England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/07/2012

Mrs Justice Theis DBE :

Introduction

1. This matter concerns an issue as to whether this court has jurisdiction to determine two applications issued by the respondent. The draft order submitted with one of his applications seeks the following:

1. That this court retain exclusive jurisdiction in relation to all matters concerning the children and any variations to Orders previously made, herein.

2. That any proceedings issued in the Dubai Courts by the Applicant mother be dismissed or in the alternative that the orders that the Orders previously made by this court be registered and recognised in Dubai and that the proceedings issued by the Applicant mother in the Dubai Courts be stayed pending the order being registered and recognised.

3. The passports of the children be retained by the lawyer for the Respondent father or any other person that the Court consider this to do so.

4. An order for the Respondent father's costs in this Application and matters ancillary thereto including his wasted costs of the current proceedings in the Dubai Courts.

5. An Order that the Applicant pays a Security Deposit into Court in the sum of GDP 50,000 to cover any future costs incurred by me in the event that further breaches occur and it be necessary for me to remedy same in any court.

Relevant background

2. This matter concerns two young children K born 20.1.06 and T born 5.9.07. The applicant is their father and the respondent their mother. I shall hereafter refer to them as the father and mother. Neither party, or the children, are habitually resident or present in this jurisdiction. The parties married in 2005 and went to live in Dubai in 2007. They separated in 2010, a divorce petition was issued in this jurisdiction in August 2010 and the mother issued an application for residence, specific issue and prohibited steps order. Orders were made in September 2010 which culminated in an agreed order being made by Pauffley J on 5 November 2010 that provided for the children to reside with both parents with the division of time between them set out in the order. At paragraph 8 it stated 'Both parents shall use their best endeavours to take such procedural steps as necessary and appropriate to ensure the Dubai Courts recognise and will enforce this order.'
3. The decree nisi was made on 29 December 2010.
4. On 21 January 2011 the mother made a without notice application to Macur J. The application appears to have been prompted by the children having been prevented at Dubai Airport Terminal from leaving the United Arab Emirates on 21 January 2011 for travel abroad with the mother. The order recites

Upon the Respondent father being believed to have obtained a Travel Ban in the Dubai Court preventing the children from travelling outside the United Arab Emirates

Upon the Applicant mother intending to apply to the Court in Dubai to lift the Travel Ban imposed on the children at the earliest opportunity

Upon the mother intending, in the absence of the father's cooperation, to apply to the Court in Dubai for recognition and enforcement of the order made on 5^th November 2010 and of this order.

5. On 14 March 2011 the matter came before Baker J, this appears to have been a hearing listed to deal with the mother's application for costs arising from the hearing on 21 January 2011. Neither party was present but both were represented by Counsel. The relevant parts of this order provided as follows:

Upon the parties and the court agreeing that the parties and the children are, at present, habitually resident in Dubai, United Arab Emirates

Upon the order of 5^th November 2010 remaining in force

Upon the parties agreeing for the said Order to be filed and/or registered with the Dubai Court so as to be recognised by said Court

Order

1. There is no Order on the Applicant Mother's application for costs arising from and ancillary to the hearing on 21^st January 2011

2. Leave is given to the Father to withdraw his application under the Children Act 1989 dated 21^st January 2011

3. The parties, through their respective solicitors, shall within 14 days of the date of this order agree the translations of this order and those made on the 5^th November 2010 and 21^st January 2011.

4. The Applicant Mother shall file and/or register (as may be appropriate) copies of said three Orders and their translations with the principle court in Dubai as soon as is practically possible and shall, thereafter, notify the Respondent Father of the same.

5. The costs of preparing the translations, of attesting the said Orders and of filing and/or registering the same in the Dubai courts and any ancillary costs that may be incurred shall be shared equally between the parties. The Applicant's solicitor shall take the lead and arrange for the translations and for the attesting of the

Orders.

6. Leave is given to the parties to disclose to the Dubai Courts the documents filed within the Children Act proceedings in the UK in the event any application is made in Dubai by either party further to the Order of the 5^th November 2010.

6. I have a transcript of the short judgment given by Baker J on that day, he said

At the outset [of this hearing] I indicated to the parties that it seemed to me that these issues concerning the children should no longer be litigated in this court. All parties are habitually resident in Dubai and intend to stay there for the foreseeable future; the children are there; plainly therefore issues about what contact there should be or rather how the parenting time should be divided between the parties is a matter which is best determined by the court where the children are living, namely, the court of Dubai. In the event, however, I am not formally making any order staying the proceedings or the applications because the father has through his solicitor indicated that he is willing to withdraw his application.

