K (A Child), Re

LORD JUSTICE MCFARLANE:

Introduction: This is an appeal brought by the father of a young child following determinations made by Roderick Newton J at a hearing on 13 October 2014.

The child at the centre of the proceedings is a boy, M, born on 5 July 2012, and therefore now some 2 years and 9 months of age. In his short life, he has been the subject of a substantial amount of litigation both in this jurisdiction and also in the jurisdiction of Singapore.

It is not necessary for the purposes of explaining our decision in this appeal to descend to a great deal of detail. The detailed history of the proceedings can, in fact, be found in the course of a judgment given by the Court of Appeal and handed down on 15 July 2014 with the neutral citation [2014] EWCA Civ 905. But, in short terms, the parents (the mother, who is a national of Mongolia, and the father a national of Singapore) met in 2011 and married in that year. By that time, the father was employed in good employment in England and a visa was issued which enabled the mother to come to this jurisdiction to join him.

She arrived in England in October 2011. As I have indicated, M was born in July 2012. A year later the couple agreed that it was in M's interests to spend some time in Singapore living with his paternal grandparents. Primarily this was to enable the mother to focus upon the continuation and culmination of the studies that she had been undertaking in England.

Thus it was that the parents took M to Singapore and placed him in the care of the paternal grandparents in the summer of 2013. The mother's stated understanding was that once her studies were complete in November 2013 the parents would return to Singapore and bring M back to England. In the event, that plan was not put into any form of action until January 2014, but, on 17 January, the couple flew to Singapore with a return ticket for themselves together with young M to travel back to England on 25 January. However, events were not to follow that apparently planned course.

Whilst in Singapore, the mother was served with proceedings for divorce and custody that the father had issued in the High Court of Singapore. He also obtained orders that the mother should not remove M from Singapore. The mother returned to England without M and M has remained living with the paternal grandparents since that time. Very swiftly the mother made an application to the High Court here in England and orders were made under the inherent jurisdiction on 24 January and subsequently, which initially required the father to return the child to this jurisdiction.

There was issue between the parents as to whether the court in England and Wales had jurisdiction with respect to M and the principal consideration as a matter of law in that respect was for there to be a determination as to whether M was habitually resident in this jurisdiction at the time that the English proceedings were commenced in January 2014.

The issue of habitual residence and hence jurisdiction was determined by Russell J at a hearing on 14 March 2014. She concluded that M was indeed habitually resident in England and Wales at the time that the proceedings were issued and she therefore held that the court in England and Wales had jurisdiction to make determinations with regard to M's welfare.

The father appealed that decision together with subsequent orders made by Russell J, in particular an order committing the father to prison for his apparent failure to comply with orders requiring him to return M to this jurisdiction.

That appeal was heard by a court comprising Maurice Kay LJ, myself and Kitchin LJ on 4 January 2014. On that occasion we indicated that the father's appeal with respect to contempt would be allowed and he was therefore immediately granted his liberty. We, however, reserved our judgments with respect to the other issues, including habitual residence and jurisdiction.

We dismissed the father's appeal with respect to the determination of jurisdiction based, as it was, on habitual residence. Our judgments were handed down on 15 July 2014.

The present appeal raises issues as to forum conveniens and general welfare issues about M. As paragraph 44 of the leading judgment of Kitchin LJ makes plain, these issues were left open within the proceedings. Kitchin LJ says:

Thus it was that the wardship proceedings continued. There were, however, subsequently developments with respect of M during the summer, the most striking being that the mother contracted the services of an independent agency with the aim of snatching M from the paternal grandparents' care in Singapore and removing him from that jurisdiction by sea in a boat that had been chartered for the purpose. The snatch was achieved but before they could leave the jurisdiction the mother was arrested and M was returned to the grandparents' care. In consequence she faced criminal proceedings in Singapore, was given a short prison sentence and, upon her release from prison, she was immediately deported to her home country of Mongolia, eventually making her way back to this jurisdiction in October.

The English wardship proceedings had been before a number of judges during the summer and it is a regrettable feature of this case that I think five or six different judges of the Family Division have had the case before them at different stages during the latter months of 2014.

At a hearing before Holman J, on an occasion when the mother was not present because of her incarceration, the wardship proceedings were adjourned to be heard as a 1-day fixture on 31 October 2014. The order making the adjournment establishes the agenda for the hearing in general terms:

It is the hearing of 31 October with which we are concerned in this appeal, and the judge on that occasion, Roderick Newton J, was new to this case.

