COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Kevin Barnett
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE RIMER
THE RIGHT HONOURABLE LORD JUSTICE STANLEY BURNTON
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Charles Hyde QC and Morgan Sirikanda (instructed by Messrs. Overburys) for the Respondent Mother
Hearing date: 15th April 2011
Crown Copyright ©
Lord Justice Thorpe:
"1.The right of Custody, Care and Control for the child named [A.W.] born [in] 2002 be awarded to the Plaintiff [S.W.].
2. That the Defendant be granted visitation rights upon the said child at reasonable times."
"Take notice that the Applicant intends to apply to a District Judge of the Family Division of the Principal Registry ex parte for an Order as follows:
1. That a Mirror Order be granted in confirmation of the Order for Custody made by the High Court of Malaysia on 9th January 2009.
2. That service of the application on the Respondent be dispensed with.
The grounds for the application are set out in Form C100 attached hereto, together with a copy of the order of the High Court of Malaysia dated 9th January 2009."
"Further to our telephone conversation on 14th September 2009, I now enclose the notarised documents which you required… I also enclose our cheque for the sum of £100 as requested and I look forward to hearing from you further."
"Mirror residence order to confirm order for custody made in Malaysian High Court."
"I need to obtain a passport for my son…so that my son can travel freely to and from England…the United Kingdom High Commission in Kuala Lumpur requires an order in the British Court before it can validate the passport. I have been informed that I must apply for a Mirror Order confirming the Malaysian Order for Custody. I therefore ask the court to issue a Mirror Order confirming the Malaysian order for custody."
"The High Court in Malaysia has heard the case and given judgment. I do not seek to revisit the arguments or the judgment. I simply seek, on advice from the United Kingdom High Commission in Kuala Lumpur, to obtain a Mirror Order in confirmation of the Malaysian judgment so that I can obtain a passport for my son."
"1. That the Child, [A.W.], born [in] 2002 do reside with the Applicant/Father.
2. That the Respondent/Mother be granted contact with the said child at reasonable times."
"Following the hearing of this matter in the Malaysian High Court and the judgment reached, our client asks for a Mirror Order to satisfy the requirements of the British High Commission…we would be grateful if the court would make a Mirror Order as drawn."
"(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;
(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children-
(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but
(ii) excluding an order varying or revoking such an order."
"2 Jurisdiction: general
(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless-
(a) it has jurisdiction under the Council Regulation, or
(b) the Council Regulation does not apply but –
(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or
(ii) the condition in section 3 of this Act is satisfied.
(3) A court in England and Wales shall not make a section 1(1)(d) order unless –
(a) it has jurisdiction under the Council Regulation, or
(b) The Council Regulation does not apply but –
(i) the condition in section 3 of this Act is satisfied, or
(ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection."
"3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."
"I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make."
"When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.
Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The "mirror order" jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement."
"Thus the English court has in such technical areas in the past put expediency before technicality and I hope that I may be permitted to follow suit on this occasion in this area."
Lord Justice Rimer:
'The High Court in Malaysia has heard the case and given judgment. I do not seek to revisit the arguments or the judgment. I simply seek, on advice from the United Kingdom High Commission in Kuala Lumpur, to obtain a Mirror Order in confirmation of the Malaysian judgment so that I can obtain a passport for my son.'
Lord Justice Stanley Burnton: