Jersey Unreported Judgments

Matrimonial - reasons for refusing the mother's application to stay proceedings in Jersey relation to the child

[2018]JRC102B

Royal Court

(Family)

13 June 2018

Before     :

Carol Elizabeth Canavan, Registrar, Family Division

 

Advocate L. J. Glynn for the Petitioner.

Advocate M. R. Godden for the Respondent.

REASONS

the registrar:

Background

1.        These are the reasons for my decision to refuse the petitioner mother's application for a stay of the proceedings before this Court in relation to the parties' child namely, the parties' respective applications for Article 10 residence orders for the child ("the Jersey proceedings").

2.        The proceedings in respect of the child form part of matrimonial proceedings concerning the petition of the mother and the cross-petition of the respondent father both on the grounds of unreasonable behaviour.  The cause therefore remains on the defended list.

3.        On the 28^th June, 2017, the mother, who was then acting on her own behalf, wrote to the Court asking for permission to move her case to her local court in England.  In an email from one of the Family Proceedings Officers dated the 3^rd July, 2017, the mother was advised of the procedure that she needed to follow to make such an application.  No such application was made.

4.        Up until the 26^th July, 2017, the proceedings in respect of the child had been dealing with the father's various applications for contact.  On that date the father filed a Form C2 application for sole residence.  The application was stayed by consent until the 6^th September, 2017, when the father filed an application to proceed with his application for sole residence.

5.        The mother filed a Form C2 application for sole residence on the 29^th September, 2017.

6.        On the 23^rd March, 2018, the mother issued an application, via her English solicitors, in the Family Court sitting in England, for a Child Arrangements Order ("CAO") for residence of the child.  The matter was initially set down for 45 minutes on the 27^th April, 2018, for a directions hearing.  However the parties were advised on the 25^th April, 2018, that skeleton arguments were required and in fact, the substantive jurisdiction arguments were heard on that date by HHJ Farquhar ("the English proceedings").

7.        HHJ Farquhar  dismissed the mother's application for want of jurisdiction pursuant to Sections 3(2) and (3) of the Family Law Act 1986 which provide that jurisdiction is excluded if matrimonial proceedings are continuing in a court in a specified dependant territory in respect of the marriage of the parents of the child concerned.  The mother was ordered to pay the father's costs in the sum of £1,200.

8.        In brief, the mother considers that an English Court is the best jurisdiction to determine arrangements for the child, based on the principle of forum non conveniens.  The mother and the child left Jersey in August 2016 and have resided in England since that date, thereby making the child habitually resident in England.  It is not disputed that the mother and the child left Jersey without the knowledge and consent of the father, although the allegations made by the mother as to her need to leave Jersey are all denied by the father.  The father took no steps to obtain a court order for the summary return of the child to Jersey.  Now the mother seeks a stay of the Jersey proceedings for a period of one month, in order that she may renew her application for the CAO in the English proceedings.  If the application in the English proceedings is successful, it is the mother's intention to seek an indefinite stay of the Jersey proceedings.  The English proceedings are described in greater detail below in paragraphs 14 to 17.

9.        The father argues that this matter must remain within the jurisdiction of the Royal Court of Jersey as this is without doubt the most appropriate forum.

10.      At the time of the hearing on the 21^st May, 2018, a fact finding hearing had been set down for the 9^th to the 13^th July, 2018, (inclusive) and a final hearing on the 1^st, 2^nd and 3^rd October, 2018 (although the dates of the final hearing have changed since).

11.      Scott Schedules have been filed by both parties and the comments from the Guardian on those schedules are awaited.

The mother's case

12.      It was submitted by Advocate Glynn, on behalf of the mother in her skeleton argument and at the hearing that:-

(i)        The child is now habitually resident in England and has been since August 2016.  The father chose not to seek an order for the child's summary return to Jersey nor to challenge the child's retention outside this jurisdiction.  The internationally recognised legal principle is that matters in respect of children are best determined in their place of habitual residence.  The child is fully integrated in life in the UK.  He attends school, has a circle of friends, a social network, relatives and his GP and he has, since the date of the father's application, been appointed a social worker in England employed by the local council.

(ii)       The disputed circumstances surrounding the child's removal from Jersey will be a matter to be determined at the fact finding hearing.  However, the father's failure to take any steps to secure the child's return to Jersey following his removal would indicate that the father accepts that the child is habitually resident in England.

