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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> K v B (Rev 1) [2015] EWHC 2192 (Fam) (24 July 2015) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2015/2192.html Cite as: [2015] EWHC 2192 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MB |
Applicant |
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- and - |
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GK -and- KF -and- GG |
Respondents |
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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
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Crown Copyright ©
Mrs Justice Roberts :
A. Introduction
B. The litigation
(i) Findings made by the English court in relation to M's habitual residence
'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.
"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.
"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.
"… 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."
"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."
(ii) Events over the Summer 2014 and the mother's attempt to secure M's return to England
(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.
'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.'
C. The Law
'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 [1987] 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
(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]
'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.
'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.'
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
Connection with the United Kingdom
Existing proceedings
Likelihood of his parents participating in any ongoing English proceedings
The father's future role in M's care in the event that he is at liberty to return to Singapore
'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]
The mother's ability to enter Singapore in order to participate in future proceedings in that jurisdiction
Future legal costs
Availability of witnesses and documents
'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]
(ii) The mother's case
'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.'
'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]
'…. 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]
E. Discussion : my analysis of the competing submissions advanced on behalf of the father and the mother
(a) M's habitual residence in this jurisdiction
(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
(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
(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;
(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
(v) The court can place little weight on the assertions of the father as to the law of Singapore
(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.
F. My conclusions
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 ?
Juridical advantage
Next steps
Order accordingly
Note 1 A v A (Children: Habitual Residence) [2013] UKSC 60, [2013] 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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