W v L (Forum Conveniens)

In this matter I am concerned with an application in respect of M, born in November 2012 and now aged 6 years old. The application is made by M’s mother, W (hereafter

On 10 June 2019 Miss Deirdre Fottrell QC sitting as a Deputy High Court Judge made interim orders stipulating that M shall continue to live with the mother and preventing the father from removing M from the care of the mother and from the jurisdiction of England and Wales. Miss Fottrell QC listed this hearing to commence on 18 July 2017 with a time estimate of two days. At this hearing I have had the benefit of reading the documents contained in the hearing bundle. I have also heard submissions on behalf of the mother from Mr Perkins of Counsel and from the father in person.

The father having filed a statement as directed by Miss Fottrell QC, it is abundantly clear on the papers now before the court that there are substantive issues between the parties regarding the welfare of M that require judicial determination. Specifically, whether M should reside in England with his mother or in Jordan and what contact M should have with his father. Within this context, and as I made clear to the father at the outset of the hearing, the sole question with which the court is concerned today is which of the English or Jordanian courts should determine the welfare dispute that has arisen between the parties in respect of M. In circumstances where the father submits that the Jordanian courts are the appropriate forum, I deemed him to be making an application to stay these proceedings should this court determine that it had jurisdiction in respect of M.

The father arrived late for the first day of the hearing and told the court that he had believed that the hearing was to commence on 19 July 2018. Having investigated the matter, I was satisfied that the father was in court when this hearing was set up by Miss Fottrell QC and that he had been emailed a copy of the draft order containing the confirmed hearing dates shortly after that first hearing. That the father had received the order with the listing of this hearing is demonstrated clearly by the fact that, as

It is also the case that the father had not received until this week a copy of the bundle that is before the court. However, the father acknowledged that, save for Mr Perkins’ Skeleton Argument and the mother’s statement in response to the statement filed by the father, he had seen the other documents contained in the bundle prior to the hearing before Miss Fottrell QC. Upon his application for more time I gave the father a further period prior to commencing the hearing to consider, with the assistance of the interpreter, the two documents which he had received only recently.

Having had the opportunity to read those documents, the father applied for an adjournment to instruct lawyers. I refused that adjournment for reasons I gave in a short ex tempore judgment. In summary, I was not satisfied that an adjournment of this hearing should be granted because:

Within the foregoing context, prior to the commencement of substantive submissions I explained to the father that at this hearing the court is concerned with the two questions I articulated above, namely (a) whether M is integrated into a social and family life in this jurisdiction and (b) if so, whether it is more convenient for the English court or the Jordanian court to determine the welfare issues between the parents. During the course of his submissions, I assisted the father in structuring his submissions to ensure he made the submissions he wished to on each question.

The mother is a British and Jordanian national, born in 1978. The father is likewise a British and Jordanian national, also born in 1978. The parties married in 2010 in Jordan and moved to reside in England in 2011. As I have noted, M was born in England in November 2012. The parties separated in October 2013. The mother states that the father thereafter returned to Jordan almost immediately. The mother remained living in England with M.

In order to instigate divorce proceedings, the mother travelled to Jordan in December 2013 with M. She instigated divorce proceedings before the Sweileh Shariah Court of the Hashemite Kingdom of Jordan. The mother sought to leave Jordan with M in April 2014 but found she was unable to do so by reason of an exit ban put in place on the without notice application of the father. The mother contends that on 7 May 2015 the father left Jordan to return to live in England, leaving the mother and M in Jordan subject to the exit ban.

It is apparent that one consequence of the father leaving Jordan for England on 7 May 2015 was his failure thereby to comply with a ruling of the Sweileh Sharia Court permitting him to have contact with M at a Child Hosting and Family Counselling House run by the Jordanian Women’s Union. The mother contends that the father failed to inform her that he was leaving the jurisdiction of Jordan. This contention would appear to be borne out by a letter sent from the Jordanian Women’s Union to the Sweileh Sharia Court dated 10 June 2015 in which it is clear the Counselling House sought to facilitate contact on five occasions after the father left the jurisdiction of Jordan, the last failed contact being on 10 June 2015. The letter from the Jordanian Women’s Union informed the Shariah court was of this default on and the mother contends in her statement before this court that this led the Shariah Court to determine that there was no requirement for any further contact between M and his father.

