Re M (Jurisdiction: Forum Conveniens)
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1995 |
| Court | Court of Appeal (Civil Division) |
NOURSE AND WAITE, L JJ
Jurisdiction – habitual residence of family in Malta – parents separated – custody of children shared under order of court in Malta – mother coming to England without children – father bringing children to England for a visit – mother applying for residence order in English court – whether court should exercise jurisdiction or order return of children to Malta – principles to be applied.
The parents were married in 1989. There were two children of the marriage, both boys, one born in 1991 and the other in 1993. The family home was in Malta. The parents separated in 1994 and in November 1994 a court in Malta made interim shared care orders. In December 1994 the mother came to England leaving the children with the father. The father's work brought him to England a few days later and the children came with him. When the mother learned of the children's presence in England she made applications to a court in this country. An inter partes hearing took place on 20 December 1994 when the Judge decided that the proper forum to resolve any dispute as to where the boys should live and who should be their primary carer was the court in Malta. He therefore made a summary order for their return to Malta.
The mother appealed.
Held – dismissing the appeal: As Malta was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction there was no scope for the operation of the Child Abduction and Custody Act 1985 in this case. However, the principles applicable to problems of this kind were now well settled. There was no limit, in legal theory, to the jurisdiction of the court in England to act in the interests of any child who happened to be within the jurisdiction. In practice, however, if the child was not habitually resident in this country and there were legal procedures in the country or habitual residence available to achieve a fair hearing of competing parental claims regarding the child's upbringing, the English court would decline jurisdiction except for the purpose of making whatever orders were necessary to ensure a speedy and peaceful return of the child to the country of habitual residence. The practice was to follow the spirit of the Convention even though its formal terms were inapplicable. The Judge had properly acted upon the principle that far from there being any inherent conflict between considerations of policy which normally required a return of children to the country of habitual residence and considerations affecting their welfare both led to the result that it would, in general, be in the best interests of children to have their future decided in the courts of the country where they habitually resided. This was a principle which had particular force in a case
such as the present, where the competing jurisdictions were represented by two countries with close historical ties and closely corresponding legal systems, applying a similar approach to the difficult problems to which cases of this kind inevitably gave rise. In this case the Judge had every justification for making a summary order for the children's return to Malta.
Cases referred to in judgment:D v D (Child Abduction)[1994] 1 FCR 654.
F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 WLR 1272; [1990] 3 All ER 97.
G v G (Minors) (Abduction) [1991] FCR 12.
Elizabeth Annabel Walker for the mother.
Neil Sanders for the father.
LORD JUSTICE WAITE.This appeal concerns two young boys, aged 3½ and 1½, whose parents became separated in September 1994, when the mother developed an attachment for a man who lives in England. The family home at the date of the separation was in Malta. That is a country where the father lives and works. Following the separation, family proceedings were started in Malta. Interim orders in the Maltese court resulted in confirmation of a regime, already undertaken by the parties voluntarily, under which the boys' care and upbringing was virtually shared between the parents on a rota basis for half a week each.
Those arrangements did not, however, continue...
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Re Z (A Minor) (abduction: non-Convention country)
...2 FCR 159, CA. L (minors) (wardship: jurisdiction), Re [1974] 1 All ER 913, [1974] 1 WLR 250, CA. M (jurisdiction: forum conveniens), Re[1996] 1 FCR 40, M (minors) (abduction: non-convention country), Re[1995] 2 FCR 265, CA. M (minors) (residence), Re[1993] 1 FCR 718, CA. P (a minor) (abduc......