for himself and the mother to travel to Singapore on 17th January, a flight for all three to return to England on 25th January 2014. Without telling his wife [the father] resigned from his job in London and arranged to take up a position with his employer in Singapore.
- Immediately upon his arrival in Singapore in January, and unbeknownst to [the mother], [the father] immediately commenced ex parte custody and divorce proceedings. [The mother] was served with the divorce and custody papers as she took lunch with her husband at the hotel where they were staying. He had also applied, without giving her notice, for a court order prohibiting her from removing M from the jurisdiction of Singapore. An attempt to serve this order, which he obtained in the ex parte hearing, took place when [the father] and his Singaporean lawyer threw it at [the mother] at the airport as she was leaving the country.
- It is not disputed that [the father] then remained at "home" with his parents. He says she was welcome to stay there too. [The mother's] case is that she was left in a hotel with limited access to her son. Her immigration status in Singapore was and is dependant on the good will of [the father]. Upon her return to England the mother discovered that she had been locked out of the family home and that her ATM card to the party's joint account no longer functioned.
- It is her case that M was unlawfully retained in Singapore as he is habitually resident in the UK. It is [the father's] case that M remained in Singapore with his mother's consent and by agreement. To decide on the issue of the disputed consent I heard from both parties and I have read the documents filed in the case which included the assessment by Westminster social services.
- Neither parent remained in Singapore with their young baby until the parents travelled there in January 2014. It is not disputed that until July 2013 the baby was habitually resident in England. He was a year old when he left for Singapore; he has now been there for almost 8 months. It is [the mother's] case that a 3 month temporary stay was initially contemplated, which was extended to 5 months. It is [the father's] case that it was agreed that the baby should move to Singapore and remain there with his parents while [the mother] continued her education and undertook a degree. It is argued on his behalf that the time spent in Singapore means that M has acquired a Singaporean habitual residence as a matter of fact as the purpose and intention of the parents is merely one of the relevant factors."
- Russell J went on in her careful and lengthy judgment to review both the law and the evidence which was then before the court. Having found the mother to be "quiet in her manner, but calm and dignified", she turned to make her findings about the father and the circumstances surrounding M's situation in Singapore. She said this at page 6 of her judgment :
"25. [The father] did not impress me as a witness. He was curiously ignorant of his son's routines and I did not get any impression of M from his evidence. I was wholly unconvinced by his claims that he was bullied or coerced by his wife into doing things against his will. He had no idea what clothes [the mother] had bought M for his return; either he has no interest in what M's mother does for their son or he had already dismissed her as irrelevant. His actions were underhand, devious and cruel. He has, quite deliberately, sought to separate M from his mother, and clearly intended to do so permanently, as there is no plan in place to enable [her] to remain in Singapore. I do not accept his claim that [the mother] did not care for and look after M; there is no evidence that she was anything other than the primary carer.
- I do not accept the evidence of [the father] that there was any agreement that M remain in Singapore or that it was intended that they would bring M up in Singapore. I am sure it is his plan that he and his family do so but there is nothing in his conduct or his evidence that he intended to include M's mother in this plan.
- M was habitually resident here. The purpose of his journey to Singapore, as agreed by his parents at the time was for a short period from August to November 2013, while [the mother] completed her English studies. This was extended to January as [the father] said he could not travel until January 2014. Since January M has been retained there without his mother's consent. The orders of the court in Singapore were obtained without notice [and] there has been no adjudication on the facts of the case.
- I find that M did not acquire a habitual residence in Singapore. His stay was temporary and for a fixed purpose. He was not living with either parent. His mother expected and planned to resume his care not later than January 2014. The role of the paternal grandparents as carers was also a temporary arrangement, therefore applying the propositions propounded by Lady Hale in A v A I conclude that M's integration into the social and family environment in Singapore was temporary in nature, in fact and by intention."
- Having reached those findings and conclusions, Russell J ordered the immediate return of M to this jurisdiction. As I have said, the father's appeal against those findings was dismissed when the Court of Appeal handed down its reserved judgment on 15 July 2014. Kitchin LJ delivered the leading judgment. Dealing first with the findings made by Russell J in relation to habitual residence, his lordship said this :
"33. It is clear that the judge considered the father a thoroughly unsatisfactory witness. His evidence was, she held, contradictory and contained many serious assertions about the mother which were wholly unsubstantiated. Further, he had taken a series of steps which were intended to conceal from the mother his true intentions when they travelled to Singapore in January 2014. Strikingly, he had not informed the mother that he intended to divorce her and had instructed lawyers to prepare proceedings against her, that he had withdrawn from their joint account £18,000 the day before their departure; or that he had arranged with his employers to relocate to Singapore. Moreover, he had taken positive steps to mislead the mother by renewing his United Kingdom work visa and by buying three air tickets so that the whole family could travel together to London on 25 January 2014 when he had no intention of doing any such thing. He was also ignorant of M's routines and had taken no interest in the steps the mother had taken to prepare for the return. All in all he was, the judge considered, underhand, devious and cruel.
- By contrast the judge found the mother to be a calm and dignified witness who felt isolated, having neither family nor support. Nevertheless she had arranged further part time study for herself at Birkbeck College and had arranged a nursery place for M, a matter of which the father was aware.
- In the light of all these findings it comes as no surprise that the judge preferred the mother's evidence over that of the father as to their intentions when they took M to Singapore in July 2013. …."
- Kitchin LJ went on to consider separately and at length the law in relation to habitual residence, including A v A and the more recent decision of the Supreme Court in In re LC (Children)(Reunite International Child Abduction Centre intervening)  UKSC 1,  2 WLR 124. At paragraph 41, he said this :
"… I do not believe there can be any real doubt that until July 2013 M was habitually resident in England. He was born here and lived with his mother and father in the property which the father had bought in Westbourne Terrace. True it is that the father is Singaporean and the mother Mongolian, but this was the country in which the father was working and the mother was studying and in which they intended to live.
42. Did the position change in July 2013 when the mother and father travelled to Singapore to leave M in the care of the paternal grandparents? I believe that the judge was perfectly entitled to hold that it did not. M was entrusted to the care of the paternal grandparents for a few months but no more. It was understood and agreed that when return to Singapore where they would be reunited with M and then return with him to London. The arrangement was intended to be a temporary one until the father decided to separate from the mother and to relocate to Singapore. But at that point the father deceived the mother and concealed his true intentions from her in the manner I have described. In consequence the mother and father never had a common intention that they would continue their lives together as a family in Singapore or that M should continue to live there. In all these circumstances I believe the quality of M's residence and the degree of his integration into a social and family environment in Singapore was such that the judge could properly conclude it was not habitual. In my judgment the approach the judge adopted on this issue cannot be faulted; indeed I think the answer to which she came was correct."
- In terms of Russell J's decision to order the immediate return of M to his mother's care, Kitchin LJ said this at paragraph 44 of his judgment :-
"The court was concerned with M's welfare in circumstances where the father had taken unilateral action to separate him from his mother by deception in the context of a breakdown in their relationship. The judge concluded that M's best interests required his immediate return to his mother's care. 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. But, having satisfied herself that M was habitually resident in this jurisdiction and the father having given an undertaking not to pursue the Singaporean proceedings concerning M, it seems to me the judge was perfectly entitled to conclude that M's immediate welfare needs would be best served by restoring him forthwith to his mother's care. Moreover, the judge considered it important that the father should not be permitted to frustrate her order by returning to Singapore as he had made it abundantly clear it was his intention to do so. At this stage she had every reason to believe that the father would comply with her order and that the grandparents would respect any request by their son to return M to this jurisdiction and the care of his parents. In these circumstances, I consider that the judge was entitled to make the order that she did."
- Following the dismissal of the father's appeal, the matter was listed for further directions before Roderic Wood J on 28 July 2014. By that stage, no proceedings had been taken in Singapore by the father to enforce the return order made by Russell J. His case appeared to be that he was powerless to persuade his own parents to allow him to remove the child from their care. They had on 15 April 2014 initiated their own application concerning M in the Singapore courts. The judge was shown a letter at the hearing from the Fortis Law Corporation indicating that there was to be a further hearing in Singapore some four days hence. The nature of that hearing remained unclear. The judge made a raft of orders which provided, amongst other matters, for judicial liaison between the High Court of the Republic of Singapore and this Court through the Office of the Head of International Family Justice for England. A copy of his order was to be provided to Miss Penelope Langdon, legal secretary for that Office, together with a respectful request of the judicial, administrative and law enforcement authorities in Singapore to stay the grandparents' proceedings on the basis of the prior determination of the English court that M was at all material times habitually resident in this jurisdiction. The co-operation of those authorities was also requested in terms of facilitating his return to this jurisdiction.
- Amongst the orders made in these proceedings was an order which required the father insofar as he was lawfully able to do so to issue an application in the Singapore court seeking the immediate return of the child. The parties were also given permission to instruct a single joint expert in the laws of Singapore to prepare a report in relation to the father's ability to issue and/or take part in any proceedings in Singapore to secure the return of the child to England. Provisions were made for contact between M and the mother by Skype and telephone. Specifically, as the judgment of Kitchin LJ made plain, any consideration at a later stage of more general welfare issues or issues of forum were left open for further argument.