(iii)      If the father does not accept that the child's habitual residence is now England, Article 22 of the Child Custody (Jurisdiction)(Law) 2005 ("the Law")  provides that where a child is removed from Jersey without the consent of all persons having the right to determine where the child is to reside, the child shall be treated for the purposes of the Law as continuing to be habitually resident in Jersey for the period of one year beginning with the date on which those circumstances arise.

(iv)      The father's application for a residence order in respect of the child was not brought on the basis of a challenge to the child's habitual residence in England or his retention outside this jurisdiction, but in light of the father's position that the mother seeks to frustrate his relationship with the child.

(v)       This Court would have no jurisdiction to make a residence order in respect of the child if the divorce proceedings were not continuing or had not been issued here.

(vi)      Most of the factual witnesses for both the fact finding hearing and the final hearing live in England.  If the proceedings remain in Jersey there is a risk that witnesses will not be able to attend hearings and neither party may be able to obtain best evidence in support of their case.

(vii)     The incidents between the father and the child which have occurred since the date of the father's application have been reported to the police and the social work team there.

(viii)    Contact mostly takes place in England.  The child has only been to Jersey twice for contact.

(ix)      The time and costs expended since the father's application in September 2017 will not have been wasted because the majority of work undertaken to date           and the Court hearings have been in respect of contact arrangements, which are ongoing.  Little work has been carried out by the parties or their legal representatives in terms of preparation for the fact finding hearing or the final hearing.

(x)       The final hearing dates have had to be moved again, and have been put back to October 2018.  Therefore a stay of the English Proceedings for one month will have little, if any, effect, on the momentum of the Jersey proceedings.

(xi)      The reports filed by Dr Briggs and Dr Murray can be used in the English proceedings, neither of Dr Briggs and Dr Murray being, in any event, resident in Jersey.

(xii)     The applicable law is almost identical in both jurisdictions.  The parties will be   applying the same facts to the same principles.

(xiii)    The father will have difficulties in enforcing any Jersey Order in England as the mother will have an opportunity to be heard on the registration of any adverse Jersey Order and/or the opportunity to appeal same.  This could lead to further proceedings in England, after the conclusion of proceedings in Jersey, resulting in increased time, cost and delay.

(xiv)    The mother does not seek transfer for any other reason than she wholly considers England to be the most appropriate jurisdiction, as per her email to the Court in June 2017.

(xv)     The mother anticipates that the father's position will be that the proceedings should remain in Jersey for judicial continuity and to avoid further delay and          costs.  However, there have been few substantive hearings in Jersey which would cause an argument for judicial continuity to outweigh the positive factors set out by the mother.

(xvi)    The delay in making the application had been caused by difficulties which had arisen as a result of the change in legal aid provisions in the UK.  The mother had been asked to provide funding "up front" and she had not been able to do so until earlier this year.

(xvii)   The father cannot show any special circumstances which should prevent a stay being granted.

The father's case

13.      It was submitted by Advocate Godden, on behalf of the father, in his skeleton argument and at the hearing that:-

(i)        It is wrong to ask this Court now to transfer the proceedings to the UK.  The correct course would have been to make an application relating to jurisdiction/forum conveniens at the early stages of the Jersey proceedings, not when they have been ongoing for eighteen months with a hearing listed in 7 weeks' time.

(ii)       The father accepts that the proceedings would normally take place in the jurisdiction where the child is habitually resident.  However, although habitual residence is important, it is not a conclusive factor in determining forum. Advocate Godden referred to the analysis prescribed in the case of Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 (dealt with in paragraph 24 below).

(iii)      If the proceedings were to be transferred to England this would effectively re-start proceedings and lead to a considerable delay in decision making for the child.  All professionals involved are concerned about the child's emotional welfare.  The stress of ongoing proceedings, with the uncertainty that this involves, would be harmful to him.  The child's welfare is a very important factor for this Court to consider.

(iv)      The JFCAS officer has been appointed as the child's guardian.  She has met with the child on several occasions, she has liaised with the child's social worker, she is very important to this case.  It is not known if she could act in another jurisdiction.  If she could, then she would have to travel, and stay in the UK for future directions and any hearings.  She would have to re-instruct a             solicitor.  If JFCAS could not act then CAFCASS would have to re-appoint and this would be very unsettling for the child.

