R v S

On 27 October 2006 the Applicant father, R, issued a Form C2 applying for directions in advance of a review hearing listed for 18 January 2007 in respect of 2 children, 5 year old N and 2 year old K. It was in relation to an order made by me on 7 February 2006. There was a subsequent hearing before me on 6 December 2006. It became clear that an important issue of jurisdiction arose which needed to be decided before the review hearing. Accordingly I heard argument on this issue on 19 December when I reserved judgment.

The parties were married in Hong Kong on 23 December 1997. The father, a British national, has family both in Hong Kong and in London. The Respondent mother, S, is a Panamanian national.

After the marriage the parties lived in Hong Kong before moving to the UK. They lived with the paternal grandparents in Stanmore, Middlesex. Their first child, N was born on 20 January 2001. The parties separated in May 2004 when the mother left with her father to return to Panama. She has lived there ever since.

The father had on 17 May 2004 issued an application for a Residence Order in respect of N. He also sought orders preventing the mother taking N from the father and out of the jurisdiction. On 6 September 2004 the mother gave birth to the parties’ second child, K. In November 2004 the father issued a petition for divorce. It has not been made absolute.

Proceedings between the parties continued. Reports were obtained from a child psychiatrist, Dr Wiseman. He pointed out the difficulties for the 2 boys being brought up apart from each other. After much negotiation an agreement was reached that N would go and join his mother and brother in Panama. The agreement was incorporated in an order made by me on 7 February 2006. By then N with his father had visited his mother and brother on 2 occasions in Panama.

At that hearing Mr Setright QC appeared for the father, Mr Jarman for the mother and Mr Spon-Smith for the Guardian. The children had been made parties to the proceedings.

The relevant parts of the order provided –

“……..and upon the agreement of the Applicant and the First Respondent that whilst the child K will continue to live in Panama and be subject to the jurisdiction of the Panamanian court it is the parties’ wish and that of the High of Justice of England and Wales that orders be made in Panama, in the terms set out in ‘Schedule A’ annexed hereto, and that such orders once made be reflected and supported in orders made in the English jurisdiction in respect of K.

And upon the basis that (pursuant to the agreement to this effect reached by the Applicant and the First Respondent voluntarily and upon legal advice today) the Applicant and the First Respondent do forthwith use their best endeavours to procure the making of an order, in the terms set out in the Schedule annexed hereto marked ‘A’, in proceedings in the appropriate court in Panama, in respect of the child K ………..

It is ordered by consent that –

1)

There be permission to the Applicant to remove the child N ……… from the jurisdiction of England and Wales to Panama permanently.

2)

The child shall be accompanied to Panama by the First Respondent to arrive in Panama no later than Wednesday 8 March 2006.”

There followed provision for contact between the father and N. It included visits for the 2 boys to England for 28 days during December and February each year and for 7 days in July and August as well as contact by the father in Panama. The father agreed to pay maintenance of £200 per month in respect of each of the 2 children.

There was finally provision for a review in these terms –

“22.

This matter be listed for review to consider inter alia issues relating to contact and jurisdiction, before Mr Justice Sumner on 12 January 2007, time estimate half a day, unless the parties agree to vacate the review hearing ………

23.

The Guardian ad litem is hereby discharged from these proceedings but without prejudice to the right of the Applicant or the First Respondent to apply on notice to CAFCASS Legal for her re-appointment and attendance at the aforesaid review hearing.

24.

The appropriate court in Panama is requested to consider facilitating the preparation of an updating social work report on the children ………… to be made available to this court and the parties not less than 28 days before the review hearing……”

Since then there have been 3 contact visits. The father visited Panama between 26 May and 5 June 2006. The children visited the UK with their mother from 24 July to 2 August. Finally the father visited Panama between 1 and 11 September 2006. He now wishes to re-open the issue of residence as well as contact.

