R v S

Where parents have agreed and implemented an international arrangement for a child’s residence, the English court should resist reopening residence issues within a short period unless compelling grounds arise. A residual jurisdiction may remain, particularly where urgent and serious child-protection concerns are shown, but it will be exercised sparingly. Contact jurisdiction expressly reserved by the original order is distinct and may be reviewed. In deciding whether residence proceedings should proceed in England or abroad, the court considers convenience, expense, witness availability and the children’s welfare, which is important but not paramount.

The father applied for directions before a review hearing concerning two children living with their mother in Panama. An earlier consent order permitted the elder child to move permanently to Panama, recognised the Panamanian court’s jurisdiction over the younger child, and reserved review of contact and jurisdiction. The father later sought residence orders for both children and reappointment of the Children’s Guardian, relying on concerns about the elder child’s welfare.

The mother argued that the English court’s jurisdiction did not extend to residence, or alternatively that Panama was the more appropriate forum. The issues were whether the residence application arose in or in connection with continuing matrimonial proceedings and whether residence should be determined in England or Panama.

1. Residence jurisdiction. The February 2006 order had resolved residence: the father had consented to the elder child living permanently in Panama and acknowledged the Panamanian court’s jurisdiction over the younger child. The provision for review concerned contact and jurisdiction, read in context, and did not permit residence to be reopened merely because the order used the words inter alia.
2. The court recognised a residual jurisdiction where a child formerly resident in England is living abroad with the recent consent of the other parent. That jurisdiction should be exercised very sparingly in an international context. It may remain available where an urgent and serious child-protection issue arises, but the evidence did not establish such an issue.
3. Appropriate forum. Adopting the principles summarised in M v M (Stay of Proceedings: Return of Children) [2006] 1 FLR 138, the burden was on the mother to show that England was not the natural or appropriate forum and that Panama was clearly more appropriate. Relevant matters included convenience, expense, availability of witnesses and the children’s welfare, which was important but not paramount. The approach derived in part from Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460 and Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314.
4. Panama had the stronger connection for residence issues. The children, school and medical evidence, and relevant family witnesses were there. The recent order, the absence of compelling welfare concerns regarding the younger child, the siblings’ circumstances and the disproportionate burden of English proceedings on the mother outweighed the procedural advantages of England.
5. The English court retained jurisdiction to review contact as expressly reserved by the order. The residence application was not permitted to proceed in England.