K (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction)

On 23 January 2019 Deputy High Court Judge Gupta QC gave judgment in respect of one part of a dispute between the applicant mother V (the mother) and the respondent father M (the father). They are engaged in litigation in England and in India in respect of their son K (born August 2015). The English limb of the proceedings is the mother’s application for wardship which was issued on or about the 16 October 2018, and which includes within it application for the summary return of the child from India to England.

On 25 October 2018 Mr Justice Francis made the child a Ward of court. The father challenged the jurisdiction of the English court to make any orders in relation to the child, he maintaining that the courts in India were already seized of proceedings concerning the child. At a further hearing before Mrs Justice Gwynneth Knowles on 14 November 2018, a hearing was timetabled for the 21 – 22 of January 2019 in order to determine:

Both parties filed evidence and Deputy High Court Judge Gupta QC heard evidence from the parties on the 21 – 22 January 2019 and on 23 January 2019 he delivered an extempore judgment.

By his judgment and order Deputy High Court Judge Gupta QC made the following findings against the father:

The judge consequently made a declaration in the following terms:

Due to the time it had taken to resolve the issue of habitual residence it was not possible to determine the mother’s application for summary return of the child or the father’s application for a stay of the English proceedings. Deputy High Court Judge Gupta QC gave directions in respect of those remaining issues together with the issue of whether any other welfare orders should be made in respect of the child and the matter was listed for a two hour hearing on 6 February 2019.

One of the directions he gave was that the parties should lodge with the court an agreed bundle of law and authorities the day prior to the hearing. Regrettably the parties did not comply with that direction. Both parties did file updated statements which addressed in particular the treatment that would be available to the child by the NHS were he to return to England.

The matter came before me at 2pm on 6 February with its two-hour time estimate. I was provided with a bundle of some 640 odd pages together with practice direction documents and position statements or skeletons on behalf of both parties and a number of authorities. The essential reading list helpfully identified about 100 pages of reading although unfortunately the approved transcript of Deputy High Court Judge Gupta QC did not become available until about 4:45pm and prior to that I had access only to a somewhat scrambled note taken by the parties on 23 January 2019. The mother attended in person, she having returned from India in July 2018 with the child remaining in India with her parents. She had been unable to obtain a passport for the child and so was unable to bring him back with her. She was represented by Ms ScottWittenborn, counsel. The father attended the hearing by video link from India, he having returned to India in about June 2018. He was represented by Ms Clare Renton, counsel. Over the course of the afternoon I heard submissions on behalf of each party on the facts and the law. It emerged that there was an issue between the parties as to the availability of an ‘Hemain’ anti-suit injunction in relation to proceedings concerning children. The mother argued that if I concluded that the English court should exercise its jurisdiction over the child, and rejected the father’s application for a stay of the English proceedings that I should in tandem with the exercise of the English jurisdiction injunct the father from further progress in the Indian proceedings, save to the extent that it was necessary to give effect to any English orders relating to the child. The father argued that ‘Hemain’ injunctions were not permissible in actions concerning children. In the circumstances the two-hour time estimate that had been given to the case proved to be wholly inadequate given the volume of reading, the non-compliance with the direction as to an agreed summary of the law and authorities, the range of submissions and the need to consider the law relating to ‘Hemain’ injunctions. I therefore was obliged to reserve both my decision and judgment overnight. Further written submissions were made by the parties on the 7 February 2019.

The judgment of Deputy High Court Judge Gupta QC sets out a detailed account of the factual background to this dispute. He heard oral evidence from both parties and clearly delved deep into the documentary evidence. No appeal has been lodged

Subsequently it has emerged that there are other proceedings underway in India. The child welfare committee in the town of S (which is where the child lives with his maternal grandparents) received a complaint by the father on 16 October 2018. Subsequently a petition was filed by the father with the Child Welfare Committee on 25 December 2018. In the petition the father makes some very serious allegations in respect of both the mother and the maternal grandparents treating the child abusively and the mother neglecting his welfare. Of course, he does not identify that he stranded the mother and child in India and the inference from the petition is that the mother returned to England of her own volition effectively abandoning the child with her parents.