There was a decree nisi of divorce in March 2006. The decree has not been made absolute an FDR has been listed in March 2007 limited to the issue of what if any capitol sum the father should pay to the mother.

On 3 November 2006 the father’s solicitors raised in correspondence concerns that he felt about N regressing during his time in Panama. On the day of the hearing on 6 December 2006, the father produced a 17 page statement outlining his concerns. He exhibited over 40 pages of a diary he had kept. He said that N’s health had deteriorated, he had no permanent room in the mother’s home, he had regressed at school, and he was controlled and coached in relation to his approach by the father.

The father’s proposed directions for the hearing on 6 December 2006 were drafted by Mr Nicholls QC now appearing for the father. They start as follows–

“1.

This matter is to proceed as if the father had made an application for a residence order in respect of N. The order as drafted but not yet agreed arising from the hearing was in the following terms –

1)

The father has permission to file and serve his statement dated 6 December 2006.

2)

This matter is to be listed for hearing before Mr Justice Sumner on 19 December 2006 with a time estimate of 2 hours (at risk) to determine:

a)

the issue of whether this court has jurisdiction to make orders in matters of parental responsibility over the children and, if so,

b)

whether Ms Odze should be re-appointed as the Children’s Guardian and what direction should be made for her to make a further report to the court……”

I was concerned at the beginning of the hearing to define the issue I was being asked to determine. In answer to my questions Mr Nicholls made his position clear. The father was seeking a residence order not only in respect of N but also K as well. He sought a direction that Ms Odze be re-appointed as the Children’s Guardian. However the father was content to rely entirely upon the recommendations of the Guardian. He would not seek any order from the court in respect of the 2 boys other than that which the Guardian supported. Mr Jarman for the mother argued that the court had no jurisdiction to consider any matter other than contact. If it did have such a jurisdiction, it was not an appropriate case in which to exercise it.

Apart from any inherent jurisdiction, s.2 of the Family Law Act 1986 governs the jurisdiction of courts in England and Wales to make orders under s.8 of the Children Act 1989 which include contact and residence orders. It provides that there is no jurisdiction to make a Section 8 order unless –

“2(1)(b)(i). The question of making the order arises in or in connection with matrimonial proceedings…….., or

(ii). The condition in section 3 of this Act is satisfied.”

Under s.2(a) the proceedings have to be continuing. Under s.3 the second ground founding jurisdiction is set out. It is that the child concerned is either habitually resident in England or Wales or is present in England or Wales and is not habitually resident in any other part of the United Kingdom.

Finally in relation to an application for a Part 1 order as it is described (which includes an application under Section 8 of the Children Act), by s.5 -

“Where it appears to the court –

a)

that proceedings with respect to the matter 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 and Wales, or……

the court may stay the proceedings…….”

There is no dispute between the parties in relation to the issue of contact. It is accepted that the review envisaged in paragraph 22 of the order of 7 February 2006 should go ahead. It includes a review of contact. It is in dispute whether it also covers the issue of residence.

Mr Nicholls argues that the divorce proceedings are still not concluded. Therefore, under s.1(b)(i) “the question of making the order arises in or in connection with matrimonial proceedings”. Mr Jarman argues that the children aspect of the matrimonial proceedings has been determined. If I hold there is jurisdiction, the next issue is whether any resident dispute would be more appropriately dealt with outside England and Wales. Each party argues their differing submissions strongly.

The principle objective of Part 1 of the 1986 Act was to avoid difficulties that arose with 3 separate legal jurisdictions within the United Kingdom. It was held in 1995 that it also covered those cases where the conflict crossed state boundaries (Re: S (Residence Order: Forum Conveniens) 1995 1 FLR 314). This is not in dispute nor the court’s inherent power to stay proceedings.

The essential provisions as they effect this case can be put shortly. The court only has jurisdiction if the father’s application for a residence order arises in or in connection with matrimonial proceedings (s.2), or either N or K are habitually resident in England and Wales (s.3). The latter is not argued. Accordingly the question arises whether the present application arises in connection with matrimonial proceedings.