(ii) Events over the Summer 2014 and the mother's attempt to secure M's return to England
- On 9 July 2014, the Singapore court had issued an interim decree of divorce in respect of the petition which the father had issued without notice to the mother in January of that year (she was not served with that petition until March 2014). Some three weeks after the hearing before Roderic Wood J and in circumstances where M had not been returned to her care, the mother decided to take matters into her own hands. She had been put in touch with an organisation called CARI (Child Abduction Recovery International). That organisation was run by a former mercenary called Adam Whittington. He had agreed to assist the mother in her attempt to secure her son's return to her care. On 18 August 2014, she – with Mr Whittington and another of his operatives - entered Singapore illegally. The normal immigration checkpoints were avoided as a result of their arrival by private catamaran at the jetty of a well-known local hotel. Once in Singapore, a successful attempt was made to remove M from the care of his grandparents whilst they were leaving their home. The mother's evidence is that M ran to her joyfully when they were reunited and that they later spent time together in a local hotel bedroom. The purported "snatch" (as it is characterised by counsel for the father) appears to have involved an unedifying scuffle during the course of which the grandparents, or at least one of them, and M received some slight injuries for which they were subsequently seen at a local hospital. The police retrieved M from his mother's care in fairly short order and she was arrested. On 8 September 2014 she pleaded guilty to several immigration offences (including illegal entry) and was sentenced to 10 weeks imprisonment.
- Against that background, the matter came before me on 19 August 2014 when I heard Mr Armstrong without notice to the other parties. He explained to me that the father had been informed by his parents that M had been removed from their care and that his present whereabouts were then unknown albeit that the attempted abduction and assault had been reported to the police in Singapore.
- I directed the mother to attend court at 2pm that afternoon with her English solicitors who, in the absence of the mother, were to explain what they knew about her current whereabouts and travel plans and their last contact with her.
- At 2pm, Mr Richard Budworth of counsel appeared before me having been instructed to attend on behalf of the mother and her solicitors. There was little known at that stage about these recent incidents and the mother's solicitors had been unable to contact her having been made aware of the order I made that morning. That was a Tuesday. The matter came back before me the following Friday, 22 August 2014. On that occasion I was informed about the recent events in Singapore and was told of the mother's arrest and the immigration offences with which she had been charged. She had been unable to appear as I had directed because she was incarcerated in Singapore. Her solicitors were without instructions and had been unable to speak to her. I directed the filing of statements before the next hearing which I listed for 28 August. As with all other orders which were to be made by the English court subsequently, a copy of my order was sent to Ms Langdon for onward transmission to the Singapore court.
- On 27 August 2014, Ryder LJ granted the father's application for permission to appeal that part of Roderic Wood J's order which had required him to issue proceedings for the return of M in the Singapore court. Russell J had made a passport order which prevented him from travelling to Singapore pending the child's return to this jurisdiction. He was at that stage a litigant in person. His lordship described the aim of the process as 'laudable' but nevertheless noted that there was then no report from the single joint expert as to what steps could be taken in Singapore and on the avenues open to the father to secure M's return. In these circumstances Ryder LJ took the view that there was a real prospect of success in relation to his proposed appeal against the orders requiring him to litigate in Singapore, 'laudable' though the aim of the process might be.
- The report from the single joint expert, Mr Malathi Das, was available when the matter came back before me on 28 August 2014. The mother was represented on that occasion by counsel, as was the father. She no longer sought to rely on the order requiring the father to litigate in Singapore and I discharged it along with the penal notice attached to it. By that stage, it was evident from the report that it was open to either of these parties to take steps in Singapore to seek the return of M to this jurisdiction. The mother was then in custody in Singapore and was not due to be produced in court locally until 4 September 2014. She was for all practical purposes incommunicado and neither counsel nor her solicitors had been able to speak to her since the events in Singapore of 19 August. I listed a further urgent hearing in order to consider the further conduct of the English wardship proceedings and the application which was then before the court for the return of the father's passport. I directed the parties to file statements and gave permission for my order to be served on the British Consulate in Singapore and on the Mongolian Embassy in the Republic.
- On 18 September 2014, the father issued an application seeking both the discharge of the English wardship proceedings and the release of his passport so as to enable him to return to Singapore and be reunited with M. That hearing was listed before Holman J on 29 September 2014. The mother was due to be released from prison on 7 October. A further hearing concerning M had been listed in the Singapore court on 2 October. The issue of forum conveniens was live by that stage since, in addition to the arrangements for M and his status as a ward of the English court, divorce and financial proceedings had been ongoing by then in both jurisdictions. Whilst M had issued a divorce petition in London together with financial remedy proceedings, these were overtaken by the grant of a decree on 9th July 2014 in Singapore on F's petition. A hearing was listed on 31 October 2014 before a judge of this Division either for the substantive resolution of the jurisdiction issues if there was sufficient time or for directions if there was not.
- On 31 October 2014, the matter came before Newton J. The mother had returned to England in October 2014 following her release from custody in Singapore. Both parties were represented by counsel. Mr Armstrong appeared for the father, as he did before me on 14 and 15 May 2015. Mr Edward Devereux did not appear for the mother on that occasion. As has subsequently transpired, it does not appear to have been an entirely successful hearing in terms of the judge's approach to satisfying himself as to the issues with which he was dealing. The order which he made at the conclusion of that hearing contained declarations that M was habitually resident in England and Wales at all material times and that the courts of England and Wales had jurisdiction in relation to all issues of parental responsibility and welfare. The court in Singapore was requested to stay all proceedings relating to the child and to assist in securing M's immediate return to this jurisdiction. A penal notice addressed to the father was attached to an order requiring him to return M to this jurisdiction by 4pm on 14 November 2014. His application for the return of his passport was refused until M had been safely returned. He was directed to file a statement setting out what steps he had taken in Singapore to return the child.
- The father appealed that order. Permission was granted on 26 January 2015. That appeal was the subject of the judgment delivered by McFarlane LJ on 13 March 2015 to which I have already referred in paragraph 13 of my judgment. As a result, the order made by Newton J was set aside and the wardship proceedings were remitted to the Family Division for rehearing and for a determination of the following issues :-
(i) the father's application for a stay of the English wardship proceedings inter alia on the grounds that the forum conveniens is not England but Singapore;
(ii) the child's welfare;
(iii) which orders (if any) consequent on the court's determination as to forum and welfare should thereafter be made in the wardship proceedings;
(iv) the father's application for the discharge of the passport order and return of his passport.
- On 26 March 2015 the matter came before Mostyn J for directions. The father indicated that he would issue a formal application for a stay of the English proceedings and, on that basis, a timetable was put in place allowing each of these parents to file evidence in relation to their case on forum conveniens with skeleton arguments to be filed in advance of the two day hearing listed on 14 and 15 May 2015. That hearing was limited to issues of stay and passport orders and accordingly any issues relating to M's welfare were to be considered in outline only but determined thereafter in detail at a subsequent hearing by the court either in Singapore or in London. The mother was required to put before the court evidence of her current immigration status in this jurisdiction and her involvement with CARI (in relation to the attempted abduction of M in Singapore); the father was to provide information about the likely timetable for the progression and conclusion of the criminal proceedings ongoing in Southwark Crown Court in this jurisdiction.
- That was where matters stood when the hearing before me began in May.
- Within the material in the court bundles were the sworn statements which had been filed by the parties in the course of the English wardship proceedings. I was also provided with a bundle of material which had been used in the Singapore proceedings. To bring the chronology up to date in relation to those proceedings, on 30 January 2015, District Judge Tan Peck sitting in the Family Justice Courts of the Republic of Singapore made an order after hearing from the father's counsel but in the mother's absence. His order was made in the context of the financial aspects of the Singaporean decree of divorce. Very simply, he ordered that each party should retain all assets held in their respective names and dismissed any further claims arising out of the marriage for the division of matrimonial assets. The father was directed to pay to the mother a single lump sum of SPD2,400 (just over £1,100) in respect of 'maintenance'. This sum was expressed to be 'without prejudice to any application by either party for maintenance of the child after the conclusion of the proceedings in the United Kingdom in relation to the child'. Specifically, the first order made by the District Judge on that occasion and numbered 'a' was :
'No order on custody care and control of the child [M]. This is without prejudice to any application by either party for custody care and control and access after the conclusion of the proceedings in the United Kingdom in relation to the child.'
- I have already referred to the fact that the court in Singapore has been kept fully informed of all the orders made to date in the English wardship proceedings, as the father himself accepts. This has been achieved through the good offices of the Office of the Head of International Family Justice for England and Wales.
- The father is currently appealing that aspect of the order insofar as it relates to orders for 'custody care and control' of M. His clear case before me is that the English proceedings should be discharged and all future decisions about M taken in Singapore.
- I have read with care all the evidence which was put before me in the three court bundles. Since reserving my judgment at the conclusion of the hearing for the reasons given above, I have had the opportunity to re-read all the parties' statements again, including the material filed by the paternal grandparents in the Singapore proceedings. I did not hear oral evidence from the mother and father (as is conventional in forum cases) although I was able to observe each of them over the course of two days. I had the benefit of careful and detailed written skeleton arguments from both counsel who had prepared for me a bundle of relevant authorities. Over the course of argument, I heard detailed oral submissions on behalf of both parents. Since the conclusion of the hearing last month, I have also been provided with various additional documents concerning the mother's immigration status in Singapore.
C. The Law
- Before turning to the respective cases advanced by each of the parties, I propose to set out the law; it is an area where the principles are clear and well established.