The prayer in the petition [D148] states

In his recent statement the father describes the Child Welfare Committee as a statutory body with the same powers as a metropolitan magistrate but on further exploration in court it seems they also perform a quasi Cafcass function, they being responsible for making enquiries and recommendations as to the child’s welfare. The father says that he has seen them in their office on a number of occasions and they have apparently seen him with the child at their office. The mother says she has spoken to them on approximately three occasions by telephone.

In his recent statement the father exhibits a translation of an order made by the Child Welfare Committee on 30 January 2019. That order refers to an investigation report of 9 January 2019 which has not been produced by either party. The order records that it is decided and ordered that the said minor child be handed over into the care of his father[…] And the child welfare committee hereby so orders.

However on 5 February 2019 the Honourable Mr Justice K Ravichandrabaabu, sitting at the High Court of Judicature at Madras, made an order on the application of the maternal grandfather which provided:

Those proceedings are I understand listed for further directions on 4 March.

In addition to those two sets of proceedings in different courts Ms Renton informed me in the course of the hearing that the father has issued further proceedings in the court in S seeking custody of the child. The father has not provided a copy of the application issued in that court nor could I follow why it was that he has now seised three courts with applications all seeking custody of the child. As far as anyone has been able to identify the orders themselves do not expressly identify the basis upon which the courts in India are exercising jurisdiction over the child but the consensus appeared to be that it was on the basis of the child’s presence. This view was supported by the father’s English solicitor who I believe is also a qualified Indian lawyer.

Neither Ms Renton nor her instructing solicitor were able to assist me with understanding the interplay of the various proceedings or what process will now be followed to determine the various applications or what the timeframes are for final decisions to be reached including any appeals. Neither party has sought to adduce any evidence from their Indian lawyers, which would assist me in identifying the likely progress of the Indian litigation. Such evidence is commonplace in forum non conveniens applications but it is not available and thus I will have to determine the issues on the evidence as it stands before me.

Thus, as matters currently stand the child remains living with the maternal grandparents in S and is undertaking something like a 16 hour round trip three days a week to attend AIISH. At present the order of the High Court in Madras prevents the child returning to the UK although he has a passport which would enable him to do so were the Indian order not in place.

The mother is living in rented accommodation in England and is working as a senior database administrator for a company which provides IT support to the NHS. She currently has an application for a Visa outstanding with the Home Office. Her Indian passport is lodged with the Home Office. The evidence seems to confirm that she could retrieve her passport from the Home Office and travel to India. However her application would then be closed and because her previous Visa expired in October 2018 she would be unable to return to England and would have to make an out of country Visa application, which would require her to remain in India pending its determination. She says that given her employment and her housing she cannot realistically therefore travel to India until her application is determined. She has been led to believe that it should be determined within about six months. Although there was some dispute between Ms Renton and Ms Scott-Wittenborn about the mother’s immigration situation the position outlined above ultimately did not seem to be disputed. The father’s English lawyer has some specialisation, I’m told, in immigration and she did not appear to dissent from the position outlined by Ms ScottWittenborn.

The father is living in Coimbatore and says that he has quit his job in the UK. I’m not sure whether he is working in India. He says he intends to rent a property near to AIISH and that he will live there with the paternal grandparents and staff. As a British passport holder, he can travel freely to the United Kingdom. It seems that he is not having contact with the child. I note from paragraph 8 of Ms Renton’s skeleton that the father saw the child on 24 December 2018 when he attended with the child welfare committee on a visit to the grandparents’ home. As far as I can tell no court order is in place dealing with his time with the child.

The mother’s position is set out in her witness statement of 1 February and the position statement filed by Ms Scott-Wittenborn and supplemented by a further note dealing with Hemain and anti-suit injunctions. She had not addressed the forum conveniens issue in her position statement but boldly asserted that the court’s primary task was not to determine forum conveniens but rather to consider whether under its inherent powers it should order the child’s summary return on the basis that he was wrongfully retained there.