It is apparent from the documentation obtained in the trial bundle that, having been made the subject of a travel ban, proceedings were instigated by the mother in Jordan seeking permission to return with M to England. In August 2015 the mother was granted permission by the Jordanian court to travel with M to England. The mother makes clear in her first statement that that permission was granted on the basis that the mother was seeking medical treatment for M in relation to issues he had with his speech and language development. On 26 November 2015 the Jordanian Court permitted the mother to remain in England indefinitely, subject to certain caveats. The translation of the decision of the Sweileh Sharia Court that is before this court sets out the following ruling (emphasis in the original):

“Whereas the respondent neither provided a medical allowance nor a medical insurance for the therapy of his young son “M” born in 8/11/2012 didn’t comply with the contact order with his said young son M, and travelled abroad in 7/5/2015. Further, he didn’t allow his young son’s affairs or consider young M’s interests who is suffering from “Auditory Neuropathy”. Whereas the young son, and his mother, the claimant, holds the British nationality, and the British government has provided free treatment to said young M, as well as disbursing a salary allowance for him and his custodian mother, the claimant. Therefore, based on the case, the official written evidence submitted, and in consideration of the child’s best interest, and pursuant to articles 75 of Sharia Proceedings law and 177 of Civil Procedure Law; the court decides to indefinitely extend the travelpermission; self-executed immediately according to the ruling notificationNo. 4/9/187 dated 04/08/2015 issued in this case till the respondent the child’s father, provides a health insurance coverage or medical allowance for his therapy insider the country; or rather incurs the costs of his son’s therapy at one of the private centres in Jordan. Respondent shall further provide guarantees to the said; and after providing these guarantees; respondent may then prosecute the person named [name given], the claimant’s brother, in order to return the child to the country. Ruling has been publicly explained to the attendees and edited in 14/2/1437H corresponding to 26 November 2015.”

As the mother makes clear in her first statement, the indefinite permission to travel to England with M was subject to:

Pursuant to the decision of the Sweileh Sharia Court in November 2015, the mother and M have been residing in England since 2015. The mother contends that M is now habitually resident in the jurisdiction of England and Wales.

In April 2017 the mother made an application to this court for a declaration that M is habitually resident in the jurisdiction of England and Wales. The application was heard on notice to the father, who attended court in person. On 22 May 2017 Mr Justice Peter Jackson (as he then was) declined to grant a declaration on a ‘standalone’ basis. There is an agreed note of Peter Jackson J’s short judgment in the court bundle. As I have noted, the mother contends that the father returned to England in May 2015. The mother further contends that before Peter Jackson J on 22 May 2017 the father confirmed he was living in England and this fact is confirmed in the agreed note of Peter Jackson J’s judgment.

Within this context, the mother asserts that the father has not sought any contact with

As noted above, one of the conditions attached to the order of the Shweileh Sharia Court made on 26 November 2019 was that mother’s brother provide a guarantee, exposing him to the risk of prosecution in the event M was not returned to the Hashemite Kingdom of Jordan. It is apparent that the mother’s brother has now applied to the Sweileh Sharia Court to discharge that guarantee. The mother informed this court that this was because the mother, the father and M all now reside in this jurisdiction. On 18 February 2019 the father filed a defence to the mother’s brother’s application with the Sweileh Sharia Court. A translated copy of that defence is before this court. In that defence, it is contended on behalf of the father, inter alia, that the guarantee should remain in place as it constitutes the only guarantee of the return of M to Jordan and that the fact that the father is outside the jurisdiction is not a reason for revoking the guarantee. The defence asks the Sharia Court to implement the Sharia Regulations. As a consequence, on 3 April 2019 the Sweileh Sharia Court issued a without notice order requiring the mother to place M in the father’s care immediately.

The order states that if the mother fails to comply with the order legal action will be taken against her by the Executive Department. There is no indication on the face of the notice of the reasons the Sweileh Sharia Court granted the order of 3 April 2019. The mother is concerned that the father will now seek to enforce the order issued by the Sweileh Sharia Court and remove M from her care or by seeking the imprisonment of her brother in Jordan. Before this court the father confirmed his understanding that the order of the Sharia Court renders the mother’s brother a fugitive from justice who is actively being sought by Jordanian security personnel.

