W v L (Forum Conveniens)

Where a child is habitually resident in England and Wales, that court has jurisdiction under Art 8(1) of Council Regulation (EC) 2201/2003, even if the competing forum is a non-member state.

A stay on forum conveniens grounds requires the applicant to show both that England is not the natural and appropriate forum and that the other available forum is clearly and distinctly more appropriate. Habitual residence is not conclusive, but ordinarily gives the child’s home jurisdiction the pre-eminent claim. The child’s best interests are an important consideration, though they are not paramount in the forum conveniens exercise.

The mother sought declarations and protective orders concerning the parties’ child, including a declaration of habitual residence, wardship and restrictions on removal from her care or from England and Wales. The parents and child had connections with both England and Jordan. The child had spent most of his life in England, where he was educated and received medical treatment.

The father accepted that the child was substantially integrated into life in England but submitted that the Jordanian courts were the appropriate forum, relying on earlier Jordanian proceedings and orders. The central issues were whether the English court had jurisdiction and, if so, whether the proceedings should be stayed in favour of Jordan.

1. Jurisdiction. The child was habitually resident in England and Wales. He had been born and educated there, received medical treatment there, lived there for most of his life, spoke English as his first language and was socially integrated there. Under Art 8(1) of Council Regulation (EC) 2201/2003, the English court therefore had jurisdiction in matters of parental responsibility.
2. Forum conveniens. The father bore the burden of establishing that England was not the natural and appropriate forum and that Jordan was an available forum clearly and distinctly more appropriate. The court applied the principles in Spiliada Maritime Corporation v Consulex [1997] AC 460. Relevant considerations included the parties’ residence, the location of witnesses and evidence, convenience and expense, legal representation, the stage of proceedings, international comity and the child’s interests.
3. The child’s habitual residence gave England the pre-eminent claim, although it was not conclusive. The parties and the likely witnesses lived in England. Most evidence relevant to welfare arose there, and the English court and CAFCASS had the readiest practical access to information about the child. The Jordanian proceedings concerned the mother’s brother’s guarantee rather than a live welfare application, and the recent order requiring the mother to hand over the child had been made without notice, without an evident welfare analysis and while the Jordanian proceedings were adjourned pending the English decision.
4. The child’s best interests were important but not paramount in the forum determination. It was ordinarily in a child’s interests for welfare issues to be decided in the state of habitual residence, particularly where that court had the best access to the relevant evidence.
5. The father failed to satisfy the Spiliada test. The application for a stay was refused, and the English court proceeded to give directions for determination of the welfare issues.