K (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction)

A stay of wardship proceedings requires the applicant to show that England is not the natural forum and that the foreign forum is clearly more appropriate. The assessment includes real and substantial connection, convenience, expense, witnesses, procedural ability, progress, comity and the child’s welfare. Wrongful retention and its effect on participation are relevant. The court accepted that an anti-suit injunction can in principle be granted in child proceedings, including against proceedings in a non-Convention country. The remedy remains discretionary and requires careful consideration of the natural forum, recognised legal grounds, comity, foreign remedies and emergency welfare needs. A permanent injunction was premature. The stay was refused and permanent summary return was not ordered pending further welfare assessment.

The parents were litigating in England and India concerning their son. An earlier judgment by Deputy High Court Judge Gupta QC found that the child had remained habitually resident in England and Wales and had been deliberately stranded in India. The mother sought summary return and opposed the father’s application for a stay or dismissal of the English proceedings. She also sought an injunction restraining further Indian proceedings. The father argued that India was the more appropriate forum and that anti-suit relief was unavailable in child proceedings. The court therefore considered forum non conveniens, the availability and discretionary limits of anti-suit relief, and interim welfare arrangements.

Stay and forum non conveniens. The wardship proceedings fell within Part I of the Family Law Act 1986, and section 5(2) provided the statutory basis for considering a stay. The father bore the burden of showing both that England was not the natural or appropriate forum and that India was clearly more appropriate. The court applied the two-stage approach associated with Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460 and Lubbe v Cape plc [2000] 4 All ER 268.

1. The relevant assessment included habitual residence and connections, the relative ability of the courts to investigate and determine welfare, witnesses, convenience and expense, legal representation, procedural progress, comity and prospects of success. The child’s welfare was important, possibly a primary consideration, but was not paramount.
2. England had the stronger overall connection. The child remained habitually resident in England, the English jurisdiction had already made factual determinations, and the father’s wrongful conduct had secured the child’s presence in India and impaired the mother’s ability to participate there. Multiple Indian proceedings created uncertainty and a risk of delay. The father therefore failed to establish that India was clearly the more appropriate forum. The stay and dismissal applications were refused.
3. The court accepted in principle that the High Court could grant an anti-suit injunction in child proceedings. The jurisdiction was guided by the ends of justice and by the categories identified in Mustafa v Ahmed [2014] EWCA Civ 277. Comity required consideration of any available remedy in the foreign court, the nature of the foreign proceedings and the extent of interference with that court’s welfare jurisdiction. Local emergency relief also had to remain available.
4. A permanent anti-suit injunction required England to be the natural forum and the foreign proceedings to be vexatious or oppressive. In view of the possible availability of a stay in India, the need for judicial liaison and comity, the injunction was premature and refused. The position could be reconsidered if the foreign proceedings became a deliberate delaying tactic.
5. A permanent summary return was not ordered because immediate care and medical arrangements had not been sufficiently established. A temporary return for assessment might serve the child’s welfare. The child was to be joined as a party and a Guardian considered under FPR 16.2 and PD 16A, paragraph 7. A further hearing was directed.

The judgment records that Deputy High Court Judge Gupta QC had earlier determined habitual residence and jurisdiction in the same wardship proceedings. No appeal had been lodged against that order. The present judgment determined the stay, anti-suit and interim welfare issues.