- Following the judgment of Russell J in March 2014 and the Court of Appeal's confirmation of her findings in July 2014, jurisdiction in relation to M has been clearly established in this jurisdiction as of right. He is, and remains, a ward of this court.
- The principles and structure of the forum conveniens issue now advanced by the father in the context of his present application to stay the English proceedings were considered by McFarlane LJ in the present case which was reported as In the Matter of K (A Child) at  EWCA Civ 352. At paragraphs 26 to 29, his lordship said this :-
'26. In setting the scene, I should 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 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 the 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.'
The Spiliada test : forum conveniens
- The principles to be collected from the decision of the House of Lords in the Spiliada case are set out in the leading judgment delivered by Lord Goff of Chieveley at pages 476C to 478E. In six sub-paragraphs numbered (a) to (f), he explained the elements of the test to be applied in a forum conveniens case in this way (and I summarise, as well as including direct quotations from the judgment as and where necessary) :-
(a) 'The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e in which the case may be tried more suitably for the interests of all the parties and the ends of justice.'
(b) In general, the burden of proof rests on the person who is seeking a stay of the English proceedings and he must persuade the court to exercise its discretion to grant a stay. It is also important to remember that each party will invariably seek to establish the existence of certain facts or matters which will assist him/her in persuading the court to exercise its discretion in a particular way. In respect of any of those facts or matters, the evidential burden rests on the shoulders of the party who makes the assertion of the existence of those facts or matters. If the court is satisfied that there is another forum which is prima facie the appropriate forum for the resolution of the issues before it, the burden then shifts to the party seeking to anchor the proceedings in the English courts to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country. [my emphasis]
(c) In answering the question, 'Is there some other forum which is the appropriate forum for the trial or final hearing of the matters in issue ?', it is relevant for the court to consider whether one party having founded jurisdiction here as of right ex hypothesi gives him or her an advantage in the sense that 'a court will not lightly disturb jurisdiction so established'. (per Lord Goff at page 477 E to F)
'In my opinion, the burden resting on the defendant is 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 paid to the fact that jurisdiction has been founded in England as of right …..'.
(d) Since the question is whether there exists some other forum which is clearly more appropriate for (here) the discretionary determination of the welfare issues in this case, the court looks, first, to see what factors point in the direction of another forum. These have been referred to in previous cases as factors which indicate that 'justice can be done in the other forum at "substantially less inconvenience or expense"'. Lord Goff preferred the adoption of a test which involved looking to the 'natural forum' as being 'that with which the action had the most real and substantial connection'. Thus, the 'connecting factors' are likely to include not only those which affect convenience or expense (such as the availability of witnesses) but other factors such as the law which governs the relevant issues which the court is being asked to decide, and the places where the parties respectively live or carry on business.
(e) If the court reaches the conclusion at that stage that there is no other forum which is clearly more appropriate for the trial or final hearing of the issues to be decided, it will ordinarily refuse to order a stay because it is difficult to imagine circumstances in which, in such a case, a stay may be granted.
(f) If, however, a court concludes at that stage that there is some other court which prima facie is clearly a more appropriate forum, it will ordinarily grant a stay unless there are special circumstances which requires the continuation of proceedings in the less appropriate jurisdiction and justice requires that a stay should nevertheless not be granted on the facts of a particular case. In considering this aspect of a case, the court will look at the totality of the evidence and all the circumstances of the case including matters which go beyond those taken into account when considering connecting factors with other jurisdictions. 'One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction'. [my emphasis]
- Thus, on the facts of the case before me, the balancing exercise referred to by Lord Goff in sub-paragraph (f) of his test does not come into play unless and until it is established by the father that Singapore is clearly a more appropriate forum for the adjudication of all matters concerning the future arrangements for M. It is plainly a competing jurisdiction. The question which I have to decide it whether or not it is the appropriate forum, as opposed to another competing forum.
- It is important to state at the outset of my deliberations on this issue, as I made clear to all those in court when I started hearing this case, that I do not consider the quality of justice which is likely to be delivered by the judges sitting in the Family Court in Singapore is in any way inferior to the quality of the justice delivered in the English courts. I have been taken to the provisions of the (Singapore) Family Justice Act 2014 and the Family Justice Rules. These bear remarkable similarities to the statutory code embodied in our own Family Procedure Rules 2010 and the principles enshrined in the Children Act 1989. There is provision, for example, for the appointment of a child representative if the court considers it necessary to secure the independent representation of the child's interest: Part 4, Rule 30(4) of the Singapore code. The role of that representative is spelt out in Rule 31(2)(a) to (j) and appears to be more or less on all fours with the obligations and responsibilities imposed in English proceedings on any guardian appointed as the child's litigation friend. There is a clearly defined appellate route to the higher courts and a judge has to certify grounds or reasons for his judgment in much the same way as would an English judge whose decision was the subject of an appeal.
- Equally, I am conscious of, and grateful for, the obvious respect with which the Singapore courts have thus far accorded the decisions of the English court taken to date in these proceedings. Whilst it remains a fact that M has not yet been returned to this jurisdiction, the Singapore court is plainly aware of these concurrent proceedings and the imminent adjudication of this court on matters relating to jurisdiction and forum conveniens. Despite being urged by the father's Singapore lawyers to disregard the findings made by Russell J in the English court in relation to M's habitual residence, I am not aware of any steps which have been taken as yet in those proceedings which are inconsistent with those findings. I know not what may have been decided in the hearing listed for 19 May 2015 on the grandparents' application. All the indications thus far appear to demonstrate that the Singapore court is awaiting the decision of the English court in relation to the forum conveniens issue.
- That the Spiliada test is applicable in the context of English family proceedings has been clear for many years following the decision of the House of Lords in De Dampierre v De Dampierre  1 AC 92. That case involved an application to stay English divorce proceedings between two French nationals resident in London. The husband's application for a stay was made pursuant to section 5(6) of and paragraph 9(1) of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. Lord Templeman and Lord Goff gave judgments which confirmed the application of the Spiliada test in this context. Each went on to say that if a more appropriate forum was clearly established, the loss to one of the parties of a personal or juridical advantage should not deter the court from granting a stay provided that it was satisfied that 'substantial justice' would be done in the other court. In that case, the fact that the wife might secure an award of maintenance from the English court which she would be unlikely to recover in the French courts if she were to be found responsible for the breakdown of the marriage did not deter their lordships from remitting the case to France.
- In this case, the father has to demonstrate that Singapore is the natural forum as being that with which these matters had, and have, the most real and substantial connection. It is not sufficient for him merely to show that the court in Singapore is an equally competent forum. In the context of family proceedings which involved a divorce suit between an American wife and a British husband, the Court of Appeal has said that the court is entitled to take into account factors over and above those which would be considered in the context of a strictly commercial or contractual relationship between parties: see Butler v Butler (Nos 1 and 2)  2 FLR 311. In that case Thorpe LJ expressed a clear view that the balance of fairness as between the parties to the marriage should not be construed restrictively.
'The origins of the parties, the history of their relationship, their post-separation conduct, the consequences of granting or refusing a stay, as well as considerations affecting the preparation and despatch of the litigation, are relevant to the exercise of the statutory discretion.' : see page 316.
- Mr Armstrong on behalf of the father sought to persuade me that I should look to European Convention jurisprudence for assistance in determining the test to be applied to a forum conveniens case which involved deeply enmeshed welfare interests of a child. He took me to Re J (A Child)(Return to Foreign Jurisdiction: Convention Rights)  UKHL 40,  2 FLR 791. As McFarlane LJ made plain in his analysis of the structural framework of the issues which I would be determining in the context of the appropriate forum for a consideration of M's future arrangements, welfare is one aspect of the decision-making process, but it is neither the dominant nor the paramount consideration. Whilst Singapore has been a signatory to the 1980 Hague Convention on the Civil Aspects of Internal Child Abduction since January 2012, it is not yet a full member and, in any event, I find little assistance in the European jurisprudence which takes me beyond the plain and simple steps of the Spiliada test. That is the test I have to apply in this case. Indeed, I remind myself what Lord Templeman said in the Spiliada case at page 465 F to G :
'I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere.'
- More recently, and in the context of matrimonial proceedings involving the dissolution of marriage, these well-established Spiliada principles have been applied and adopted in a case decided by Lucy Theis QC sitting (as she then was) as a Deputy High Court Judge : see JKN v JCN (Divorce: Forum)  EWHC 843 (Fam)  1 FLR 826, a decision which was approved by Bodey J in AB v CB  EWHC 3841 (Fam).
- In JKN v JCN, the court considered the Spiliada test. In paragraph 63 of her judgment, Ms Theis QC (or Theis J as she has become) reminded herself that in Spiliada, the House of Lords had held that the statutory test under paragraph 9 and Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 (discretionary stays in matrimonial proceedings) was to be approached on the same basis as the common law test as explained in Spiliada.
- Thus it is to the parties competing submissions that I now turn in my consideration and application of that test to the facts of this case.
D. The parties' arguments in relation to forum conveniens and the merits of the stay of the English proceedings sought by the father
(i) The father's case
- As Mr Armstrong conceded on behalf of the father, he is bound by the findings made by Russell J in relation to M's habitual residence in this jurisdiction and by her assessment of the father's actions in pursuing a deliberate course of conduct which was designed to separate M from his mother's care. The status quo ante prior to M's retention in Singapore without her agreement in January 2014 was that she had at all times been his primary carer. However, Mr Armstrong contends that these findings do not preclude a more holistic approach to the case on the basis of everything I now know about it.
