England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		25 October 2017

MR JUSTICE HOLMAN:

1. In late September 2016, the applicant, Dilek Akyuz, commenced legal proceedings in Turkey. About a month later, she commenced the present proceedings here in England.
2. The two sets of proceedings seek differing relief and remedies, but essentially raise the same question of fact: was the late Kenan Vural Akyuz, who died in Turkey on 10 September 2016, her genetic or biological father?
3. The first respondent to these English proceedings is one of the daughters of the marriage of the deceased who is now his personal representative. She has applied for these English proceedings to be dismissed, or at least stayed until after the determination of that question of fact in Turkey.
4. On behalf of the first respondent, Ms. Sarah Haren has argued with great cogency and skill (i) that it is vexatious that the applicant should seek concurrently to litigate the same issue in two jurisdictions; and (ii) in any event, that the English proceedings should be dismissed or stayed on the application of Spiliada principles on the ground that Turkey is the more appropriate forum.
5. The essential facts are as follows. In case this judgment is transcribed, translated and placed before the court in Turkey, I wish to stress that what follows is a narrative summary of the essential facts as alleged. There is no decision or determination by me on any of the disputed facts.
6. The applicant was born in England in January 1978, so she is now aged thirty-nine. Although of Turkish descent, she is a British citizen and domiciled and habitually resident here, where she was brought up. She was conceived in about April 1977. Her mother is Shaziye Ali Mehmet, who is the second respondent to these proceedings. The Mother has attended the whole of this hearing and is sitting in the court room as I speak.
7. At the time of the conception and birth of the applicant, the mother was in her early twenties and was married to man called Ali Mehmet. However, she has said in a statement that she rarely had sexual intercourse with her husband who was preoccupied by his business, and that she was, for about ten years spanning the conception and birth of the applicant, in a romantic and sexual relationship with the deceased who was, at the time, her employer and about twelve years older than her, and married.
8. The mother says that even before the birth of the applicant she, the mother, was sure that the genetic father of her baby was Kenan Akyuz, the deceased. However, she could not tell her husband, Mehmet Ali, who was unaware of her affair.
9. Mehmet Ali was present at the birth and was the informant who registered the applicant's birth, naming himself as the father. About nine years later, Mehmet Ali did learn about his wife's affair and, he says, caused DNA samples to be taken from himself and the applicant which proved that he was not her father. He says in a statement that he was devastated and, as a result, divorced his wife, the mother.
10. However, whether out of affection for her, or altruism, or both, Mehmet Ali did not tell the applicant and continued to treat her as his daughter. It was only when she was aged about nineteen, that she was informed for the very first time of the truth about her parentage. She says, in summary, that following that she met Kenan Akyuz, and that on his visits to England he was very loving towards her and acknowledged and treated her as his daughter.
11. In 2000 the applicant changed her surname by deed poll to that of Akyuz. In 2004, a series of DNA tests were undertaken in England with the full involvement and cooperation of Kenan Akyuz. The reports of the results are, if reliable, conclusive by any English standard of proof that he is the genetic father. One report refers to a 99.9999 per cent probability of paternity. Another refers to a probability of paternity of over 99.96 per cent which is described as "virtual proof of paternity".
12. In 2009, the applicant's entry in the register of births was amended to remove Ali Mehmet as her father, but not to substitute any other person as being the father. Also in 2009, the mother and Kenan Akyuz completed a form GRO 185, being an "Application by mother and/or father for the re-registration of their child's birth". However, that application was not further proceeded with and completed at that time by actual re-registration.
13. On 10 September 2016, Kenan Akyuz, who had been in poor health for some time, died in Turkey, aged seventy-three. He left what I understand to be a substantial estate in Turkey and the Middle East, which was said at the present hearing to be worth about US$5 million, although that figure may or may not be reliable.
14. The applicant, believing herself to be one of the deceased's children, wished to claim a share in his estate alongside his widow and the four children of his marriage. I was told that the widow is entitled to twenty-five per cent of the estate and each child to an equal share of the balance. That means (if correct) that if the applicant is entitled to a share, each of the five children of the deceased would be entitled to fifteen per cent of the whole (vis one-fifth each of seventy-five per cent). If she is not so entitled, each of the four children would be entitled to 18.75 per cent (vis one-quarter each of seventy-five per cent).
15. The applicant learnt very soon after the death that the estate was about to be distributed, so on about 27 September 2016, within three weeks of the death, she commenced her proceedings in Turkey. The essential purposes of those proceedings are to establish that the applicant is a child of the deceased and to vindicate her claim to a share in the estate, and, meanwhile, to prevent its distribution.
16. On 26 October 2016 the applicant commenced her concurrent proceedings in the courts of England and Wales by a formal application in prescribed form G63, in which she seeks a declaration of parentage under section 55A of the Family Law Act 1986 and no other relief. In section 3 of the prescribed form under the printed heading "Why are you making this application?" she stated, now at bundle p.B7:

