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England and Wales Family Court Decisions (other Judges)


You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> CA v UK [2025] EWFC 117 (B) (09 April 2025)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2025/117.html
Cite as: [2025] EWFC 117 (B)

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Neutral citation: [2025] EWFC 117 (B)

CCD ID: 1705052921431280 AT NOTTINGHAM

IN THE FAMILY COURT

Justice Centre, Carrington Street,

Nottingham NG2 1EE

BEFORE:

HHJ WATKINS

 

BETWEEN:

 

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CA

Applicant

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UK

Respondent

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Representation

Applicant: Christian Kenny (Counsel)

Respondent: Charlie Fikry (Counsel)

 

Hearing date(s): 10 January 2025

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JUDGMENT


This judgment was handed down remotely at 8 am 9 April 2025 circulation to the parties or their representatives by e-mail.

 

INTRODUCTION

1)             The issue in the case before me is what lawyers call forum conveniens, or (in English) Convenient Forum. I am asked to decide which would be the most convenient forum for the resolution of the dispute between the parties.

2)             The substantive application is brought by F for a child maintenance order under Schedule 1 of the Children Act 1989 ('Schedule 1'). The respondent is M. The hearing is to determine the issue of forum conveniens as between the schedule 1 proceedings and proceedings in California, in respect of child support for the parties' children A (date of birth 22/10/2009) and B (date of birth 07/05/2011).

3)             A forum conveniens need not be the most convenient forum, so long as it is sufficiently accessible to the relevant parties and witnesses, and no serious obstacles to the resolution of the dispute or inefficiencies will result from the use of that forum.

4)             In order to explain the issue, I can simply set out what was said on the application form, as follows

The parties were previously married and lived in New York City, New York State USA. They are both English Nationals. They were divorced through the Supreme Court of New York County, New York State and orders were made in respect of their finances by the Hon. Douglas E. Hoffman on 29 November 2018 ("the New York order"). That order provided for the Applicant father to pay spousal maintenance which has now ceased as ordered. It also provided for the Father to pay child support in the amount of $4,812.50 per month (£3,812.33). Since that order was made, the mother and children have moved to the UK where the children are indisputably habitually resident. Since then, there have been proceedings relating to the children under case numbers NG19P00168 and NG20P00078 in this court in which latter proceedings a final order was made on 30th June 2020.

The father earns extremely well which would cause this to be a 'top up' case. The CMS, however, has no jurisdiction because the father lives in California. According to the recent decision of Mostyn J in Seymour v. James, the liability of any father in the applicant's financial position would be total child support per annum of £27,600 and so £2300 per month. This is considerably less than the amount payable under the New York order. Based upon the applicant's previous year's earnings, the annual sum payable would have been £21,600 or £1800 per month, which is less than half of the sum payable under the New York order. These are also the sums which any father in England, who earns as the Applicant does, would have to pay by way of child support for two children. The applicant simply seeks parity, in view of the children's habitual residence here and in view of this court having been twice seised of matters relating to them. The Applicant seeks an order for child support in that amount.

5)             The hearing took place on 10 January 2025. At the start of the hearing, I was asked to decide as to whether expert evidence should be admitted. I gave an oral decision at that time giving permission for the expert evidence to be admitted. I do not propose on repeating what I said at the hearing.

6)             Having heard these submissions of counsel, I then adjourned this matter for judgment to be handed down in writing.


7)             My judgment is in respect of the issue of forum. I do not deal with the substantive merits of the application.

SUBMISSIONS OF F

8)             F submitted (through Counsel) that the complexity of this case comes from simultaneous actions being pursued or suggested in multiple jurisdictions—initially in New York, subsequently California, and now before this court in England and Wales. It was submitted that recent difficulties related to payments due under an earlier New York order concerning child maintenance. Following enforcement proceedings initiated by M in New York in early 2023, the New York court explicitly ceded jurisdiction concerning child support to the state or country where the parties and the children resided. The New York court, notably, did not specify the jurisdiction explicitly.

