England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Dame Elizabeth Butler Sloss DBE)

		Royal Courts of Justice Strand London WC2 Wednesday, 8th May 2002

Wednesday, 8th May 2002

1. LORD JUSTICE THORPE: This is an application for permission to appeal the order of the President given on 23rd January 2002 in proceedings between husband and wife in which they fought to establish in which jurisdiction their contested divorce proceedings should be tried. The wife sought to establish the primacy of her proceedings which had been issued here in London on 17th July 2001. The husband fought to establish the primacy of his proceedings in Sri Lanka issued on 26th July 2001. Each had taken out summonses. The wife's application, unusually, was first in time and sought a declaration that the proceedings in England should proceed. That was issued on 17th October 2001. The husband, perhaps for tactical reasons, held back from issuing his application for a discretionary stay, his application being issued on 17th January 2002, about a week before the hearing.
2. The President at the outset of her judgment referred at length to the relevant statutory provision, namely section 5(6) and Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. She had to have regard to the balance of fairness, including convenience, as between the parties to the marriage. In considering the balance of fairness and convenience she had to have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which might result from the proceedings being stayed or not being stayed.
3. The facts of the case were intricate and, in a number of respects, heavily disputed. The President reviewed the history and the disputed facts and arrived at findings wherever she felt the evidence justified it. She considered the immediate past in which there had been a degree of manoeuvring by each of the spouses. At one stage orders had been obtained in London which seemed to secure the return of the children to Sri Lanka, and then, more recently, the trend of the London orders had been to secure, at least temporarily, the continuing residence of the children in Dulwich. The President had regard to the mother's immigration status here, which was unclear and unresolved. She had regard to the fact that the husband, having at an earlier stage in his life renounced Sri Lankan citizenship in order to acquire British citizenship, was seemingly reapplying for Sri Lankan citizenship, creating the suspicion that that application was tactical.
4. The President then came on to consider the three specific issues of where the witnesses were sited and whether delay or whether expense came down on one side of the scale or the other. She concluded that as far as witnesses were concerned, there was some relatively slight tilt towards Sri Lanka, whereas the factors of expense and delay, in the absence of any clear evidence, were to be taken as neutral.
5. She then looked for the realities in relation to both issues of children and finance. She saw the children as being currently settled in England. But, on the other hand, they had in their past been equally settled in Sri Lanka. She referred to the fact that in 1999 everybody had agreed that the children's future should be in Sri Lanka and that any issues relating to the children should be decided by a Sri Lankan judge. That agreement had been incorporated in an order made by Bennett J. She referred to the more recent orders, culminating in the order of Coleridge J, made shortly after the issue of the mother's application for a declaration, an order which stabilised the children in this jurisdiction until further order. She then said in relation to children's issues:

"The children, aged three, were taken back on the view that they were going to be dealt with in Sri Lanka in 1999, and now in 2001 it is said they should be dealt with in England. It does not seem to me that it is strongly in favour of the English courts that they should be kept in this country. I think myself it is a difficult balance as to which would be the better place for them to be dealt with because, at the end of the day, they are Sri Lankan children born of Sri Lankan parents."

6. She then turned to deal with the question of finance. Having noted that there were inevitably going to be disputes as to the quality and reliability of the husband's disclosure, she said that it was not going to be one of those sort of big money cases requiring particular professional expertise, and she said:

"Indeed, I cannot at the moment see why equally expert solicitors who specialise in this sort of work could not be asked to assist, albeit at long range, if this case was heard in Sri Lanka."

7. She had at the outset said:

"I find this quite a difficult decision to which to come. There are factors on both sides, and I have to balance them and decide where the balance of convenience is."

8. At page 16 she reverted to that theme when she said:

"I find this very difficult, but, on balance, I have come to the conclusion, looking at all the facts in this case, that the balance of fairness and convenience is that this Sri Lankan family should be dealt with in Sri Lanka as was the intention of the parties in 1999."

9. She refused an application for permission, saying that her decision had been one of discretion and had not involved any point of law.
10. Mr Scott Manderson accordingly lodged an application for permission to this court with a full skeleton argument, and that resulted in an order for an oral hearing without notice.
11. Mr Scott Manderson has argued the application this morning with great skill and persuasion. I probably do him injustice when I say that his principal contention is that the President failed in her appraisal to recognise that a vital consideration, indeed the paramount consideration, was that these children were habitually resident here in the care of their mother who was habitually resident here, and that it was in fact a consideration strongly in favour of the English courts that they should be kept here. He makes the submission that if this order stands, the realistic consequence is that the mother will have to return to Sri Lanka in order to participate in the contested proceedings; the children will go with her; she will effectively lose her immigration status here; and the issue where the children's primary home should be located will effectively be determined, not by a court on a welfare review, but by the operation of those realities.
12. I would accept that this factor is not specifically considered in the course of the President's judgment. I suspect that the factor was not put to her with the force with which it has been put to us this morning. It seems to emerge rather belatedly in the course of the exchanges post-judgment. Certainly the President sought to secure the mother's physical control of these twins, for the order that was subsequently drawn was in these terms:

"1The divorce proceedings herein commenced by the Petitioner in this Court on 16th July 2001 be stayed from six weeks from the date of this Order subject to the following three conditions:

aThat the Respondent does not proceed with the custody application in his Sri Lankan Petition and confirms to this Court and also to the Sri Lankan Court that he has no present intention of seeking a custody order or residence order in respect of the children in England or Sri Lanka."

13. But in the exchanges after judgment, the issue of whether the order of Coleridge J should be vacated by the President was raised. It was plain from the President's consideration of the options that she felt that that would be exceeding her function in the determination of the cross-summonses before her.
14. It is, I accept, a criticism of the President's judgment that this factor is not more clearly identified and weighed in the balance during the process of judgment. The question is whether that is sufficient to justify a further hearing: either a renewed hearing of the application for permission on notice or an appeal itself. There has to be some proportionality in deciding that question. The overwhelming reality is that the President was exercising a difficult balancing exercise in a discretionary field. It is easy to say that she should have given more weight to this consideration or to that consideration, but overall the discretion lay with her. She found the case to be finely balanced. In the end she gave great weight to the fact that this is essentially a Sri Lankan family who over the course of the relatively recent past have seemingly adopted Sri Lanka as the appropriate jurisdiction and then shifted their position.
15. It would not, in my judgment, be appropriate to extend what is only a contest to determine where the real contest should take place by further extending proceedings in this court. Despite all Mr Scott Manderson's valiant efforts, I would in the end, as a matter of broad proportionate judgment, dismiss this application for permission.
16. LORD JUSTICE LATHAM: I agree.
Order: Application dismissed. Public funding assessment of the Applicant's costs.