In one sense I can understand why Ms Scott-Wittenborn would make such a bold assertion. Although the judgment and order of Deputy High Court Judge Gupta QC do not express themselves in these terms it is clear that the effect of the findings made are that the child was wrongfully retained in India by the actions of the father. That being so and as in the case of Re H (abduction: jurisdiction)[2014] EWCA Civ 1101, [2015] 1 FLR 1132 one might argue that a retained jurisdiction under article 10 BIIa (either independently of or in addition to the article 8 jurisdiction Deputy High Court Judge Gupta QC found) was one which is not susceptible to a stay on forum nonconveniens grounds. It might also be argued that an Article 8 BIIA habitual residence jurisdiction is not susceptible to a stay on forum non conveniens grounds; see paragraph 59 of Re H (above). The Court of Appeal declined to determine the ‘Owusu-v-Jackson’ arguments and the Supreme Court had suggested in A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2014] 1 FLR 111that the point might require a reference to the Court of Justice of the European Union. However the case proceeded before Deputy High Court Judge Gupta QC on the basis that the jurisdiction to stay proceedings did exist and I cannot find any suggestion in any earlier order that the existence of the courts ability to stay proceedings was challenged. Given the need to avoid delay in these proceedings and given that the point was not raised on behalf of the mother I do not propose to attempt to address it. As it happens the trend of authority in relation to the ‘Owusu-v-Jackson’ points towards the conclusion that the power to stay proceedings on forum non-conveniens grounds continues to exist in respect of countries which fall outside the scheme of BIIa or the 1996 Hague Child Protection Convention. See Rayden and Jackson on Relationship Breakdown, Finances and Children, Volume 2 [31.326-328] and the cases cited there. For the purposes of this case therefore I work on the basis that the court retains the ability to stay these proceedings on the basis of forum non conveniens.

In the course of her submissions though I required Ms Scott-Wittenborn to address the various factors which the court must consider in forum non conveniens applications. She submitted:

In respect of the anti-suit injunction Ms Scott-Wittenborn submits that:

In respect of the welfare orders that the mother seeks Ms Scott-Wittenborn submits:

The father’s case is set out in his witness statement of 4 February 2019 and in Ms Renton’s skeleton argument and her supplemental note on ‘Hemain’ injunctions.

In respect of forum non-conveniens the father’s case in summary is:

In respect of the ‘Hemain’ injunction application the father submits that

In respect of interim welfare matters the father’s case is

The statutory jurisdiction in respect of the father’s application for a stay of the wardship proceedings derives from Section 5 of the Family Law Act 1986. Which in so far as it is material says

The wardship application falls within part one of the Family Law Act 1986 and so falls within section 5 (2).

The principles to be applied are those deployed in the exercise of the inherent jurisdiction to stay non-family proceedings^: In the Matter of Re K (a child) (international child abduction: forum conveniens)[2015] EWCA Civ 352, [2015] All

In Lubbe v Cape plc [2000] 4 All ER 268, [2000] 1 WLR 1545, HL., the principles were summarised by Lord Bingham of Cornhill:

The decision is not a paramount welfare decision but the child's best interests are a relevant consideration: Re S (residence order: forum conveniens)[1995] 1 FLR 314; Re V (forum conveniens)[2004] EWHC 2663 (Fam), [2005] 1 FLR 718, Munby J. It is arguable that the best interests of the child are a primary consideration pursuant to UNCRC, Art 3.1 [2016] UKSC 15. Having regard to the logic of the decision of the Supreme Court in Re N in relation to the meaning of ‘best interests’ in Article 15 BIIa transfer cases it is likely that ‘best interests’ in the forum context should also be applied broadly so as to encompass not only ‘procedural’ best interests but also substantive best interests.