Connection with the United Kingdom
- In his statement dated 17 April 2015, the father points to the following facts and matters which he says should lead me to the conclusion that the Singapore court is clearly a more appropriate forum for further decisions in relation to M's future. He reminds me that, at the heart of this case, are his parents who are of Singaporean / Mongolian heritage. He says that they met and married in Singapore and have no direct connection with the United Kingdom. Whilst they were originally living in London temporarily for limited work purposes, their visas expired in July 2014. The father is now prevented from leaving London because of his present bail conditions, but he points to the fact that the mother has, at best, a limited right to remain here for the purposes of her current studies.
- The father further relies upon the fact that the Singapore court is a court of competent jurisdiction which is seized of proceedings in relation to both divorce; related financial matters; and his own parents' application in relation to M. In Singapore, there is likely to be a fair and just resolution of future welfare issues concerning M and any proceedings in that jurisdiction are likely to be conducted at significantly less expense than the future cost of ongoing litigation in this jurisdiction. He points to the fact that witnesses from whom evidence is likely to be required are living and working in Singapore and, importantly, that any psychological or other evaluations which may be required in relation to M can more conveniently be carried out in that jurisdiction.
Likelihood of his parents participating in any ongoing English proceedings
- Significantly, he points to the fact that the current status quo is that M is living in the full-time care of the paternal grandparents, and has been for the last 18 months. They are elderly (his mother is 66 and his father is 68 years old). As permanent residents of Singapore, they would find it difficult and inconvenient to have to travel to London to conduct proceedings in relation to their grandson. In addition to the convenience factor, he tells me that he does not believe that they would wish to attend any court hearing in London even for the limited purposes of giving evidence in any future welfare enquiry conducted in this jurisdiction. He says that M is being well looked after in their condominium home with access to medical care for his congenital lung condition. He attends a local nursery school for three hours each weekday morning. In this context, I have been provided with a report from the Kinderland nursery dated 15 April 2015 which describes M as 'a happy boy who displays a positive disposition when he comes to school' and which tells me that he is 'well adjusted in his school environment and routine'. I have also seen a brief report from the hospital to which M was taken following the mother's attempt to remove him from his grandparents' care in August 2014. That confirms his admission as having resulted from a 'social' rather than a medical problem. He was admitted on 20 August 2014 and discharged 48 hours later into the care of the paternal grandparents in consultation with social workers, the police and with the consent of the local Attorney General's office.
- The report which I have from the single joint expert, Mr Das, suggests that the interim order which was made in Singapore authorising the paternal grandparents to care for M whilst proceedings in this jurisdiction were pending is likely to have been made on a without notice basis (see paragraph 48) [2/B:293]. Certainly there is nothing to suggest that the court heard submissions from either the mother or the father on that occasion. As Mr Das acknowledges, the order is therefore unlikely to have been made on the merits. His view (paragraph 51) is that it is unlikely that the order will be reconfirmed without representations from both the mother and the father.
The father's future role in M's care in the event that he is at liberty to return to Singapore
- The father tells me that his own parents speak English to M but they are beginning to teach him some words of Mandarin. His case for the longer term is that, subject to the outcome of the pending criminal charges against him, he wishes to return to Singapore and take up care for M either alone or jointly with his parents. On the basis that he would in all likelihood be sharing their home, M's care is likely to be undertaken by him and the extended family. In paragraph 38 of his statement, the father says this :
'Were I able to return to Singapore, I would consider whether I would look after [M] full time or whether I would be looking after [M] some days and seek employment doing a similar job to the job I previously undertook with hours which were as child friendly as possible. However I suspect that I will have some difficulty in finding work as a result of these proceedings and the gap in my experience over the last 18 months and the proceedings may mean that I have to start again at a lower level.' [2/B496-497]
- He confirms that, as at 17 April this year when he filed his statement, the mother had had no contact with M whatsoever since August 2014, a period of some 8 months. He makes no proposals for any future contact between mother and son although he tells me that he continues to have indirect contact with M via telephone calls, Skype and Facetime every other day.
- He has renewed his request to his parents and asked them if they are willing to return M to this jurisdiction but his father will not even speak about that possibility and 'he regards the issue as closed' (paragraph 28 at [2/B:493]). This he points to as one reason why enforcement of any English order for M's return might present difficulties.
The mother's ability to enter Singapore in order to participate in future proceedings in that jurisdiction
- In relation to the mother's ability to enter Singapore and participate in any future court proceedings in that jurisdiction he states that, as a Mongolian citizen, she is entitled to enter Singapore and remain for periods of up to one month [2/B:501]. In relation to her ability to remain in the United Kingdom beyond October 2016 (when her current student visa expires), he says that he has not taken any steps to apply for a visa for her following the breakdown of the marriage in January 2014. He points to various deficiencies in her 2014 application for her student visa which might now cast doubt upon its ongoing validity. At the time of preparing his written evidence, he was unaware of developments in relation to her ability to enter Singapore following her deportation at the end of her prison sentence in October 2014. I shall return to that aspect of the evidence in due course. He was also unaware of the representations which the mother made in her original application form submitted to the UK immigration authorities. I have been provided with a copy of that application form which was exhibited to her statement dated 15 May 2015. That sets out details of the representations which she made, including those in relation to her financial circumstances and the identity of her sponsor in this country. I permitted details of the identity of her sponsor to be redacted from the evidence in the court bundle after hearing submissions about M's concerns as to steps which F might take to destabilise her position and/or immigration status pending further enquiries.
- Quite apart from her ability to re-enter Singapore and participate in proceedings in that jurisdiction, the father relies on the fact that the mother had previously indicated that she would be willing to engage in proceedings in Singapore. He tells me that when she was produced before local Singapore magistrates following her arrest in August 2014, it was part of the mitigation she placed before the court that she regretted what she had done and would be willing to engage in child-focused proceedings in that jurisdiction in the future. Further, she was produced by the prison authorities for the purposes of two family hearings concerning M in September and October 2014 which had been listed during the period of her incarceration and stated on each occasion that she intended to instruct lawyers in Singapore. Once she had been released and was able to return to the former matrimonial home in London, she reneged on her willingness to participate in proceedings in Singapore. In these circumstances, he says, she must be treated as having made a deliberate and conscious decision to press ahead in England. However, that decision does not and should not preclude her from advancing any arguments she wishes to put before the Singapore court in the context of his parents' ongoing proceedings and/or in the context of any application she might wish to pursue in that jurisdiction.
Future legal costs
- As to the costs of further proceedings in Singapore, the father contends that these will be many times lower than the cost of ongoing litigation in London. He has apparently been advised that his future costs of all further hearings in Singapore will be less than £10,000 with the mother's costs likely to be less than £15,000, although the Singapore court is used to conducting hearings at which parties appear as litigants in person. He points to the fact that the single joint expert, Mr Das, has estimated the costs as being in the region of SGD 8,000 to SGD 10,000 (the equivalent of c. £4,000 to £5,000). By comparison, the mother's costs of the hearing before Russell J in relation to habitual residence were in excess of £50,000, a fraction of the global costs liability of £144,900 to which reference is made in her Form in the English financial proceedings. Pausing there, it is right to record that my view, given the complexity of these proceedings, is that it would be very difficult for any expert to express a definitive or reliable view in relation to future legal costs in Singapore given the absence of any indication as to the issues and evidence which will need to be considered. As is clear from his report, Mr Das cannot at this stage identify the time frame for any future litigation. He says at paragraph 42 of his report that it "could range from 8 weeks to several months" [2/B:292]. The estimate which he has given in paragraph 52 of his report is restricted to the probable cost of a single application to the Singapore court, the filing of one affidavit from each party, the preparation of written submissions and attendance at a single contested hearing. Experience to date shows that this is a complex piece of international litigation which has already entailed numerous hearings before several different judges both in the both in the Family Division of the High Court and at appellate level. It seems to me to be an over-optimistic simplification to assume that this case could be disposed of in one further hearing in Singapore.
- Pausing there, I note that, with effect from July 2014, the mother has been publicly funded for the purposes of the English wardship proceedings whereas the father's public funding, insofar as it is relevant, only applies to the pending criminal proceedings. He is thus reliant upon the generosity of his family in Singapore and his friends to fund ongoing litigation relating to M in this jurisdiction.
Availability of witnesses and documents
- The father's case is that all relevant social workers and welfare officers who have been or are likely to be involved in decisions concerning M are resident in Singapore. In the event of any enforcement proceedings of the existing English orders for the return of M to this jurisdiction, these will inevitably involve an application to the local courts in Singapore. He says at paragraphs 131 and 132 of his statement:
'This will involve consideration of [M's] circumstances in Singapore and fundamentally whether it is right, in the child's interests to be removed from the grandparents where he has spent so much of his life. …. This in turn will involve evidence from welfare officers and social workers in Singapore.' [2/B:518]
- He further points to the fact that this child who is not yet 3 years old may need to be the subject of a psychological report before a determination can be reached as to whether or not he should be removed from his grandparents' care. I have to say that I should be extremely surprised if any court (either in England or in Singapore) were to consider it necessary to instruct the preparation of an in depth psychological evaluation of this little boy, but I accept that any welfare enquiry which takes place in future may well require assistance from local child care professionals resident in Singapore.
