England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Chester Civil Justice Centre
		28th May 2009

INTRODUCTION

1. There are two main applications before the court.  Both were issued by Y ("the Mother"), and both were issued when the Mother was acting as a litigant in person.  The first application was issued on 31st October 2007 and the relief sought is defined in the Form C1A as "...an order to enforce the telephone contact and as much contact as possible".  The second was issued on 15th April 2008 and the Mother sought to "enforce and vary" contact together with an assessment to be undertaking with the hope of moving to unsupervised contact.  Mention is also made of the possibility of residence.  The Respondent to both applications is I ("the Father"), and the child at the centre of these proceedings is Q I ("Q") who was born on 27th July 2000 and who is rapidly approaching his 9th birthday.
2. The issues with which I am concerned are, firstly, whether the court has any jurisdiction to entertain the Mother's applications, and secondly, if I were to find such jurisdiction, whether I should decline to exercise it and stay the present proceedings on the basis that this Court is a forum non conveniens.  The Mother asserts that there is jurisdiction, the Father and Q's Guardian ad litem assert there is not.  If the court were to find it had jurisdiction, the Father submits that the Court should decline to exercise it as the courts in Pakistan are the appropriate forum.  On the other hand the Mother and Guardian maintain that the jurisdiction should be exercised as this Court is the appropriate and convenient forum.
3. For completeness it should be observed that the Father launched an application.  That was dated 3rd March 2009 and issued by the Court the following day.  The application was to set aside part of an Order made by Hedley J on 17th June 2008.  If I find there was no jurisdiction to entertain the Mother's applications it would follow that the Order of Hedley J was made without jurisdiction and the Father's application becomes redundant.

BACKGROUND

4. The background circumstances which give rise to the present applications have been described as extraordinary.  Certainly they are unusual.
5. The Mother was born in England.  Her parents are from Gujerat in India.  The Father was born and brought up in Pakistan, and it was whilst on a visit there that the Mother met the Father.  Within a week of meeting they were married.  That was in October 1999.  The Mother quickly fell pregnant.  About two months after the marriage the Mother returned to England and sponsored the Father's application for indefinite leave to remain in this country.  It seems clear that, at that time, it was their intention to live in this country as a family.  Q was born in England on 27th July 2000.
6. In November 2001 Q was found to have sustained fractures to the shoulder, elbow and forearm.  Q was removed into foster care and the London Borough of Newham ("the Local Authority") instituted care proceedings.  On 29th May 2002 District Judge Brasse sitting at the Principal Registry commenced a fact finding hearing.  On 29th May he delivered a long and detailed judgment, and concluded:

"I find, therefore, that, whilst the father himself inflicted the injuries and has failed to further protect his child by making sure that he was brought to the attention of medical authorities in time, sadly the mother, quite out of character, has also failed to protect her child by seeking medical advice, and she did this in order to protect her own interests, and in this instance she has put her own interests before those of her child in a very serious way.  She has sought to protect herself, possibly her marriage, possibly her job and possibly her position as mother of the child who she does not want to lose.  All of those are understandable motives, but in covering up and, frankly, lying in order to protect herself, she has not helped her child from whom she has been separated for many months."

7. The final, or "welfare", part of the care proceedings was listed for 17th December 2002.  Somewhat unusually DJ Brasse decided to revisit his original findings in the light of the evidence which had emerged since the May hearing.  The conclusion was a complete volte face.  DJ Brasse exonerated the Father and found the injuries were caused by the Mother. 
8. Within the care proceedings Dr Bashir, a Consultant Psychiatrist, was instructed and prepared two reports.  For the purposes of this judgment it is only necessary to give brief consideration to the second dated 29th April 2003.  The focus of that report was upon the ability of the father and his family in Pakistan to care for Q.  Indeed as part of his investigation Dr Bashir visited the paternal family in Pakistan.  He recommended that Q should either live with his Father or the paternal family in Pakistan.
9. On 22nd May 2003 final orders were made in the care proceedings.  A residence order was made in favour of the Father.  A regime of supervised contact with the Mother was defined and a 12 months Supervision Order to the Local Authority was made.  Annexed to the Order were (a) a "Contact Agreement" between the Local Authority and the Mother, designed to help implement and regulate the contact arrangements between Q and the Mother; and (b) an "Agreement" between the Local Authority and the Father.  I need not consider the terms of that Agreement in any detail, it is sufficient to record that paragraph 13 provided:

"The Local Authority will assist in facilitating any move to Pakistan by the Father with Q."