Drawing those threads together the approach that the court needs to take in a forum conveniens situation is it seems to me as follows;

The basis for the court’s jurisdiction to grant injunctions to restrain a party pursuing proceedings in another jurisdiction derives from three principal cases

According to Lord Goff of Chieveley in Airbus at 133D:

In S-v-S [2010] 2 FLR 3224 Baker J (as he then was) noted the difference between a ‘Hemain’ injunction and an anti-suit injunction. The former being designed to hold the ring whilst the competing courts determine whether or not they have jurisdiction; it thus being an interim remedy. The latter is a permanent remedy. An anti-suit injunction will only be granted where it can be shown: (a) that England is the natural forum; and (b) that the pursuit of the foreign proceedings would be 'vexatious or oppressive': per Munby J in Bloch v Bloch, [2002] EWHC 1711 (Fam).

The proper approach was further considered by the Court of Appeal in Mustafa v Ahmed [2014]EWCA Civ 277 [2015] 1 FLR 139 where McFarlane LJ (as he then was) said:

Counsel have been unable to locate any reported cases in the field of children in which the use of the jurisdiction has been argued. In Hallam v Hallam [1992] 2 FCR 197, sub nom H v H (minors) (forum conveniens) (Nos 1 and 2) [1993] 1 FLR 958 and Hallam v Hallam (No 2) [1992] 2 FCR 205, Waite J made an anti-suit injunction to prevent the father continuing to litigate in the USA after Waite J had determined England was the appropriate forum. He assumed the jurisdiction existed.

I have not heard anything like full argument on the availability of the remedy of an anti-suit injunction in children cases; nor indeed on the availability of a ‘Hemain’ injunction in children cases. The discussion and tentative conclusions that follow must be viewed in that light.

It is self-evident from the international instruments in the field, for instance Brussels IIa and the 1996 Hague child Protection Convention, that concurrent proceedings in two jurisdictions concerning the same matter of parental responsibility is a wellrecognised ill. Hence provision is made for stays of second seized proceedings. I see no reason in principle why the ill of concurrent proceedings in England and Wales and another country which is not a party to those international instruments is any less. The risk is of the parties and the children being exposed to the stress and cost of two sets of litigation. In particular there is the risk of conflicting judgments being issued by the two courts which may have profound consequences for the children in terms of their relationship with their parents and their ability to travel between two countries both of which they may have significant connections with including family. Thus if the ‘ill’ is the same and if a stay might issue to remedy the ill as between signatories to international instruments I see no reason in principle why the court should be unable to deploy the other tool of an anti-suit injunction where a non-signatory state is involved. However the identification of the ability of the court to grant such an injunction in principle is quite different to the grant of an injunction in practice.

Issues such as comity and respect for the processes of another court are a component of the discretionary evaluation in determining whether to make an anti-suit injunction.

I note that in respect of a country which is not a signatory to those international conventions, neither country is bound by those rules and the highest courts in this country have ruled against importing Convention principles into non-Convention cases. A country such as India has its own jurisdictional criteria, a well-established and respected court system and judiciary and in particular where the court itself has established Custodianship over a child it has rendered its own welfare determination. Thus any step taken in this court which has the effect of inhibiting or restricting the ability of the Indian High Court to determine the welfare of a child in its jurisdiction, even through the vehicle of an injunction directed at a party, would potentially be a significant interference with the judicial process of that country. It seems reasonably clear that, like England, the court acts upon application made by party rather than of its own motion. Thus an injunction restricting a party’s access to a court indirectly restricts the courts ability to exercise its jurisdiction.

I also have to recognise that in respect of a child who is present in another jurisdiction, that there is a particular issue to be grappled with which is the potential need for emergency relief from a local court in respect of a matter which could not be resolved by an enforceable order made by the English court. Thus some care would need to be taken in ensuring that any anti-suit injunction in respect of proceedings relating to a child did not place the respondent in a position where he could not engage the local court to deal with an urgent matter which could not be determined by the English court in an effective way. The provisions of Article 20 BIIA and Articles 11 and 12 of the 1996 Hague Convention are of course in part designed to address this sort of issue where both countries are a party. Ultimately if the issue is one of ‘securing the ends of justice’ which in a case where the child’s welfare is at issue the general principles outlined which support the ‘securing the ends of justice’ are fortified by the best interests of the child at least as a primary consideration.