- The father points, too, to the fact that any fact finding enquiry into the circumstances of the mother's attempt to repatriate M in the summer of 2014 may involve a scrutiny of documents which are currently only available in Singapore. He states that no information or documents are likely to be forthcoming without an order first being obtained for their release from the Singapore court. Whilst I accept that compliance with any English orders for disclosure of information or documents might need to be the subject of mirror orders made locally in Singapore, there is no evidence before me that competent welfare or prosecuting authorities in the Republic will be 'highly unlikely' to comply with an English order, as the father contends [2/B:520].
- By way of a summary of all the factors which the father invites me to take into account in my determination of the forum conveniens issue, he has listed in paragraph 141 of his substantive statement no fewer than 46 points which he says militate in favour of the proceedings continuing in Singapore. Other than the factors which I have identified separately in the preceding paragraphs of my judgment, many of these points consist of narrative evidence, some of which is inconsistent with the findings already made by Russell J. Many others go to the substance of the specific welfare enquiry which will flow from any decision I make in relation to the forum conveniens issue. Whilst I accept that there is an extant order made by the Singapore court on 23 January 2014 which presently precludes the mother from removing M from the interim care of the paternal grandparents (point xiii), this order predated the significant raft of orders made in the subsequent English wardship proceedings. There is no evidence before me that the Singapore court will refuse to recognise any decision made by the English court in relation to future jurisdiction in this case. Indeed, as I have already remarked, all the indications to date are that the Singapore court is well aware of steps taken in these English wardship proceedings and is awaiting the outcome of this hearing before deciding on any substantive longer term relief in relation to M and his future arrangements.
- Significantly in my view, the father fails to make any substantive comment in his written statement as to the relevance of any future prison sentence to which he might be subject following his trial in the pending criminal proceedings in this jurisdiction. It seems to me that I cannot place any significant weight on the likelihood of any conviction since he is fully entitled to the benefit of the fundamental presumption of innocence which he is currently entitled to assert. However, it must follow that, in the event of a conviction and without the Crown Court permitting him to serve the whole period of any sentence of imprisonment imposed in a Singapore prison, the prospects of the father participating in any meaningful way in ongoing family proceedings in Singapore must be open to doubt whilst he is incarcerated in England. As to his participation in those proceedings other than through his lawyers between now and the conclusion of the criminal trial, for present purposes he has abandoned his application for the discharge of the passport order which currently prevents him from leaving this jurisdiction. That had been one of the matters which I was going to be asked to consider. Because his current bail conditions impose strict residence and curfew requirements upon him and conditions of electronic tagging, he is not free to travel and/or leave the jurisdiction in any event [2/B:500].
(ii) The mother's case
- The mother has filed a statement in relation to issues of forum conveniens. It is dated 10 May 2015. In terms of the general background to this case and the family's connections to England, she confirms that both of M's parents have lived in London (where there is – or has been - a family home, as well as an investment property since 2011). There is a dispute as to the beneficial ownership of the investment property. Although held in F's sole name, the proceeds of sale were sent by him to Singapore on the basis that his parents were the beneficial owners. By choice the father took up employment with a well-known international bank in 2010. M was born here and, until his retention in Singapore in the circumstances found by Russell J, this had been his only home. He had lived throughout in a home shared by his two parents in circumstances where the mother had been his primary carer. It had always been the parties' intention whilst united as a couple to raise M in England and to provide him with an English education. The mother is still living in the former matrimonial home and, if M is returned to her care at the conclusion of any welfare enquiry, she intends and wishes to continue living here to care for him. Her current immigration status is secure until October 2016 when her course of study ends although she hopes thereafter to secure employment in London within the financial sector with which she is familiar.
- She has been granted legal aid in respect of her representation in these proceedings and has been fortunate enough to secure the services of a firm of London solicitors (Bindmans LLP) which specialises in this type of international litigation. The mother is aware that she may be liable to repay those costs in due course in the event that she secures a financial award in the context of her own divorce proceedings in this jurisdiction. Even if the English divorce proceedings do not move forward, a decree having now been made in relation to the father's Singapore divorce proceedings, there is the possibility of an application for relief following a foreign divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984.
- In contrast, she points to the fact that her connection with Singapore is minimal. Whilst she lived and studied in the Republic for about a year between 2010 and 2011 and was married to the father in that jurisdiction, her home for the last four years has been London. Here she has friends and a support network and access to professional psychological support to help her cope with the loss of M and the stress of this litigation. In Singapore, she has no support whatsoever. She has no friends or relatives who might be able to accommodate her. Her parents-in-law, as their own statements demonstrate, are entirely antipathetic not only to her but to any future relationship she might have with M as his mother. She says that the many criticisms they make of her abilities as a mother are entirely baseless and wholly untrue and arise in the context of their wish to support their son in circumstances where their marriage has now ended. She points to the circumstances in which she was deceived as to the father's true intentions in December 2014 / January 2015 when she flew with him to Singapore to collect M and return him to his home in London. She says that she knows little of the proceedings which are ongoing in Singapore instigated at the behest of the grandparents but clearly supported (through his lawyer) by the father. She tells me that she has been distraught throughout the period of her separation from M. At paragraph [2/B:563] she says this :
'When I went to Singapore in August 2014 to collect [M] I noticed that he looked undernourished and underweight. He had a fever and was coughing and knowing that he has a congenital lung defect I am naturally anxious for his welfare, particularly when he is so far away from me. I blame myself for not being there for him. I want to care for him. He's my son.'
- Of the attempt to retrieve M in the summer of last year, she has set out the circumstances in which she came to be involved with CARI, which she believed to be a legitimate organisation. She says that her physical and mental health was suffering as a direct result of her separation from M.
'I was finding it hard to cope day to day. I can not [sic] begin to explain how I have felt during this time. I went to my GP almost daily, I had nightmares. I was taking medication. I was depressed and I wasn't thinking straight at this time. I couldn't sleep. I was desperately missing my son and not being able to nurture, love, play and laugh with him, teach, touch even smell him; to watch him develop and learn.' [2/B:564]
- She describes her attempt to secure M's return to her care as an act 'of utter desperation and despair'.
- As to her present circumstances in London, she tells me that the matrimonial home is worth some £1.2 million but is subject to a mortgage of £657,000 which is currently in arrears. As to the London investment property which the father sold, there was from that sale an equity of some £350,000 which was transferred by the father to his parents in Singapore without prior reference to her. She denies that she owns any property in Mongolia (as the father has asserted) and has no other assets which she might realise to fund representation in Singapore. She has significant liabilities in this jurisdiction which she has incurred as a result of financial support she has received from family and friends. Her current account is in overdraft and she has outstanding costs which remain owing to her former solicitors from the period when she was privately funding these wardship proceedings.
- As I have said, it is an agreed fact in this case that there is no possibility of any public funding being made available to either the father or the mother in Singapore. They must either fund their own representation in that jurisdiction or run the case as individual litigants in person. The father is currently represented by an experienced lawyer who has entered a number of appearances on his behalf (either personally or by means of written applications) both in the context of the father's own divorce proceedings and (I believe) in his parents' proceedings in relation to M. I have read a document entitled 'Plaintiff's Written Submission' dated 1 December 2014. This was put before the Singapore court in the context of the father's divorce proceedings but the content of the document makes it perfectly plain that the father was then proposing that he should have sole custody of M with only supervised access to the mother. In that document which was signed by the father's lawyer, the mother is described as 'a negligent and irresponsible mother who is unable and unwilling to care for the child' (page 89 of 338 in the bundle relating to the Singapore proceedings). The dismissal of all and any financial claims which the mother might have as the father's wife to the former matrimonial home is justified by an assertion that she made 'zero direct financial contributions' (page 105 of 338). The father's case is then developed on the basis that, quite apart from the absence of any financial contribution to the marriage, she made no indirect non-financial contributions (page 110 of 338) despite the finding of Russell J in the wardship proceedings some 8½ months earlier that she had been M's primary carer since his birth.
- In supplementary submissions filed with the Singapore court on 26 January 2015, the same lawyer described Russell J's findings and her decision in relation to M's habitual residence in England and Wales as 'perverse' (page 3 of 338).
- Of fundamental concern to the mother is the fact that she believes she will be unable to re-enter Singapore in order to engage with proceedings in that jurisdiction. She states that she was informed by immigration police in October 2014 when she was deported after serving her prison sentence that she was banned from returning. At the time she made her statement on 10 May 2015, she was actively pursuing enquiries about her future immigration status in Singapore. What she had at that time was an email from the Mongolian Embassy in Singapore. That had been written by the Mongolian Chargé d'Affaires, Ms Ganbold Uyanga, on 13 May 2015. The email records the assistance which the Embassy had attempted to provide to the mother on a pro bono basis whilst she was in Singapore and subject to criminal charges following her attempt to retrieve M from his grandparents' care. The Embassy staff had been unsuccessful in that attempt because of issues of timing although it is not entirely clear from the email whether the pro bono assistance which was being sought related to the immigration charges or the prospects of making an application relating to M in the local family courts. However, the email went on to record Ms Uyanga's understanding that the mother would not be allowed to re-enter Singapore during her lifetime because of her previous conviction for immigration offences. She could request permission if she wrote to the Immigration and Checkpoints Authority (ICA) but, without that approval, she would be left without a means of entering.
