R & Anor v A

When I heard this case on 12 April 2011, time did not permit me either to read all the papers in advance of the hearing or to hear the full submissions of counsel. In the time available, therefore, I heard partial submissions from counsel, and gave each the opportunity to supplement in writing what they had said to me orally. I then reserved judgment.

Both counsel availed themselves of the opportunity to make additional submissions and I have now read all the papers. In addition, counsel for the applicants made available to me the affidavit in support of the application to withdraw which had been sworn by the male applicant and which, during the course of argument, I had ruled that I should read. What follows is my judgment on the two issues presented to me.

Those two issues can be simply stated. The applicants wish to withdraw the proceedings: the respondent wants them to be dismissed. That is the first issue. Secondly, the respondent says that the applicants should be ordered to pay his costs. The applicants say there should be no order as to costs. That is the second issue.

I am dealing with a girl whom I will identify only as K who will be four in the summer of his year. Her mother, sadly, is dead. The applicants are her mother’s half-sister and the latter’s husband. The respondent is her father.

The family dynamic is extremely complicated, but for present purposes can be expressed summarily in the following way. It is a sad fact that K’s maternal family (including K herself, her mother and the female applicant) suffer from a genetic (and in combination with other ailments sometimes sadly fatal) heart condition known as hypertrophic cardiomyopathy (HMOC).

The respondent is, and K’s mother was Nigerian. K had an older full sister L, who was born in 1990, and who came to England to study. She, too, suffered from HMOC. She died in England in November 2007, and was subsequently buried in London.

At the beginning of October 2010, K and her mother left Nigeria to go to Los Angeles where the latter had enrolled on a jewellery design course. Sadly K’s mother died in Los Angeles on 16 October 2010. The respondent thereupon made arrangements for her to be buried next to L in London, and for K to stay for a short period with another of the mother’s sisters and the latter’s husband (Dr and Mrs. A), who live in the North of England and who were, for a short time, respondents to these proceedings.

On 13 January 2011, the applicants initiated these proceedings initially by way of Form C100 in the Lambeth County Court. They sought defined contact, a residence order, a prohibited steps order and leave to remove K from the jurisdiction. Their case was that it was K’s mother’s dying wish that K should live with them. According to the female applicant’s first affidavit she has dual citizenship (Nigerian and British); was born in Nigeria and, with her husband, owns homes in Kenya and the United Kingdom, where they spend their child’s school holidays.

The supplemental information form C1A makes a number of unpleasant allegations against the respondent. In their form C2, which is dated 6 January 2011, they apply for leave to commence proceedings under the Children Act 1989.

On 7 February 2011 district judge Worthington transferred the matter to the High Court and directed that K (who was, of course, in England) should not be removed from the jurisdiction pending further order.

On 17 February 2011 the applicants issued an originating summons making K a ward of court. That application came before Theis J on the following day. She stayed the originating summons and directed a hearing on 23 March 2011 to address the issues of “ jurisdiction and leave to commence proceedings pursuant to section 10 of the Children Act 1989”. She directed the filing of evidence, and prohibited the removal of K from the jurisdiction. She also directed that upon Mr and Mrs. A filing affidavits pursuant to her order they were to be discharged from the proceedings.

The case was listed for final disposal before Ryder J on 23 March 2011. I have the advantage of a transcript of the discussion which took place before him on that day. It was conceded by the applicants that K was habitually resident in Nigeria and that concession (expressed to be “subject to further argument”) was recorded in the court’s order. It was also agreed that for the time being K should continue to live with Dr and Mrs. A in the North of England. Ryder J, who applied his usual intellectual rigour to the case, unfortunately did not have time to determine the questions of jurisdiction and forum. What he did, however, was to continue the stay along with the prohibition against K leaving the jurisdiction. He also ordered both sides to file evidence. The applicants were ordered to file evidence “limited to the questions of (i) forum in the context of section 5(2) of the Family Law Act 1986 and (ii) the application of the section 10(9) Children Act 1989 criteria which affect the potential section 8 and section 13 CA 1989 applications” by 4.00pm on Friday 1 April 2011, and the respondent was ordered simultaneously to file similar evidence. The applicants were given liberty to apply for a direction that there be a jointly instructed expert to address the question of the applicable law in Nigeria if it was submitted that such a question was relevant. The judge reserved the question of costs, and directed that the matter should be heard by either Theis J or myself on 12 and 13 April 2011.

On 31 March 2011 the applicants’ solicitors wrote what purports to be a Calderbank letter to the respondent’s solicitors indicating that the applicants were “considering” whether the right forum for the proceedings was Nigeria and whether or not they should discontinue the proceedings. They asked the respondent’s solicitors to take his instructions on the letter, which also mentions mediation. The respondent’s solicitors replied on 5 April pointing out (correctly in my view) that the letter of 31 March did not contain settlement proposals, nor did it mention the question of costs.

On 6 April the applicants’ solicitors wrote to the respondent’s solicitors confirming that they had been instructed to withdraw the proceedings, and proposing that each side should bear its own costs. The Notice to withdraw appears to have been Emailed to the Clerk of the Rules on 8 April 2011, and an affidavit in support was sworn by the male respondent. Objection was taken to me reading the latter document, which contains a great deal of both evidence and argument.

Withdrawal or dismissal?