Thus it was in the contemplation of all concerned that the Father and Q could move to Pakistan.

10. The Order of 22nd May 2003 effectively concluded the public law proceedings.  It is right to observe that the Mother felt aggrieved and has never accepted the findings made against her.  In May 2003 she sought to persuade DJ Brasse to reopen the issue of causation.  That failed.  The Mother launched an appeal which was eventually dismissed by Hogg J on 15th June 2004.  An appeal to the Court of Appeal failed at the permission stage.
11. The Father applied for leave to remove Q permanently from the jurisdiction, namely, to Pakistan.  The Mother applied for increased contact.  Pursuant to Rule 9.5 of the Family Proceedings Rules 1991 Q was joined as a party to both applications and a Guardian ad litem appointed for him.  Those applications came on for hearing before Hedley J on 16th September 2004.  Leave was granted to the Father to remove Q permanently from the jurisdiction and an undertaking by the Father to return Q when ordered to do so was given and recorded.  In addition a contact order was made.  The order provided for supervised visiting contact and weekly telephone contact, with "the matter", by which I assume, is meant the issue of contact, to be listed before DJ Brasse in January 2005, unless by then and pursuant to the leave given, Q had left the jurisdiction.  Although Mr Devereux argued strongly to the contrary, in my judgment, and read as a whole, the contact provisions were designed to regulate contact up until Q left the country.  Mr Devereux submitted it would be extraordinary for there to have been no order dealing with contact post relocation.  As a matter of practice I disagree.  If there is no dispute about contact there may be no need to attempt to define it.  In this case the Father has never sought to say there should not be contact between Q and the Mother, albeit that he has been concerned that it should be properly supervised given the findings against the Mother.  At the end of the day the simple but clear conclusion I have come to is that the order of 16th September 2004 did not purport to define or regulate contact after Q had relocated to Pakistan.  In December 2004 the Father and Q moved to Pakistan and hence there was no need for a further hearing before DJ Brasse.
12. In April 2005 the Father returned to England leaving Q with his paternal grandparents and aunt in Pakistan.  At first sight that may seem highly unusual.  However, it is a situation which was, at least to some extent, foreshadowed in Dr Bashir's second report, where he wrote:

"It is not clear if" [the Father] "would continue to offer long-term resident care to Q as he planned to travel abroad if he migrated back to" [Pakistan]. 

Accordingly from April 2005 to the present day Q has lived in Pakistan and has been brought up there by his paternal grandparents and aunt.

13. Contact proceeded by agreement.  There was telephone contact which took place, at least initially, on a weekly basis.  In July/August 2005 and March/April 2006 the Mother stayed with the paternal family in Pakistan.  In summer 2006 Q came to England for four weeks.  He stayed with the Father and had daily contact with the Mother.  In summer 2007 Q together with the paternal grandmother came to England on a 9 week visit.  Q and his grandmother initially stayed with the Mother.  That lasted for about 6 weeks but there was an argument as a result of which they went to live with the Father for the remainder of their stay.
14. It appears that it was the events of the summer 2007 which led the Mother to issue her first application of 30th October 2007: see paragraph [1] above.  That application proceeded to a conciliation hearing before Deputy District Judge Crowther on 12th December 2007.  Both parties attended in person although the Father had the assistance of an interpreter.  The parties managed to agree a way forward which (a) provided for weekly telephone contact when Q was in Pakistan, and daily telephone contact when in this country; and (b) defined arrangements for face-to-face contact when Q was in this country.  The second part of the agreement was, of course, predicated upon Q visiting this country and that was provided for in the following (albeit badly phrased) way:

"[The Father] to facilitate Q to visit UK if possible on an annual basis and his Mother during his school holidays."