The difficulty for the judge in identifying the issues in advance will have been exacerbated in that the system had provided him with the bundles in the case but he apparently did not have a position statement from either side until the morning of the hearing. If he had had position statements before that date, they in turn would have been confusing to him. The position statement filed by Mr Mark Jarman on behalf of the mother lists the issues for the hearing on 31 October in these terms:

I should pause there to interpose the information that in addition to proceedings with relation to M there had been a jurisdiction race between this couple as to divorce proceedings. The father had issued the divorce proceedings that were served on the mother in the middle of January and she at some later stage but early in the year issued her own divorce petition in England and Wales and there remained, so far as the English proceedings were concerned, a live issue as to whether the English court had jurisdiction with respect of the divorce, and it is correct that the issue of divorce jurisdiction had been expressly adjourned by a different order made by Holman J for consideration, if there was time, following the determination of any issues in the wardship proceedings with respect to M.

Turning back to the matters that were flagged up in the position statements of counsel for the 31 October hearing, the position statement filed by Mr Grant Armstrong, counsel on behalf of the father, raised separate matters, in particular the issue of forum conveniens with respect to the wardship proceedings and the issue of welfare. Within his position statement I am afraid that Mr Armstrong inadvertently creates some further confusion by eliding those two issues. The heading of the section of the position statement that deals with these issues is in these terms, without punctuation:

In the event, the hearing seems to have lasted for most of the day on 31 October before Newton J. We now have the benefit of a transcript of that hearing and early in this morning’s hearing we asked Mr Armstrong to identify what were the issues before the judge and where in the transcript the issues were plainly set out for the judge's consideration.

For my part, I am bound to say that, even having gone through that process with Mr Armstrong's assistance, the agenda for the judge cannot have been entirely clear, and I bear that very much in mind when I go on to consider, as I must, how the judge approached matters.

It is not necessary in this short judgment to explain in detail what Mr Armstrong did or did not say about his case but it is plain that, on more than one occasion, Mr Armstrong explained to the judge that the issue of habitual residence and therefore the issue as to jurisdiction residing in the court of England and Wales had been determined by Russell J and that that determination had been upheld by the Court of Appeal and it therefore was not a live issue that he was seeking to raise at the hearing on 31 October.

Mr Armstrong was, however, looking to raise issues of welfare and forum. The following exchange is illustrative:

Mr Armstrong has told this court that he had anticipated that when the judge gave his judgment one of the primary issues to be determined was whether or not there should be an adjournment. He did not anticipate that the judge would go on to determine the issue of forum conveniens.

In setting the scene, I should also make the following observation as a matter of law and structure. It is not necessary for me to descend to detail. The legal structure for these issues in an international private family case is plain. The court first determines whether or not the court in England and Wales has jurisdiction. It does so, depending on the countries involved, with or without reference to various international provisions. In a case such as this, which is not one between Member States of the EU, the approach is straightforward. The court decides jurisdiction and decides it with regard to the habitual residence of the child at the relevant time. That determination in this case has been made and is not open to review or challenge and was not open to review or challenge at the hearing before Newton J.

It is then possible, if parties wish to do so, for the English court to be invited, despite a finding that it has jurisdiction, to consider the question of convenient forum. The court, if required to do so, approaches that on the well-known basis applicable to civil proceedings generally which is set out in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

Again, as a matter of structure, the normal approach is for the party asserting that England and Wales is not the convenient forum to apply for the English proceedings to be stayed. The burden is upon the applicant for such a stay to persuade the court, on the principles of Spiliada and related cases, that the stay should be granted and that, despite having jurisdiction, England and Wales should cede to another court which is the more convenient forum.

It is established that the welfare of the child is a relevant consideration in determining the question of convenient forum but it is not an issue, that determination, to which the paramount principle in section 1 of the Children Act applies.

The final structural step is that, if jurisdiction is established and if a stay is not imposed because of forum conveniens considerations, then the court is free to go on to make more generally based welfare determinations with respect to the child’s future.

It is apparent to this court, certainly to my eyes, reading the transcript, reading the position statement provided on behalf of the father for Newton J, and indeed, with respect, hearing Mr Armstrong's oral submissions to us today, that the clarity of structure that I have just described was not a feature of the father's case as it was presented to the judge. Mr Armstrong apologised to this court for eliding and conflating substantive matters of welfare with matters of convenient forum.