9)             After the New York court's decision in March 2023, F promptly instructed solicitors in England (Blake Morgan), and M correspondingly instructed Edwards Family Law. Early correspondence between the parties' solicitors (from page 387 of the bundle) reflects that M's solicitors were actively engaging in discussions, clearly suggesting that both parties appeared to accept that England and Wales was an appropriate jurisdiction.

10)         During this period, voluntary disclosure, including F's tax returns, was provided, demonstrating a mutual intention to resolve the matter pragmatically and constructively within this jurisdiction.

11)         F says that unexpectedly and without prior indication, M's Solicitors informed F's solicitors on 8 December 2023 that M had initiated proceedings by registering the New York order in California, where F resides. It was suggested that California, rather than England and Wales, was the appropriate jurisdiction. This shift constituted a dramatic and unexplained volte-face from the earlier cooperative approach. M's prior solicitors' correspondence gave no indication that California was being actively considered or pursued.

12)         F submitted that at this time, no actual application for modification (variation) of child maintenance has been filed in California. M's current action in California is limited to enforcement, not variation. Therefore, the sole live application regarding quantum variation of child support presently before any court is F's Schedule 1 application in England and Wales.

13)         Furthermore, the expert evidence of Ms White shows that while M may have the capacity to seek a modification in California, F does not. Crucially, neither party has taken such a step, meaning as of today, California has not formally assumed jurisdiction for the modification of child maintenance. Hence, the English court remains the only court currently exercising jurisdiction over this issue.

14)         As to M's portrayal of proceedings in California as straightforward, inexpensive, and rapid, it was submitted that this was directly contradicted by the expert report provided by Ms White. Her detailed analysis illustrates a process that is neither quick nor simple. Ms White explicitly identifies the potential for extensive discovery, expert involvement, multiple hearings, and substantial attorney costs (ranging potentially from $20,000 to

$60,000 per party merely to conclude an initial hearing).

15)         Thus, it was submitted M's earlier assertions misrepresent the actual complexity, potential delays, and high costs inherent in Californian child support modification proceedings. By contrast, proceedings here in England and Wales are relatively predictable, cost-effective, and more straightforward.


16)         M has expressed concern about the enforceability of an English court order in California, suggesting it would be complex and costly. Expert evidence does not support this, confirming that registration of an English order in California is simple, inexpensive (approximately $1,000 per party), and easily accomplished, mirroring precisely the process M herself has already successfully utilised when registering the New York order.

17)         Applying the established principles from Spiliada Maritime Corp v Cansulex Ltd (the leading authority on forum conveniens), F submits that

a)             No alternative forum currently possesses established jurisdiction over the matter of variation.

b)             California's appropriateness as a forum has not been substantiated by M through evidence.

c)             The children's habitual residence, and indeed their entire practical and substantial connection, is unequivocally with England and Wales.

d)             This court has already previously adjudicated child arrangement issues involving these same parties and children

18)         Therefore, the most appropriate and convenient forum in all circumstances is the family court in England & Wales.

19)         In addition, it was submitted that M's arguments concerning enforcement complexity, alleged difficulty with financial disclosure, and the applicability of the 2007 Hague Convention lack merit or supportive expert evidence. Moreover, F explicitly affirms his full willingness to cooperate with the enforcement of any order made here.

20)         M raises a technical objection to F applying under Schedule 1 Children Act 1989, arguing an applicant cannot apply for an order against themselves. This interpretation, however, would contradict established practice in analogous areas of family law and undermine the clear intent of the statute. Any technical drafting issue can readily be resolved by straightforward judicial order, either treating the child as recipient or designating M effectively as applicant for procedural purposes.

21)         Therefore, it was submitted that M's application to dismissal F's application should be refused, and that M should be directed to produce her Form E1

 

SUBMISSIONS OF M

22)         Through Counsel, M submitted that Ms White's report was relied upon by F's counsel to suggest that proceedings in California would inevitably be expensive and prolonged. However, this misrepresents the expert's evidence, as Ms White explicitly qualifies her costs and timescales as the potential maximum, and not necessarily typical costs.

23)         It was submitted that Ms White's report provides hypothetical cost scenarios at their most extensive and complex, explicitly stating that these figures represent the potential maximum, not necessarily the likely actual costs in this particular case. Significantly, the expert report omits consideration of the critical point of California's statewide uniform guidelines, which govern child support calculations and mandate a straightforward, formula-based approach, except in exceptional circumstances.

