Re K (stranding: forum conveniens: anti-suit injunction)
| Jurisdiction | England & Wales |
| Judge | WILLIAMS J |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2018] EWHC 466 (Fam) |
| Court | Family Division |
Jurisdiction – Forum – Children arrangements – Anti-suit injunction – Indian proceedings relating to child – Child present in India but habitually resident in England and Wales – Stranding case.
The parents had both been born in India; the mother had remained an Indian citizen but the father had become a British citizen in July 2018, having moved to England in 2011. The couple married in November 2014 and in February 2015 the mother came to live in the UK, entering on a visa as a dependent of the father. The child was born in August 2015; he had UK citizenship and a British passport.
It emerged that the child suffered from speech and developmental delay and in February 2018 the family travelled to India for the child to be assessed and treated by the All India Institute for Speech and Hearing (AIISH), while waiting for the NHS to make progress in providing appropriate treatment. In fact, the father cancelled the child’s NHS May 2018 paediatric appointment, without the mother’s knowledge. During the visit to India the father unilaterally decided that the mother and child should remain there, removing their passports from them, while renewing his own UK passport. The father also wrote to the Home Office to say that the marriage was over. The mother managed to obtain a replacement passport and visa but was unable to obtain a replacement passport for the child without the father’s consent. The mother returned to England in July 2018, leaving the child with the maternal grandparents. In October 2018 the mother was informed by the UK authorities that her visa was being curtailed, on the basis that she no longer met the relevant visa requirements. Having returned to work in England, her Indian passport was lodged with the Home Office and her application for leave to remain was still under consideration. She could not return to India to re-join the child without cancelling this process.
The father had, in the meantime, begun litigation in India. The Indian High Court took custodianship over the child and ordered that the child remain in the care of the maternal grandparents but be produced for treatment at AIISH. The mother’s Indian lawyers gave an undertaking on her behalf that the child would not be removed from India and in November the Indian court directed that the child could not be removed without an order of the Indian court. The father subsequently involved the local child welfare services, making some very serious allegations about abusive treatment by the maternal grandparents and neglect by the mother. An ‘order’ by the child welfare committee transferring the child from the care of the maternal grandparents to the father’s care was stayed by the Indian court.
The mother issued legal proceedings in England and the child was made a ward of court by the English court. The father challenged the jurisdiction of the English court to make any orders in relation to the child, on the basis that the Indian courts were already seized of proceedings concerning the child. The judge found that the child had been habitually resident in England and Wales since birth; that the father had intentionally deprived the mother and child of their passports and intentionally stranded the mother and child in India in a premeditated fashion. In the judge’s view the mother’s participation in the Indian proceedings did not amount to her accepting the Indian court’s jurisdiction. The judge made a declaration that the English court had jurisdiction to determine issues in relation to the child’s welfare based on the child’s habitual residence.
At the English court hearing of the father’s application for a stay and the mother’s application for an anti-suit injunction, plus the child’s summary return to England, the father attended by video link from India. He argued, among other things, that there was no jurisdiction to make a ‘Hemain’ anti-suit injunction in children cases. There appeared to be no authorities deciding the issue of jurisdiction, although in Hallam v Hallam[1992] 2 FCR 197 and Hallam v Hallam (no 2)[1992] 2 FCR 205, the court had made an anti-suit injunction to prevent the father continuing to litigate in the USA, without hearing argument as to whether the jurisdiction existed.
Held – (1) Where there were concurrent proceedings in two jurisdictions concerning the same matter of parental responsibility there was a risk of the parties and the children being exposed to the stress and cost of two sets of litigation and, in particular, the risk of conflicting judgments being issued by the two courts, which might have profound consequences for the children in terms of their relationship with their parents and their ability to travel between the two countries. If a stay could be issued to remedy this ill as between signatories to international instruments such as Brussels IIa and the 1996 Hague Child Protection Convention, there was no reason in principle why the court should be unable to deploy the other tool of an anti-suit injunction where a non-signatory state was involved (see [42], below).
(2) In considering whether to exercise its jurisdiction to grant an anti-suit injunction in an application concerning a child, the English court would need to consider: (i) whether England was the natural forum for the determination of the dispute; (ii) whether the application fell into one of the categories identified in Mustafa v Ahmed[2014] EWCA Civ 277 (namely (a) an injunction to enforce a right of party A not to be sued in the foreign jurisdiction by party B; (b) an injunction to prevent party B from re-litigating matters in a foreign jurisdiction which were res judicata between himself and party A by reason of an English judgment, ie because it would be unconscionable for him to be permitted to do so); and (iii) issues of comity including the existence of remedies in the other court to prevent parallel litigation, the nature of the issues before the other court and the extent to which the order would represent an interference with the other court’s ability to exercise its own welfare jurisdiction over the child. Any step taken in the English court which had the effect of inhibiting or restricting the ability of the Indian High Court to determine the welfare of a child in its jurisdiction, even through the vehicle of an injunction directed at a party, would potentially be a significant interference with the Indian judicial process. It seemed reasonably clear that, like the English court, the Indian court acted upon application made by party rather than of its own motion. Thus an injunction restricting a party’s access to a court indirectly restricted the court’s ability to exercise its jurisdiction. In respect of a child who was present in another jurisdiction, the court in particular needed to consider the potential need for emergency relief from a local court in respect of a matter which could not be resolved by an enforceable order made by the English court. Some care would need to be taken in ensuring that any anti-suit injunction in respect of proceedings relating to a child did not place the respondent in a position where he could not engage the local court to deal with an urgent matter which could not be determined by the English court in an effective way (see [44]–[46], below).
(3) The father had not discharged the burden upon him to establish that a stay of the English proceedings was appropriate. On clear balance England was the natural and appropriate forum and India was not clearly the more appropriate forum; albeit that this was not all one-way traffic. Thus the father’s application for a stay of the English proceedings or their dismissal was refused (see [49], below).
(4) Having regard to the Mustafa test for the deployment of a permanent anti-suit injunction, the court was not satisfied that this case fell into a category where such an injunction could properly be made. It could be argued that, having regard to the issues surrounding the wrongful retention of the child in India, the mother could justifiably submit that she had a right not to be sued in India, given that that jurisdiction had arisen only through the wrongful act of the father. However, this was a case concerning a child, not a commercial matter. Given the possible availability of a stay application in the Indian courts and the issues of comity which arose when a court exercised a custodianship jurisdiction in respect of a child, it was not appropriate to grant an anti-suit injunction. Assuming that a stay application could be made in India and that some form of judicial liaison could be commenced to enable the English court and the Indian court to work cooperatively to solve the riddle of competing applications, it was wholly premature to grant such an injunction. The situation might fall to be reconsidered if no progress could be made and, in particular, if the father embarked upon a rear-guard action to play the Indian courts to delay the resolution of matters (see [50], below).
(5) The court was also not satisfied that it would be in this child’s welfare to make an order for his summary return to this jurisdiction on a permanent basis. If he were to return on a permanent basis, the arrangements for his care and the meeting of his medical needs would need to be in place immediately upon his return, which would need a more concrete care plan in respect of his medical needs and such a plan might only be capable of construction after he had been seen by a paediatrician in England. The arrangements for his care, having regard to the mother’s work commitments, would also need to be considered. However, on a provisional basis, it would be in the child’s welfare interests to return temporarily to this jurisdiction to enable him to both be reunited with the mother for a short period of time (and possibly also with the father, if the father were to travel to the UK) and to be assessed by a paediatrician, so that work could commence on the construction of...
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