- The mother provides some clarification in relation to those attempts to secure legal representation on her behalf. In paragraph 20 of the statement she made on 28 October 2014, she states :
'…. it is completely untrue that it was my own wish to attend the hearing of the Family Court in Singapore, I did not want to attend the said hearing but I was produced in handcuffs and forced to attend. The Judge explained that the hearing was in relation to my son and advised me to seek legal representation. I was assisted by Mongolian Embassy [sic] in Singapore who attempted to find a pro-bono representation for me both in the criminal and family proceedings. However these enquiries came to nothing and proved futile. I have no funds to pay for lawyers in Singapore.' [2/B:430]
- Following the conclusion of the hearing before me on 15 May 2015, I was provided with a letter from the ICA dated 23 May 2015. It was addressed to Bindmans LLP, the mother's solicitors who had written to enquire what their client's status would be. The ICA letter, written by a senior official in the department, records the fact that a visitor's entry into Singapore is neither a right nor automatic and each application for entry is considered on its own merits. The mother would need to seek permission from the Controller of Immigration before any determination was made as to whether or not she would be allowed re-entry. For these purposes, she would require a local sponsor who was resident in Singapore. That local sponsor must be an individual Singapore citizen or a permanent adult Singapore resident or Singapore registered company. Any such application would be processed on receipt of the application form and supporting documents and the local sponsor would be informed subsequently by post of the outcome.
- In the email dated 1 June 2015 which accompanied that ICA document, the mother's solicitors referred to the relevant statutory material which had been explored to some extent during the course of the hearing before me. Their conclusions (which are not evidence) in the light of her previous conviction for immigration offences was that the mother would require either a free pardon or a specific determination by the Controller of Immigration that she was not an undesirable immigrant. Whilst I was told that the father's enquiries were ongoing, I let the parties know through my clerk (as I have indicated) that I was not prepared to delay the handing down of my judgment any longer given the fact that urgent decisions will need to be taken sooner rather than later in respect of M's future in the context of his future relationship with each of his parents from whom he has now been physically separated for many months. On 29 June 2015 as I was about to send to counsel my written judgment, I received a further email from Mr Armstrong in which he clarified his client's position that I should delay handing down my judgment until the position was ascertained. With his email came a further letter to the ICA in Singapore which I am told was sent on or about 23 June 2015. That was a full month after the letter from the ICA dated 23 May 2015 to which I have already referred. It was quite clear, and had been since the conclusion of counsel's closing submissions to me on 15 May 2015, that the obtaining of any further clarification on this point – if it could be secured at all – was urgent. I take the view that it is not in M's interests for me to delay any further the delivery of my judgment. A month has now passed. The conclusions which I have reached are based upon the best available evidence which I have and it is that evidence which has informed my decision, along with all the other factors to which I shall come.
- In terms of the evidence before me in relation to the mother's ability to remain in the United Kingdom after the expiry of her current student's visa, I had in the bundles a letter from the Home Office dated 24 April 2015 [2/D:10]. That letter confirms that the mother had applied for leave to remain on 10 June 2014 and was granted permission to remain as a Tier 4 General Student until 10 October 2016.
E. Discussion : my analysis of the competing submissions advanced on behalf of the father and the mother
- For these purposes, I propose to deal with the generic headings of the submissions advanced on behalf of both parties by reference to the sub-paragraph numbers in the skeleton prepared by Mr Devereux on behalf of the mother. It seems to me that these cover the full range of the competing submissions in relation to forum conveniens to which I have already alluded by reference to Mr Armstrong's submissions on behalf of the father.
(a) M's habitual residence in this jurisdiction
- Both counsel accept that I am bound by the findings of Russell J. On behalf of the father, Mr Armstrong submits that this is only one of a number of factors which I must take into account in a more wide ranging enquiry which includes M's general welfare.
(b) M's continued presence in Singapore – the finding by Russell J that he is only there as a result of a planned deception of the mother by the father which was underhand, devious and cruel and which was designed permanently to separate M from his mother
- Whilst he accepts these findings, Mr Armstrong nevertheless submits that the mother's actions since August 2014 have contributed to delay in resolving these issues and that she must bear her own share of responsibility for those actions.
- What the mother did in terms of her resort to drastic remedies involving 'self-help' to secure M's return could never be condoned by this or any other responsible court. However distressed or frustrated she may have been by M's continuing absence despite orders made in this court requiring his return, her actions last summer were completely unjustifiable. They caused distress to the grandparents, to the father, to the mother herself and, no doubt, to M who must have been bewildered and confused by seeing his mother after many months, only to be taken from her in circumstances to which no 2 year old child should have been exposed. That said, it seems to me that the mother's actions lend some support to her stated desperation to be reunited with her son. If she is in fact a negligent mother who is unconcerned with her son and cares only to exploit any financial advantage she can gain in the divorce proceedings, I ask myself why she would have gone to these lengths to secure M's return to her care. These will all be matters which will need to be considered in the context of the wider welfare enquiry into M's future arrangements whether that enquiry takes place in the English court or in Singapore.
- I find that the current status quo whereby M is living with his grandparents on the basis of the interim arrangements approved by the Singapore court has only been achieved as a result of the father's duplicitous and unilateral actions taken in January 2014. These arrangements have never been sanctioned by his mother who, up to that point, was his primary carer (see the findings of Russell J). It is quite clear that the status quo ante was that M was living in a family home in London and that home was occupied by each of his parents who, together, loved and cared for him. The demands of the father's employment meant that the burden of the day to day care fell on the mother's shoulders but each was involved to an extent in discharging their duties to this child as parents. It is not for me at this stage to venture into the territory of wider welfare considerations but it has been a consistent principle underpinning the jurisprudence of English (and, no doubt, Singaporean) family law over many decades that a child is entitled to be raised by either one or both of his or her biological parents unless there are reasons why that natural state of affairs cannot be sanctioned by the courts.
(c) M has been retained in Singapore in the face of numerous court orders made in this jurisdiction; and (d) the father has, prima facie, flagrantly disregarded orders of this court on numerous occasions
- Mr Armstrong reminds me, quite properly, that the father has attended all the English court hearings to date and has travelled to Manchester for one of those hearings. It has always been his case in this litigation that he has tried to persuade his parents to relinquish their care of M but they (and especially his father) have consistently refused to do so. I cannot make any findings about that as yet since I have no evidence from the grandparents about this issue nor have I heard oral evidence from the father. I accept that once the committal order of Russell J was reversed by the Court of Appeal, the coercive order requiring the father to litigate in Singapore was set aside. However, the order directed to the paternal grandparents remained in full force and effect. That order was made by Roderic Wood J on 28 July 2014 in circumstances where they remained parties to the wardship proceedings. In addition, the order made by Russell J on 30th April 2014 requiring the father to "return or cause the forthwith return of the child…to the jurisdiction of England and Wales, and in any event no later than 6pm on 16th May 2014" remained undisturbed. Technically speaking, it is still extant.
(e) to (n) : the presence of both parents in this jurisdiction; the obligation of the father to remain at least until the conclusion of his criminal trial at the end of this year; the likelihood of the mother being able to re-enter Singapore to participate in the Singapore proceedings contrasted with the father's ability to remain here lawfully (in the event of an acquittal) or (by means of compulsion) as a result of a sentence of imprisonment; the mother's lack of financial or practical support in Singapore and her inability to fund legal representation privately in that jurisdiction;
- I regard it as fundamental to a fair outcome in these proceedings that both the mother and father are able to participate in legal proceedings relating to the future arrangements for their only son. At the moment, there is a significant question mark over the mother's ability to re-enter Singapore. We know that she can make an application for permission to re-enter but that application will inevitably be seen against the background of a previous (and recent) conviction in respect of immigration offences for which she has served a custodial sentence. We spent some time during the course of the hearing exploring the Singapore legislation which governs the position. It is the Immigration Act (Chapter 133)(Revised Edition 2008). Section 8 of that Act relates to "Prohibited Immigrants". Section 8(1) provides that any person who is (i) not a Singapore citizen and (ii) a member of any of the prohibited classes in sub-section (3) or, who, in the opinion of the [Immigration] Controller, is a member of the prohibited classes, is a prohibited immigrant.
- Section 8(3)(d) provides that any person who has (i) been convicted in any country or state of an offence for which a sentence of imprisonment has been passed for any term; and (ii) has not received a free pardon; and (iii) by reason of the circumstances connected with that conviction is deemed by the Controller to be an undesirable immigrant;….or (h) any person whose entry into Singapore is, or at the time of his entry was, unlawful under this Act or any other written law for the time being in force shall be a member of the prohibited classes.
- I have no idea how long a resolution of these matters might take, nor what factors might influence the exercise of any discretion vested in the Immigration Controller. What I do know is that a resolution of the interim and longer term arrangements for M cannot wait. He will be 3 years old very shortly and is currently separated from both his parents and that state of affairs has persisted for almost half of his young life to date. In circumstances where the mother was unable to re-enter Singapore, she would be at a very significant disadvantage (and not simply a juridical disadvantage) in circumstances where she has no independent means to instruct lawyers to appear on her behalf and there is no public funding available to assist in the presentation of her case. One might say in these circumstances her situation would be quite impossible. This dispute has international dimensions and a complex history. In my view, it is no answer for the father to say that, even on the assumption she secures permission to re-enter Singapore, she can appear as a litigant in person and conduct her own defence of the grandparents' proceedings and/or any proceedings he may be advised to bring in that jurisdiction. That his interests are very closely aligned with those of his parents is obvious from the documents in the Singapore proceedings to which I have already referred. Both the father and his parents continue to have the benefit of legal representation on a privately funded basis.