It is in the foregoing context that the mother now seeks the relief outlined above from the High Court of England and Wales. As I have already noted, and more fundamentally, during the hearing it became abundantly clear that there are issues between the parties regarding the welfare of M that require determination. Specifically, whether M should reside in England with his mother or in Jordan and what contact M should have with his father. Within this context, the two questions before the court are (a) does this court have jurisdiction to determine those outstanding welfare issues and (b) if so, is the convenient forum for the determination of those issues the English court or the Jordanian court.

The mother’s case, advanced through Mr Perkins, is that M is plainly habitually resident in the jurisdiction of England and Wales having regard to the test that the court must apply to determine that issue, namely whether M displays some degree of integration in a social and family environment in this jurisdiction. In her first statement, the mother describes the following features of M’s life in England since that date:

Within the foregoing context, the mother contends that M is fully integrated in social and family life in England, physically, psychologically and emotionally and, accordingly, applying the relevant legal test is plainly habitually resident in the jurisdiction of England and Wales

Mr Perkins further submits that the father is unable to demonstrate in this case that England is not the natural and appropriate forum and that there is another available forum that is clearly and distinctly more appropriate. In this regard Mr Perkins relies on the fact that M is habitually resident in this jurisdiction, that the mother the father and M all live in this jurisdiction, that the majority of the evidence relevant to the determination of the welfare issues before the court exists in this jurisdiction. In short, Mr Perkins submits that “everyone is here”. Within this context, Mr Perkins submits that it would make no practical sense, let alone be in M’s best interests, for the welfare issues between the parents to be tried in the Kingdom of Jordan, the balance of practicalities falling very firmly in favour of the welfare issues being heard in this jurisdiction.

Mr Perkins further relies on the fact that the last time the mother entered Jordan she was made the subject of an exit ban upon the application of the father. Within this context, Mr Perkins invites this court to infer that if the mother returned to Jordan to engage in welfare litigation in respect of M she would be at considerable risk of the father impeding her exit from that jurisdiction.

Whilst acknowledging that the Sweileh Sharia Court has made an order concerning M, which order requires the mother to give M to his father, Mr Perkins makes the following points:

Likewise, whilst acknowledging that the order made by the Sweileh Sharia Court on 25 November 2016 was conditional in nature, Mr Perkins submits that there is no evidence that the father has satisfied the conditions set out in the judgment of that date such as to trigger the return provisions, namely ensuring medical insurance or funding for M in Jordan.

In these circumstances, applying the principles set out in Spiliada Maritime Corporation v Consulex [1997] AC 460 Mr Perkins submits that the father cannot demonstrate in this case that England is not the natural and appropriate forum and that there is another available forum that is clearly and distinctly more appropriate.

With respect to the issue of habitual residence, the father made the point that it is difficult for him to make submissions on whether M demonstrates some degree of integration in a social and family environment in this jurisdiction when he has had no contact with M for a significant period of time. However, the father did not seek to dispute that M was born in England and is a citizen of the United Kingdom, that aside from a 16 to 18 month period in Jordan when he was aged one year old, he has spent his entire life in England, that both he and the mother live in England (although he contends that his work may take him to other jurisdictions and he would like to return to Jordan with M), that M has been educated and has received treatment in this jurisdiction uninterrupted since 2015 and that, aside from his period in Jordan, M has

The father was however very firmly of the view that the appropriate legal forum for the determination of the welfare issues in respect of M is the Kingdom of Jordan, relying on the following submissions:

It is now well established that where the question jurisdiction issue arises as between Member State to which Council Regulation (EC) 2201/2003 (hereafter BIIa) applies and a non-member third party state, that issue is to be determined by reference to the terms of the regulation. In Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 the Supreme Court made clear that BIIa applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state. The Court of Justice of the European Union has confirmed in UD v XB (ECJ) KC-393/18 PPU [2019] 1 WLR 3083 that Art 8(1) of BIIa is not limited to disputes involving relations between the courts of Member States.

Art 8(1) of BIIa 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

Where the English court does have jurisdiction under Art 8 but there are proceedings also in a third party non-member state the issue becomes one of forum conveniens. As I have already noted, 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 cardinal principles can be stated 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:

“[26] 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.

[27]

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.

[28]

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.

[29]

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.

[30]

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.”

