Case No: B4/2009/1290
Neutral Citation Number:  EWCA Civ 965
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION, PRINCIPAL REGISTRY
(HIS HONOUR JUDGE KEVIN BARNETT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday, 21st July 2009
LORD JUSTICE THORPE
LORD JUSTICE SCOTT BAKER
LORD JUSTICE SULLIVAN
IN THE MATTER OF I (A Child)
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Mr Jonathan Baker QC and Mr Edward Devereux (instructed by Messrs Bindmans) appeared on behalf of the Appellant mother.
Ms Alison Russell QC and Ms Divya Bhatia (instructed by Messrs Mulliger Banks) appeared on behalf of the 1st Respondent, the father.
Ms Judith Charlton (instructed by Messrs Edwards Duthie) appeared on behalf of the 2nd Respondent, the child, by his Guardian ad Litem.
Judgment (As Approved by the Court)
Lord Justice Thorpe:
 There are two main applications before the court. Both were issued by Y (´the Mother´), and both were issued when the Mother was acting as a litigant in person. The first application was issued on 31st October 2007 and the relief sought is defined in the Form C1A as ´...an order to enforce the telephone contact and as much contact as possible´. The second was issued on 15th April 2008 and the Mother sought to ´enforce and vary´ contact together with an assessment to be undertaking with the hope of moving to unsupervised contact. Mention is also made of the possibility of residence. The Respondent to both applications is I (´the Father´), and the child at the centre of these proceedings is Q I (´Q´) who was born on 27th July 2000 and who is rapidly approaching his 9th birthday.
 The issues with which I am concerned are, firstly, whether the court has any jurisdiction to entertain the Mother´s applications, and secondly, if I were to find such jurisdiction, whether I should decline to exercise it and stay the present proceedings on the basis that this Court is a forum non conveniens. The Mother asserts that there is jurisdiction, the Father and Q´s Guardian ad litem assert there is not. If the court were to find it had jurisdiction, the Father submits that the Court should decline to exercise it as the courts in Pakistan are the appropriate forum. On the other hand the Mother and Guardian maintain that the jurisdiction should be exercised as this Court is the appropriate and convenient forum.
 For completeness it should be observed that the Father launched an application. That was dated 3rd March 2009 and issued by the Court the following day. The application was to set aside part of an Order made by Hedley J on 17th June 2008. If I find there was no jurisdiction to entertain the Mother´s applications it would follow that the Order of Hedley J was made without jurisdiction and the Father´s application becomes redundant.
 The background circumstances which give rise to the present applications have been described as extraordinary. Certainly they are unusual.
 The Mother was born in England. Her parents are from Gujerat in India. The Father was born and brought up in Pakistan, and it was whilst on a visit there that the Mother met the Father. Within a week of meeting they were married. That was in October 1999. The Mother quickly fell pregnant. About two months after the marriage the Mother returned to England and sponsored the Father´s application for indefinite leave to remain in this country. It seems clear that, at that time, it was their intention to live in this country as a family. Q was born in England on 27th July 2000.
 In November 2001 Q was found to have sustained fractures to the shoulder, elbow and forearm. Q was removed into foster care and the London Borough of Newham (´the Local Authority´) instituted care proceedings. On 29th May 2002 District Judge Brasse sitting at the Principal Registry commenced a fact finding hearing. On 29th May he delivered a long and detailed judgment, and concluded:
´I find, therefore, that, whilst the father himself inflicted the injuries and has failed to further protect his child by making sure that he was brought to the attention of medical authorities in time, sadly the mother, quite out of character, has also failed to protect her child by seeking medical advice, and she did this in order to protect her own interests, and in this instance she has put her own interests before those of her child in a very serious way. She has sought to protect herself, possibly her marriage, possibly her job and possibly her position as mother of the child who she does not want to lose. All of those are understandable motives, but in covering up and, frankly, lying in order to protect herself, she has not helped her child from whom she has been separated for many months.´
 The final, or ´welfare´, part of the care proceedings was listed for 17th December 2002. Somewhat unusually DJ Brasse decided to revisit his original findings in the light of the evidence which had emerged since the May hearing. The conclusion was a complete volte face. DJ Brasse exonerated the Father and found the injuries were caused by the Mother.
 Within the care proceedings Dr Bashir, a Consultant Psychiatrist, was instructed and prepared two reports. For the purposes of this judgment it is only necessary to give brief consideration to the second dated 29th April 2003. The focus of that report was upon the ability of the father and his family in Pakistan to care for Q. Indeed as part of his investigation Dr Bashir visited the paternal family in Pakistan. He recommended that Q should either live with his Father or the paternal family in Pakistan.
 On 22nd May 2003 final orders were made in the care proceedings. A residence order was made in favour of the Father. A regime of supervised contact with the Mother was defined and a 12 months Supervision Order to the Local Authority was made. Annexed to the Order were (a) a ´Contact Agreement´ between the Local Authority and the Mother, designed to help implement and regulate the contact arrangements between Q and the Mother; and (b) an ´Agreement´ between the Local Authority and the Father. I need not consider the terms of that Agreement in any detail, it is sufficient to record that paragraph 13 provided:
´The Local Authority will assist in facilitating any move to Pakistan by the Father with Q.´
Thus it was in the contemplation of all concerned that the Father and Q could move to Pakistan.