The telephone contact took place.  However, because the Mother wanted the contact to progress to unsupervised contact and, possibly, to eventually care for Q herself, the application of 15th April 2008 (see paragraph [1] above) was launched.

15. Eventually on 17th June 2008 the applications came on for hearing before Hedley J.  Prior to that hearing Deputy District Judge Airey had given directions transferring the applications to the High Court and providing that each party should file a statement in relation to "the issues of jurisdiction and contact".  The Mother filed a statement the Father did not.  In her statement the Mother said:

"Q is habitually resident in both countries, and his centre of interest is in the UK where his parents are and where his father has residency and is habitually resident."

The Mother, and indeed the Father were then acting in person.

16. Hedley J dealt with the question of jurisdiction in the following way:

"… the child is entirely lawfully in Pakistan, and indeed it is unusual that the Court should be retaining jurisdiction in this case because, of course, the child is habitually resident in Pakistan, and were this a European case the Court would be positively deprived of jurisdiction by the structure of European parenting law, but it is not and the Court undoubtedly does have jurisdiction because both parties have not only submitted to the jurisdiction but have actually invoked it on a number of occasions, and so the question of jurisdiction of itself does not present a problem in this case, though the question of enforcement of orders might."

17. I will analyse the approach taken by Hedley J at a later stage of this judgment, for the present purposes it is sufficient to observe that having satisfied himself that he had jurisdiction, he proceeded to make a number of orders.  Thus, pursuant to rule 9.5 of the FPR 1991 Q was joined as a party and CAFCASS invited to appoint a Guardian.  The Order also provided that the Mother was to have both telephone contact and visiting contact to Q in Pakistan (as I understand it the Father has never sought to prevent contact taking place in Pakistan).  Further, paragraph 4 (as amended pursuant to the slip rule) of the Order provided: 

"The father to bring or cause the child to be brought into the jurisdiction of England and Wales on a date not later than 4th June 2009 and to remain in the jurisdiction until 30th July2009."

That again was an uncontentious provision.  The Father had re-married and the plan, at the time of Hedley J's order, was for his new wife to come to this country and to bring Q with her. 

18. This matter was next before the Court on 2nd March 2009.  All parties were legally represented for that hearing before Mr Stephen Bellamy Q.C. sitting as a Deputy High Court Judge.  It appears that some consideration may have been to the question of jurisdiction as the Order he made recited "And upon the Court considering that it retains jurisdiction to make orders in respect of Q".  By that date it was clear that the Father was asserting that he was no longer in a position to comply with paragraph 4 of the Order of 17th June 2008 (see paragraph [17] above).  Put briefly the Father's position was that his relationship with his new wife was not good, she, therefore, no longer intended to come to this country, he was unemployed and therefore unable to finance the necessary travel arrangements.  Accordingly the Father's solicitors gave an undertaking to issue an application to set aside paragraph 4 of the Order.  Such an application was issued.
19. The final hearing prior to this matter coming on before me on 5th May was on 12th March 2009 before Black J.  It appears clear, notwithstanding the previous Orders of Hedley J and Mr Stephen Bellamy Q.C., that Black J was concerned and exercised by the question of jurisdiction.  Although the Order she made does not expressly deal with this point, it appears to be the common understanding of all parties that it was her intention that the question of jurisdiction should be heard as, as it were, a preliminary issue at the hearing listed for 5th May 2009.  On 5th May I heard detailed argument and it became apparent that even if I found the Court had jurisdiction the Father would, in all likelihood, invite the Court to decline jurisdiction on the basis that the courts in Pakistan, where Q lives, were the convenient forum.  I managed to secure time the following afternoon to hear argument on that point and I am grateful to the parties' representatives for their industry and for preparing written arguments at such short notice.  