Mr Nicholls points out that the whole approach of the father in this instance was to raise his concerns in the least inflammatory way. Thus it was that, in the draft order of 6 December, he had framed the question of whether the court had jurisdiction to make orders in matters of parental responsibility over the children. I took the view that a more specific application was required. This was not least because an order for or defining the exercise of parental responsibility under s.3 & 4 of the Children Act 1989 was not included as a Part 1 order under the 1986 Act. It was as a result of my concern that Mr Nicholls agreed that he would issue an application for a residence order in respect of both boys. The hearing continued on that basis.

His argument rests on 2 different bases. The first one is the continuing matrimonial proceedings. The second is that the order of 7 February 2006 arose under matrimonial proceedings. It expressly provided for a review. That review includes residence. Therefore the court has expressly made provision for that issue to be considered. It cannot now exclude the jurisdiction for which it has exclusively provided.

Mr Nicholls says that the father’s original application in relation to N was by way of a Form C1 issued out of the Principal Registry on 17 May 2004. His divorce petition followed 5 months later in November 2004. The May application was a free-standing one. There was jurisdiction because at that time N was both habitually in the UK and present here. The mother subsequently issued an application for a residence order in this court in respect of N. This was after the issue of the petition.

The effect of Rule 2.40 of the Family Proceedings Rules 1991 is that any application by a party in relation to a child where a cause is pending is made within that cause. Cause means matrimonial cause. Therefore the proceedings in February 2006 were matrimonial proceedings for the purpose of the 1986 Act. This is not disputed.

Mr Jarman submits that, whilst it is correct that the matrimonial proceedings are continuing because there has not yet been a decree absolute, the reality is that it has been concluded in relation to the 2 children. The order of February 2006 expressly provided that K would be subject to the jurisdiction of the Panamanian court. Express permission was granted to the mother to take N there permanently.

On 15 March 2006 a decree nisi of divorce was granted. Part of that involved the court certifying that the arrangements for the children were satisfactory. Their maintenance has been agreed, they have a home with their mother. The only remaining matter was what if any capital sum should go to the mother. It is difficult to argue in those circumstances that the matrimonial proceedings are continuing so far as the 2 children are concerned.

I can see the argument that, until the proceedings are finally concluded and there is a decree absolute, they are continuing even though the continuance would not impinge on the children in any way. I reach that conclusion with no enthusiasm. There may be little to commend retaining jurisdiction over children when all the decisions in relation to them have been made. There is even less when the express orders of the court recognise another jurisdiction in respect of one of the children, and expressly provides for the other child to go and reside within that other jurisdiction.

Whether I am right or wrong about that, I consider next the effect of the order of February 2006. I have set out its relevant terms. By this time the mother had already issued proceedings in Panama in relation to K. On 24 February 2006 the Second Court of Childhood and Adolescence of the First Judicial Circuit of Panama agreed to make the mirror orders requested of it.

In relation to the review provided for in paragraph 22 of the order, I recognise that this was part of an agreement reached between the parties after detailed negotiations. I look at the order as a whole and construe it on the basis of the background and its terms, rather than any view of what it might have been intended to mean.

I am satisfied that the parties sought to provide a means whereby the question of contact could be reviewed by the courts in this country some 11 months later. It was after acknowledging the Panamanian court’s jurisdiction in respect of K, and having granted a residence order in respect of N to the mother and permission for him to live permanently in Panama. It is difficult to believe in those circumstances that there could have been any contemplation that the father had a right to raise the question of residence within a matter of months before the courts of this country once more.

I accept that the phrase “inter alia” were used. However it was in the context of this court considering contact and jurisdiction. It did not by itself suggest or permit the father to raise the far more fundamental issue of a residence order.

Furthermore it has the unattractive potential of there being different jurisdictional rights in relation to each of the 2 brothers. Whilst I note that the father’s original application related only to N, K has now been added.

