Y v H & Anor

Jurisdiction to determine child-arrangements issues may continue where proceedings were commenced while the child was habitually resident in England and Wales, even if the child is later removed and may acquire habitual residence elsewhere. The relevant proceedings are identified by their substance, not merely by the label placed on an application. Unilateral removal does not necessarily prevent a later change of habitual residence, although it remains a factor in the overall assessment. A stay for forum non conveniens requires proof that another available forum is more appropriate in the interests of the parties and the ends of justice.

The proceedings concerned the jurisdiction of the courts of England and Wales over C, a child involved in long-running proceedings concerning residence, contact and parental responsibility. The child had been living with his father pursuant to child-arrangements orders when, in 2015, the mother removed him first to the Republic of Ireland and later to Northern Ireland.

The mother argued that the English proceedings had ended, that C was habitually resident in Northern Ireland, and that the English court should stay the proceedings in favour of Northern Ireland. The court considered the nature and continuity of the proceedings, the statutory concept of habitual residence, and whether Northern Ireland was the more suitable forum.

1. Jurisdiction under the Family Law Act 1986. The proceedings initiated in May 2015 included an application for child-arrangements orders under section 8 of the Children Act 1989. They concerned where C should live, the result of DNA testing and the contact he should have with each parent. They were therefore substantive proceedings within section 1(1)(a) of the Family Law Act 1986, rather than merely enforcement proceedings.
2. Those proceedings had not ended. The subsequent focus on enforcing earlier orders did not terminate the substantive proceedings, which remained extant after the mother removed C in breach of the prohibited steps order. They had begun when C was habitually resident in England and Wales. The court consequently had jurisdiction to make child-arrangements orders.
3. The court considered, but did not need to determine, whether C had acquired habitual residence in Ireland or Northern Ireland. The test described in A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60 and the principle discussed in Re R (Children) [2015] UKSC 35 were relevant. Unilateral removal would not, of itself, prevent a later acquisition of habitual residence, but it was a factor in the overall assessment.
4. Forum non conveniens. Under section 5(2) of the Family Law Act 1986, the court applied the principles in Re V (Forum Conveniens) [2005] 1 FLR 718, adopting the test stated in Spiliada Martimite Corporation v Cansulex Limited, The Spiliada [1987] AC 460. A stay required another available forum with competent jurisdiction which was clearly or suitably more appropriate in the interests of all parties and the ends of justice.
5. Northern Ireland had not been shown to be the more suitable forum. Relevant considerations included C’s presence with his father, the established English proceedings and evidence, and the practical ability to obtain evidence from Northern Ireland by travel or video link. The application for a stay was refused and the interim order remained in place.

The judgment records earlier proceedings and a decision of the High Court in Northern Ireland recognising England as the appropriate jurisdiction, but it does not state that the present decision was an appeal.