O (Petitioner) v P
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE BAKER |
| Judgment Date | 05 August 2011 |
| Neutral Citation | [2011] EWHC 2425 (Fam) |
| Court | Family Division |
| Date | 05 August 2011 |
| Docket Number | Case No. FD00P00001 |
[2011] EWHC 2425 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice,
Strand, London WC2A 2LL
Mr. Justice Baker
(In Private)
Case No. FD00P00001
MR. HENRY SETRIGHT QC and MR. STEPHEN LYON (instructed by Thomson Snell & Passmore) appeared on behalf of the Applicant.
MISS JANE CROWLEY QC and MISS CAROLINE WILLBOURNE (instructed by Kingsford Solicitors, Ashford) appeared on behalf of the Respondent.
MR. JOHN STOCKER appeared on behalf of the Official Solicitor (as Amicus Curiae) (MISS ELERI JONES appeared on 5.8.11).
The Judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the child and the adult members of their family must be strictly preserved.
In this judgment, I consider a preliminary issue arising in these proceedings in which a mother, "O", seeks an order against her former partner, "P", for financial relief under Schedule 1 to the Children Act 1989 in respect of their daughter, "S", born in [a day in] April 1997. The preliminary issue is whether the court has jurisdiction to entertain the application. Given the notice of application was filed on 29th February 2000, over 11 years ago, it may be thought unusual, to say the least, that the issue of jurisdiction is only now being considered. Furthermore, if the court determines that it does have jurisdiction, a supplementary issue will arise as to whether the application can, as a matter of law and, if so, should in all the circumstances, be stayed on grounds of forum non conveniens. That issue has not been argued before me so far and could not be determined without a further hearing.
The reasons for the 11-year delay in the proceedings and the difficulty that has prevented the parties arguing the issue of forum non conveniens at the hearing I have just concluded will emerge from the following summary of the background to this case, which is extraordinary even by the standards of this division.
Summary of background
The father was born in 1951 and is now aged 59. The mother was born in 1960 and is therefore now aged 51. The parties met in 1984 at a time when both were married to other people. The father was then living in Kent, and the mother in Glasgow. The father suggested a relationship with the mother, but she apparently declined. The following year the mother separated from her husband and moved to live in Andorra for three years. Then in 1988 she travelled to Australia where she stayed for nine months, during which time she met another man called X. In 1989 she returned to Scotland and her marriage was dissolved. Later that year the parties met again in Scotland and shortly afterwards started a relationship. At that stage the father was the owner of substantial property in Kent, Z House, and an island in Scotland. He had recently separated from his wife by whom he had two daughters. Thereafter the parties lived at Z House and spent every other weekend on the Scottish island. However, in January 1992 the father experienced financial difficulties and the island was sold. Thereafter the parties continued to live together at Z House in Kent.
On [a day in] April 1997 S was born in Kent. Shortly afterwards the relationship between the parties began to break down. The mother alleged that she was the victim of domestic violence. In August 1999 the mother and S left Z House with the assistance of the police and flew to Scotland where they stayed with the maternal grandparents in Aberdeenshire. The mother then decided to fly to Australia and travel there with S on a return ticket on 13th August 1999. On the same day the father issued an application for parental responsibility, residence and contact in the Tunbridge Wells County Court. On 27th August that court made an order for the disclosure of information as to the whereabouts of the child and the delivery of S for staying contact with the father. Meanwhile, the mother had engaged solicitors in Australia who made an application on 1st September for a protection order in the court in Townsville, Queensland.
On 3rd September, the father made an application to the High Court under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The proceedings in the Tunbridge Wells County Court were subsequently transferred to the Principal Registry of the High Court. On 6th September, the father made an application in the Queensland Court for the equivalent of a prohibited steps and residence orders pending the return of the child to the United Kingdom. The mother filed affidavits in the Australian proceedings expressing a wish to remain in Australia. In reply, the father filed an affidavit stating that he would support S on her return to the United Kingdom and would assist the mother financially. On 16th September, the judge in the Queensland Court ruled that the best place for "the complicated issues" to be determined was in the English court. The mother undertook to return S to the United Kingdom within two weeks and, on the basis of that undertaking, was granted residence of S pending their return. Thereafter, orders were made in the English court prohibiting the mother from removing S from England and Wales upon return to the jurisdiction, and directing her to hand over her passport to her solicitor on arrival at Heathrow.
On 1st October 1999, the mother and S arrived back from Australia. By a further order dated 4th October, the mother was given temporary relief until the final hearing of the father's application for a residence order to remove S from England and Wales on the basis that they live at the maternal grandparent's home in Aberdeenshire. The order further provided, however, that there should be regular contact between the father and S for periods of ten days every three weeks. Thereafter, the parties filed affidavits in the English proceedings—the father seeking a residence order whereunder he and S would live together in Z House in Kent, the mother expressing a wish that she and S should remain in Scotland with the maternal grandparents.
In November 1999 the father applied for and was granted false passports for himself and S using the name "Mills", On 1st December, pursuant to the orders of 4th October, the mother flew with S from Aberdeen to Gatwick to hand her over to the father for the purposes of a 10-day period of staying contact. Seven days later, however, the father and S left England on the Eurostar bound for Paris under the false passports and from there flew to Australia later that day. Thus, when the mother arrived at Gatwick a few days later to collect S in accordance with the agreement between the parties, there was no sign of S or the father. The police were alerted and ex parte location and freezing orders were made in the High Court. On 17th December, S was made a ward of court and a direction was made that the father should return her to the care of the mother forthwith.
The police were able to establish that the father and S had travelled to Australia under the false passports. On 23rd December, the mother applied to the Child Abduction Central Authority to invoke the Hague Convention to secure the return of S to this country. On 30th December, the mother's passport was released by the court to enable her to fly to Australia to assist in the location and/or recovery of the child. The mother duly flew to Australia on 1st January 2000. On 4th January, the Family Court in Australia made seek and find orders, and a further order preventing the removal of S from Australia. Six weeks later, on 16th February, S was recovered by the Australian police in Melbourne and reunited with the mother. The father was arrested and detained as an illegal immigrant into the country. On the following day, however, he made an application claiming refugee status in Australia.
On 29th February 2000, the mother's solicitor filed an application under Schedule 1 to the Children Act 1989. That application was made in the Children Act proceedings that had been started in Tunbridge Wells and transferred to the Principal Registry. The application was sent to the solicitors acting for the father in connection with the residence and wardship proceedings, but it seems that no formal document acknowledging service was ever filed.
On 21st March 2000 the Family Court of Australia ordered that S be returned to the United Kingdom. In his judgment, Chisholm J. stated, inter alia, that
"I … note that the English authorities appear to have taken the view that the mother and child were habitually resident in England as distinct from Scotland. However, the court must make its own mind up on the basis of the evidence before it … On balance, although I do not regard this as a very easy matter, I conclude that the mother had established habitual residence in Scotland by the time the father left for Australia. I find, therefore, that the mother and therefore the child was habitually resident in the United Kingdom and, if relevant, in Scotland rather than England at the time of the wrongful removal."
The father had maintained in those proceedings that if S's habitual residence was Scotland, the Australian court therefore had no jurisdiction to return her on the application of the Central Authority for England and Wales. The judge rejected this argument holding that "it would be a clear violation of the spirit of the Convention if what I see as a technical argument were to succeed and thereby to prevent the court...
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