JURISDICTION

20. As the question of jurisdiction was specifically considered by Hedley J, I take his analysis (see paragraph [16] above) as my point of departure.  It goes without saying that the views of Hedley J deserve the greatest respect.  How, then, did he approach this issue?
21. Firstly, Hedley J found Q to be habitually resident in Pakistan.  Despite the Mother's assertion (see paragraph [15] above) that Q was habitually resident in both in Pakistan and in the UK, in my judgment such a finding was clearly right.  The facts permit of no other conclusion.  Since December 2004 Q has lived in and has been brought up in Pakistan.  That is where he goes to school and spends the vast majority of his time.  His visits to this country have been for holidays.  His home is in Pakistan, notwithstanding that his parents live in England.
22. Secondly, the comparison with European law was clearly both correct and served to illustrate what Hedley J himself considered was the unusual nature of this case.
23. Thirdly, Hedley J found that the Court had jurisdiction because both parties had "not only submitted to the jurisdiction but have actually invoked it".  Three points can be made.

(a) If by both parties "invoking" the jurisdiction Hedley J meant issuing applications before the courts of this country, then, as a matter of fact, his analysis is incorrect.  The only application launched by the Father was for leave to remove Q from the jurisdiction.  That, of course, was made at a time when the Mother, the Father and Q were all living in this country and there was no question about jurisdiction.  It is, of course, the fact that the Mother made applications, i.e. those of 30th October 2007 and 15th April 2008 and that the Father attended court in response to those applications. 

(b) No one sought to argue before me that jurisdiction could be conferred by act of the parties, e.g. by issuing or responding to applications, where none existed under statute.  In my judgment this is plainly right, particularly bearing in mind the phrase "shall not" (see paragraph [24] below) in section 2(1) of the Family Law Act 1986.

(c) Somewhat surprisingly, there is no reference in Hedley J's judgment to the Family Law Act 1986 which deals with issues of jurisdiction and is of fundamental importance in cases such as this.

24. Accordingly, I must now turn to consider the relevant provisions of the Family Law Act 1986 (the Act).  Section 1 defines the types of orders with which the Act is concerned in the following way:

"(1) Subject to the following provisions of this section, in this Part 'Part I order' means-

(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 discharging such an order;"

I bear in mind that at the material times the Mother was a litigant in person and, therefore, her applications were not phrased with the same precision which would be expected from a solicitor.  Notwithstanding Mr Devereux's argument that the order made by Hedley J at paragraph 4 of his Order of 17th June 2008 must have been made under the inherent jurisdiction, it seems clear that the applications are, and are to be understood as applications for orders, and in particular contact orders, pursuant to section 8 of the Children Act 1989. 

25. Section 2 defines when the courts in England and Wales have jurisdiction:

"(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 –

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

(c) 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."

This, of course, is not a case where the Council Regulation applies.  Accordingly, it is the section 3 condition which is crucial.

26. Section 3 defines what is often known as the habitual residence condition.  It is as follows:

"(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned –

(a) is habitually resident in England and Wales, or

(b) is present in England and Wales and is not habitually resident in any part  of the United Kingdom or a specified dependent territory,

and, in either case, the jurisdiction of the court is not excluded by subsection (2) below."

27. The only other relevant provision is section 7 which defines "relevant date" as follows:

"'the relevant date' means in relation to the making or variation of an order –

(i) where the application is made for an order to be made or varied, the date of the application (or first application, if more are determined together), and

(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order;"

28. The relevant dates for the present purposes are (a) 31st October 2007, the date of the Mother's first application; and (b) 15th April 2008, the date of the Mother's second application.  For the sake of completeness I will factor in a third date, namely, 17th June 2008, the date when the applications were before Hedley J.
29. In my judgment on none of the dates specified was Q habitually resident in England and Wales.  Nor, indeed, was he "present" for the purposes of and within the meaning of section 2(3)(b)(ii) of the Act.  Indeed, as I have observed Hedley J considered Q to be habitually resident in Pakistan on the date this matter was before him: see paragraph [21] above.
30. How, then, is it said that this Court has jurisdiction?  Mr Devereux submits that the Mother's applications are applications for the variation of existing section 8 orders and, therefore, fall within the exception provided for in section 1(1) of the Act.  He submits that the relevant orders are either:-

(a) The residence and/or contact orders made on 22nd May 2003.  This was the order of DJ Brasse made to conclude the public law proceedings under which residence was committed to the Father and who in turn was to make Q available for weekly visiting contact; or

(b) The order of Hedley J on 16th September 2004.  That order granted the Father leave to remove Q permanently from the jurisdiction and provided for contact. 

