Cook v Plummer

In proceedings for financial provision for children habitually resident abroad, the common-law forum non conveniens discretion should focus on present and future provision. The court should assess the children’s circumstances, needs and costs by the yardstick of their expected country of habitual residence, and may regard that country’s judges as better placed to make the assessment. Permission to challenge a discretionary stay is difficult where the lower court has adequately explained its choice. Existing substantial, index-linked support and the disproportionate cost of further litigation may reinforce refusal of permission. A late jurisdictional argument may also be refused where its resolution is uncertain and potentially costly.

Proceedings were issued in England and Wales by the father under paragraph 14 of Schedule 1 to the Children Act 1989 for periodical or secured periodical payments for two boys habitually resident in New Zealand. The judge granted a common-law stay in favour of New Zealand, relying principally on the Auckland courts’ ability to assess future needs and on the father’s undertaking to maintain the children at nearly £50,000 a year, index-linked.

The father sought permission to appeal and to amend his grounds to raise an argument based on Owusu v Jackson & Ors Case C-281/02. He also alleged an error in the exercise of the forum non conveniens discretion. The issues were whether the new jurisdictional point should be admitted and whether the stay was arguably wrong.

Lord Justice Thorpe delivered the judgment and Lord Justice Wilson agreed. The applications for permission to amend the grounds and for permission to appeal were refused.

1. The proceedings were brought under paragraph 14 of Schedule 1 to the Children Act 1989, which supplied jurisdiction for periodical or secured periodical payments where the children were habitually resident elsewhere. The statutory powers were limited because the children were outside the jurisdiction.
2. The proposed argument based on Owusu v Jackson & Ors Case C-281/02 raised a jurisdictional issue which was not automatically excluded because it had not been advanced below. However, its application in family proceedings was uncertain, might require a reference to the European Court of Justice, and could generate expensive and ultimately sterile litigation. The court therefore refused to admit the point for consideration by the full court.
3. The challenge to the discretionary stay, based on the principles said to have been established in Spiliada v Cansulex Ltd [1986] 3 WLR 972, was difficult to sustain. The lower court’s judgment was brief but satisfactorily explained its choice of forum. The proper focus was present and future provision, assessed by reference to the children’s circumstances, needs and costs using the New Zealand yardstick. An Auckland judge was better placed to apply that yardstick.
4. The father’s undertaking secured nearly £50,000 per year, indexed for inflation. Although future unforeseen needs could arise, the mother had the practical alternatives of assisted negotiation or mediation. In light of the undertaking and approximately £137,000 already spent, opening further litigation would be disproportionate.

1. Court of Appeal (Civil Division) — On 9 April 2008, refused the applications for permission to amend the grounds and for permission to appeal.
2. Principal Registry, Family Division — On 27 September 2007, Mr Philip Sapsford QC granted a common-law stay on forum non conveniens grounds, principally favouring the Auckland courts as the appropriate forum for future provision for the children.