SF v HL

In this matter I am asked to decide whether this court has jurisdiction in relation to R. R is the child of HL (the mother) and SF (the father). The parents are separated. The mother is a South Korean national. When present in the United Kingdom her immigration status is governed by a spousal visa which expires on 1 December 2015. The father is British and resides in England. R holds joint South Korean and British nationality.

Insofar as relevant to the questions of jurisdiction and forum the background to this matter can be stated relatively shortly.

The parents met in the United Kingdom in the autumn of 2010 when the mother was in this country on a holiday visa. They commenced a romance. By the time the mother returned to South Korea she was pregnant with R. The father travelled to South Korea for R’s birth in October 2011. The father made a further three trips to South Korea during the course of 2012. The parties married in the British Consulate in South Korea in 2012. In March 2013 the mother was granted a spousal visa for the United Kingdom.

In March 2013 the mother travelled to England with R for the family to live together in this jurisdiction. A mere two weeks later the mother returned to South Korea without notifying the father. As set out below, the mother contends that her short period in England with R in 2013 was characterised by the father being domestically violent towards her.

Following the mother’s departure, the father instructed lawyers in South Korea with regard to obtaining orders in South Korea to facilitate access to R. He also instructed his lawyers to issue divorce proceedings in South Korea. Those applications are ongoing in South Korea and have yet to be determined. Following the mother returning to South Korea in March 2013 the father did not see R for a period of two years.

In December 2014 the mother states that she contacted the father with a view to restoring the father’s relationship with R. In April 2015 the mother agreed to the father travelling to South Korea to see R. The father remained in South Korea between April 2015 and August 2015. At some point during this period of time the mother agreed to come and live in the United Kingdom with R.

The mother and R arrived in England on 7 August 2015. On 23 August 2015 the father alleges that he was subjected to an incident of domestic abuse by the mother. Whatever the exact circumstances of this incident, the father makes clear in the papers he has filed with the court that R witnessed this incident of domestic violence, which incident the father alleges involved the mother attacking the father by punching and kicking him when drunk and banging on the door when he shut himself and R into a room. The mother was arrested but later released without charge (the mother says she was released after the police saw bruises on her, the father says she was released after he declined to press charges). For her part the mother contends that the father had inflicted bruises on her through domestic violence over the days prior to the incident on 23 August 2015. The mother alleges that the father took her phone and her bank card. I note again that when the mother was in England for a brief period in 2013 the father was arrested following an incident of domestic violence between the parties and was thereafter released without charge.

By 25 August 2015 the mother had packed her bags and told the father that she was returning to South Korea with the child. On 26 August 2015, a little under three weeks after R arrived in this jurisdiction, the father made without notice applications for wardship and a passport order, which orders were granted.

The parents dispute many of the facts concerning the circumstances of their relationship between 2010 and 2015. However, they appear to agree that both parents came to the view earlier this year that they should spend a significant period of time in England.

The father suggests that the mother and R returned with him to England so that they could “live as a family”. His evidence is that the parties intended to move permanently to England. In the past the father has travelled to South Korea and appears to have intended at one point to emigrate to that country. The mother suggests that the father had arrived in South Korea in April 2015 with multiple ideas for starting a business in that country but that none of the ideas were sufficiently fully formed. Within this context the mother says that part of the motivation for the parents agreeing to return to England for a period of time was to allow greater preparations to be made for an ultimate return to South Korea.

The mother further states that when he was visiting South Korea earlier this year the father had the idea that the mother and R should come to England for two years to enable R to learn English, during which time, as I have said, the family could make plans for an eventual return to Korea to pursue the business ideas that were at that stage not fully developed by the father. The mother states she had thought previously about whether she should spend some time with R in an English speaking jurisdiction. She did not necessarily plan to take R to England to learn English and contemplated taking her to Australia. It would appear that the plan to take her to England crystallised when it became apparent that there might be a chance to salvage her relationship with the father. The mother states that at no point was it her intention to leave South Korea with R permanently. Before arriving in England the mother agrees that she paid the father a substantial sum of money with a view to him renting a property for the family to live in together.