24)         Further, F says his financial circumstances are straightforward. If this is true, then it logically follows that proceedings in California would be similarly straightforward, particularly due to California's mandatory application of formula-based guidelines.


25)         If complications arise, they would undoubtedly be from F's side due to the nature and scale of his income, making California, where F resides and earns his income, a more suitable jurisdiction for handling any complexities.

26)         It was submitted that the most significant argument in favour of the California jurisdiction is the practical reality that enforcement proceedings are already underway there. Therefore, proceeding with variation of child support in California would result in the entirety of the family's disputes being dealt with in a single court, significantly simplifying matters.

27)         In contrast, if proceedings continue in England, four separate and additional processes will inevitably result:

a)             Enforcement in California (already ongoing),

b)             Variation in England,

c)             Termination of the existing New York order in California,

d)             Registration of the English order in California.

28)         It was therefore submitted that enforcement and variation in California is simpler, more efficient, less costly overall, and ensures the immediate enforceability of the resulting order.

29)         It was further submitted that assurances given by F's counsel regarding straightforward registration of an English order in California, significant uncertainty remains. The expert did not address the implications of the 2007 Hague Convention. Furthermore, there is potential vulnerability in the gap between terminating the existing New York order and the subsequent registration of any English order. In this interim period, M would face considerable risk if F ceased payment altogether, as it remains uncertain how retrospective enforcement would be managed.

30)         M's counsel sought to highlight the relevance of enforcement. F's history in not paying previous orders emphasises the need for enforceability and practical protection of M's financial interests.

31)         At the point enforcement proceedings were commenced, F owed approximately £36,000 in school fees, placing the children at risk of exclusion from their school, averted only by M's payment from her limited savings. M's evidence in the New York enforcement proceedings further documents extensive and repeated defaults on child and spousal support over multiple years.

32)         M submits that the clear pattern of deliberate non-payment by F heightens the importance of ensuring straightforward enforceability. In the circumstances, it was submitted that California is the logical jurisdiction for both determining and enforcing maintenance obligations.

33)         As to F offering undertakings to facilitate registration and enforcement of an English order in California, reliance on such undertakings is problematic and contrary to judicial warnings from the Court of Appeal (Dyson). Such undertakings depend on F voluntarily taking actions against his own financial interests, leaving significant room for delay, obstruction, or non-compliance, as demonstrated by his past conduct.

34)         Should the court ultimately decline M's forum application, accepting undertakings is the minimum protection the court could provide to M, but this remains significantly less secure than proceedings occurring directly in California.


35)         It was submitted that there is a legal obstacle to F's Schedule 1 application in England. Schedule 1 of the Children Act 1989 explicitly provides that an order may require payment "to the applicant." Unlike financial remedy applications under the Matrimonial Causes Act 1979, the explicit statutory wording under Schedule 1 does not permit an applicant parent to seek an order against themselves. The wording of the statute is clear, intentional, and cannot simply be ignored or circumvented.

36)         F's proposed workaround of making nominal payments to children but effectively redirecting payments to M is improper and fundamentally undermines the clear legislative intention. Therefore, significant doubts remain regarding the statutory legitimacy of proceeding with F's Schedule 1 application in England.

37)         Further, and contrary to assertions of simplicity by F, proceedings in England are not guaranteed to be straightforward. The existence of the prior consent order from New York, in place for seven years, complicates matters.

38)         Further complications include:

a)             Assessing F's standard of living and expenses,

b)             Determining the proper level of child support given historical standards,

c)             Possible significant discovery and dispute over household expenditure budgets.

39)         All these factors strongly suggest that English proceedings will not be straightforward and will, in fact, be more contentious, prolonged, and costly than California proceedings.

40)         It was further submitted that the overriding objective and justice of the case decisively favour California jurisdiction. M is financially vulnerable, heavily reliant on child maintenance, and already forced into multiple enforcement actions against F due to his persistent non-payment. Forcing M, the financially weaker party, into further fragmented litigation across jurisdictions, reliant upon F's cooperation, undermines justice and fairness.