- On what basis is this mother to make her application for permission to re-enter Singapore? The letter dated 23 May 2015 from the ICA in Singapore makes it plain that she will need a local sponsor. She knows no one in that jurisdiction who might help her and she has no corporate sponsor. The father at one stage said that he would be prepared to sponsor her application. Given the findings which have already been made in relation to his animus towards her, I have every sympathy for the mother's rejection of that proposal as a wholly inadequate and insecure foundation for any such application.
- The mother lacks the financial wherewithal to provide for herself even the most basic accommodation in Singapore if she is to litigate in that jurisdiction as a litigant in person. Whilst the point is disputed, I am told, that she was obliged to spend a night sleeping on the streets following her release from custody before she could make arrangements to return (via Mongolia) to London. She has no practical support or back up. She is a student with no regular source of income over and above the modest funds she has earmarked for her living expenses whilst she completes her studies at Birkbeck College. The father, on the other hand, intends to return to his parents' home in Singapore once he is free to leave England should that prove to be where he finds himself in October or November this year. If his trial is adjourned for any reason, it may well be a date much later than that in 2016. He accepts that he has been the beneficiary of financial support from his parents in the past. It appears to be accepted that they have independent financial means and have certainly been able to afford specialist representation in terms of the lawyers they have instructed to progress their own application which is ongoing in the Singapore court. I know that because Mr Armstrong confirmed that to be the case when I asked him during the course of argument how far the grandparents' financial circumstances fell to be considered as a financial resource which was available to the father in the context of these proceedings.
(o) to (u) : there are extant divorce proceedings before the English court; the former matrimonial home is in London and, because of an occupation order, the mother's accommodation in London is relatively settled; both the mother and the father (the critical witnesses for any hearing in relation to M's welfare) are both in London and likely to be here for the immediate and foreseeable future; the English court has the resources to make rapid decisions about M's welfare (cf. no information before the court as to the future progress of the Singapore proceedings or what has happened there since the forum conveniens hearing before the English court); the English court has the superb resource of the CAFCASS High Court Team and the ability to appoint a Guardian for M; documentation is available in London or can be secured
- In my judgment, there is considerable merit in the submission made by Mr Devereux on behalf of the mother that this court is in a position to list a further hearing as a matter of expedition when a much wider-ranging welfare enquiry can be undertaken. The resources of the London High Court CAFCASS team are well known and widely acknowledged to be exemplary. In appropriate circumstances, CAFCASS officers can undertake enquiries for the benefit of the English courts in foreign jurisdictions, subject to issues of funding.
- Of particular significance, in my view, is the fact that each of M's parents is here and available to attend court, to give oral evidence and to advance their respective cases as to their future plans for M and the arrangements for his care. I accept that the grandparents are in Singapore and may well be unwilling to attend in person but these days the use of video conferencing facilities is commonplace in the Family Division. It is unlikely that interpreters will be required since I am told that both the paternal grandparents speak English. Even if they (or any other witnesses based in Singapore) required assistance from an interpreter, this resource can easily be provided. Judges are perfectly used to conducting hearings with an international element in this way and some of the courts in the Royal Courts of Justice have been set up and equipped specifically for this purpose.
- I accept that it may well be necessary for some liaison between CAFCASS and the local welfare agencies in Singapore but, again, liaison with their international counterparts is something which the London CAFCASS team undertake on a regular basis. I have already expressed my views about the likelihood of the court being assisted by a psychological evaluation of M. I am quite prepared to accept for these purposes that he has a close and loving attachment to his grandparents who have cared for him now for many months. For the same reasons, I accept what I read in the report from his nursery school that he appears to be a happy little boy who enjoys his mornings at the school. It is thus unlikely that evidence would be required from those who care for him at the nursery.
- Mr Armstrong seeks to lay much emphasis on the question mark which he says hangs over the ability of the English court to access documents which are currently held in Singapore. In particular, he says that the evidence relating to the prosecution of the mother and the CARI team who assisted her in August last year will be information held by the Singapore prosecuting authorities in respect of which there may be issues or sensitivities were a request for release made by the English court. I am not persuaded that this is a significant factor to weigh in the scales. The circumstances of the failed attempt to recover M received wide publicity in the local Singapore press. Copies of the press reports are in the bundles which were placed before me. Those, of course, are not evidence. However, the mother has provided a narrative account of these events in one of her recent statements. Whilst there may be issues remaining as to how she paid (or was intending to pay) for the services of these people, the issue goes fundamentally to her ability to prioritise M's best interests, the level of care she is likely or able to provide were he to be returned to her care in this jurisdiction, and whether or not she poses of a further flight risk. For my part, I do not see how access to the papers held in Singapore is likely to assist a judge in England or Singapore on these matters. Should they become relevant, and if the proceedings remain in this jurisdiction, I have little doubt but that the Singapore Family Court would do its best and take whatever steps might be necessary to procure these documents.
- As to the existence of proceedings in this jurisdiction, Mr Armstrong on behalf of the father challenges the 'anchor' of the mother's English divorce proceedings. He says that the Singapore divorce proceedings are now all but concluded whereas little progress has been made in the mother's English divorce suit. I bear in mind that this is his application for a stay of the English wardship proceedings. It seems to me that there can be little argument but that those wardship proceedings are now at an advanced stage. There have been several hearings over the course of almost 18 months. The mother issued her application under the inherent jurisdiction promptly on her return from Singapore on 27 January 2014. Findings in relation to M's habitual residence were made in March of that year and upheld by the Court of Appeal in July 2014. I dealt with the matter during August 2014 in the immediate aftermath of the mother's failed attempt to secure M's return to England and the CARI débacle. Immediately after her release from prison and return to the United Kingdom, there was a fresh hearing listed before Newton J. That this hearing in October 2014 did not resolve once and for all the issue of forum conveniens is unfortunate, but it was not the fault of either of the parents that a resolution was not forthcoming. Had it been, the welfare stage of this enquiry might now have been concluded.
- Similarly, I am not persuaded that the assault which Mr Armstrong seeks to make on the security of the mother's tenure in the former matrimonial home is something which is a 'tipping' factor in this case. On behalf of the father he seeks to argue that because his client is not paying the mortgage, arrears are accruing. Whilst it is a matter for the mortgage lenders, the risk of possession proceedings cannot be ruled out. Further, he says that the father has mounting debts; the equity in the former family home is a resource which is available to meet those debts (at least in part); and this is simply 'a house of cards waiting to fall down'. In these circumstances, the mother's ability to remain in that home (with or without M) must be doubtful.
- Against that proposition, I ask myself, what is this mother supposed to do in terms of her current living arrangements? Am I satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice?
- She does not have the means to rent a property in the central London market and I have no evidence that she has alternative accommodation available to her. It may be that the flat in Lancaster Gate will have to be sold at some future point in time but we are not at that point yet. There is no evidence whatsoever that the mortgagees are threatening imminent legal action and I bear in mind that there is substantial equity in the property notwithstanding the accruing monthly arrears.
- As against the father's argument, I have to balance the question of where she will live in Singapore, even if on a temporary basis (and assuming she can surmount the significant hurdles of the immigration issue). It seems to me that it is no answer to say that she does not need even a temporary base in Singapore because she can fly back and forth to attend hearings or, alternatively, take part by means of a video link. She has no funds with which to purchase flights and there is no offer forthcoming from the father to meet her reasonable travel and accommodation expenses (including hotel costs) were she to be permitted to enter Singapore.
- Just the same can be said of his own position and I do not in any sense intend to discriminate in favour of the mother's financial difficulties. However, the very important difference is that he is a citizen of Singapore. But for the current restrictions on his liberty to travel, he could come and go freely between the two jurisdictions. I appreciate that he is currently unemployed but he has the indirect resource of support from his family who have provided financial assistance in the past. Whether or not that support is currently available, I know not but it is not even a potential resource upon which the mother can call.
(v) The court can place little weight on the assertions of the father as to the law of Singapore
- In this respect, Mr Devereux has referred me to paragraphs 110 to 117 of the father's statement dated 17 April 2015 in which he sets out in narrative terms the statutory duty placed on the Singapore court in relation to a parent's obligations to maintain his or her child and the obligations and responsibilities entrusted to a parent who is awarded custody of a child.
- I have already remarked upon the similarities in the legal structure and framework of the two respective systems of law which operate in this jurisdiction and in Singapore. At the heart of both appears to lie the best interests of the child with whom the court is dealing. I have no doubt at all that the Singapore judicial system enjoys an international reputation for fairness and efficiency, notwithstanding any procedural differences which may exist between our two systems (paragraphs 116 and 117 of the father's statement).
(w) to (y) : paternal grandparents free to participate in English proceedings in person or by video conference facilities; part of mother's support system in this jurisdiction is the team at the Royal Brompton Hospital (for M) and Westminster Social Services (who have already undertaken an assessment of her care of the child); the father is physically within the jurisdiction and any orders can be enforced against him.