The order of Baker J of 4 September 2015, setting this matter down for determination of the questions of jurisdiction and forum, records that the mother informed the court on that date that she travelled to England with the intention of remaining here for a period of two years, that she travelled here for the purpose of allowed R to learn English, that her intention on arriving in England was to live with the father and that her intention was that R would attend nursery whilst in England.

As I have set out above, the mother’s immigration position in the United Kingdom is governed by her spousal visa. That visa expires on 1 December 2015.

I am now asked to decide whether the English courts have jurisdiction in respect of R and, if so, whether England is the most convenient forum for the determination of the issues regarding R that arise between the parties.

On behalf of the father, Dr George submits that R was habitually resident in England at the date on which the English court became seised of his matter. In such circumstances, he contends that this court has jurisdiction in respect of R by virtue of the provisions of Art 8 of Council Regulation (EC) 2201/2003 (the Regulation). In the alternative, Dr George submits that if R is not habitually resident in England then she is not habitually resident in any Member State of the European Union and Art 14 of the Regulation applies such that jurisdiction is determined by s 3(1)(b) of the Family Law Act 1986 and this court has jurisdiction by virtue of R’s presence in England at the time proceedings were issued. As to forum, Dr George submits that England is the convenient forum for determining the welfare issues in respect of R.

To make good his argument in respect of habitual residence Dr George makes the following submissions:

As noted, if the court is not satisfied that R is habitually resident in England Dr George submits then she is not habitually resident in any Member State of the European Union and Art 14 of the Regulation applies such that jurisdiction is determined by s 3(1)(b) of the Family Law Act 1986 and this court has jurisdiction by virtue of R’s presence in England at the time proceedings were issued. On behalf of the mother Mr Squire does not demur from this proposition.

Finally, as to the issue of forum, Dr George submits that if the English court has jurisdiction in respect of R then, applying the principles set out in Spiliada Maritime Corporation v Consulex [1997] AC 460, the appropriate forum for determining the welfare issues in respect of R is the jurisdiction of England and Wales. Within this context, Dr George points out that it is for the mother in this case to demonstrate that England is not the appropriate forum and to apply for these proceedings to be stayed. Whilst Dr George concedes that the mother will more easily achieve this end if any jurisdiction of the English court is based on presence as opposed to habitual residence, Dr George nonetheless submits that even were jurisdiction to be founded on the presence of R the mother is not able to demonstrate that England is the not appropriate forum. Specifically, he relies on the fact that neither parent speaks the other’s language (and hence neither England nor South Korea has an advantage as a venue in terms of language) and that the mother is already in England. In respect of the mother’s immigration difficulties, having regard to the fact that R has British nationality and the decision of the Supreme Court in ZH(Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, Dr George submits that the mother would likely be permitted to remain in the United Kingdom upon the expiration of her spousal visa.

In reply, Mr Squire submits that it is plain in this case that R was not habitually resident in England as at the date the proceedings were issued. He makes the following points:

As noted above, Mr Squire does not challenge with any vigour Dr George’s submission that if the court is not satisfied that R is habitually resident in England then she is not habitually resident in any Member State of the European Union and Art 14 of the Regulation applies such that jurisdiction is determined by s 3(1)(b) of the Family Law Act 1986 and this court has jurisdiction by virtue of R’s presence in England at the time proceedings were issued. Mr Squire does however mount a robust attack on Dr George’s submission that the mother is unable to demonstrate that England is not the appropriate forum for these proceedings.

In relation to the issue of appropriate forum, Mr Squire submits that in circumstances where each parent will be at an equal language disadvantage in the other’s home country and where this court must assume that the South Korean courts are as capable as the courts in England in determining issues concerning the welfare of R, the defining matters in determining the appropriate forum are that the mother is the primary carer for R, is Korean, is about to have lose her immigration status in the United Kingdom revoked and is unable to support and care for R in England in circumstances where she could not work once her immigration status changes.

The law to which the court must have regard when determining the issue of jurisdiction and, thereafter, the issue of forum, is now well settled.

Art 8 of the Regulation provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. For habitual residence to be established the residence of the child must reflect some degree of integration in a social and family environment (Area of Freedom, Security and Justice) (C-532/01 [2009] 2 FLR 1 and Re A (Jurisdiction: Return of Child) [2014] 1 AC 1). This must be established on the basis of all the circumstances specific to the individual case (Case C-523/07 [2010] Fam 42). Relevant factors will include the duration, regularity, conditions and reasons for the stay in the Member State and the move to that State, the child’s nationality, the place and condition of attendance at school, linguistic knowledge and the family and social relationships of the child in the State.

