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Determining child welfare where there are proceedings in a third-party non-member state

Home » International Family » Determining child welfare where there are proceedings in a third-party non-member state

Summary: W v L (Forum Conveniens) [2019] EWHC 1995 (Fam)

Hannah Gomersall

MacDonald J summarised the legal principles in determining the appropriate forum to determine child welfare where there are proceedings in a third-party non-member state.

The case concerned M, a 6 year old boy. M had resided in England since birth save for a period of 16 months as an infant (2014-15) when he had resided with his mother in Jordan. The mother had initially planned to be in Jordan for three months in order to initiate divorce proceedings there but the father succeeded in obtaining an exit ban in Jordan, preventing her from removing M from the country.

The complicating feature of this case was that although the mother eventually succeeded in gaining the Jordanian court’s permission to travel to England with M and remain there indefinitely, this was conditional upon (i) the father providing funds for M’s health insurance and (ii) the mother’s brother providing a guarantee exposing him to the risk of prosecution in the event M was not returned to Jordan. It was accepted that the father had not provided those funds.

In 2019, the mother’s brother applied to the Swileh Sharia Court in Jordan to discharge the guarantee he had made in 2015 on the basis that all the relevant parties – mother, father and M now reside in England. The father objected to the guarantee in Jordan being lifted and filed a defence to the application. The result of the father’s defence was that the Sharia court issued a without notice order requiring the mother to place M in the father’s care immediately. It was unclear whether this decision was made administratively or by way of an ex parte judicial determination.

Therefore, the decisions facing Macdonald J were:

  • Whether M is habitually resident in England;
  • Whether this court has the jurisdiction to make decisions about M’s welfare or whether the proceedings here should be stayed because the Jordanian court is the appropriate forum.

Macdonald J concluded that M was habitually resident in England and the father had not demonstrated that that England was not the natural and appropriate forum or that there was another available forum which was clearly and distinctly more appropriate. In determining the issues, the judge conducted a useful summary of the applicable legal principles and case law.

The degree of M’s integration in social and family environment in England meant that the court had no hesitation in finding M habitually resident here. As such, pursuant to Art 8(1) of BIIa the court had jurisdiction in relation to matters of parental responsibility concerning M.

Where the English court does have jurisdiction under Art 8 but there are proceedings in a third party non-member state the issue becomes one of forum conveniens. The key principles are set out in Spiliada Maritime Corporation v Consulex [1997] AC 460, specifically:

  • It is on the party seeking a stay of the English proceedings to establish it is appropriate;
  • A stay will only be granted where the court is satisfied that there is some other forum available where the case may be more suitably tried for the interests of all parties and the ends of justice. The party seeking a stay must therefore show not only that England is not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate;
  • The court must first consider what is the ‘natural forum’ – the place with the most real and substantial connection;
  • If another forum is concluded to be more suitable than England, the court should normally grant a stay unless the other party can show that there are circumstances in which justice requires a stay should be refused.

In applying this test on forum conveniens, the child’s interests are not paramount but are an important consideration (see most recently Re K [2015] EWCA Civ 352). Further, the starting point is that the court with the pre-eminent claim to jurisdiction is the place where the child is habitually resident (though this is not a conclusive factor). MacDonald J also identified the case of V M (A child)(Stranding: Forum Conveniens: Anti-suit injunction) [2019] 4 WLR 38  as providing a useful summary on factors relevant to determining the ‘natural forum’ question.

Amongst the numerous factors which led the court to determine that the case has the most real and substantial connection with the jurisdiction of England and Wales was that the proceedings in Jordan were procedural concerning the mother’s brother discharge from his 2015 guarantee, rather than directly concerning the welfare of M. There had been no welfare analysis before the mother was ordered to give M to the father and, crucially, the Sweileh Sharia Court had adjourned the proceedings to await the decision of the English court.

 

This post was written for Coram’s international children law blog and is featured in our September 2019 newsletter. To subscribe, email theresa.yurkewich@coramchambers.co.uk. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on a range of international children law matters, including relocation, Hague and non-Hague child abduction, international surrogacy, and cases of contested jurisdiction. 

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