Thus whilst I accept that this court has the jurisdiction to grant an anti-suit injunction in an application concerning a child, the court would need to consider:

The principles which might apply in a situation of a party rushing towards a welfare judgment in another court whilst seeking to delay this court progressing to a welfare determination by taking jurisdictional points or otherwise (i.e. a true ‘Hemain’ injunction) might be somewhat different to an anti-suit injunction. We are no longer in this situation.

Turning then to consider how those principle apply in this case. Firstly addressing the application for a stay and forum non conveniens:

I thus conclude for all the reasons set out above taken in combination that the father has not discharged the burden upon him to establish that a stay of the English proceedings is appropriate. On clear balance England is the natural and appropriate forum and India is not clearly the more appropriate forum; albeit that it is not all oneway traffic. Thus the father’s application for a stay of the English proceedings or their dismissal is refused.As I have reached the conclusion that the jurisdiction ought to be exercised following my forum non-conveniens evaluation I am reinforced in my conclusion that I do not need to address the ‘Owusu-v-Jackson’ point in any event. On the facts of this case the outcome of the argument would make no difference. There may well of course be cases where it would make a critical difference. That case will have to await determination on another day

Having regard to the test for the deployment of a permanent anti-suit injunction outlined above I’m not satisfied that this case falls into a category where such an injunction could properly be made. I acknowledge that it could be argued that having regard to the issues surrounding the wrongful retention of the child in India that the mother could justifiably submit that she has a right not to be sued in India when that jurisdiction arose only through the wrongful act of the father. However the Indian court’s jurisdiction is in respect of a child; this is not a commercial matter. Given the possible availability of a stay application in the Indian courts and given the issues of comity which arise when a court exercises a custodianship jurisdiction in respect of a child I do not consider it appropriate in the exercise of my discretion to grant an antisuit injunction. Assuming that a stay application can be made and that some form of judicial liaison can be commenced to enable this court and the Indian court to work cooperatively to solve the riddle of competing applications in our respective courts, it is in my view wholly premature to grant such an injunction. That situation might fall to be reconsidered if no progress can be made and in particular if the father embarked upon a rear-guard action to play the Indian courts to delay the resolution of matters. However we are far from that position as yet.

In respect of interim welfare orders at the present time I’m not satisfied that it would be in this child’s welfare to make an order for his summary return to this jurisdiction on a permanent basis. If he is to return on a permanent basis the arrangements for his care and the meeting of his medical needs will need to be in place immediately upon his return. That will need a more concrete care plan in respect of his medical needs which may only be capable of construction after he has been seen by a paediatrician in England. The arrangements for his care having regard to the mother’s work commitments will also need to be considered. On a provisional basis it seems to me that it would be in his welfare interests to return temporarily to this jurisdiction to enable him to both be reunited with his mother for a short period of time, and possibly also with his father if he will travel to the UK, and for him to be assessed by a paediatrician in order to commence work on the construction of the care plan.

It seems to me that this child’s situation falls within FPR 16.2 and PD 16A paragraph 7 (b), (c), (f) and (g) and where it is in his best interests to be joined as a party and a Guardian appointed. Thus I will invite the Cafcass High Court team to appoint one of their officers to represent this child’s interests. Before I make an order for his temporary return I would value the input of the Guardian in respect of the orders that would best promote this little boy’s welfare.

I will therefore timetable a further hearing within the next four weeks to enable the Guardian to consider the position. Whether this hearing should be prior to the next hearing in India on 4 March or afterwards I will allow the parties to make representations on. I consider the hearing should be after the 4^th of March 2019 in order to enable the Mother to make an application to that court for a stay.

That is my judgment.