B v B
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis Dbe |
| Judgment Date | 13 July 2012 |
| Neutral Citation | [2012] EWHC 1924 (Fam) |
| Court | Family Division |
| Date | 13 July 2012 |
| Docket Number | Case No: FD10P01972 |
[2012] EWHC 1924 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis Dbe
Case No: FD10P01972
Mr Rex Howling Q.C (instructed by James Berry Law Solicitors) for the Applicant
Mr Marc Roberts (instructed by Mubasheri & Co Solicitors) for the Respondent
Hearing dates: 2nd July 2012
Introduction
This matter concerns an issue as to whether this court has jurisdiction to determine two applications issued by the respondent. The draft order submitted with one of his applications seeks the following:
1. That this court retain exclusive jurisdiction in relation to all matters concerning the children and any variations to Orders previously made, herein.
2. That any proceedings issued in the Dubai Courts by the Applicant mother be dismissed or in the alternative that the orders that the Orders previously made by this court be registered and recognised in Dubai and that the proceedings issued by the Applicant mother in the Dubai Courts be stayed pending the order being registered and recognised.
3. The passports of the children be retained by the lawyer for the Respondent father or any other person that the Court consider this to do so.
4. An order for the Respondent father's costs in this Application and matters ancillary thereto including his wasted costs of the current proceedings in the Dubai Courts.
5. An Order that the Applicant pays a Security Deposit into Court in the sum of GDP 50,000 to cover any future costs incurred by me in the event that further breaches occur and it be necessary for me to remedy same in any court.
Relevant background
This matter concerns two young children K born 20.1.06 and T born 5.9.07. The applicant is their father and the respondent their mother. I shall hereafter refer to them as the father and mother. Neither party, or the children, are habitually resident or present in this jurisdiction. The parties married in 2005 and went to live in Dubai in 2007. They separated in 2010, a divorce petition was issued in this jurisdiction in August 2010 and the mother issued an application for residence, specific issue and prohibited steps order. Orders were made in September 2010 which culminated in an agreed order being made by Pauffley J on 5 November 2010 that provided for the children to reside with both parents with the division of time between them set out in the order. At paragraph 8 it stated 'Both parents shall use their best endeavours to take such procedural steps as necessary and appropriate to ensure the Dubai Courts recognise and will enforce this order.'
The decree nisi was made on 29 December 2010.
On 21 January 2011 the mother made a without notice application to Macur J. The application appears to have been prompted by the children having been prevented at Dubai Airport Terminal from leaving the United Arab Emirates on 21 January 2011 for travel abroad with the mother. The order recites
Upon the Respondent father being believed to have obtained a Travel Ban in the Dubai Court preventing the children from travelling outside the United Arab Emirates
Upon the Applicant mother intending to apply to the Court in Dubai to lift the Travel Ban imposed on the children at the earliest opportunity
Upon the mother intending, in the absence of the father's cooperation, to apply to the Court in Dubai for recognition and enforcement of the order made on 5th November 2010 and of this order.
On 14 March 2011 the matter came before Baker J, this appears to have been a hearing listed to deal with the mother's application for costs arising from the hearing on 21 January 2011. Neither party was present but both were represented by Counsel. The relevant parts of this order provided as follows:
Upon the parties and the court agreeing that the parties and the children are, at present, habitually resident in Dubai, United Arab Emirates
Upon the order of 5th November 2010 remaining in force
Upon the parties agreeing for the said Order to be filed and/or registered with the Dubai Court so as to be recognised by said Court
Order
1. There is no Order on the Applicant Mother's application for costs arising from and ancillary to the hearing on 21st January 2011
2. Leave is given to the Father to withdraw his application under the Children Act 1989 dated 21st January 2011
3. The parties, through their respective solicitors, shall within 14 days of the date of this order agree the translations of this order and those made on the 5th November 2010 and 21st January 2011.
4. The Applicant Mother shall file and/or register (as may be appropriate) copies of said three Orders and their translations with the principle court in Dubai as soon as is practically possible and shall, thereafter, notify the Respondent Father of the same.
5. The costs of preparing the translations, of attesting the said Orders and of filing and/or registering the same in the Dubai courts and any ancillary costs that may be incurred shall be shared equally between the parties. The Applicant's solicitor shall take the lead and arrange for the translations and for the attesting of the Orders.
6. Leave is given to the parties to disclose to the Dubai Courts the documents filed within the Children Act proceedings in the UK in the event any application is made in Dubai by either party further to the Order of the 5th November 2010.
I have a transcript of the short judgment given by Baker J on that day, he said
At the outset [of this hearing] I indicated to the parties that it seemed to me that these issues concerning the children should no longer be litigated in this court. All parties are habitually resident in Dubai and intend to stay there for the foreseeable future; the children are there; plainly therefore issues about what contact there should be or rather how the parenting time should be divided between the parties is a matter which is best determined by the court where the children are living, namely, the court of Dubai. In the event, however, I am not formally making any order staying the proceedings or the applications because the father has through his solicitor indicated that he is willing to withdraw his application.
A little later, in the context of refusing the mother's application for costs he said
Having travelled to Dubai and chosen to live in Dubai, the parties are subject to the laws of Dubai….
It appears from documents in the court bundle that certified copies of the relevant orders and applications were lodged with the UAE Embassy in London on 24 March 2011. The letter from the father's solicitor to the mother's solicitor dated 4 July 2011 requests the final invoice in connection with the attested, translated and legalised orders.
On 25 March 2011 DJ Cushing stayed the ancillary relief proceedings 'pending efforts to mediate in Dubai where both parties are living'
The decree absolute was made on 10 May 2011.
On 6 July 2011 following the break down of mediation in the Dubai family court the mother is given permission to start a case in that jurisdiction which she issues on 11 July 2011. It is not entirely clear from the documents what the mother applied for. It appears from the judgment given on 20 May 2012 that her claim sought guardianship of the children and financial support for her and the children. An interim order made in made in September 2011 and a final order on 20 May 2012. The father engaged in those proceedings which included, at...
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