- I have already commented upon the ability of M's grandparents to take part in any future English proceedings. They are parties to the wardship proceedings and, as such, are entitled to have access to court documents and to appear through their chosen legal representatives. Whilst there is no doubt at all over their ability to participate meaningfully and advance whatever case they wish in these proceedings, that is not a course which is presently open to either this father or this mother in the Singapore court. The father is deprived of his liberty to travel as a condition of his bail. The mother will not be entitled to return to Singapore at the very least until she has issued a formal application and that application has been processed. There is no information before me as to how long that will take, nor whether she is likely to succeed.
- Time is now of the essence for this child. Mr Armstrong submits that, if an English court were to order the return of M to this jurisdiction and to his parents, that would have to be achieved in all likelihood by the engagement of the court in Singapore and the imposition of mirror orders which required the grandparents to return him. That is as may be, but it seems to me that such a situation might well arise (i.e. the removal of the child) if the proceedings were to continue in Singapore. M is not (quite) yet 3 years old. His grandparents are elderly, although I have no evidence as to their current state of health. If the father were to be convicted and sentenced at the conclusion of his forthcoming trial, it is probable that he will not be available to care for M for a significant period of time. The mother puts herself forward as his primary carer until he was retained in Singapore by the actions of the father. Russell J has confirmed that was indeed her role. She wishes to resume that role, with or without the assistance of the father, who undoubtedly has an important future role in his son's life whatever the outcome of the criminal proceedings. A court is going to have to resolve that issue on the basis of a thorough and wide-ranging enquiry into the course which is best likely to promote M's physical and emotional wellbeing and happiness through the remaining years of his minority. It is by no means clear what decision a Singapore court, at the conclusion of such an enquiry, might reach. A judge may well conclude that M's grandparents were not the best people to care for him on a long term basis if the current allegations which they make against the mother are proved to be without substance. I do not know, but I would take a great deal of persuasion that a court in Singapore would not manage such a transition in a sensitive and child-focused manner if this was a conclusion which it reached. On this basis, enforcement as against the grandparents of an English or local court order requiring M's return to the care of his parents (or either one of them) may be a necessary step to achieving that result. So it seems to me that Mr Armstrong's point does not in truth tip the scales one way or the other.
F. My conclusions
- In the light of all these factors, I return to the test which I must apply in determining the outcome of this discrete application in relation to forum conveniens.
Am I satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice ?
- Having analysed the competing arguments advanced by the parties and having thought carefully about all the evidence in this case, including those facts and matters on which each of the mother and father seeks to rely to assist their respective cases in persuading me to exercise my discretion in his/her favour, I have reached the clear conclusion that these wardship proceedings should continue in this jurisdiction.
- I have a very clear grasp by now of all the facts underpinning this case and the competing arguments advanced by the parties. I have addressed many of the competing submissions in the course of the analysis in my judgment. Of principal and magnetic importance in my judgment is the presence of M's parents in this jurisdiction; the fact that each is likely to remain resident in this jurisdiction for at least the next few months; and the significant issue of the mother's ability to re-enter Singapore and conduct proceedings in that jurisdiction in circumstances where she has neither immigration clearance nor the means to support her travel to and from that jurisdiction, nor legal representation in the Singapore courts. Whilst there may well be provision in the Singapore statute for the exercise of an administrative discretion in these matters, there is absolutely no information before the court as to how long such an application might take to process nor whom the mother might identify to support her in terms of a sponsor.
- I have taken on board what Mr Armstrong tells me about the comparative costs of these proceedings. I am aware that the mother has the benefit of public funding in this jurisdiction, whereas the father does not. I intend, and expect, that these matters will be resolved expeditiously from this point on and my intention is that the future arrangements for M should be resolved within the shortest time frame possible. He deserves that, and his parents and grandparents are entitled to know that the English court takes very seriously the obligation imposed upon it to reach a conclusion based upon his best interests.
- I cannot ignore the fact that the mother has established the jurisdiction of the English court as of right in the context of the present wardship proceedings. Notwithstanding that Singapore is plainly a competent jurisdiction, I do not find it to be the competent jurisdiction in which the case may be tried more suitably for the interests of all the parties and the ends of justice in this case. Thus, I find myself unable to say that the Singapore court is clearly the more appropriate forum.
- If I am wrong in reaching that primary conclusion (which I do not believe that I am), I can see no circumstances in this case which would persuade me that there are special circumstances which require me to impose a stay on the wardship proceedings in this jurisdiction. In the light of the fact that the courts in Singapore will be astute to investigate and prioritise M's interests in any further proceedings which may be listed in those courts, I can see no particular juridical advantage for either of the mother or the father in terms of an objective assessment of the quality of justice and fairness of outcome which will no doubt be the cornerstone which informs outcome in either jurisdiction. Mr Devereux on behalf of the mother points to her subjective perception of her vulnerability in the Singapore court and the trepidation with which she views an outcome which removes control of this case from the hands of the English court. I am prepared to accept for these purposes that, with or without justification, there are reasons why she might hold those views in the light of all that has happened to her in Singapore following her arrest last summer. Mr Armstrong says that I should ignore this factor since she is essentially the author of her own misfortune. I do not agree. No doubt the circumstances in which the mother took those drastic and unwarranted steps will be the subject of findings of fact in due course. I cannot make those findings today because I have not heard any evidence and know only what I read in her statement. She plainly feels that the underlying and driving dynamic of the litigation in Singapore is the united front which her former parents-in-law and the father are putting forward through a team of specialist lawyers, a resource to which she would have no access. She believes that her conviction and period of incarceration in a Singapore prison will count heavily against her were she to be forced to litigate in that jurisdiction as a litigant in person. From a subjective perception, I have no doubt that all these factors are matters of great concern to her.
- Of course I have to bear in mind, too, the fact that the father's journey through the English litigation has been a difficult one. He has been on the receiving end of some stringent and damaging findings. For the purposes of these proceedings, those findings stand, whatever representations his lawyers may seek to make to the Singapore court on his behalf. He has had to spend time in prison as a result of the committal order made by Russell J, an order which was subsequently overturned by the Court of Appeal which ordered his immediate release. I accept that this will have been for him a difficult and acutely worrying experience.
- Mr Armstrong points to the fact that his client has no public funding certificate for the English wardship proceedings whereas the mother has that benefit. As I have already observed, the evidence demonstrates that he has access to resources which have enabled him to instruct a lawyer throughout the course of his parents' proceedings in Singapore. Their cases in that litigation appear to be running on parallel tracks. It will be clear that what concerns me is the mother's ability to participate in those proceedings in the same manner in which she (and the father) can participate in the ongoing English proceedings. He is publicly funded in respect of the pending criminal proceedings ongoing in Southwark Crown Court. The absence of public funding for his participation in the wardship proceedings in circumstances where he has been able to fund his lawyers thus far through the generosity of friends and family does not, in my view, tip the balance away from those proceedings remaining in this jurisdiction to their natural conclusion.
- I take the view that all other issues relating to the gathering and presentation of evidence can properly be dealt with by orders made in the English court and I anticipate that this is a case where continued liaison between the English and Singapore courts may well be required as a matter of judicial liaison and comity between the two respective courts. In these circumstances, I refuse the father's application for a stay of the English wardship proceedings.
- The next step will be a detailed and all-embracing enquiry into the welfare aspects of this case and the focus of this enquiry will be the best interests of M. His welfare will be the court's paramount consideration and I would urge the paternal grandparents to participate in that enquiry and to place before the English court all evidence which they consider may be of relevance to a determination of any decisions in relation to M's future. In reaching this decision in relation to forum conveniens and the continuation of the English wardship proceedings, I wish to make it clear that I am making no final decisions in relation to M's longer term future. There needs to be a further hearing to determine these issues. The paternal grandparents should know that the judge who deals with the next stage of the enquiry (whether or not that is me) will afford them every opportunity to put their case before the court, whether or not that is on the basis of their attendance with legal representation or by means of receiving their evidence by video conferencing facilities.
- The toll which these proceedings have taken emotionally and financially upon each of these parents makes an early resolution of this litigation essential and I intend to make further directions once I have heard from counsel so as to ensure a rapid resolution of any interim arrangements which may be required in the light of my decision. If those directions cannot be agreed and a further short hearing is necessary, I would ask counsel to obtain from the Clerk of the Rules dates when such a hearing can be accommodated.
Note 1 A v A (Children: Habitual Residence)  UKSC 60,  3 WLR 761, paragraph 54. These propositions numbered (i) to (vii) had been set out by Russell J in paragraph 15 of her judgment in her detailed analysis of the law in relation to habitual residence. [Back]
Note 2 In fact the report of Mr Malathi Das, the single joint expert, had been prepared on 21 August 2014 although it had not reached the hands of the Court of Appeal when Ryder LJ gave the father permission to appeal. [Back]
Note 3 In a statement made by M’s paternal grandfather on 19 March 2014 in the Singapore proceedings he states that ‘based on my wife’s and my observations of [the mother] and our interactions with her since their marriage in June 2011, we have come to the conclusion that [she] is an extremely selfish person. [She] is only interested in taking care of her own needs and wants, and does whatever she pleases, as and when she pleases. She has no interest in being a mother to [M] and she is only interested in how she can benefit financially through the marriage. In fact [the mother] simply does not have the capability to take care of [M] on her own at all.’
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