I would be most reluctant to contemplate save for most compelling reasons that this court had jurisdiction on matters of residence over K. He has only recently visited this country for the first time. He has always lived with his mother in Panama. He has never stayed with his father. He is habitually resident in another jurisdiction, and in respect of whom no welfare concerns are raised by the father. Before considering other matters relevant to the appropriate jurisdiction, these factors are of considerable force.

This has been helpfully summarised by Wilson J. as he then was in M v M (Stay of Proceedings: Return of Children) 2006 1 FLR 138. In that case both parents had issued proceedings in South Africa for divorce and custody. The mother then issued proceedings in this jurisdiction where the parties had been living for 2 years. He set out the principles involved which I happily adopt –

“But, whether the jurisdiction is statutory or inherent, the same principles apply. Counsel agree that, written in terms of the facts of this case, they are as follows:

(a)

the burden is upon the father to establish that a stay of the Sunderland proceedings is appropriate;

(b)

the father must show not only that England is not the natural or appropriate forum but also that South Africa is clearly the more appropriate forum;

(c)

in assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses;

(d)

if the court were to conclude that the South African forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and

(e)

in the exercise to be conducted at (d), the welfare of the girls is an important, but not a paramount consideration.

Authority for the first four principles derives from Spiliada Maritime Corp v Cansulex Ltd The Spiliada [1987] AC 460. Authority for the fifth derives from Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325B per Thorpe J (as he then was).”

Mr Nicholls emphasises a whole series of points which he says makes England the natural and appropriate forum. Firstly there is the procedural history. He points to the series of hearings there were leading up to the agreed order in February 2006. Whilst the mother did issue proceedings in Panama in relation to K and both parties were represented by Panamanian lawyers at the hearing on 24 February 2006 in Panama, that was very different from the series of disputed interlocutory hearings within this jurisdiction.

There is a language inequality. The mother speaks English and Spanish, the father speaks no Spanish at all. The result is that all papers coming from any court in Panama have to be translated which does not arise in relation to proceedings here.

It would be easier for N to see a Guardian here rather than a Panamanian welfare officer. First of all he has already met Miss Odze and he is fluent in English. It would be much more difficult for him talking to a Panamanian welfare officer where, with translation being required and if he was less forthcoming, it would be difficult to communicate his wishes and feelings.

There is an inequality of arms. In this jurisdiction the mother receives public funding and the father already has a legal team here. In Panama the father will not have a legal team who have been already involved and he will have to meet the expense. However in relation to the expense I note that the father has been able to have leading counsel representing him throughout, privately paid. It is likely to be far less expensive for him in Panama and well within the means available to him.

There is no advantage in staying proceedings within this jurisdiction to re-start them in Panama when the experts are here, Miss Odze has already been timetabled in, and there is a review hearing on 18 January. The mother will already be here between 2 and 27 January, being the dates I determined on 6 December.

Furthermore all that is being sought by the father is for there to be the investigation by the Guardian whose report he is prepared to state will be binding upon him. With a day’s hearing provided which will not interrupt schooling. With the Guardian ready to step in and the time permitted, the overwhelming conclusion is that England is the natural and appropriate forum.

Mr Jarman in response points to the February hearing as being a final order on residence so far as N is concerned and there is no basis for a primary jurisdiction in relation to K. When the Guardian went to Panama it was not as the Guardian of both children but only as the Guardian for N. It is within the spirit of what Mr Setright said in his submissions supporting the order in February 2006 –

“He hopes that without it being spelt out in this order he will be able to exercise his parental responsibility in the future and have an oversight over the upbringing and lives of his children, always recognising that there is a residence order to the mother and that the children will live in Panama.”

He points to the recent history. The father’s lengthy statement of 6 December 2006 show that, on his visit in May and June 2006, his concerns were N saying that he had something to tell him but not doing so. Also he had high blood pressure.

