Re S (A Child) (Financial Provision)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALL,MRS JUSTICE BLACK |
| Judgment Date | 09 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1685 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2004/1728 |
| Date | 09 November 2004 |
[2004] EWCA Civ 1685
Lord Justice Thorpe
Lord Justice Wall
Mrs Justice Black
B1/2004/1728
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE BRACEWELL)
Royal Courts of Justice
The Strand
London, WC2A 2LL
MR TIM SCOTT QC AND MISS INDIRA RAMSAHOYE (instructed by Kingsley Napley, London EC1M 4AJ) appeared on behalf of the Appellant
MISS C WOOD (instructed by Osbornes, London NW1 7AH) appeared on behalf of the Respondent
(Approved by the Court)
Tuesday, 9 November 2004
On 23 July 2004 Bracewell J delivered judgment declining jurisdiction to entertain an application brought by the mother under section 15 of Schedule 1 of the Children Act 1989. The judge also refused permission to appeal, resulting in an application to this court received on 6th August. On 18 October the papers were referred to me and on the 21st I ordered an oral hearing on notice with appeal to follow if permission granted. Mr Timothy Scott QC has appeared today with Miss Ramsahoye to argue the case and it was perfectly apparent that Mr Scott had serious and substantial points to raise. So we have effectively treated this as the hearing of an appeal. The contrary argument was settled in writing by Mr Robin Barda, who appeared below, but owing to his having been detained unexpectedly in another case in the building, Miss Wood has appeared today to add to his written argument.
It is probably sensible to start with a brief summary of the history of what is a highly unusual case. The parents are both Sudanese. The father is in his mid-40s, the mother in her mid-20s. They married in the Sudan in December 1996. The mother was at that time resident in the Sudan. The father was primarily resident in this jurisdiction but visiting at intervals during 1996, during which he developed his relationship with the mother. As soon they married the father brought the mother to this country. In March 1997 he purchased in his sole name a property in South London, 44 Sherwood Gardens, which then became the family home. Their only child, M, was born on 13 April 1998. Sadly, the marriage broke down in about May 1991. Thereafter there was a long period of insecurity and repeated movement between this jurisdiction and the Sudan, which culminated in the grant of a divorce certificate according to Sudanese law, dated 25 April 2001. The mother took advantage of her freedom by remarrying on 22 June 2001 in Khartoum. That precipitate remarriage deprived her of rights which she would otherwise have had to bring financial applications in this jurisdiction against the target of the final matrimonial home.
The milestone in the subsequent history is the father's unlawful retention of M at the conclusion of a period of contact on 7 September 2001. That unlawful retention was in the course of proceedings which the father had commenced in the East Khartoum Sharia Court on 3 July 2001. Subsequently, the father obtained an order from that court, which seemed to confirm him as the parent responsible for M's care. That order was upheld by the Khartoum Court of Appeal when it dismissed the mother's appeal against the prior judgment of the Sharia court. The order of the Court of Appeal in Khartoum was dated 2 June 2002.
The mother commenced proceedings in this jurisdiction on 18 December 2002, seeking an order for M's direct return to this jurisdiction in wardship. Whilst that case was proceeding through its interlocutory stages, the mother achieved a significant success when the Supreme Court of Sudan reversed the decision of the Court of Appeal in Khartoum by an order of 29 September 2003. The conclusion of the order of the Supreme Court states:
'… the court of enforcement is to return the child to his mother. We order the party contested against to pay the fees and expenses of the contestation."
In this jurisdiction she obtained a partial success at the trial of her originating application by Kirkwood J on 23 January 2004. He found and declared that M was and remains habitually resident in England and Wales. However, he refused her application for an order for peremptory return in the exercise of his discretion, holding that the courts of the Sudan were well seized of all the issues in the case and were plainly competent to determine any outstanding issues.
The mother's reaction was to issue on 6 February 2004 an application for an order under Schedule 1 of the Children Act 1989. Within those proceedings she obtained orders against the property, Sherwood Gardens, effectively preventing the father from gaining access to his capital. I believe the form of the order was sequestration. It is unnecessary for the purposes of this judgment to record the subsequent developments. The order of Bracewell J freed Sherwood Gardens from restraint unless the mother made further applications for extension prior to 6 August. I do not believe that any application for extension was made either to Bracewell J or to this court, but it is agreed that a subsequent order made by Wood J has had the effect of continuing the restriction on the father's only capital asset until the determination of this appeal.
Within the application brought under the Children Act 1989 the father took the preliminary point that the court had no jurisdiction to entertain the application. Before Bracewell J the preliminary point as to jurisdiction was argued out on 23 July and decided, in a relatively brief extempore judgment, in the father's favour.
There were two distinct points of construction relied upon by the father in support of his general submission that the court had no jurisdiction to entertain an application under paragraph 1 of Schedule 1. The first was that any order that the mother sought was essentially for her benefit and not for the benefit of M. The second point of construction focused on paragraph 14. It was submitted on the father's behalf that the court's jurisdiction to entertain an application in relation to a child living abroad was exclusively defined by paragraph 14. Since manifestly the mother could not bring herself within paragraph 14 it therefore followed that she was excluded from the court's jurisdiction.
Before coming to record the conclusions of Bracewell J, it is perhaps sensible to set out the statutory material. Paragraph 1 of Schedule 1 reads:
"(1) On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may -
(a) in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph(2);
(b) in the case of an application to a magistrates' court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.
(2) The orders referred to in sub-paragraph (1) are -
(a) an order requiring either or both parents of a child -
(i) to make to the applicant for the benefit of the child; or
(ii) to make to the child himself,
such periodical payments, for such term, as may be specified in the order;
(c) an order requiring either or both parents of a child -
(i) to pay to the applicant for the benefit of the child; or
(ii) to pay to the child himself,
such lump sum as may be so specified."
Mr Scott on behalf of the mother makes plain that the relief sought was both for a lump sum payment under paragraph 1(2)(c) and also for periodical payments under subparagraph (a). The mother's preference was for a lump sum order under paragraph (c).
Paragraph 14 of the schedule states:
"Financial provision for a child resident in country outside England and Wales.
14. (1) Where one parent of a child lives in England and Wales and the child lives outside England and Wales with -
(a) another parent of his;
(b) a guardian of his; or
(c) a person in whose favour a residence order is in force with respect to the child,
the court shall have power, on an application made by any of the persons mentioned in paragraphs (a) to (c), to make one or both of the orders mentioned in paragraph 1(2)(a) and (b) against the parent living in England and Wales.
(2) Any reference in this Act to the powers of the court under paragraph 1(2) or to an order made under paragraph 1(2) shall include a reference to the powers which the court has by virtue of sub-paragraph (1) or (as the case may be) to an order made by virtue of sub-paragraph (1)."
Bracewell J dealt first with the construction of the words "for the benefit of the child", crucial to both subsections (a) and (c). She said:
"The way in which the mother puts her case is that any award would be for the benefit of the child because the money would be used to enable the mother to travel to the Sudan to see her child and to fight in order to seek the return and the enforcement of a judgment which was given in the Sudanese court in her favour on September 29th, 2003. That, however, appears to me not to relate to the sort of financial provision which was envisaged in Schedule 1. On the contrary, it is giving sums of money to the mother to enable her to do something which would be for the benefit of the child. It is not money which is geared to the maintenance and upbringing of the child himself."
In relation to the father's second objection, Bracewell J set out the terms of paragraph 14 in full, and went on to say in, paragraphs 8 and 9 of her judgment, that the effect of the paragraph was to restrict the court's power to making orders against a parent living in England and Wales when the child lives outside the jurisdiction...
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