DISCUSSION

41)         I am grateful to counsel for the helpful manner in which they presented their respective arguments. Having considered the respective submissions, I need to begin by reminding myself that as it is M who seeks effectively to stay father's Schedule 1 application. It is necessary for her to show not simply that the Family Court in England and Wales is not the appropriate forum, but there is another forum which is more suitable to resolve the dispute. (see Spiliada Maritime v Cansulex Ltd)

42)         In the circumstances of this case, the court is concerned with a child maintenance application and concerned in respect of two jurisdictions, England and Wales and California that adopt a formulaic approach to the calculation of the appropriate payments.

43)         That requires a careful consideration of income. In the circumstances of this case, F's income is generated where he lives, namely in California.

44)         As a starting point, I am satisfied that the courts in California are best placed to deal with any intricacies of taxation, etc., before coming to a conclusion as to H's income. That is obviously the starting point for the calculation of any child maintenance obligation.

45)         I recognise that there are already proceedings before the court in California, albeit through the route of registering a judgment now ceded from the New York court.

46)         If there are to be disputes over levels of income and expenditure, then in a number of respects there is little to choose between the two jurisdictions. Judges in both jurisdictions


are very familiar with assessing living costs and the consequences of taxation and other expenditures. Both parties pray in aid the possible complications of litigating in the two jurisdictions. I recognise that there are potential difficulties which ever forum the dispute between the parties proceeds in. I am satisfied that there is weight in the submission that if the proceedings for an order under Schedule 1 continue, then there will be proceedings both in England and Wales and the ongoing proceedings in California. Further, in the event an order is made, that order will then be the subject of registration in California with any consequent enforcement taking place there.

47)         Standing and back and looking at the reality of litigating child maintenance, in the circumstances of this case, I am satisfied that the least complex arrangement is for the litigation to take place in one jurisdiction only. That can only be achieved by the litigation taking place in California. Ignoring the issue, I will shortly go on to, I am in the circumstances persuaded that the most convenient forum to litigate the issue of child maintenance, which includes the issue of enforcement, if that becomes necessary, is the state of California.

48)         I turn to the other issue raised by M's counsel. That issue is the power of the court to make an order under Schedule 1 against an applicant, in this case F.

49)         Schedule 1 empowers the court on an application made by a parent, to make such periodical payments, for such term, as may be specified in the order to an applicant for the benefit of a child, or to the child himself. Similar provisions are made for securing such payments, payments of lump sums, and the settlement of property.

50)         Accordingly, the court has the power to make an order for payment of periodical payments to an applicant for the benefit of a child or to the child himself. The plain statutory language means that in this case, F can apply for an order that he pay periodical payments to himself for the benefit of a child, or he pays the periodical payments directly to the child.

51)         I suspect that in passing the Children Act 1989 Parliament did not consider the circumstances that arise in this case, namely a parent seeking to make an application against themselves.

52)         In my judgment, it is impossible to construe the plain language of the legislation to have the effect that H is able to bring an application that could be resolved in an order being made that he pay periodical payments to M.

53)         The only way round that problem is the legal gymnastics advanced on behalf of F to overcome the problem that M has identified.

54)         In my judgment, these difficulties give further weight to my view that the most appropriate forum for resolution of the child maintenance dispute is California.

CONCLUSION.

55)         For the reasons that I have set out above, I am satisfied that the appropriate forum for the resolution of the issue of child maintenance is the court in California, where F lives.

56)         In those circumstances, it is appropriate (in the first instance) to stay F's application for an order under Schedule 1 of the Children Act in 1989.

57)         It may be in the light of my decision that the parties seek other matters to be resolved, which may include the issue of costs. I ask the parties to consider any further issues and to inform the court whether those are issues that can be dealt with on the basis of written


submissions or whether a further hearing is necessary. If such a further hearing is necessary, the parties are to inform the court. what issues need to be resolved and what length of hearing is appropriate. in light of the issue of costs and the extent of the issues the parties should give consideration as to whether it is appropriate for the parties to attend upon the court or whether the hearing can take place remotely.

 

His Honour Judge Watkins 8 April 2025

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