E v E (Anti-suit Injunction; Children)

An anti-suit injunction may be granted in children proceedings where the English court has personal jurisdiction over the respondent, a sufficient interest in the dispute, and an appropriate ground for relief, such as unconscionable, oppressive or vexatious pursuit of foreign proceedings. The court must then exercise its discretion with caution, having regard to justice, forum connections, the nature of the proceedings, comity, prejudice and the children’s welfare. The jurisdiction is not confined to matrimonial proceedings. It extends to children cases where England is the natural forum and intervention is justified.

The mother applied for an anti-suit injunction requiring the father to discontinue Nigerian proceedings concerning their three children. The children, habitually resident in England and Wales, had been abducted to Nigeria and remained there with their paternal uncle. Lieven J had already determined that England and Wales had jurisdiction, was the natural forum, and was substantively seized of wardship and welfare proceedings. The father had continued the Nigerian proceedings and failed to comply with orders directed towards the children’s return. The issue was whether the jurisdiction to restrain foreign proceedings extended to children cases and, if so, whether an injunction should be granted.

1. Application granted. The High Court had power under Supreme Court Act 1981, s 37 to grant an anti-suit injunction where it was just and convenient to do so. The jurisdiction was sufficiently broad to extend beyond commercial and matrimonial disputes and included children proceedings.
2. The court identified four cumulative stages: personal jurisdiction over the respondent; a sufficient English interest or connection with the dispute; an appropriate ground for relief, ordinarily unconscionable conduct including oppressive or vexatious pursuit of foreign proceedings; and the discretionary decision whether relief was just and convenient.
3. The discretion required caution because an anti-suit injunction interfered with foreign proceedings. Relevant considerations included the interests of justice, the connections with each jurisdiction, the nature of the proceedings, judicial comity, the circumstances in which the foreign proceedings were brought, the balance of prejudice and, in children cases, welfare.
4. Each requirement was satisfied. The father was resident in England and a party to the wardship proceedings. England had a substantial connection because the children were wards of court, had lived there all their lives before abduction, and England had already been found to be their habitual-residence jurisdiction and the natural forum. The father’s persistence with Nigerian proceedings, brought on a false premise and maintained despite English orders and the finding as to forum, was unconscionable, oppressive and vexatious.
5. The court exercised its discretion in favour of relief. The father was ordered in mandatory terms to take the steps required in the Nigerian courts to discontinue or amend the proceedings concerning the children.