31. The following points can be made:

(a) Mr Devereux submitted that the residence order of 22nd May 2003 remained a "subsisting" order, and (i) that the Mother's application of 14th April 2008 should be understood as an application to vary that order by seeking to attach conditions to it, or (ii) the mother should be given permission to formally amend that application to attach conditions to the residence order requiring Q to be brought back to this country and thereafter for an assessment to be carried out to determine how contact could progress.  Although there is an oblique reference in the Mother's second application to "possible residency for Q's long term future via unsupervised contact assessment", neither application seeks a variation of the residence order made on 22nd May 2004.  Both are concerned with contact.  Further, to speak of the residence order of May 2003 as a "subsisting" order when thereafter the Father was given leave permanently to remove Q from the jurisdiction and in fact did so would be wholly artificial.  In the vast majority of relocation cases the party obtaining leave has, either when the leave was granted or at a prior date, obtained a residence order.  In my judgment it would be wrong to consider residence orders in such cases as continuing to subsist after settled relocation has taken place, or as in some way "surviving" the relocation in order for the courts of this country to retain some form of residual jurisdiction.  That is particularly so in the circumstances of this case where the reality is that Q has been settled in Pakistan for over four years and does not reside with either parent.  For the same reason it would, in my judgment, be wholly inappropriate to grant the Mother permission to amend her application so as to seek to attach conditions to the original order.

(b) The contact regime as originally constituted by the order of 22nd May 2004 was, of course, varied by the order of 16th September 2004.  The original contact provisions were, in my judgment, completely superseded by the contact provision in the September 2004 order.  Further, in my judgment it cannot be said that the contact provisions of the May 2004 order in some way survive in some shadowy half life waiting to spring into full life at some time in the future.

(c) Accordingly, the present applications cannot properly be understood as applications to vary the order of 22nd May 2004.

(d) In my judgment, therefore, the only order which the Mother can seek to vary is that of 16th September 2004. However, as I have already observed (see paragraph [11] above) the contact provisions of that Order must be understood as defining the contact arrangement between Q and his Mother whilst he was still in this country.  In my judgment that order did not seek to define or regulate contact between Q and the Mother once he had left and had settled in Pakistan. 

(e) Accordingly, there is, in my judgment, no extant contact order which the Mother, by her applications, can seek to vary.

32. In my judgment the above analysis is consistent with the decision of Thorpe J (as he then was) in Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314.  In that case the judge when granting leave to relocate to Holland had also provided for contact after the removal.  After the relocation had taken place but when things started to go wrong the father issued an application for a residence order.  However, by amendment, in the alternative, he sought a definition or determination of the specific contact dates under the original order.  Thorpe J considered the original application to be a free-standing application for a section 8 and, therefore, the court had no jurisdiction to entertain it.  On the other hand he considered the amended application to fall within the exception provided for in section 1(1) of the Act.  He observed:

"The reality is that Parliament has intended this court to retain jurisdiction in respect of continuing orders the terms of which require variation or discharge.  If jurisdiction to vary those terms remains, a fortiori remains the jurisdiction to further specify or define those terms without variation."

33. In some relocation cases (as in Re S) the court will seek to establish a contact regime which will apply after the move.  Indeed it is not unusual for the order granting leave to provide two contact regimes, viz. one pending relocation and one thereafter.  In such cases the court will retain jurisdiction to vary or discharge.  Of course if an application to vary such contact arrangements is made many years after the relocation, the courts in this country may well decline jurisdiction but that is not say the jurisdiction is not there. 
34. The crucial distinction with the present case is that, in my judgment, there is no surviving contact order which is capable of variation or discharge.
35. Alternatively, Mr Devereux says that the Mother (i) invokes "the inherent jurisdiction of the High Court on the basis of Q's nationality alone", and/or (ii) relies upon the undertaking recorded upon the Order granted leave to remove whereby the Father undertook "to return the child Q when ordered to do so by this court".  Mr Devereux submitted that the undertaking is of critical importance and provided, or potentially provided the legal foundation for the Order Hedley J made on 17th June 2008 requiring the Father to return Q to the jurisdiction. In this context Mr Devereux invited me not to follow the approach and reasoning of Thorpe J (as he then was) in Re S.  I will consider the relevant section of Re S at paragraph [35] below, but three points should be made at this stage:

