Re S (A Minor) (Stay of Proceedings)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE ROCH |
| Judgment Date | 14 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0714-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 1993 |
[1993] EWCA Civ J0714-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
(ORDER OF WARD J)
Before: Lord Justice Lloyd Lord Justice Butler-Sloss Lord Justice Roch
MR. MENDEZ DA COSTA (Instructed by Messrs Amphlett Lissimore, London SE19 3RW) appeared on behalf of the Appellant.
MR. G. HARKUS (Instructed by Messrs Metson Cross & Co., London WC2) appeared on behalf of the Respondent.
( )
Wednesday 14th July 1993
This is an appeal from the judgment of
Ward J given on 17th December 1992, whereby he granted a stay of certain proceedings in the Family Division on the ground of forum non conveniens.
The case concerns a child, Helena S, born on 30th May 1992; so she was just over seven months old at the time of the hearing. The mother is 36. She is a British citizen born in Scotland. The mother's father comes from Iceland. The mother's mother is British. They live in a substantial house in Edinburgh, where he is a professor at Edinburgh university.
The father is Spanish. He is 46. He is an actor by profession, with little or no work.
The mother came to England in 1984, where she married. She separated in 1989, and is now divorced. She started co-habiting with the father in October 1991 in the father's flat in Shepherd's Bush. On 17th September 1992 she went to Scotland to visit her parents, taking the child with her. She intended to return on 12th October, which was the date of her return ticket. But while in Scotland, she decided that the relationship with the father was over. She told the father on the telephone that she was going to take the child to Iceland.
On 21st October 1992 District Judge White made an ex parte order on the husband's application, restraining the mother from taking the child out of the United Kingdom, and ordering her to return the child to England before 5th November, the return date for the hearing of the father's application for an order covering residence, contact, and parental responsibility.
Meanwhile on 30th October the mother was granted interim interdict by the Sheriff Court in Scotland, prohibiting the father from removing Helena from Scotland, without the mother's written consent. The mother duly returned the child to England in time for the hearing on 5th November. District Judge Angel made a consent order on that date, discharging the order of 21st October, on the mother's undertaking to grant the father supervised contact in Edinburgh for two hours a week. So the mother was free to take the child back to Edinburgh.
At the adjourned hearing of the father's application on 13th November, District Judge White stayed all further proceedings pending a decision of the Scottish Court on the question of contact, upon the mother's undertaking to permit two hours contact per week "together with [such] other contact as may be agreed". The father appealed. The case came before Ward J. Both parties were legally represented.
In the course of his judgment Ward J observed that the argument in the court below had become confused because of a failure to distinguish properly between questions of jurisdiction and questions of stay. Since the mother did not challenge the jurisdiction of the English court, the only question was whether a stay should be granted under section 5(2) of the Family Law Act 1986, which provides
"Where at any stage of the proceedings on an application made to a court in England and Wales for a Part I order, or the variation of a Part I order, it appears to the court
(a) that proceedings of the respect of the matters to which the application relates are continuing outside England and Wales, or
(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England Wales, the court may stay the proceedings on the application".
The principles on which the discretion under section 5 is to be exercised have been established by two decisions in the House of Lords, Spiliada Maritime Corporation v Camsulex Ltd 1987 AC 460 and de Dampierre v de Dampierre 1988 AC 92. Ward J directed himself, correctly, that it was for the mother to establish that Scotland was clearly the more appropriate forum. He considered the various factors pointing in either direction. Dealing first with residence and contact he concluded
"The likely balance of convenience for witnesses, if not evenly balanced, is balanced in favour of Scotland. As between the mother and the father, taken in isolation, it can be no more inconvenient for him to go to Scotland than for her to come to London, save for this important fact: the mother is still feeding this baby. If she travels, the baby must travel. That requires her to be accommodated more comfortably than might be necessary were the father to go alone to Scotland for the purpose of his participating in the trial. Moreover, the baby must be affected by that travel and, whilst I regard it as wrong to determine the issue of forum conveniens with reference to the interests of the child, the interests of the child cannot be ignored and must be a factor for me to weigh in the scales. The interests of Helena clearly dictate that she should remain for as long as possible in the conditions in which she is progressing satisfactorily enough, namely, in her mother's care in her grandparents' home in Scotland, and the minimum upheaval should be occasioned to her.
Balancing, therefore, the needs of the parties, and bearing in mind the needs of the child, the balance again comes down in favour of Scotland.
I am, therefore, satisfied that the mother discharges the burden of proof upon her. I am satisfied, though it is not easy so to be satisfied, given the unsatisfactory state in which the litigation comes to me, that the more appropriate forum for the conduct of this litigation is Scotland".
He then went on to give separate consideration to the father's application for a parental responsibility order. I return to that matter later.
The father now appeals to the Court of Appeal.
Mr. Mendez da Costa submits on his behalf that the judge failed to exercise his discretion properly because (1) he gave insufficient weight to the fact that proceedings were already well under way in England, and that the English courts would therefore be likely to reach a conclusion sooner than the Scottish courts, (2) in so far as the mother will suffer inconvenience by having to come to England, she has brought this on herself by taking the child to Scotland, (3) that though the father would obtain legal aid for his defence in Scotland, he would be unlikely to obtain legal aid for his counterclaim for a...
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