Within the foregoing context, Williams J set out in V M (A Child)(Stranding: Forum Conveniens: Anti-Suit Inunction) [2019] 4 WLR 38 at [35(iii)] a helpful summary of the factors that will be relevant to the court’s determination of the question of ‘natural forum’:

“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. In evaluating this limb the following will be relevant; a) the desirability of deciding questions as to a child's future upbringing in the state of his habitual residence and the child's and parties' connections with the competing forums in particular the jurisdictional foundation; b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; d) the availability of legal representation; e) any earlier agreement as to where disputes should be litigated; f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; g) principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; h) it has also been held that it is relevant to consider the prospects of success of the applications.”

I am wholly satisfied that M is habitually resident in the jurisdiction of England and Wales based on a degree of integration in a social and family environment in this jurisdiction. M was born in the United Kingdom and is a United Kingdom citizen. Save for a sixteen month period when he was one year of age (which I note would have been a three month period but for the exit ban the mother was made subject to upon the application of the father) M has lived his entire life in England in the same property, previously with both parents and subsequent to 2013 with his mother. For the majority of M’s life both his parents have lived in England and the family life he has enjoyed with them has been located in this jurisdiction. M has received all of his education and all of his medical treatment in this jurisdiction, which education and medical treatment has been uninterrupted in this jurisdiction since April 2015. Whilst M speaks Arabic and takes Arabic lessons, his first language is English and this is the language in which he is more proficient. It is plain on the evidence before the court that M is well integrated socially in England with a large group of friends. Whilst M has extended family in Jordan, he does not have regular or any contact with them at present.

Within the foregoing context, I have no hesitation in finding that M is habitually resident in the jurisdiction of England and Wales. It follows, having regard to the decisions in Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 and UD v XB (ECJ) KC-393/18 PPU [2019] 1 WLR 3083, that this court has jurisdiction in relation to matters of parental responsibility concerning M pursuant to Art 8(1) of BIIa as incorporated into domestic law by the Family Law Act 1986.

Satisfied as I am that the English court has jurisdiction, the next question is whether I should, upon the application of the father, stay the English proceedings pending the determination of the welfare issues in respect of M by the Jordanian courts.

By his Skeleton Argument and in oral submissions Mr Perkins sought to persuade the court that the father was, in effect, estopped from arguing forum by reason of his being domiciled in the United Kingdom. Mr Perkins submitted that the effect of the decisions in Owusu v Jackson and others (Case C-281/02) [2005] QB 801 and UD v XB (ECJ) KC-393/18 PPU [2019] 1 WLR 3083 is to confirm that the domicile provisions of Art 2(1) of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereafter BIa), which requires a person domiciled in a Member State to be sued in the courts of that State regardless of their nationality, apply in this case. Mr Perkins further submitted that BIa applies to this case in any event as these proceedings are civil proceedings. Accordingly, Mr Perkins submits that the father is prevented from arguing forum conveniens in this matter. As I indicated during the course of the proceedings, I am not at all persuaded by these arguments. However, given the clear result in this case of applying long established governing legal principles to the question of forum it is not necessary for me to deal with those submissions and I do not do so.

Having considered the factors relevant to determining the jurisdiction with which this case has the most real and substantial connection, I am satisfied that the case has the most real and substantial connection with the jurisdiction of England and Wales for the following reasons:

Having regard to the totality of competing factors in this case as set out above, I am not satisfied that the father has demonstrated that not only is England not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate. In the circumstances, I decline to stay these proceedings and will proceed to give directions for the determination of the welfare issues between the parties in respect of M.

In conclusion, and applying the legal principles I must, I am satisfied that M is habitually resident in the jurisdiction of England and Wales and, accordingly, that the English court has jurisdiction in respect of matters concerning parental responsibility for M pursuant to Art 8 of BIIa as incorporated into domestic law by the Family Law Act 1986. Further, I am not satisfied that the father has demonstrated not only that England is not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate. In the circumstances, I am satisfied that the English court should proceed to determine the welfare issues in respect of M and I will give directions to that end.

The mother has indicated through Mr Perkins that, in the interim, she stands ready to facilitate contact between the father and M. Given the period of time that has past since the father last saw M the mother proposes that she be present at contact. She would dearly like the father to provide her with a recent photograph of himself to place in M’s bedroom with a view to stimulating conversations about his father. Pending the determination of this court, the mother is reluctant to agree to unsupervised overnight contact but hopes that contact will progress to that stage in due course.

That is my judgment.