(a) Hedley J did not have the advantage of legal argument and it may be that Hedley J did not pause to analyse the power he was purporting to exercise when he ordered Q to be returned.  Indeed in his judgment he said that he was doing so "on the basis that that is apparently uncontentious between the parties".

(b) If it were not for the question of jurisdiction there would be no need to invoke the inherent jurisdiction.  The menu of orders provided by the Children Act 1989 would be both appropriate and sufficient.  Thus it is being sought to use the inherent jurisdiction to circumvent the statutory limits upon the jurisdiction of this court.  That in itself calls, in my judgment, for a cautious approach.

(c) As Mr Devereux himself acknowledged the use of "mere" nationality, in the absence of either habitual residence or presence within the jurisdiction, to ground jurisdiction should be confined to exceptional cases.  Further, it has been said that the English courts should refrain from exorbitant jurisdictional claims founded upon nationality: see Al Habtoor v Fotheringham [2001] 1 FLR 951.

36. In Re S Thorpe J said see page 322:

"The first undertaking, the conventional undertaking to return the child to this jurisdiction if ordered so to do, has for many years automatically been extracted from any successful applicant for leave to take a child permanently from the jurisdiction.  It had undoubtedly a useful function in the days when the movement of children across international boundaries was not regulated by international convention and statute as it is today.  But in the age that succeeds the Hague Convention, the Child Abduction and Custody Act 1985 and the Family Law Act 1986 I cannot see that the conventional undertaking has a surviving use or function."

Mr Devereux submitted that such reasoning was only persuasive.  Strictly that may be so.  But the analysis is that of a judge whose expertise and experience in international cases is only too well known.  Mr Devereux also says that the present case is clearly distinguishable because the relocation was, of course, to Pakistan a non-convention country.  That is so, and notwithstanding the Pakistan Protocol I acknowledge the difficulties in securing the return of a child from Pakistan to this country.  However, those points do not, in my judgment, destroy the fundamental basis of the reasoning behind the passage quoted above which I am happy to accept.  However, let it be assumed that I am wrong and the undertaking given in this case is of importance and can and should be enforced.  Does that, of itself, confer jurisdiction?  In my judgment it does not.  It would confer jurisdiction or power to act against the party, i.e. the Father, in default so that if the court were satisfied that the Father was in wilful breach the court could commit him, but, in my judgment, it would not confer jurisdiction to make orders in respect of Q.

37. In my judgment this Court should be extremely slow to allow the inherent jurisdiction to be used as a mechanism to avoid the statutory constraints upon its jurisdiction where the justification is the nationality of a child who, although once resident within the jurisdiction, is now resident in Pakistan and has been for over four years.  The only circumstance which, in my judgment, could be considered unusual is that both Q's parents are resident in England and Wales.  That is "unusual" but in my judgment comes nowhere near the exceptional or "extraordinary" circumstance necessary to persuade this Court to exercise jurisdiction.  It is not unknown, and in many cultures it is a commonplace, for children to be brought up by grandparents or members of the wider family.  The basic point, which I make no apologies for repeating, is that Q lives in Pakistan.  He attends school there and is doing very well.  That is where he is being brought up.
38. In conclusion, therefore, I am satisfied that there is no jurisdiction to entertain the present applications.  I acknowledge that for the Mother such a conclusion will be a bitter blow.  If welfare considerations determined jurisdiction, I may have reached a different conclusion.  However, welfare considerations and understanding for the predicament in which the Mother will find herself as a result of this decision cannot create jurisdiction where none exists.