A little later, in the context of refusing the mother's application for costs he said

Having travelled to Dubai and chosen to live in Dubai, the parties are subject to the laws of Dubai….

7. It appears from documents in the court bundle that certified copies of the relevant orders and applications were lodged with the UAE Embassy in London on 24 March 2011. The letter from the father's solicitor to the mother's solicitor dated 4 July 2011 requests the final invoice in connection with the attested, translated and legalised orders.
8. On 25 March 2011 DJ Cushing stayed the ancillary relief proceedings 'pending efforts to mediate in Dubai where both parties are living'
9. The decree absolute was made on 10 May 2011.
10. On 6 July 2011 following the break down of mediation in the Dubai family court the mother is given permission to start a case in that jurisdiction which she issues on 11 July 2011. It is not entirely clear from the documents what the mother applied for. It appears from the judgment given on 20 May 2012 that her claim sought guardianship of the children and financial support for her and the children. An interim order made in made in September 2011 and a final order on 20 May 2012. The father engaged in those proceedings which included, at least in part a claim for financial provision. The father did not apply in this jurisdiction to lift the stay imposed by DJ Cushing on 25 March 2011.
11. On 9 April 2012 the father issued the first of his applications which sought the orders set out in the draft order set out in paragraph 1 above. The second application is dated 10 May 2012 and, as I understand it, seeks effectively the same relief as the first. Both of these applications were first listed before Pauffley J on 21 June 2012, she made directions and listed the matter for determination on 2 July 2012.
12. On 20 May 2012 the Dubai court gave a final judgment on the mother's application. The court clearly had the orders made here before it. As part of that judgment it rejected the father's submission that the Dubai court lacked jurisdiction.
13. On 6 June 2012 the mother's solicitor wrote to the father's solicitor, enclosing a copy of Baker J's judgment, referring them to the paragraph set out above and described the father's application as 'spurious and misguided'.
14. I heard submissions on 2 July 2012. The mother's chronology stated that the first hearing of the father's appeal against the order made on 20 May 2012 was due to be heard on 10 July 2012.

The Law

15. The mother's case is that the effect of the order dated 14 March 2011 this court ceded jurisdiction to Dubai.
16. I have been referred to two authorities.
17. The first is the Supreme Court decision In Re I (A Child)(Contact Application: Jurisdiction) [2009] UKSC 10 where Baroness Hale made it clear that Article 12 Council Regulation (EC) 2201/2003 (commonly known as Brussels ll Revised) can apply to cases where a child is lawfully resident outside the jurisdiction (see paragraph 17).
18. The second case is Re W (Jurisdiction: Mirror Order) [2011] EWCA Civ 703. The CA in that case made it clear that an application for a mirror order, by definition, could not supplant the primary jurisdiction. A judge making a mirror order did not consider the welfare of the child, but took the order of the foreign court as read. The making of a mirror order did not confer on the English court the jurisdiction to exercise discretionary powers.

Submissions of the parties

19. Mr Marc Roberts, on behalf of the father, submitted the orders made here had not been registered in Dubai, there was no mirror order in Dubai therefore this court retained jurisdiction and the orders made here remained in force. It was his submission that this court should retain jurisdiction about welfare issues concerning these children for the foreseeable future, and the Dubai Courts should only be involved for the purposes of enforcing orders made here.
20. Mr Rex Howling Q.C., on behalf of the mother, submitted the court had ceded jurisdiction by the terms of the order dated 14 March 2011. In particular the order foreshadowed proceedings in Dubai by referring in paragraph 6 to applications being made in Dubai. The observations made by Baker J in paragraph 6 of his judgment could not have been clearer and prompted the father to withdraw his application that was before the court. There was evidence that the orders had, in accordance with the terms of the order made on 14 March 2011, been translated and registered with the UAE Embassy, again underpinning the clear intention of the order. In any event, he submitted, the court needs to consider the provisions of Article 12 (3). When looking at the best interests of these children, as required in Article 12 (3) (b), decisions relating to them should be made in the jurisdiction where they are habitually resident.

Decision

21. It is clear to me that the intention of the order made by Baker J on 14 March 2011 was to relinquish jurisdiction to Dubai and it did so. This view is supported by the following matters:

(1) The provisions made in that order to provide for the order to be filed and/or registered with the Dubai Courts so as to be recognised.

(2) The terms of the order providing for the documents filed in these proceedings to be disclosed to the Dubai Courts 'in the event of any application is made in Dubai by either party further to the order of 5^th November 2010'. This clearly anticipated applications being made in Dubai.

(3) The clear observations made by Baker J in his judgment (para 6) on 14 March 2011 together with the father withdrawing his application under the CA 1989 as a consequence.