Be that as it may, the judge was responsible for conducting the hearing, and it must always be incumbent upon a judge, particularly dealing with these potentially complicated legal matters that require a crisp and clear structure, to case manage the hearing before him so that he understands the issues that fall to be determined, understands the applicable law and, if this is an area of law with which the judge is not totally familiar, seek assistance from counsel as to the law and then consider which parts of the evidential material are or are not relevant to the issues that he has to determine.

Regrettably, the description of the correct judicial approach that I have just offered cannot apply to the judgment given by Newton J on this occasion. The judgment, coming as it does from a specialist High Court judge in the Family Division, demonstrates, I am afraid, an astonishing lack of grasp of the basic core concepts in an international case relating to jurisdiction and forum conveniens. It is also, I am afraid to say, a confusing and very poorly constructed judgment which displays little clarity as to the issues that fell to be decided, the applicable law and the relevant facts.

Those are strong words for an appellate court to utter with respect to any judgment from any judge at any level and it is obviously now incumbent upon me to explain why I feel driven to say what I have said.

This appeal

On 31 October Newton J, seemingly, made a definite determination as to forum conveniens being in England and went on to make welfare determinations with respect to M, including an order requiring the father to bring M, or cause M to be brought, back to this jurisdiction and he maintained a continuing order with respect to the father's passport, which is currently held by the tipstaff.

The father seeks to appeal all of those orders with respect to M and in particular with respect to the passport but Mr Armstrong, understanding as he does because it is a central feature of his case that the process undertaken by Newton J and the judge's resulting judgment simply failed properly to engage with the forum conveniens issue, accepts that the inevitable outcome of his success on appeal will be for there to be a rehearing of these issues before a different judge.

Mr Henry Setright QC, who has been instructed in these proceedings very much at the eleventh hour, leading Mr Mark Jarman, who appeared below, sought to justify the judge's judgment. However, at an early stage in his submissions, having taken time to discuss the matter with his lay client, his instructing solicitors and with Mr Jarman, Mr Setright told the court that he accepted that he could not sustain the argument and that it was impossible for him to say that the judge had considered the forum conveniens argument properly or effectively within the judgment that he gave on 31 October. Mr Setright therefore accepted that the appeal would inevitably be allowed and the case would have to be listed for rehearing. I will turn to the outcome and any orders that are to be made in due course.

I therefore turn to the judgment and to that part of it that leads to the description that I have already given. Much of the judgment, inevitably and rightly, includes a summary by the judge of the factual background. I do not intend to quote any of that part. My focus is upon the judge's approach to the issues that he thought he was considering and his approach to the law. I will therefore start by quoting the first half of paragraph 4 of the judge's judgment:

Pausing there, at the very start of the process the judge states that he understands Mr Armstrong has asked the court to "reconsider or incorporate into its consideration of habitual residence ... both welfare and the 'convenient forum' for the parties and the child". That plainly is a total misunderstanding of both the position that had been reached with respect to these proceedings and also the law, as a matter of principle, in relation to habitual residence and jurisdiction. With respect to the judge, he had no standing himself to "reconsider" or otherwise reopen the question of habitual residence and the consequent conclusion drawn from it as to jurisdiction. Those had been decided. They related, as they had to, to the start of the proceedings, being the date with respect to which habitual residence was determined, and those determinations had been upheld by the Court of Appeal. Further, however, the judge was, in my view, plainly in error in considering that aspects of "welfare" and "convenient forum" could impact upon or be "incorporated" within any consideration of habitual residence.

Moving on, the next passage that I would quote is at paragraph 27 where, under the heading "The Law", the judge says this:

What is also striking is that the judge in this section dealing with "The Law" makes no reference at all to any legal principles applicable to his decision with respect to forum conveniens. In sympathy for the judge's position it is right that neither of the position statements put in by the parties makes any reference to the legal context for forum conveniens. In Mr Jarman's case, of course, he did not consider that that issue was even on the agenda for the court. And at no stage during the oral hearing was the judge taken to any of the legal principles.

Further, in paragraph 27, the judge purports to set out the "Live Applications" and he does so in these terms:

Moving on, in the course of the judgment, which related to M and the wardship proceedings, the judge records this at paragraph 31:

The judge deals at paragraph 35 with a summary of the points made in response by Mr Jarman. In part, he refers to the mother's conduct in the summer in respect to the attempted snatch of M but he also refers to the father's conduct earlier in the year.