"I am the biological daughter of Kenan Vural Akyuz. The evidence in support of my application for declaration of parentage is in the statement accompanying this form. I wish for a declaration of parentage in order that my birth certificate can be amended. This would extremely assist in my professional and personal life when dealing with formalities."

17. There have since been some interlocutory hearings in the proceedings in both Turkey and here. Curiously, but significantly, the initial clearly stated position of the estate in Turkey was that the proceedings in Turkey should be dismissed or stayed so that the issue of paternity could be resolved and determined within proceedings in England, and it was the estate who strenuously argued lis alibi pendens. Their pleading of 21 October 2016 in the Turkish proceedings, now at bundle p.F9, states as follows:

"The claimant must, pursuant to the Code on International Private Law and Procedural Law, first file the paternity suit in the UK, obtain a paternity ruling under English law and, if she is able to have filiation established in the UK, then bring an action in Turkey for recognition and domestic enforcement of the said English court ruling.

CONSEQUENTLY, THE PRESENT SUIT FOR ESTABLISHING FILIATION MUST BE HEARD BEFORE THE ENGLISH COURTS UNDER ENGLISH LAW, THIS BEING THE CLAIMANT'S NATIONAL LAW. WE OBJECT TO THE SUIT BEING FILED IN TURKEY. WE CALL ON THE COURT TO DECLARE ITSELF INCOMPETENT. THE COMPETENT COURTS ARE THE ENGLISH COURTS AND THE APPLICABLE LAW IS ENGLISH LAW."

[The use of capital letters and bold as emphasis is in the original]

18. Although the translation of the later order of the Turkish court of 9 June 2017, now at bundle p.F37(g) and 37(h), is not entirely easy to follow in its translated form, I understand that the Turkish Court rejected that lis pendens argument on the grounds that the deceased was within the jurisdiction of the Turkish Court and that the Turkish proceedings were first in time.
19. Ms. Haren now submits to me that the effect of that ruling by the Turkish Court is that it is the English proceedings which must be stayed, for otherwise there may be concurrent litigation in both courts on the same issue.
20. However, a further part of the case of the estate in Turkey is that under cited provisions of the Turkish Civil Code (vis Article 303), any claim to paternity is now long out of time so that in Turkey the paternity suit must in any event be denied. The estate further asserts that in any event, under the law of Turkey, no reliance can be placed (for limitation reasons) upon DNA tests done in 2004 and that if any DNA tests are to be relied upon, the body must be exhumed which, I understand, no party would wish avoidably to happen.
21. Ms. Haren submits that both sets of proceedings have very strong connections with Turkey. The deceased was domiciled there and living there at the time of his death and did actually die there. The bulk of the assets are there or elsewhere in the Middle East. Several of the beneficiaries live there. She submits that "This is really a dispute about inheritance and whether the applicant should take a share", and, correctly, that that issue can only be decided in Turkey within the proceedings there.
22. Ms. Haren relies upon the authorities of Australian Commercial Research and Development Limited v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 and Racy v Hawila [2004] EWCA Civ 209.
23. In Australia Commercial, Sir Nicholas Browne-Wilkinson, V-C said at p.69(h) that "…where a plaintiff seeks to pursue the same defendant in two jurisdictions in relation to the same subject matter, the proceedings verge on the vexatious." In Racy v Hawila, the Court of Appeal held that it would be "…oppressive to Mr Hawila to have to face both actions simultaneously" (see paragraph 64).
24. Ms. Haren submits that even if there is not "a complete identity of the issues in both sets of proceedings, the proper and right approach to case management" is to dismiss or stay one of them and that that one should be these proceedings, especially now that the Turkish Court has apparently rejected the estate's own argument that it is the English proceedings which should be resolved first.
25. Separately, and distinctly, Ms. Haren relies upon the well-known authorities of The Abidin Daver [1984] 1 AC 398 and Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. The principles are there set out by Lord Goff  of Chieveley at p.476-477.
26. For the purpose of the present case and decision, I summarise those principles very briefly as follows. I must first consider whether there is another more appropriate forum (vis in this case the proceedings in Turkey). If there is, then these English proceedings should be stayed, unless the applicant can show circumstances by reason of which justice requires that a stay should, nevertheless, not be granted. By more appropriate forum, Lord Goff  meant (see his principal (a)) "i.e. in which the case may be tried more suitably for the interests of all parties and the ends of justice."
27. I unreservedly accept that it is only the courts in Turkey which can make decisions in relation to the distribution of the deceased's estate. That topic is not at all within the jurisdiction or competence of this court nor even, as it were, on the agenda here. However, it is only the courts of England and Wales which can grant to the applicant what she seeks here, namely, a statutory declaration of parentage pursuant to section.55A of the English Family Law Act, 1986.
28. The applicant has explained in her application, as quoted above, why that is important to her. Further, an email from the General Register Office, now at bundle p.E25, makes absolutely clear that the applicant will never be able to achieve the re-registration of her birth to show the name of her father without such a declaration. The email states:

