K v B (Rev 1)

In a child-welfare case where England and Wales has jurisdiction as of right, a stay on forum conveniens grounds requires the applicant to establish that another available court is clearly or distinctly more appropriate. The court must consider the connecting factors and the interests of all parties and the ends of justice. The child’s welfare is relevant to forum, but is not the paramount consideration at that stage. If the foreign forum is not clearly more appropriate, the stay must be refused. Even if it is, a stay may be refused where special circumstances make continuation in England necessary to secure justice. The parties’ ability to participate meaningfully, the location of the parents and key witnesses, existing proceedings, enforceability, expedition and any practical or financial disadvantage are relevant.

The father applied to stay English wardship proceedings concerning the parties’ young child, who was living with his paternal grandparents in Singapore. The child had previously been found habitually resident in England and Wales, and that finding had been upheld on appeal. The English proceedings had continued for approximately 18 months, while related divorce, financial and child proceedings existed in Singapore.

The father argued that Singapore was the more appropriate forum because the child, grandparents, welfare professionals and relevant documents were there. The mother resisted the stay, relying on the child’s established English jurisdiction, the presence of both parents in England, her limited ability to re-enter Singapore, and her lack of funds and support there. The central issue was whether Singapore was clearly the more appropriate forum under the Spiliada principles.

1. Application refused. The English wardship proceedings were to continue. No final decision was made about the child’s longer-term welfare.
2. The court was bound by the previous finding that the child was habitually resident in England and Wales and that English jurisdiction therefore existed as of right. The forum issue was separate from jurisdiction and had to be determined under the principles in Spiliada Maritime Corp v Cansulex Ltd.
3. The father bore the burden of showing that Singapore was an available and competent forum which was clearly or distinctly more appropriate. Relevant matters included the real and substantial connections with each forum, convenience and expense, the applicable law, the parties’ residence, the location of witnesses and documents, and the ability of the parties to participate effectively.
4. The child’s welfare was relevant to the forum decision, but the paramountcy principle in section 1 of the Children Act 1989 did not apply to that decision. Welfare would become paramount in the subsequent substantive welfare enquiry.
5. Singapore was a competent and fair jurisdiction, and the quality of justice there was not inferior. Nevertheless, it was not shown to be clearly more appropriate. Both parents were in England and likely to remain there temporarily; the mother’s ability to enter Singapore was uncertain and potentially subject to immigration control; she lacked funds, accommodation, support and legal representation there; and the English proceedings were advanced and capable of expedition.
6. There were no special circumstances requiring a stay. Practical issues concerning witnesses, documents and cooperation could be addressed through English orders, video-link evidence and judicial liaison with the Singapore courts. The court directed that the next stage should be a prompt, comprehensive welfare enquiry focused on the child’s best interests.

The judgment records that earlier English decisions concerning habitual residence, jurisdiction and procedural orders had been considered by the Court of Appeal. The order made by Newton J was set aside on appeal and the matter was remitted to the Family Division for determination of forum, welfare and related issues. This judgment determined the forum issue by refusing the father’s application for a stay.