The judge then goes on at paragraph 36 to make detailed reference to an order made by a district judge on 16 June 2014 with respect the financial circumstances. Again one questions how that can be relevant to the issues relating to M.

Moving on, the judge moves towards his conclusion in this way, and I quote first of all from paragraph 40 in which he says this:

Paragraphs 43 to 44, however, do require quotation in full:

Paragraph 43 displays, I am afraid, a total lack of understanding by the judge of what it was, or what it could be, that he was determining. He, in the course of that paragraph, brings in a number of unrelated matters. The judge first of all indicates that he has no reason to think that the proper forum is not England and Wales. At no stage does he analyse the submissions that Mr Armstrong has made. He then says, "the court has already made a declaration as to proper forum". That is not correct. What the court had determined was jurisdiction. The issue of forum had been adjourned, on Mr Armstrong's understanding, for determination by Newton J on 31 October.

The judge then says, "I am confident that this is the right jurisdiction for determining that issue". That sentence is hard to understand if the judge is simply saying that England and Wales is the right jurisdiction in which to determine the issue of "forum". Then the next sentence is, I am afraid, in my view, a total non sequitur. It is: "It might be open to the paternal grandparents to come back to this jurisdiction and care for him here". Then finally, the last sentence of that paragraph: "I see no basis for reviewing the orders of Russell J". Well, in so far as habitual residence and jurisdiction are concerned, the judge is correct. Indeed, he had no standing to review those determinations. But if the judge was indicating that he understood that the issue of forum had already been determined, he was, I am afraid, in error.

It does seem, if one reads paragraphs 43 and 44 together, that because the judge moves on at the beginning of paragraph 44 to say "so far as convenient forum is concerned", he may have been talking about "jurisdiction" rather than "forum" in paragraph 43. But, I am afraid, that is not at all clear. In paragraph 44, if this is the judge’s evaluation on forum conveniens, it lacks any reference to law and it is a wholly superficial summary of some of the matters that Mr Armstrong had been putting before the court. Then the announcement of the conclusion at paragraph 45 repeats the original error, which is to consider that the court was determining habitual residence but that in doing so could take "into account the issues of welfare and forum".

It short, I am afraid, the judge's judgment totally failed to engage in any way that was legally correct or procedurally appropriate with the determination of the issue of the forum conveniens. As I have indicated, he was not given the most effective assistance, I am afraid, by counsel, particularly I would indicate Mr Armstrong. But, as I have already stated, in the end it is a matter for the judge to take ownership of the proceedings and to control them, and, if he feels he needs clarity from the advocates, either as to substance or as to the law, it is open to him to ask for it.

I have in mind, as the judge makes plain and the transcript itself demonstrates, that this was a case heard during the course of one court day, in which the judge delivered an ex tempore judgment without notes, with, effectively, little time to undertake a considered evaluation. But whilst I have sympathy for that position, I have very much in mind that there was no pressing urgency requiring his decision to be announced on that afternoon. Judges should always take time, if they need it, to consider their judgments, and it was certainly perfectly possible in the context of the time limits of this case for judgment to be reserved, even for a matter of days or longer, during which the judge could form a considered view and, if necessary, research the law.

Therefore, for all the reasons that I have given, I am afraid the judge's determination on 31 October with respect to the wardship proceedings cannot stand and must, as Mr Setright accepts, be set aside in its entirety. The matter will have to be reheard. Counsel are confident that they will be able to agree directions. It is essential that the case is set up properly on the next occasion, with the order from this court enumerating the issues that are to be determined. If the father is going to litigate his arguments with respect to forum conveniens, then he needs to make an application for the English proceedings to be stayed and then argue his case in accordance with the law. If the father's case remains that there are still aspects of the evidence that need to be addressed and for further evidence to be filed, that needs to be considered immediately and, if necessary, a short case management hearing should be set up, if possible, before the judge who is now to take on the case.

I am grateful to Mr Jarman, who has made enquiries with the Clerk of the Rules and we have been told that this case could be heard by a judge other than Russell J or Newton J on 5 May for 1 day, and Mr Armstrong accepts that that would be a helpful listing. We will therefore, if my Lords agree, allow the appeal with respect to the wardship determinations made by Newton J on 31 October and direct that this matter be heard by a judge other than Russell J and Newton J on 5 May. Other matters of detail can be agreed by the parties.