The parents’ intention to settle permanently in the State, manifested by certain tangible steps, for example the lease of a residence, may constitute an indicator of the transfer or residence (Case C-523/07) [2010] Fam 42). However, parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence (Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75).

Art 14 of the Regulation provides that where no court of a Member State has jurisdiction pursuant to Arts 8 to 13 of the Regulation, jurisdiction shall be determined in each Member State, by the laws of that State. Within this context, the jurisdictional provisions of the Regulation apply irrespective of whether any competing foreign jurisdiction is, or is not, a Member State (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1).

In Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 at [32] the Supreme Court examined the question of whether the courts of a Member State which has jurisdiction in respect of parental responsibility for a child under the Regulation is obliged to exercise that jurisdiction even though there is non-Member State which would be better placed to hear the case. Whilst not deciding the point definitively, Baroness Hale concluded, having regard to the wording of the Regulation, that it might be thought anomalous for this to be the position in a case where the courts of a non-Member State were better placed to hear the case.

Finally, the issue of forum conveniens is to be determined by reference to the principles set out in the case of Spiliada Maritime Corporation v Consulex [1997] AC 460. These principles are as follows:

In determining the appropriate forum in cases concerning children using the principles in Spiliada Maritime Corporation v Consulex, the child’s best interests would not appear to be paramount, but rather an important consideration (whilst in H v H (Minors)(Forum Conveniens)(Nos 1 and 2) [1993] 1 FLR 958 at 972 Waite J (as he then was) held that the child’s interests were paramount, subsequent decisions have treated those interests as an important consideration: Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325, Re V (Forum Conveniens) [2005] 1 FLR 718 and Re K [2015] EWCA Civ 352).

The starting point when determining whether the party seeking the stay has established that England is not the appropriate forum for a case concerning a child is that the court with the pre-eminent claim to jurisdiction is the place where the child habitually resides (although habitual residence will not be a conclusive factor). In Re M (Jurisdiction: Forum Conveniens) [1995] 2 FLR 224 at 225G Waite LJ observed as follows:

“There is no limit, in legal theory, to the jurisdiction of the court in England to act in the interests of any child who happens to be within the jurisdiction for whatever purpose and for however short a time. In practice, however, if the child is not habitually resident in this country and there are legal procedures in the country of habitual residence available to achieve a fair hearing of competing parental claims regarding the child's upbringing, the English court will decline jurisdiction, except for the purpose of making whatever orders are necessary to ensure a speedy and peaceful return of the child to the country of habitual residence. The practice thus is to follow the spirit of the Convention, even though its formal terms are inapplicable.”

Within the context of the principles set out above, in Re K [2015] EWCA Civ 352 at [26] the Court of Appeal made clear that in determining the issues of jurisdiction and forum the court should adopt the following structure:

I have come to the conclusion that R is not habitually resident in England for the purposes of Art 8 of the Regulation and that, accordingly, the English court does not have jurisdiction by reason of R being habitually resident in this country. I have further concluded that the English court does have jurisdiction in respect of R by virtue of her presence in England at the time proceedings were issued pursuant to Art 14 of the Regulation and s 3(1)(b) of the Family Law Act 1986. I am however also satisfied that the appropriate forum for determining the substantive issues between the parties concerning R’s welfare is the jurisdiction of South Korea and that I should accordingly stay the English proceedings. My reasons are as follows.

I acknowledge and accept that both parents expressed the intention to come to England with R for a significant period of time, although I have a strong sense from the written evidence before me that neither parent intended this to be a permanent move to the United Kingdom. I further accept that the parents’ intention to remain in England for a significant period is evidenced by the plans they made and tangible steps taken by them of obtaining a lease on a residence, or enrolling R in nursery and registering R with a general practitioner. Each of these facts is capable of speaking to a transfer of habitual residence in respect of R.