On the first question, my view is that the applicants should be permitted to withdraw their applications. Dismissal, in my judgment, implies adjudication on the issues in the proceedings before the court. The only formal application before me is an application to withdraw under FPR 2010 rule 29.4. I see no prejudice to the respondent in the applicants being given permission to withdraw. The effect of withdrawal is that the proceedings cease to exist: my order cannot be appealed. Any further proceedings relating to K will depend; (a) upon the court having jurisdiction to entertain them; and (b) on their merits. As I have given leave for K to leave the jurisdiction with her father in order to go back to Nigeria (and as I imagine she has done so) I see the prospect of further litigation between these parties as remote.

Sadly, it may be necessary for K to come to England again for medical treatment or other purposes connected with the fact that she suffers from HMOC. I can, accordingly, understand the respondent’s anxiety lest her fortuitous presence within the jurisdiction be used for litigation purposes. As assurance to the respondent, therefore, I propose; (1) to reserve to myself any further application about K, or any attempt to revive the current proceedings and (2) to direct that in the event of the applicants making any further application about K, they should reveal in that application the existence of these proceedings and the orders which I have made.

Costs

In my judgment the applicants must pay the respondent’s costs of the proceedings. Much learning is on display in the written submissions, but the point is ultimately one which has been left to the discretion of the court - see FPR 2010 rule 28.1. In these circumstances I do not propose to examine the niceties of the disapplication of the conventional starting point under CPR in family proceedings. I entirely accept that it is unusual to make an order for costs in family proceedings relating to children. However, I have a broad discretion under FPR 2010 rule 28.1 to make such order as I think “just”, and in my view it would be just to order the applicants to pay the respondent’s costs of the proceedings.

In my judgment, the manner in which the applicants have advanced their claim either amounts to “litigation conduct” within the authorities or provides in any event a basis upon which it is “just” to order them to pay the respondent’s costs. My reasons for forming this view are as set out in the following paragraphs.

This is a tragic case, and having read the documents I am left with the strong impression that the applicants have sought to further their case by making a number of highly unpleasant and irrelevant allegations about the respondent, which he had been obliged to defend, but which the applicants have then not brought to the court to be tested.

I have in mind, simply by way of example, the allegations contained in the Form C1A – the bulk of which must, on any view, be hearsay. Equally, as a Muslim, the respondent is entitled to have more than one wife, and it is disingenuous of the applicants to describe the father as a polygamist. There are other examples.

The matter does not rest there, however, since the respondent is accused of being a neglectful father who has failed in his obligations to both K and her mother. In my judgment the respondent had no alternative but to meet those allegations head on, which he does in his long affidavit sworn on 7 March 2011. Given that he had lost his wife, the suggestion that he would abandon K to his “resentful bigamously married wives” (an assertion for which there is no supporting evidence) must be particularly hurtful.

Equally, given the very sad circumstances of this case, one would have expected much more dialogue between the parties, and in particular, that the applicants would have trod delicately, particularly after the father, in a perfectly proper exercise of parental responsibility, placed K temporarily in England with Dr and Mrs. A after the death of K’s mother. What K's mother is alleged to have said were her final wishes (about which there is in any event a dispute) is not necessarily what is in K’s best interests, and where a child is habitually resident in Nigeria, it is a very strong proposition to suggest that she should make her home with third parties in Kenya.

The respondent deals in detail with the meeting with the applicants in Starbuck’s Coffee Shop after K’s mother’s funeral. There appears to be very little dispute about what was said. The respondent explained that he wished K to live for the time being with Dr and Mrs A (as I have already indicated, plainly an appropriate exercise of parental responsibility) until K returned to Nigeria. He records the female applicant expressing a preference for K to live with them in Kenya, and that he was opposed to the idea “at every level”.

I see no reason to doubt the respondent’s parental relationship with K and the plan which he has made for her. In my judgment, the applicants should not have instituted these proceedings. In my judgment, much of the applicants’ evidence has little to do with the welfare of K, and amounts to little more than an attack on the father. In my judgment, as I have already said, the respondent had no alternative but to defend the proceedings.

Ms Harris makes the point, as she is entitled to, that the respondent was mistaken in his opposition to the fact that the court has jurisdiction to entertain the applicants’ claim. That point has forensic merit, but little more. This is not, in my view, a typical child case. It seems to me, on reading all the papers, that the applicants were able to use the presence of K in England to make an application which they should not have made. They have now withdrawn it, but not before the respondent has been obliged to defend it – and himself.

As there has been no adjudication, it would not be proper for me to express a view on forum conveniens. Equally, I am not minded to make a summary assessment of the respondent’s costs, If the matter cannot be agreed, the quantum of the respondent’s costs must be decided on detailed assessment by a costs judge.

I do not think that the solicitors’ correspondence, all of which I have now read, advances the case one way or the other.

I have a number of reasons for declining to make a summary assessment of the respondent’s costs. There is the size of the bill itself, which may or may not be justified but which does not lend itself to summary assessment. I do not, for example, know the basis upon which he seeks to make the applicants liable for the costs incurred by Dr and Mrs. A. This, and the quantum of his reasonable costs must, as it seems to me, be decided on a detailed assessment.

I will, however, make an order that the applicants pay the respondent’s costs of the applications on the standard basis to be the subject of detailed assessment in default of agreement. For the reasons I have given, I do not think it sensible to assess a proportion or an amount.

I should be grateful if counsel would draw the necessary order to give effect to the above.