 The Order of 22nd May 2003 effectively concluded the public law proceedings. It is right to observe that the Mother felt aggrieved and has never accepted the findings made against her. In May 2003 she sought to persuade DJ Brasse to reopen the issue of causation. That failed. The Mother launched an appeal which was eventually dismissed by Hogg J on 15th June 2004. An appeal to the Court of Appeal failed at the permission stage.
 The Father applied for leave to remove Q permanently from the jurisdiction, namely, to Pakistan. The Mother applied for increased contact. Pursuant to Rule 9.5 of the Family Proceedings Rules 1991 Q was joined as a party to both applications and a Guardian ad litem appointed for him. Those applications came on for hearing before Hedley J on 16th September 2004. Leave was granted to the Father to remove Q permanently from the jurisdiction and an undertaking by the Father to return Q when ordered to do so was given and recorded. In addition a contact order was made. The order provided for supervised visiting contact and weekly telephone contact, with ´the matter´, by which I assume, is meant the issue of contact, to be listed before DJ Brasse in January 2005, unless by then and pursuant to the leave given, Q had left the jurisdiction. Although Mr Devereux argued strongly to the contrary, in my judgment, and read as a whole, the contact provisions were designed to regulate contact up until Q left the country. Mr Devereux submitted it would be extraordinary for there to have been no order dealing with contact post relocation. As a matter of practice I disagree. If there is no dispute about contact there may be no need to attempt to define it. In this case the Father has never sought to say there should not be contact between Q and the Mother, albeit that he has been concerned that it should be properly supervised given the findings against the Mother. At the end of the day the simple but clear conclusion I have come to is that the order of 16th September 2004 did not purport to define or regulate contact after Q had relocated to Pakistan. In December 2004 the Father and Q moved to Pakistan and hence there was no need for a further hearing before DJ Brasse.
 In April 2005 the Father returned to England leaving Q with his paternal grandparents and aunt in Pakistan. At first sight that may seem highly unusual. However, it is a situation which was, at least to some extent, foreshadowed in Dr Bashir´s second report, where he wrote:
´It is not clear if´ [the Father] ´would continue to offer long-term resident care to Q as he planned to travel abroad if he migrated back to´ [Pakistan].
Accordingly from April 2005 to the present day Q has lived in Pakistan and has been brought up there by his paternal grandparents and aunt.
 Contact proceeded by agreement. There was telephone contact which took place, at least initially, on a weekly basis. In July/August 2005 and March/April 2006 the Mother stayed with the paternal family in Pakistan. In summer 2006 Q came to England for four weeks. He stayed with the Father and had daily contact with the Mother. In summer 2007 Q together with the paternal grandmother came to England on a 9 week visit. Q and his grandmother initially stayed with the Mother. That lasted for about 6 weeks but there was an argument as a result of which they went to live with the Father for the remainder of their stay.
 It appears that it was the events of the summer 2007 which led the Mother to issue her first application of 30th October 2007: see paragraph  above. That application proceeded to a conciliation hearing before Deputy District Judge Crowther on 12th December 2007. Both parties attended in person although the Father had the assistance of an interpreter. The parties managed to agree a way forward which (a) provided for weekly telephone contact when Q was in Pakistan, and daily telephone contact when in this country; and (b) defined arrangements for face-to-face contact when Q was in this country. The second part of the agreement was, of course, predicated upon Q visiting this country and that was provided for in the following (albeit badly phrased) way:
´[The Father] to facilitate Q to visit UK if possible on an annual basis and his Mother during his school holidays.´
The telephone contact took place. However, because the Mother wanted the contact to progress to unsupervised contact and, possibly, to eventually care for Q herself, the application of 15th April 2008 (see paragraph  above) was launched.
 Eventually on 17th June 2008 the applications came on for hearing before Hedley J. Prior to that hearing Deputy District Judge Airey had given directions transferring the applications to the High Court and providing that each party should file a statement in relation to ´the issues of jurisdiction and contact´. The Mother filed a statement the Father did not. In her statement the Mother said:
´Q is habitually resident in both countries, and his centre of interest is in the UK where his parents are and where his father has residency and is habitually resident.´
The Mother, and indeed the Father were then acting in person.