When N visited England in July, the father records that N told him that he wanted to stay in London for ever. His maternal grandfather hit him hard on his hands for punishment and he was scared. He did not like sharing a room with his grandfather. He also said his mother hit him on the hand.

The father was worried about N’s low achievements at school. His general state of health was not good. The mother has not communicated with him in a meaningful way about the children.

Despite this and correspondence between the parties’ solicitors, no concerns were raised by the father until November. Then his solicitors stated his concerns were that N was regressing in the way he communicated and interacted. He said he wanted to return home to England. He is treated differently and too restrictively. This is part only of what he now seeks to raise.

The mother’s solicitors responded in detail within 2 weeks. He had not told his mother he wanted to live in England, he had settled in extremely well, and he was thriving at school. They pointed to the difficulties of having one hour long webcam sessions between N and his father twice a week (with which I agree).

Whilst all concerns in relation to the children are important, the mother has not had an opportunity to respond to the very detailed statement from the father. This raised other and different issues from the earlier correspondence.

There is no opportunity for any detailed investigation prior to the hearing on 12 January. The most that can be anticipated is that N will be seen with his mother and with his father. All the alleged advantages of an early hearing date here are mistaken. If there were permitted to be a residence dispute, there would need to be a much longer hearing.

A detailed statement from the mother is needed. Evidence would have to be obtained from the school and N’s doctor. The maternal grandfather would be a potential witness as well as anyone else who knows N and can speak about him. Welfare reports from Panama would be required. All these factors point strongly to Panama being the appropriate forum.

The father in February 2006 acknowledged the jurisdiction of the Panamanian courts in relation to K. He consented to a residence order of N to the mother and for him to be taken permanently to Panama. Contact details were subject to a review in January 2007. Residence issues were resolved.

It would be wrong to permit the father within a year to re-open that issue within this jurisdiction unless there were compelling grounds to do so. That safeguard arises because there is always a residual jurisdiction in relation to a child who was resident in England but is in the care of a parent resident abroad with the recent consent of the other parent. But the circumstances in which that jurisdiction will be exercised are very limited.

Assistance on this is to be found by analogy under s.6(5) of the 1986 Act. The section is concerned with custody order and the jurisdiction of courts in England, Scotland and Northern Ireland. By s.6(3) a court in England and Wales does not have power to vary a Part I order if matrimonial proceedings are continuing within the other jurisdiction. An exception is made where the child is present in England and Wales and the immediate exercise of the court’s powers “is necessary for his protection”.

In this case, though matrimonial proceedings are continuing, the children’s element of that has been decided. Where international considerations arise as here, no encouragement should be given to re-opening that issue within a comparatively short time. As I have said, it does not exclude the court’s jurisdiction if an urgent and serious issue arises over child protection. I am not satisfied on the present evidence (even without the mother’s response) that it does.

That in my judgment is sufficient to resolve the present issue over this court’s residence jurisdiction. I accept that the court has of course power to vary its own orders. It is a power to be used sparingly in an international context where issues have been resolved and implemented and jurisdiction passed to another state. It should not be used in this instance.

The jurisdiction to resolve issues of contact has however been specifically reserved to this court. It makes sense where the original order was made in a new situation. The boundaries may well need to be reconsidered in the light of 4 periods of contact which by then will have taken place. That will happen.

If I am wrong in finding the recent events and the father’s statement decisive in relation to the appropriate forum for determining where the issue of residence is to be decided, then I look at all the circumstances. I bear in mind that the burden is on the mother. She has to show that Panama is clearly the more convenient forum. In effect she has to show that it has the real and substantial connection in terms of convenience, expense, and availability of witnesses. I grant a stay of any residence application here if Panama is clearly more appropriate in the absence of more potent factors pointing to a difficult conclusion.

