K (A Child), Re

In an international private family case, jurisdiction and forum conveniens are distinct questions. Jurisdiction is determined by the child’s habitual residence at the relevant time. Once that determination has been made and upheld, a later judge cannot reopen it or incorporate welfare and forum considerations into it.

Where England and Wales has jurisdiction but another forum is said to be more convenient, the applicant should seek a stay and bears the burden under Spiliada principles of showing that the other court is more convenient. Child welfare is relevant to that inquiry, but the paramountcy principle in section 1 of the Children Act does not govern it. A determination will be set aside where the judge has failed to identify the issues, apply the correct law or ensure proper process.

The father appealed from orders made by Newton J in the wardship and related divorce proceedings. In the wardship proceedings, the judge treated habitual residence, jurisdiction, forum conveniens and welfare as interconnected, concluded that England and Wales was the proper forum, made welfare-related orders concerning the child and continued an order restricting the father’s passport. He also directed the father to file a Form E in the divorce proceedings.

An earlier Court of Appeal decision, [2014] EWCA Civ 905, had upheld the finding that the child was habitually resident in England and Wales, while leaving forum and wider welfare issues open. The appeals concerned whether Newton J had lawfully determined those remaining issues and whether the Form E direction had been made following a proper hearing.

1. Both appeals allowed. The wardship determinations made by Newton J were set aside in their entirety. The proceedings were remitted for rehearing before a different judge.
2. Jurisdiction and forum conveniens formed separate stages. Jurisdiction had already been determined by reference to the child’s habitual residence at the relevant time and that determination had been upheld by the Court of Appeal. Newton J had no standing to reopen it. Welfare and forum considerations could not be incorporated into the habitual-residence inquiry.
3. Where jurisdiction exists, a party asserting that England and Wales is not the convenient forum should apply for a stay. The burden lies on that party to persuade the court, applying the principles in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, that another court is the more convenient forum. The welfare of the child is relevant to that question, but the paramountcy principle in section 1 of the Children Act does not apply to the forum determination. If no stay is granted, the court may proceed to determine the child’s welfare.
4. Newton J’s judgment failed to identify the issues clearly, referred to an irrelevant habitual-residence authority, A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1, and did not apply the legal principles governing forum conveniens. The appellate court also emphasised the judge’s duty to take ownership of the hearing, establish the applicable law and distinguish relevant from irrelevant evidence.
5. The order requiring the father to return the child to England and Wales was set aside. The passport order was maintained pending rehearing. The direction in the divorce proceedings requiring the father to file a Form E was also set aside because the issue had not been properly litigated or determined by a reasoned decision.

• Court of Appeal (Civil Division) — In the present decision, [2015] EWCA Civ 352, both appeals were allowed. The wardship orders and Form E direction were set aside, with the wardship issues remitted for rehearing before a different judge.
• Court of Appeal (Civil Division) — In an earlier decision, [2014] EWCA Civ 905, the challenge to the English court’s jurisdiction based on habitual residence was dismissed. Forum and wider welfare issues were left open.
• High Court (Family Division) — Newton J made the orders challenged in the present appeals, including the forum and welfare determinations, the return order, continuation of the passport order and the direction to file Form E.