O v P

In proceedings for financial provision for a child, the court may stay proceedings on forum non conveniens grounds where parallel proceedings remain pending in a non-Contracting State. The Owusu principle does not preclude that discretion in such circumstances. The court must then apply the Spiliada test, considering the availability and appropriateness of the foreign forum and whether substantial justice can be achieved there. Delay, the stage reached in the proceedings, the scope of the foreign remedy, access to evidence, participation by the parties and the child’s interests may be material. Under Schedule 1 to the Children Act 1989, the court must consider all the circumstances, including parental resources, the child’s needs and education. The father’s serious misconduct was relevant because it materially restricted the mother’s earning capacity and affected the child’s circumstances.

The mother applied under Schedule 1 to the Children Act 1989 for financial provision for the child, whose father was imprisoned in Australia following convictions for inciting the mother’s murder. The application had been issued in 2000 and had been subject to extensive interlocutory litigation, including an earlier jurisdiction judgment.

By the final hearing, the mother and child had lived in Australia for many years. The father relied on pending Australian child-support and lump-sum proceedings and sought a stay on forum non conveniens grounds. The court first determined whether it had power to stay under the Brussels Convention framework and, if so, whether Australia was clearly the more appropriate forum. It then determined the Schedule 1 claim, including historic maintenance, education, university costs and other expenses.

1. Stay jurisdiction. The court held that the existence of parallel proceedings in Australia, a non-Contracting State, meant that the principle in Owusu v Jackson did not preclude a stay. The decision in Owusu was confined to the narrow question referred to the European Court of Justice and should not be extended to parallel maintenance proceedings in a non-Contracting State. The court adopted the reasoning in JKN v JCN.
2. Forum non conveniens. Applying the principles in Spiliada Maritime Corp v Consulex Ltd, the court refused a stay. A substantial part of the historic claim, covering the period before the Australian child-support assessment, could not be litigated in Australia. The application for a stay was made at an exceptionally late stage, when the English proceedings were ready for trial, and a stay would cause further delay and expense. The English court had sufficient evidence to determine the claim fairly. Difficulties arising from the father’s imprisonment could be addressed by procedural measures, including adjourning the hearing so that he could comment on the mother’s evidence.
3. Schedule 1 principles. The court applied the guidance in Re P (Child: Financial Provision). The child’s welfare, although not paramount, was a relevant consideration. The court had to consider all the circumstances, including both parents’ income, earning capacity, property, financial resources and needs, the child’s needs and education, and the overall requirement of a fair, just and reasonable result. A broad-brush assessment was appropriate in a case involving extensive and imperfect financial evidence.
4. Conduct and quantum. The father’s convictions and conduct were relevant under paragraph 4 because they had profoundly restricted the mother’s life and earning capacity and had affected the child’s circumstances. They did not, by themselves, justify an enhanced award. They were relevant to determining the parties’ resources, responsibilities and the mother’s ability to contribute.
5. Orders. The father was ordered to pay £126,757 from the fund derived from the sale of Z House, after credit for earlier interim payments. He was also ordered to pay A$22,500 annually from the child’s eighteenth birthday until completion of university education, adjusted annually by the Australian retail price index, together with university fees. The future provision was to be secured from the fund, with any balance returned to the father when the child completed university.

First-instance decision. The judgment refers to an earlier jurisdiction decision by the same judge under [2011] EWHC 2425 (Fam) and a supplemental judgment under [2012] EWHC 4291 (Fam). Permission to appeal against the earlier jurisdiction decision was ultimately refused by the Court of Appeal.