However, the intention of the parents and the plans they made and began putting into practice must be considered in the context of the other facts in this case relevant to the issue of habitual residence. In my judgment there are powerful matters of fact that speak against a transfer of habitual residence having taken place in this case in August 2015.

R was born in South Korea in 2011. Apart from two weeks in March 2013 and a little under three weeks before proceedings were issued in this jurisdiction in August 2015, R has lived all of her life in South Korea. She has South Korean (and British) nationality and speaks only Korean. She has been raised by her mother in South Korea and her wider family is in that jurisdiction. Her mother is settled in South Korea and has made a life in that country for herself and R over the past four years and following the separation of the parents. Within this context, the evidence that is available to this court suggests that R was and is deeply integrated into a social and family environment in South Korea.

The situation of R in England has been in stark contrast to her situation in South Korea. As noted, in total R has spent a little under five weeks in England over the course of her life. In my judgment it is particularly significant that those five weeks have not, on the evidence before the court, comprised a very stable social and family environment for R. As noted above, on 23 August 2015 the father alleges that he was subjected to an incident of domestic abuse by the mother. The mother alleges that the father was the perpetrator on that day and on days prior to 23 August. Whatever the exact nature of the incident or incidents, the father makes clear in the papers he has filed with the court that R witnessed an incident of domestic violence. When the mother was in England for a brief period in 2013 the father was arrested following an incident of domestic violence between the parties and was thereafter released without charge.

In determining the question of whether a child has attained a degree of integration in a social and family environment, the stability of the child’s life within the contended for social and family environment will be relevant, particularly in cases where the period of alleged integration is short. In my judgment, where the child’s situation is unsettled, whether physically or emotionally, it will be harder to establish that the child has a degree of integration in a social and family environment, particularly in cases where the child has been in the social and family environment in question for only a very short period of time. In this case the unsettled and chaotic nature of the parents’ relationship is in my judgment a fact which tends to militate against a conclusion that, during the very short period that R was in the jurisdiction before proceedings were commenced, R attained the requisite degree of integration into a social and family environment in England such as to change her habitual residence. The fact that the mother’s immigration status is now insecure by reason of the divorce proceedings issued by the father in South Korea further undermines the stability of R’s family environment in this jurisdiction.

In assessing whether R attained the requisite degree of integration in a social and family environment over the little under three weeks she was in this jurisdiction before proceedings commenced, I must also have regard to the fact R’s family environment in England is one in which she and her father do not speak the same language and had a very limited relationship by virtue of the fact they had not seen each other for some two years. In my judgment, these facts also further militate against a conclusion that R was integrated into a social and family environment in England to a degree sufficient to result in a change of habitual residence.

As to the practical steps taken to implement the plans made by the parents, I have already accepted that the parents took the tangible steps of obtaining a lease on a residence, or enrolling R in nursery and registering R with a general practitioner. However, as submitted by Mr Squire, it is in my judgment significant that those tangible steps went no further. R never attended nursery because the parents’ reconciliation broke down within days. For the same reason, R never attended her general practitioner. The mother and R left the property the parents had rented following what, on any analysis, was an extremely unpleasant period in the parents already sporadic and difficult relationship. The father provides no details whatsoever the alleged business that he contends the parents planned to set up in England. In these circumstances, I accept Mr Squire’s submission that the parents’ plans had not been the subject of the implementation and subsequent re-affirmation that would speak to the integration of R in a social and family environment. By the time proceedings were issued a little under three weeks after the arrival of R in the jurisdiction she had neither attended nursery nor used the services of the general practitioner and had left the ‘family’ home rented by the parents.

Examining all of the relevant circumstances in this case in my judgment it cannot be said that R is habitually resident in this jurisdiction. Whilst I accept that in some cases it is possible for habitual residence to change over a very short space of time, indeed within one day, this is not such a case. It simply cannot be said in my judgment, having regard to the matters of fact set out above, that over the period of a little under three weeks between R’s arrival in this jurisdiction and the issue of proceedings that she achieved a degree of integration in social and family environment sufficient to result in a change of habitual residence. Rather, for the reasons I have already given, in my judgment it is plain that in all the circumstances of this case R is habitually resident in South Korea.

In the circumstances, in my judgment this court does not have jurisdiction in respect of R under Art 8 of the Regulation based on the habitual residence of R in this country.

