K (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Sir David Keene,Lord Justice Patten |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWCA Civ 352 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2014/3735/3901 |
| Date | 13 March 2015 |
[2015] EWCA Civ 352
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Justice Newton)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Patten
Lord Justice McFarlane
Sir David Keene
B4/2014/3735/3901
Mr G Armstrong (instructed by Direct Access) appeared on behalf of the Applicant Father
Mr H Setright and Mr M Jarman (instructed by Landmark Legal LLP) appeared on behalf of the Respondent Mother
Introduction:
This is an appeal brought by the father of a young child following determinations made by Roderick Newton J at a hearing on 13 October 2014.
The child at the centre of the proceedings is a boy, M, born on 5 July 2012, and therefore now some 2 years and 9 months of age. In his short life, he has been the subject of a substantial amount of litigation both in this jurisdiction and also in the jurisdiction of Singapore.
It is not necessary for the purposes of explaining our decision in this appeal to descend to a great deal of detail. The detailed history of the proceedings can, in fact, be found in the course of a judgment given by the Court of Appeal and handed down on 15 July 2014 with the neutral citation [2014] EWCA Civ 905. But, in short terms, the parents (the mother, who is a national of Mongolia, and the father a national of Singapore) met in 2011 and married in that year. By that time, the father was employed in good employment in England and a visa was issued which enabled the mother to come to this jurisdiction to join him.
She arrived in England in October 2011. As I have indicated, M was born in July 2012. A year later the couple agreed that it was in M's interests to spend some time in Singapore living with his paternal grandparents. Primarily this was to enable the mother to focus upon the continuation and culmination of the studies that she had been undertaking in England.
Thus it was that the parents took M to Singapore and placed him in the care of the paternal grandparents in the summer of 2013. The mother's stated understanding was that once her studies were complete in November 2013 the parents would return to Singapore and bring M back to England. In the event, that plan was not put into any form of action until January 2014, but, on 17 January, the couple flew to Singapore with a return ticket for themselves together with young M to travel back to England on 25 January. However, events were not to follow that apparently planned course.
Whilst in Singapore, the mother was served with proceedings for divorce and custody that the father had issued in the High Court of Singapore. He also obtained orders that the mother should not remove M from Singapore. The mother returned to England without M and M has remained living with the paternal grandparents since that time. Very swiftly the mother made an application to the High Court here in England and orders were made under the inherent jurisdiction on 24 January and subsequently, which initially required the father to return the child to this jurisdiction.
There was issue between the parents as to whether the court in England and Wales had jurisdiction with respect to M and the principal consideration as a matter of law in that respect was for there to be a determination as to whether M was habitually resident in this jurisdiction at the time that the English proceedings were commenced in January 2014.
The issue of habitual residence and hence jurisdiction was determined by Russell J at a hearing on 14 March 2014. She concluded that M was indeed habitually resident in England and Wales at the time that the proceedings were issued and she therefore held that the court in England and Wales had jurisdiction to make determinations with regard to M's welfare.
The father appealed that decision together with subsequent orders made by Russell J, in particular an order committing the father to prison for his apparent failure to comply with orders requiring him to return M to this jurisdiction.
That appeal was heard by a court comprising Maurice Kay LJ, myself and Kitchin LJ on 4 January 2014. On that occasion we indicated that the father's appeal with respect to contempt would be allowed and he was therefore immediately granted his liberty. We, however, reserved our judgments with respect to the other issues, including habitual residence and jurisdiction.
We dismissed the father's appeal with respect to the determination of jurisdiction based, as it was, on habitual residence. Our judgments were handed down on 15 July 2014.
The present appeal raises issues as to forum conveniens and general welfare issues about M. As paragraph 44 of the leading judgment of Kitchin LJ makes plain, these issues were left open within the proceedings. Kitchin LJ says:
"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."
Maurice Kay LJ and I gave concurring judgments.
Thus it was that the wardship proceedings continued. There were, however, subsequently developments with respect of M during the summer, the most striking being that the mother contracted the services of an independent agency with the aim of snatching M from the paternal grandparents' care in Singapore and removing him from that jurisdiction by sea in a boat that had been chartered for the purpose. The snatch was achieved but before they could leave the jurisdiction the mother was arrested and M was returned to the grandparents' care. In consequence she faced criminal proceedings in Singapore, was given a short prison sentence and, upon her release from prison, she was immediately deported to her home country of Mongolia, eventually making her way back to this jurisdiction in October.