(4) The translation of the orders, paid for jointly as required by the order dated 14 March 2011, and lodging them with the UAE Embassy on 24 March 2011.

(5) This case can be distinguished from Re W (ibid). In that case there was no doubt that the primary jurisdiction remained in Malaysia, where the child concerned still lived with her father. In this case it would be difficult to maintain that the order dated 14 March 2011 intended this court to retain the primary jurisdiction, particularly in the light of Baker J's comments in his judgment.

22. This view is supported by the fact that the father, following the mother issuing proceedings in Dubai in July 2011, did not apply to lift the stay imposed by DJ Cushing on 25 March 2011.
23. Even if the court is wrong in the analysis in paragraph 21, this court still has to consider the provisions of Article 12 (3). Both children are British nationals (Article 12 (3) (a)). Re I (ibid) did not need to determine what the words 'at the time the court is seised' meant in Article 12 (3) (b) (see Re I paras [30] to [35] ), as the father in that case had unequivocally accepted the jurisdiction of the English courts. It will not be necessary for me in this case to grapple with that issue, as the court also has to consider the best interests of the child which I have formed a very firm view about. It is quite clear to me that it is not in the best interests of these children for this court to exercise jurisdiction about issues relating to their welfare when neither they or their parents, are present or habitually resident in this jurisdiction and that position is unlikely to change. It would be wholly artificial for this court to seek to determine issues about welfare in relation to children who have not lived here since 2007 and are unlikely to for the foreseeable future. As Baker J observed "All parties are habitually resident in Dubai and intend to stay there for the foreseeable future; the children are there; plainly therefore issues about what contact there should be or rather how the parenting time should be divided between the parties is a matter which is best determined by the court where the children are living, namely, the court of Dubai." I agree.
24. Therefore, for the reasons outlined above, this court declines to exercise its jurisdiction to determine both applications issued by the father and they shall be dismissed.

Failure to comply with the bundle Practice Direction

25. It is nearly six years since Sir Mark Potter P issued Practice Direction: Court Bundles (Universal Practice to be Applied in all Courts other than the Family Proceedings Court) [2006] 2 FLR 199 (now in Practice Direction 27A Family Procedure Rules 2010). As was observed nearly 4 years ago by Munby J (as he then was) in In Re X & Y (Bundles) [2008] EWHC 2058 (Fam) the Practice Direction was still being honoured more in the breach than in the observance. My experience is that 4 years later, sadly, this remains the position.
26. The Practice Direction could not be clearer about what should be done. The preliminary documents (paragraph 4.2) shall (emphasis added) be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall at the same time be sent by e-mail to the judge's clerk (paragraph 6.4).
27. In this case the bundle was lodged (late) with no updating information in it (the last order and updating statements were missing). There were no position statements or skeleton arguments. It was not clear what the hearing was listed for from the bundle, even though the matter was listed for a day. Following enquires made outside court by my clerk on the morning of the hearing two position statements were given to her, one of them had a 46 page attachment enclosing copies of various authorities. This is a case where the parties were represented by experienced counsel in a privately funded case. When I asked for an explanation as to why the Practice Direction had not been complied with the following was offered:

(1) Mr Roberts said he thought the court may have kept the position statements from the last hearing. He advanced no basis for that belief and why it absolved him from the obligations under the Practice Direction

(2) Mr Roberts said the updated statements were not in the bundle because the preceding Friday and Saturday were not working days in Dubai. The statements were dated 19 June 2012 and 27 June 2012 respectively, so well before the previous Friday.

(3) Mr Howling Q.C. thought leaving a copy of his position statement (and 46 page attachment) on my clerk's desk at 9.30am on the morning of the hearing (even though she wasn't there) was sufficient. When I asked why it had not been lodged by 11am the previous Friday he replied he was in court. That is a wholly inadequate explanation, particularly as it transpired the position statements I did get from both counsel on the morning of the hearing on 2 July 2012 were merely copies of those used at the hearing on 21 June 2012; they had not been updated or revised.

28. The consequence of what I regard as the complete failure by both counsel in this case to file their documents in accordance with the Practice Direction is that I had to reserve judgment, as there was simply not enough time that day to hear submissions and give judgment. If the documents had been filed in accordance with the Practice Direction I would very likely have given judgment that day. It is the court that has been put to inconvenience.
29. I associate myself with the sentiments and frustration expressed by Munby J in In Re X & Y (ibid) which I expect is shared by the other family judges, not only those in the Family Division. His judgment at paragraphs 18 and 19 warned the profession of the consequences of default, as set out in Paragraph 12 of the Practice Direction. This judgment is another wake up call to the profession to comply with the Practice Direction because, as Munby J observed, next time a defaulter may not be so lucky.