 Hedley J dealt with the question of jurisdiction in the following way:
´... the child is entirely lawfully in Pakistan, and indeed it is unusual that the Court should be retaining jurisdiction in this case because, of course, the child is habitually resident in Pakistan, and were this a European case the Court would be positively deprived of jurisdiction by the structure of European parenting law, but it is not and the Court undoubtedly does have jurisdiction because both parties have not only submitted to the jurisdiction but have actually invoked it on a number of occasions, and so the question of jurisdiction of itself does not present a problem in this case, though the question of enforcement of orders might.´
 I will analyse the approach taken by Hedley J at a later stage of this judgment, for the present purposes it is sufficient to observe that having satisfied himself that he had jurisdiction, he proceeded to make a number of orders. Thus, pursuant to rule 9.5 of the FPR 1991 Q was joined as a party and CAFCASS invited to appoint a Guardian. The Order also provided that the Mother was to have both telephone contact and visiting contact to Q in Pakistan (as I understand it the Father has never sought to prevent contact taking place in Pakistan). Further, paragraph 4 (as amended pursuant to the slip rule) of the Order provided:
´The father to bring or cause the child to be brought into the jurisdiction of England and Wales on a date not later than 4th June 2009 and to remain in the jurisdiction until 30th July2009.´
That again was an uncontentious provision. The Father had re-married and the plan, at the time of Hedley J´s order, was for his new wife to come to this country and to bring Q with her.
 This matter was next before the Court on 2nd March 2009. All parties were legally represented for that hearing before Mr Stephen Bellamy Q.C. sitting as a Deputy High Court Judge. It appears that some consideration may have been to the question of jurisdiction as the Order he made recited ´And upon the Court considering that it retains jurisdiction to make orders in respect of Q´. By that date it was clear that the Father was asserting that he was no longer in a position to comply with paragraph 4 of the Order of 17th June 2008 (see paragraph  above). Put briefly the Father´s position was that his relationship with his new wife was not good, she, therefore, no longer intended to come to this country, he was unemployed and therefore unable to finance the necessary travel arrangements. Accordingly the Father´s solicitors gave an undertaking to issue an application to set aside paragraph 4 of the Order. Such an application was issued.
 The final hearing prior to this matter coming on before me on 5th May was on 12th March 2009 before Black J. It appears clear, notwithstanding the previous Orders of Hedley J and Mr Stephen Bellamy Q.C., that Black J was concerned and exercised by the question of jurisdiction. Although the Order she made does not expressly deal with this point, it appears to be the common understanding of all parties that it was her intention that the question of jurisdiction should be heard as, as it were, a preliminary issue at the hearing listed for 5th May 2009. On 5th May I heard detailed argument and it became apparent that even if I found the Court had jurisdiction the Father would, in all likelihood, invite the Court to decline jurisdiction on the basis that the courts in Pakistan, where Q lives, were the convenient forum. I managed to secure time the following afternoon to hear argument on that point and I am grateful to the parties´ representatives for their industry and for preparing written arguments at such short notice."
´This, of course, is not a case where the Council Regulation applies´
That was a reference to the European Regulation commonly known as Brussels II Revised.
1. The Courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child;
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised and is in the superior interests of the child.
2. The Jurisdiction conferred in paragraph 1 shall cease as soon as:
(a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;
(b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a) a judgment in these proceedings has become final;
(c) the proceedings referred to in (a) and (b) have come to an end for another reason.
3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.
4. Where the child has his or her habitual residence in the territory of a third state which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child´s interest, in particular if it is found impossible to hold proceedings in the third state in question
As concerns the relation with the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement, and cooperation in respect of parental responsibility and measures for the protection of children, this regulation shall apply;
(a) Where the child concerned has his or her habitual residence on the territory of a Member State
(b) As concerns the recognition and enforcement of a judgment given in a court of a Member State on the territory of another Member State, even if the child concerned has his or her habitual residence on the territory of a third state which is a contracting party to the said Convention"
"The aim is to ensure the creation of a common judicial area which recognises that all decisions issued by competent courts within the European Union are recognised and enforced under a common set of rules."
In dealing with Article 12(4) the authors really do little more than to re express the effect of the Article without commentary.
"Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established"
"53. It is plain that Article 12(1) (b) of the Brussels II bis Regulation (Council Regulation (EC) 2201/2003), when it speaks of the jurisdiction being ´accepted expressly or otherwise in an unequivocal manner … at the time the court is seised,´ is not simply referring to a mere submission in matrimonial proceedings equivalent to what would be an entry of appearance under the Brussels I Regulation (Council Regulation (EC) 44/2001), Article 24. First, it is clear that it does not refer to acceptance of the jurisdiction in relation to matrimonial proceedings alone. It must refer to jurisdiction in matters of parental responsibility. Second, the emphasis is on the acceptance of jurisdiction ´expressly´ or ´in an unequivocal manner.´ This must mean that acceptance of jurisdiction of a court other than that of the child´s habitual residence is not lightly to be inferred, and that the paradigm case will be actual agreement by the parents at the time the matrimonial proceedings are instituted."
Although the Lord Justice was addressing specifically Article 12(1)(b) of the Regulation, all that he says is of equal application to Article 12(3).
"In normal circumstances the welfare of a child is best determined by the courts of the country of the child's habitual/ordinary residence."
We can hardly expect the judges of Pakistan to honour the protocol beyond the immediate territory of abduction if we lay exorbitant claims to jurisdiction in relation to children who are essentially Pakistani.
Lord Justice Scott Baker:
Lord Justice Sullivan:
Order: Appeal dismissed
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