FORUM NON CONVENIENS

39. Having decided that there is no jurisdiction it is, strictly, unnecessary for me to go on to consider the issue of forum non conveniens.  However, as I asked the parties' advisors specifically to consider this topic and as this case had to go part heard to enable that to happen, and as to my mind it is a matter of some moment I consider it appropriate to consider this issue.
40. Accordingly, for the following analysis it will be assumed (contrary to the previously expressed view) that there is jurisdiction, either upon the basis that there is an extant order capable of variation, or that, in all the circumstances it would be appropriate to invoke the inherent jurisdiction.  As mentioned at paragraph [2] above in such circumstances the Father submits this Court should decline jurisdiction and stay the present proceedings, whereas the Mother and Q's Guardian ad litem submit that the applications should continue to be litigated before this Court.
41. As there was no dispute as to the legal basis upon which I should approach this issue, I do not intend to embark upon an analysis of the relevant authorities.  It is sufficient to summarise the relevant considerations based upon the leading authorities of (a) Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; (b) Re S [1995] supra; and (c) M v M (Stay of Proceedings: Return of Children) [2006] 1 FLR 138 as follows:

(a) The burden is upon the Father to establish that a stay of the present proceedings is appropriate.

(b) The father must show not only that this Court is not the natural or appropriate forum but also that the courts in Pakistan are clearly more appropriate.

(c) In assessing the appropriateness of each forum the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses.

(d) If I were to conclude that the courts in Pakistan were clearly more appropriate, then a stay should be granted unless there were other more potent factors pointing to the opposite result.

(e) Q's welfare is an important but not the paramount consideration.

42. There are a number of factors which inform my analysis, but as is usually the case, they do not all pull in the same direction. 
43. Against the Father and in favour of this Court retaining jurisdiction are the following:

(a) As both Q's parents are resident within the jurisdiction in some ways it is difficult to think of a more convenient litigation forum.  The Mother and Father would, no doubt, both be important witnesses.  Q is a party to the present litigation and has the benefit of being represented by Guardian ad litem who is also resident in this country. That Guardian has, in turn, instructed English solicitors.  For the parties to litigate in Pakistan would be a considerable inconvenience for them.

(b) If the Mother were to commence proceedings in Pakistan the respondent to those proceedings would, of course, be the Father and he is resident here.  Thus there would be litigation in Pakistan between parties neither of whom was resident there and both of whom were resident in this country.

(c) There is a very substantial litigation history in this country.

(d) There are no proceedings on-going in Pakistan.

44. On the other hand, the "subject" of the litigation is, of course, Q who is not within the jurisdiction, who is habitually resident in Pakistan and whose day-to-day care is the responsibility of neither the Father nor the Mother.  His day-to-day care is, and has been for over four years, the responsibility of his grandparents and aunt who all live in Pakistan.  Irrespective of where his parents live the question which troubles me is this: could issues relevant to Q's welfare be litigated without a proper understanding of his everyday life, the culture milieu in which he is being brought up and without input from those responsible for his everyday care? 
45. In my judgment there is no, as it were, absolute answer to the question posed in the last paragraph.  Much depends upon the issue which it is sought to litigate.  This case, as I have already mentioned, is about contact.  Contact in Pakistan is not in dispute.  However, the Mother as a single woman of Indian heritage has understandable concerns about travelling alone to Pakistan.  Accordingly, the thrust of her application is to secure an order for contact to take place in this country, and for the contact to be assessed with a view to contact becoming unsupervised.  The courts in this country are best placed to know what facilities are available for the assessment the Mother seeks, and best placed to regulate and control contact which takes place here.  Accordingly, and although there may be practical difficulties as well as potential enforcement problems, in my judgment it cannot be said, and certainly the Father has not established, that this Court is not the convenient forum in which such matters should be litigated.  If, however, the Mother had been seeking orders in respect of contact in Pakistan I may well have taken a different view.
46. In conclusion, therefore, if there were jurisdiction to entertain the present applications and insofar as those applications relate to contact in this country (with or without ancillary orders for assessment), I would not have granted a stay.