Y v I

Jurisdiction to make or vary child-contact orders cannot be created by the parties’ consent, participation or repeated applications. Under the Family Law Act 1986, the court must satisfy the applicable statutory jurisdictional condition. A residence or contact order made before an authorised international relocation does not necessarily remain available for variation after the child has become settled abroad. A conventional undertaking to return a child may support enforcement against the person who gave it, but does not itself confer jurisdiction to make orders concerning the child. Where jurisdiction is assumed, a stay for forum non conveniens requires proof that the foreign court is clearly the more appropriate forum. The child’s welfare is important, but is not paramount in that forum assessment.

The Mother applied to enforce and vary contact arrangements concerning Q, who had lived in Pakistan with his paternal grandparents and aunt since 2004. The applications sought telephone and visiting contact, including contact in England and Wales and assessment with a view to unsupervised contact. Earlier English orders had granted the Father leave to remove Q permanently to Pakistan and had regulated contact while Q remained in England.

The Father and Q’s guardian challenged jurisdiction. The Mother relied on existing orders, the Father’s undertaking to return Q when required, Q’s nationality and the inherent jurisdiction. The court first considered jurisdiction under the Family Law Act 1986. It then considered, hypothetically, whether England and Wales was forum non conveniens.

1. Jurisdiction. The applications were properly understood as applications for section 8 contact orders under the Children Act 1989. Q was habitually resident in Pakistan and was not present in England and Wales on the relevant dates. The statutory condition in the Family Law Act 1986 was therefore not satisfied.
2. The court could not treat the 2003 residence order as continuing after Q’s settled relocation. The original contact provisions had been superseded by the September 2004 order, which regulated contact only while Q remained in England. No extant contact order was capable of variation. The reasoning was consistent with Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314, where jurisdiction was retained for variation of continuing post-relocation contact terms.
3. The parties’ conduct could not confer jurisdiction where statute provided none. Nor did the Father’s conventional undertaking to return Q create jurisdiction to make orders concerning Q. At most, a wilful breach could found enforcement against the Father. The court accepted the reasoning in Re S (Residence Order: Forum Conveniens) that such undertakings have limited surviving function in the modern statutory and convention framework.
4. The inherent jurisdiction should be used only with great caution where relied upon to circumvent statutory limits. Q’s nationality, former residence in England and Wales, and the fact that both parents lived there did not amount to the exceptional circumstances required. Welfare considerations could not create jurisdiction.
5. Forum non conveniens. Assuming jurisdiction existed, the Father bore the burden of showing that Pakistan was clearly the more appropriate forum. Applying the principles summarised from Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 and M v M (Stay of Proceedings: Return of Children) [2006] 1 FLR 138, the court would have refused a stay insofar as the applications concerned contact in England and Wales and related assessment. England was the more convenient forum for the parents, guardian and facilities for assessment, although Pakistan was central to Q’s daily life and welfare.
6. The applications were dismissed for want of jurisdiction. The Father’s application to set aside the 2008 return order consequently became redundant.

First-instance decision. The judgment records earlier care, relocation, contact and jurisdiction orders, including decisions by District Judge Brasse, Hogg J, Hedley J, a deputy High Court judge and Black J. No appellate history of the present decision is stated.