The English wardship proceedings had been before a number of judges during the summer and it is a regrettable feature of this case that I think five or six different judges of the Family Division have had the case before them at different stages during the latter months of 2014.
At a hearing before Holman J, on an occasion when the mother was not present because of her incarceration, the wardship proceedings were adjourned to be heard as a 1-day fixture on 31 October 2014. The order making the adjournment establishes the agenda for the hearing in general terms:
"All issues in these proceedings are adjourned to 31 October 2014."
Nothing else on the face of the order would alert the reader, in particular the judge who was to take the hearing on 31 October, what it was that was to be determined at that hearing.
The hearing on 31 October 2014
It is the hearing of 31 October with which we are concerned in this appeal, and the judge on that occasion, Roderick Newton J, was new to this case.
The difficulty for the judge in identifying the issues in advance will have been exacerbated in that the system had provided him with the bundles in the case but he apparently did not have a position statement from either side until the morning of the hearing. If he had had position statements before that date, they in turn would have been confusing to him. The position statement filed by Mr Mark Jarman on behalf of the mother lists the issues for the hearing on 31 October in these terms:
"The following issues fall to be considered:
i) Whether further orders should be made against the father to return [M] or whether he be entitled to leave the jurisdiction with his passport.
ii) Which forum should determine the parties divorce petition.
iii) Should the passport order be discharged."
I should pause there to interpose the information that in addition to proceedings with relation to M there had been a jurisdiction race between this couple as to divorce proceedings. The father had issued the divorce proceedings that were served on the mother in the middle of January and she at some later stage but early in the year issued her own divorce petition in England and Wales and there remained, so far as the English proceedings were concerned, a live issue as to whether the English court had jurisdiction with respect of the divorce, and it is correct that the issue of divorce jurisdiction had been expressly adjourned by a different order made by Holman J for consideration, if there was time, following the determination of any issues in the wardship proceedings with respect to M.
Turning back to the matters that were flagged up in the position statements of counsel for the 31 October hearing, the position statement filed by Mr Grant Armstrong, counsel on behalf of the father, raised separate matters, in particular the issue of forum conveniens with respect to the wardship proceedings and the issue of welfare. Within his position statement I am afraid that Mr Armstrong inadvertently creates some further confusion by eliding those two issues. The heading of the section of the position statement that deals with these issues is in these terms, without punctuation:
"WARDSHIP ISSUES WELFARE FORUM CONVENIENS"
And the text continues:
"As Holman J observed neither the welfare issues nor the issues of appropriate forum in this case have been determined by the Court and now must be determined in the light of the obvious fact that this child now aged 2 years 3 months has now spent the last 15 months with the paternal grandparents in Singapore."
And then further points are made.
In the event, the hearing seems to have lasted for most of the day on 31 October before Newton J. We now have the benefit of a transcript of that...
To continue reading
Request your trial
-
Warrington Borough Council v T and Others
...v H (Minors) (Forum Conveniens) (Nos 1 and 2) [1993] 1 FLR 958K (A Child) (International Child Abduction: Forum Conveniens), In re [2015] EWCA Civ 352, CAL (A Child) (Custody: Habitual Residence), In re [2013] UKSC 75; [2014] AC 1017; [2013] 3 WLR 1597; [2014] 1 All ER 999; [2014] 1 FLR 772......
-
Re K (stranding: forum conveniens: anti-suit injunction)
...1 FLR 958, Fam D. Hallam v Hallam (no 2)[1992] 2 FCR 205, Fam D. K (a child) (international child abduction: forum conveniens), Re[2015] EWCA Civ 352, [2015] All ER (D) 100 (Apr). Lubbe v Cape plc [2000] 1 WLR 1545, [2000] 4 All ER 268, [2000] 2 Lloyd’s Rep 383, [2003] 1 CLC 655, [2001] ILP......
-
Re A (Adoption)
...the well-known principles in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92: see Re K (A Child) [2015] EWCA Civ 352, paras 27–29. 57 I bear in mind that an application for an adoption order under the 2002 Act is not within the class o......
-
AB v EM
...consideration. See Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325, Re V (Forum Conveniens) [2005] 1 FLR 718 and Re K [2015] EWCA Civ 352). 40 Finally, in terms of analytical structure, and within the context of the principles set out above, in Re K [2015] EWCA Civ 352 at......