"The only way GRO will consider re-registering your birth to include your natural father's details is after a Declaration of Parentage issued under section 55A of the Family Law Act 1986 by the courts in this country. We would not be able to use a Declaration of Parentage issued by a court in Turkey."

29. It thus follows that these English proceedings do not seek the same relief or remedy as the Turkish proceedings, and these English proceedings have an important purpose for the applicant which the courts of Turkey and the proceedings there cannot achieve. Further, as I have stated, the pleaded position of the estate in Turkey is that the applicant is now time barred altogether from claiming or obtaining any finding as to paternity there.
30. It is true that the Turkish Court has not yet, as I understand it, ruled upon that particular submission, and I accept that if, in the meantime, the English proceedings are stayed, the stay could later be removed if the Turkish Court does later accede to that time-limitation argument.
31. However, in my view, the submission of Ms. Haren on behalf of the estate that they should not have to litigate the factual issue of paternity concurrently in two jurisdictions does not lie easily with their contention in Turkey that, in any event, it cannot be litigated there at all.
32. To contend in England that the issue as to paternity should be decided in Turkey, coupled with a simultaneous contention in Turkey that the issue cannot be decided there, being time barred, is, to my mind, a patent tactical manoeuvre.
33. It is said by Ms. Haren that the balance of convenience of witnesses favours litigation in Turkey. I cannot accept that. There is, indeed, only one living person who knows the truth of these matters, paternity being settled at the moment of conception, and that is the mother. She lives here and has explained in a statement that her health and other circumstances (she has to care for her own aged mother) would not permit her to travel to Turkey. The other key witness is the applicant herself who can testify that the deceased recognised and treated her as his daughter, albeit that his family in Turkey were unaware of that fact.
34. Finally, so far as concerns English law, the DNA tests and the resulting reports done in 2004 are patently admissible in evidence. If any question arises as to the reliability of the samples or of those reports, that is better investigated and tested by oral evidence here, where the samples were taken, the tests done, and the reports produced.
35. For these reasons, I am absolutely clear that not only is Turkey not the more appropriate forum but, in fact, England is distinctly the more appropriate forum for deciding the discrete question of fact: was Kenan Vural Akyuz the genetic or biological father of the applicant?
36. I decline to stay these proceedings and will now give directions for as swift and just a resolution of these English proceedings as is possible.
37. Whether or not later, the courts of Turkey decide in some way to recognise and give effect to, or otherwise attach weight to, the decision of this court, whatever it may be; or to embark on their own separate fact-finding exercise, will be entirely a matter for them.
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