There is a need to hold the ring, as it were, and ensure that there is some stability and security as to arrangements in the meantime. That involves consideration, firstly, of the father's passport. Mr Armstrong, because of the circumstances of the case, does not strenuously argue against the continuation of the passport order pending the hearing on 5 May. However, the requirement that the father should return M to this jurisdiction begs the question which is to be considered by the new judge at the next hearing and I, for my part, would set aside that part of the order of 31 October which requires the father to return M to this jurisdiction.

That deals with the main matter that was before this court today but, separately, there is a narrow point which is the subject of a second appeal brought by the husband in the course of the divorce proceedings. The point is simply this. As I have described, there is a jurisdiction race between this couple. The race has, effectively, it would seem, been won by the father, who has achieved an “interim decree”, which would be known in this jurisdiction as a “decree nisi”, on 9 July in Singapore and indeed, we understand, orders for financial provision were made by the court in Singapore in December.

Be that as it may, at an earlier stage, at the hearing before the district judge in London, on 16 June 2014, the father was ordered to file his "Form E", that being the comprehensive document which sets out in full his disclosure of his financial assets both in this jurisdiction and abroad. It is accepted that at that hearing the father, who was appearing in person and without legal representation, maintained his challenge to the jurisdiction of the court in England and Wales and the direction with respect to Form E was given "without prejudice" to the father's overall position.

The father did not file his Form E and the question of whether he should be required to do so was raised before Newton J at the hearing on 31 October. It is not a matter which was canvassed with the judge prior to the full judgment to which I have already made reference. It arose subsequently in the course of the post-judgment submissions. The judge is taken to the point at page 38 of the transcript where the following discourse is recorded:

That is where matters ended. However, the order issued by the judge subsequently makes a direction for the father to file a Form E with a deadline shortly prior to the resumed listing of the divorce proceedings for the question of the jurisdiction of the court in England and Wales to be determined at that hearing.

Mr Armstrong and Mr Setright explain that the terms of the order were subsequently developed during email communication and the judge endorsed the order referring to Form E, albeit that he had not given a decision about that during the course of the hearing.

The short point taken on appeal is that, unless and until the English court has jurisdiction with respect to the wife's divorce petition, it lacks jurisdiction to require the husband to file full disclosure in the format of Form E.

Mr Setright, on behalf of the wife, accepts, as I understand it, the basis of that submission. But he helpfully has gone to the transcript that I have just referred to and indicated that the judge's quest for additional information about finances was not in his capacity as a judge seized of the divorce proceedings but as a judge in the wardship proceedings who wished to know more about the financial landscape in order, for example, to know whether or not he could take seriously any offer by the father to put in place a bond or other security with respect to the future care of M. In that regard, Mr Setright says it is unremarkable that a judge in wardship might require a father to file an affidavit setting out the basis of his financial circumstances and that what has happened here is that the use of the label "Form E" has caused that to be seen in the technical sense of full and comprehensive and total disclosure in the context of the financial relief proceedings rather than the more focused and useful disclosure that the judge indicated in the course of the transcript.

For my part, what Mr Setright submits makes total sense. But it was not what the judge ordered. There is also a difficulty about this order going beyond the matter of jurisdiction, which is the main point Mr Armstrong relies upon. The issue, it seems to me, simply was not litigated before the judge. The transcript shows that Mr Armstrong properly raised it and the judge said at that stage of the day it was not meet for detailed submissions, Mr Armstrong subsided, the question of jurisdiction was adjourned to the next hearing with respect of the divorce and the matter rested there. For this contested issue then to surface in the order of the court after really no proper process and no reasoned determination by the judge indicates to me that it is an order that cannot in any event stand.

I would therefore allow the appeal with respect to the direction in the divorce for filing of a Form E.

For the reasons that I have now variously given, I would allow both appeals, set aside the orders of the judge in respect of the matters to which I have made reference and so far as the proceedings in relation to M are concerned, I would remit them for rehearing before a different judge on the basis that I have described.

SIR DAVID KEENE: I agree, and I make it clear that I agree with all that has been said by my Lord about the judgment which is now under appeal. I also agree with the proposed order.

LORD JUSTICE PATTEN: I also agree.