B v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Rimer,Lord Justice Stanley Burnton,Lord Justice Longmore |
| Judgment Date | 21 July 2011 |
| Neutral Citation | [2011] EWCA Civ 703,[2011] EWCA Civ 828 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2010/2921,Case No: B4/2010/2966 |
| Date | 21 July 2011 |
[2011] EWCA Civ 703
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Kevin Barnett
FD09P0235
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Thorpe
The Right Honourable Lord Justice Rimer
and
The Right Honourable Lord Justice Stanley Burnton
Case No: B4/2010/2966
James Turner QC and Edward Devereux (instructed by Messrs. Osbornes) for the Appellant Father
Charles Hyde QC and Morgan Sirikanda (instructed by Messrs. Overburys) for the Respondent Mother
Hearing date: 15th April 2011
This appeal raises fundamental questions as to the nature of a mirror order, the jurisdiction of the High Court to make a mirror order and the consequential effect of a mirror order. The appeal is from the judgment of HHJ Barnett sitting as a Deputy Judge of the Family Division, who on 28th October 2010 concluded that the mirror order made by Moylan J on 30th October 2009 bestowed on him an unrestricted jurisdiction to make orders under the Children Act 1989 in respect of a child habitually resident in Malaysia, notwithstanding prior orders of the Sharia Court in Kuala Lumpur dissolving the parents' marriage and making ancillary orders as to custody and access.
For the purposes of this judgment any detailed examination of the history is neither necessary nor possible given the absence of any investigation or findings in this jurisdiction.
All that can be said with confidence is that the father is English and the mother Columbian: they married on 27th July 1994 and their only child, [A], was born [in] 2002.
Although [A] has British citizenship, derived from his father, he has lived all his life in Malaysia, save for a brief visit to this jurisdiction in 2005. In August 2005, whilst [A] was present in this jurisdiction, the mother obtained an ex-parte interim residence order on application to Kirkwood J.
By orders of 25th and 26th August 2005 that order was set aside and, by agreement, [A] returned to Malaysia with his father, the court declaring that any future issues would be decided by the courts of that jurisdiction.
The final and current order of the Malaysian court provided, according to the translation bearing the seal of the court:
"1. The right of Custody, Care and Control for the child named [A.W.] born [in] 2002 be awarded to the Plaintiff [S.W.].
2. That the Defendant be granted visitation rights upon the said child at reasonable times."
It is to be noted that the contact order was general rather than specific. In that form it allowed the parties to negotiate when and where contact should take place and for what duration. Absent agreement it would be for the court to specify whatever the parties could not agree.
It is common ground that there was no direct contact after January 2008. It seems that the relationship between the parents is particularly bitter and conflicted. Most of the history is in dispute and each makes serious allegations against the other.
It is pointless to speculate where the truth lies. It is however common ground that the mother has never made an application to the court to specify the nature and extent of [A]'s contact with his absent parent. Clearly specification is an essential preliminary to any enforcement.
It is clear from the limited correspondence within the second appeal bundle that the father has, from time to time, offered contact in Malaysia facilitated by a return plane ticket for the mother and independent accommodation at a venue for four weeks of staying contact.
The mother has not responded to those offers. She is dependant on thrice weekly dialysis whilst awaiting a kidney transplant and therefore protests that the father's offer is impossible of acceptance. However she has made no application to the court in Kuala Lumpur to direct that she should have contact in this jurisdiction in the vicinity of the treating hospital.
Perhaps the father took advantage of the mother's passivity. Certainly with the passage of time the practical difficulty of rebuilding a relationship between [A] and his mother only magnified.
Plainly in all these circumstances it would have seemed safe to predict that there would be no further application in England unless the court acquired jurisdiction as a result of [A]'s presence here.