I am however satisfied in this case that this court has jurisdiction based on her presence in England and Wales. As I have already noted, the jurisdictional provisions of the Regulation apply irrespective of whether any competing foreign jurisdiction is, or is not, a Member State (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1). In circumstances where R is not habitually resident in any Member State for the purposes of Art 14 of the Regulation the question of jurisdiction is governed by the law of England and Wales.

Within this context, the effect of ss 2(1) and 3(1)(b) of the Family Law Act 1986 is that where the child is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory, the English court will have jurisdiction to make orders in respect of the child notwithstanding that it does not have jurisdiction under the Regulation.

In these circumstances, I am satisfied that the English court has jurisdiction to make orders in respect of R based on her presence in this jurisdiction at the time the proceedings were issued by the father in August of this year.

Notwithstanding my conclusion that the English court has jurisdiction in respect of R for the reasons set out above, in my judgment the appropriate forum for determining the welfare issues in respect of R that arise in this case is the jurisdiction of South Korea.

R is habitually resident in South Korea. She has resided in that jurisdiction her entire life, save for very limited periods in England. This in my judgment constitutes a real and substantial connection to the jurisdiction of South Korea. In my judgment, having regard to her best interests as an important consideration in my determination of the issue of forum, it is in R’s best interests for her welfare to be determined by the courts of the country in which she is habitually resident. It is those courts which are best placed to determine what is in R’s welfare interests having regard to the context provided by her life and needs in South Korea. In addition to the important (but not determinative) factor of R’s habitual residence, there are also in my judgment further connecting factors which point to South Korea being the appropriate forum.

The father has instructed lawyers in South Korea and issued divorce proceedings in that jurisdiction. Further, by the documents filed in these proceedings, the father makes clear that he has instructed lawyers in South Korea to secure orders permitting him to spend time with R. It would appear from his statement that the father was advised that he would be able to obtain contact with R through the South Korean courts, although the father contends that those courts will not deal with the issue of contact until the divorce proceedings are finalised.

In the circumstances, there are already proceedings on foot in the country of R’s habitual residence. Whilst I have before me no expert evidence on the family law of South Korea, applying the principles of international comity both Dr George and Mr Squire accept that I must assume that the courts of South Korea have, to adopt the words of Waite LJ in Re M (Jurisdiction: Forum Conveniens), legal procedures available to achieve a fair hearing of competing parental claims regarding R's upbringing.

Within this context, the father has demonstrated that he is willing and able to travel to South Korea on a regular basis for extended periods, he visiting that jurisdiction once in 2011, three times in 2012 and for 5 months in 2015. The mother is a national of South Korea. She is able to reside in that jurisdiction legally. By contrast to the ability of the father to travel lawfully to South Korea and the ability of the mother to reside lawfully in South Korea, the mother’s position in this jurisdiction is now precarious by reason of the divorce proceedings issued by the father in South Korea. The mother’s spousal visa will expire on 1 December 2015. Whilst both Dr George and Mr Squire engaged in a degree of speculation as to the mother’s position after this deadline, the court must proceed on the basis that from the 1 December 2015 the mother, who is the primary carer for R, will not be entitled to remain in this jurisdiction, with all of the difficulties attendant on that position.

Finally, in terms of language, neither parent has the advantage of speaking the other’s language. In these circumstances, neither the English nor the South Korean jurisdiction has an advantage in terms of the language in which proceedings will be conducted.

Having regard to each of these connecting factors, in my judgment South Korea is the ‘natural forum’ for determining the welfare issues that arise in respect of R, being the place with which, in my judgment, the case has the most real and substantial connection. Having regard to the evidence before me, I further find no other circumstances by reason of which justice requires that a stay should nevertheless be refused. Having regard to all the circumstances of the case, I conclude not only that England is not the natural and appropriate forum but that South Korea is clearly and distinctly more the appropriate forum in this case.

In conclusion, for the reasons set out above, whilst I am satisfied that the English court has jurisdiction in respect of R I am also satisfied that the jurisdiction of South Korea is clearly and distinctly more the appropriate forum for determination of the welfare issues arising in respect of R. In the circumstances I grant a stay of the English proceedings.

That is my judgment.