E v E
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWHC 956 (Fam) |
| Date | 2021 |
| Year | 2021 |
| Court | Family Division |
Children - Family proceedings - Anti-suit injunction - Mother obtaining High Court order for return of children wrongfully retained in Nigeria - Father required by English court amend divorce petition in Nigeria and enter into consent order to ensure return of children but failing to do so - Mother applying for anti-suit injunction in terms of English order - Whether anti-suit injunction available in children case - Principles to be applied when considering such order -
The father of three children who had been born and lived in England failed to return them to the jurisdiction after a holiday in his native Nigeria. The children were placed in the care of the paternal uncle and the father filed a divorce petition in Nigeria, which was false in parts, seeking custody of the children. On the mother’s application to the High Court the children were made wards of court and orders were made for the father to return the children to this jurisdiction. The father, who had himself returned to the United Kingdom, and the paternal uncle failed to comply with the orders. The joint expert appointed in the English proceedings confirmed that to ensure the children’s return to England the father was required to (i) amend his Nigerian petition by deleting reference to seeking custody in the prayer and (ii) enter into an agreed order in Nigeria for their return. The judge in the English proceedings made an order with a recital that the father was expected to carry out those actions forthwith but he made no attempt to do so. The court therefore proceeded to determine the mother’s application for an injunctive order in the same terms, pursuant to section 37 of the Senior Courts Act 1981F1.
On the mother’s application—
Held, granting the application, that the jurisdiction of the High Court to make an anti-suit injunction, in the limited circumstances it was appropriate to do so, extended to the field of children law; that the four criteria requiring fulfilment to justify the making of an anti-suit injunction in the sphere of civil litigation, as established by the authorities, were equally applicable here; and that, accordingly, where (i) the courts of England and Wales had personal jurisdiction over the father, (ii) the English court had a substantial interest in the matter, (iii) there were clearly appropriate grounds for granting relief and (iv) there was no reason not to exercise the discretion, the father was to be ordered to take the steps required of him in the Nigerian courts (post, paras 26–29, 30, 31–37, 39, 40).
APPLICATION for injunctive relief
By an application dated 17 September 2020 the mother of three children applied for an anti-suit injunction against the father pursuant to section 37 of the Senior Courts Act 1981. The father had abducted the children to Nigeria in July 2019 and left them in the care of their paternal uncle. On 8 October 2019 the father caused to be issued in Nigeria a petition for divorce in which he misrepresented, inter alia, the prior living arrangements of the mother and children and sought custody of the children. By application dated 8 November 2019 the mother applied for wardship and return orders which were granted by Lieven J on 21 November 2019. The father failed to comply and resisted the orders at a contested hearing before Lieven J on 16 March 2020. Following the findings of fact and receipt of the jointly appointed expert’s report on Nigerian law, Peel J, sitting in the Family Division of the High Court on 25 February 2021, gave judgment and made an order which (a) adjourned the mother's anti-suit injunction application, (b) reiterated the earlier return orders, and (c) recorded that the father was expected forthwith to: (i) amend paragraph 14 of his Nigerian divorce petition; (ii) apply for discharge of the Nigerian order restraining the mother from removing the children from Nigeria; (iii) enter into a written agreement with the mother for the children to be placed in her custody; and (iv) give the mother permission to remove the children from Nigeria to England. Neither the father nor the paternal uncle complied with the orders and the court was invited by the mother to make an anti-suit injunctive order in the same terms as those reflected in the recital to the order of 25 February 2021.
The judgment was delivered in private and is reported with leave of the judge on the basis that the anonymity of the children and the parties be strictly preserved.
The facts are stated in the judgment, post, paras 2–24.
Herbert Anyiam (instructed by A C Gilead Solicitors) for the mother.
Abiud Kaihiva (instructed by Broad Street Solicitors) for the father.
The paternal uncle did not appear and was not represented.
The court took time for consideration.
31 March 2021. PEEL J handed down the following judgment
1 The issue before me today is whether to make, on the application of the Mother (“M”), an anti-suit injunction against the Father (“F”) requiring him to discontinue Nigerian proceedings pursued by him in respect of the parties’ three children in circumstances where Lieven J determined after a contested hearing that (i) the courts of this country have jurisdiction over the children by reason of their habitual residence, (ii) England and Wales, rather than Nigeria, is the natural forum and (iii) the English court is substantively seized of ongoing proceedings concerning wardship and the welfare of the children.
The background2 The children are aged 8, 7 and 5. All three children have been living with the F’s brother (their paternal uncle) in Nigeria since July 2019 after they were abducted to that country by F. The paternal uncle is the second respondent to these applications, having been joined on 29 November 2019. Although he has been a party for over a year, he has not participated directly in any of the hearings, neither attending nor being represented. He has, however, filed evidence, and is well aware of this and previous hearings having been fully informed of them by the father and/or by the father’s solicitors. Indeed, for this hearing I received a letter on his behalf from Nigerian lawyers complaining robustly about the courts of this jurisdiction purporting to exercise its powers over the children. It is quite apparent that the paternal uncle has no intention to assist in the return of the children to this country; on the contrary, he firmly opposes that course of action.
3 M and F married on 19 December 2010 in Nigeria under native law and custom, followed by a later statutory marriage on 4 January 2011. F was resident in England at that time, and...
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