It seems that the father contemplated such a visit. On 25th August 2009 a firm of solicitors in Market Harborough issued an application in the Principal Registry that was, indeed, a curious document. It was said to be a Notice of Application in " FAMILY PROCEEDINGS RULES". That heading probably reflects some uncertainty as to the jurisdiction invoked. Thereunder appears the father as applicant and the mother as respondent. Below that appears:
"Take notice that the Applicant intends to apply to a District Judge of the Family Division of the Principal Registry ex parte for an Order as follows:
1. That a Mirror Order be granted in confirmation of the Order for Custody made by the High Court of Malaysia on 9th January 2009.
2. That service of the application on the Respondent be dispensed with.
The grounds for the application are set out in Form C100 attached hereto, together with a copy of the order of the High Court of Malaysia dated 9th January 2009."
This text reveals confusion. On its face it appears to be a free standing application under some unspecified jurisdiction. It would conventionally be supported by an affidavit setting out the nature of the case. C100 is the general form for the launch of an application under the Children Act 1989. Therefore if this was an application under the Children Act 1989 the Notice of Application was not required. If this was a freestanding application under some other jurisdiction the form C100 could not be used in support.
No doubt this confusion prompted communication between the father's solicitors and Ms Adamson at the PRFD. By letter of 2nd October, the father's solicitors wrote:
"Further to our telephone conversation on 14th September 2009, I now enclose the notarised documents which you required… I also enclose our cheque for the sum of £100 as requested and I look forward to hearing from you further."
The notarised documents were five in number and comprised the Malaysian orders with certified translations. Clearly the payment was for an issue fee, probably for a Children Act application since the C100 submitted with the application of 25th August bears the seal of the Registry and has been given a case number in manuscript on its face.
The C100 also contains on its face a summary box. Under the heading "order applied for" is written:
"Mirror residence order to confirm order for custody made in Malaysian High Court."
The third section poses the question: "Why are you making this application?" There appears:
"I need to obtain a passport for my son…so that my son can travel freely to and from England…the United Kingdom High Commission in Kuala Lumpur requires an order in the British Court before it can validate the passport. I have been informed that I must apply for a Mirror Order confirming the Malaysian Order for Custody. I therefore ask the court to issue a Mirror Order confirming the Malaysian order for custody."
In the box concerning mediation is written:
"The High Court in Malaysia has heard the case and given judgment. I do not seek to revisit the arguments or the judgment. I simply seek, on advice from the United Kingdom High Commission in Kuala Lumpur, to obtain a Mirror Order in confirmation of the Malaysian judgment so that I can obtain a passport for my son."
The form is seemingly signed by the father and dated 25th August.
By letter of 9th October the father's solicitors submitted a draft order. The draft anticipates an order of a judge of the division in chambers:
"1. That the Child, [A.W.], born [in] 2002 do reside with the Applicant/Father.
2. That the Respondent/Mother be granted contact with the said child at reasonable times."
Whilst an order in that form suggests the exercise of a welfare discretion, the covering letter states:
"Following the hearing of this matter in the Malaysian High Court and the judgment reached, our client asks for a Mirror Order to satisfy the requirements of the British High Commission…we would be grateful if the court would make a Mirror Order as drawn."
On 30th October 2009 the papers were put before Mr Justice Moylan. His order recites the reading of the letters of 2nd and 9th October from the father's solicitor and the documents attached to the form. The first two paragraphs of the order replicate the draft submitted. However it seems plain that Moylan J read the papers with care. He was plainly troubled by the father's intention that the mother should have no knowledge of the proceedings, for he required service upon the mother forthwith and granted "permission to either party to apply to vary this order."
We have no information as to the mother's reaction to service nor as to whether the order achieved its stated purpose.
The next event is the issue on 31st March 2010 of an application by the mother on Form C2 for an order "in existing family proceedings", namely the case designation that had been given to the Form C100 in August 2009. In paragraph 2 the order sought was said to be "residence/contact-variation of order of Mr Justice Moylan dated 30.10.09. Directions to facilitate the same."
In paragraph 5 the reason for the application was stated to be that the Malaysian order was in the Sharia and not the civil court and that "since the order of the Principal Registry (Mr Justice Moylan) dated 30.10.09 there has been no contact between client and her son despite attempts to obtain his whereabouts." The accompanying Form C1A...
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