On that basis the matters I would otherwise have found decisive become important considerations to be considered with others including the children’s welfare. I consider the hearing now fixed for 1 day on 18 January in terms of the father’s application for a residence order. Though there is no detailed response from the mother it is apparent that the father’s application will be seriously challenged. The father’s allegations are that N’s health has deteriorated, he is performing poorly at school, he is ill-treated by his mother and maternal grandfather, he is no longer confident but nervous, he is isolated and restricted, and it is his wish to return to live with his father in England, as he has told his father.

The father says through Mr Nicholls that he will be bound by the Guardian’s decision in relation to N. Whilst the Guardian can ascertain N’s wishes and feelings, it is not readily apparent that the other matters can be determined in the absence of some investigation. There is therefore a real prospect, as Mr Nicholls accepts, that the hearing in January will not be decisive but a opportunity for directions for a future hearing of longer duration.

There are plain advantages in having that early hearing date in England. Furthermore each parent has a legal team here well familiar with the background. The Guardian is familiar with N and he will remember her. The proceedings will be in a language readily understood by everyone in a jurisdiction which has already been involved in a series of interlocutory hearings including the final one in February 2006. All these factors point to this country being the appropriate forum, though which jurisdiction would reach a final conclusion more quickly is unknown.

Against that, the evidence and medical and school records showing N’s health and progress are all in Panama. His maternal grandfather is also there as will be any other witnesses on these issues. Translation and interpreters will be needed as it would be for the father in Panama. Video evidence would be needed at I believe some cost.

There is also the question of expense. Whilst each party would have to pay lawyers in Panama, the mother has public funding here. However she would have to come for a further hearing presumably with N and K. She sought financial assistance for her visit in January 2007 from the father. It was not forthcoming.

Mr Jarman tells me that this trip will cost the mother half her annual earnings. Another visit for a contested residence hearing would be a substantial expense which, without help, could prove to be a major problem for her. This is in contrast to the father. Mr Jarman tells me that his solicitor calculates that the father’s legal costs may well approach £100,000.

If that is only a very rough guide, it does make clear that the impact of the cost of proceedings here will fall far more hardly on the mother than the expense of proceedings in Panama for the father. The trip and the expense for him are likely to have a far smaller impact.

There is next the welfare of the children to consider. Whilst no particular points have been made by counsel save for the position of K, that is by itself a highly significant matter. The father says in his statement (paragraph 2) that he has been increasingly anxious for the last 9 months about N and K. But K hardly features in the next 109 paragraphs and nowhere adversely in relation to his welfare.

I would be against any attempt to give this court jurisdiction in relation to K’s residence given his background and the absence of any reasons to support such a change. That is unless it be that he will suffer as it is said N has done and they should not be separated, though so far this has not been put forward by or on behalf of the father. If it was part of the father’s case I am sure I would have heard. I consider K’s welfare as a major if not a decisive welfare factor especially when he and N have now been together for 9 months. There are telling welfare issues making it contrary to K’s best interests for his residence to be determined here. Can it be right, if that is so, for N’s residence alone to be determined by this court? I consider it is not.

Drawing all these factors together, I am satisfied that the mother has shown that England is not the appropriate forum for determining residence issues. The expense and availability of witnesses favour Panama. The convenience of England has attractions but there are other potent factors. Firstly there is the recent history and the crucial order of February 2006. It excluded this court from further consideration of K’s residence. This could be reconsidered if compelling reasons were put forward. However where there are no reasons at all, I am not prepared to sanction such a reconsideration.

In relation to N, different considerations arise. But the absence of any action by the father from August to November does not suggest he views N’s position as giving rise to any particular urgency. Furthermore, for the reasons I have given, I should resist any attempt to re-open the agreement of February in the absence of compelling reasons which I do not see.

Finally the advantages of a determination by this court are outweighed by the factors above and the question of expense and the presence of witnesses, doctors, teachers, and family friends in Panama. Despite the skilful presentation of Mr Nicholls it is right for both boys that the decision where they live should now be taken in Panama. I should resist his arguments. I am grateful to him and Mr Jarman for their help.