(v)       There has been judicial continuity throughout the 14 or so hearings.  This would be lost if the Jersey proceedings are stayed.

(vi)      The father would have to instruct alternative solicitors in the UK.  This would cause him additional expense and a duplication of work.  There would also be practical issues for the father.  He works full-time in Jersey and it would be difficult for him to attend hearings in the UK because of his leave situation.

(vii)     The expert witnesses are all lined up to give evidence in Jersey in July.  It is not clear which witnesses the mother will call but any issues with regards to the giving of evidence can be easily resolved.

(viii)    There are financial proceedings ongoing in Jersey and the mother has not applied for these to be transferred.

(ix)      The Court should treat the mother's stated rationale for transferring these proceedings at the eleventh hour with caution.  The mother has always to date been agreeable to this Court dealing with matters so it is difficult to see why she should seek a transfer now.

(x)       The mother's argument that the enforcement of any Jersey order would be an issue for the father is not accepted.  The father wants proceedings to be heard in Jersey and he believes that he can obtain mirror orders in the UK after a Jersey Order has been made;

(xi)      The transfer of the proceedings to the UK would not be in the interests of justice or the child.

(xii)     The father believes that this application has been made in order to cause delay.  The mother continues to make allegations against the father.  None of the experts involved believe that the father is a risk to the child.  If the mother believes that he is a risk, why has she allowed contact between the father and the child?

(xiii)    It cannot be argued that further delay, ongoing uncertainty and a loss of judicial continuity are all contrary to the child's best interests.  Dr Murray (as indeed all the professionals) are concerned about the child's emotional welfare.  The stress of ongoing proceedings, with the uncertainty that involves would be harmful to the child.

(xiv)    The Court should refuse the mother's application for a stay and consider making an award of costs against her.

The English Proceedings

14.      It was not disputed that HHJ Farquhar did not give judgment in respect of the merits of the mother's application when dismissing her application for want of jurisdiction.  However, counsel acting on behalf of both the mother and the father, confirmed that the Judge had indicated that the case for a transfer was fairly weak, but that, if the matter was stayed in Jersey, then any application issued in England and Wales could be referred to him.

15.       HHJ Farquhar had been particularly mindful of the time and effort already invested by this Court, JFCAS and the parties in the Jersey proceedings, noting that there had been 14 hearings, that a final hearing had been listed to be heard in July (now pushed back to October 2018), expert reports commissioned and a Guardian appointed.

16.      I was advised that the father's lawyer had attempted to obtain a transcript of the Judge's Reasons for his decision, however, this had not been possible within the timeframe.  However the transcript needed to be signed off by the Judge but he was away on holiday.  The father's UK barrister had produced a note of the hearing and provided a summary of the judgment.  The Judge had been satisfied that he did not have jurisdiction under the law to hear the mother's application but he also considered the merits.  The note from the father's UK barrister stated:-

"If I am wrong on that - then have to consider on merits if I would order a Stay if the application was made in Jersey.  I need to consider it in reverse.  What are prospects of a change of jurisdiction at this stage?  There have been 14 hearings, a Final Hearing is set up in July.  In reality is there any real prospect of that application being granted?  It seems a fairly weak application.  As Mr Downs says - there at points, but should have been taken earlier.  If faced by me would I say the jurisdiction of Jersey Court would prevail and would not grant a stay?  So if I considered exercising my discretion, I am not with the Mother - so would have dismissed her application on those grounds as well."

17.      The mother appears to have accepted the above because she said in her skeleton argument that "Counsel acting on behalf of the Mother have confirmed that the Judge indicated that the case for a transfer was fairly weak..."

Submissions on the Law on behalf of the mother

18.      The Royal Court of Jersey has jurisdiction to make orders in respect of the child by virtue of Article 7 of the Law which provides that the Court shall not have jurisdiction to make an Article 10 order in or in connection with matrimonial proceedings unless those proceedings are proceedings in respect of the marriage of the parents of the child concerned, and the proceedings are continuing.  Divorce petitions in this case were issued in September and October 2016, thus the Court has jurisdiction to make orders in respect of the child.

19.      It is a well-established principle of international family law that matters relating to a child are best determined by the Court situated in the child's place of habitual residence - Re F (A Minor) (Jurisdiction) [1991] Fam 25.

20.      This principle is recognised by Articles 5(1) and 6(1) of the Law, which provide that, in all cases other than those in which there are ongoing matrimonial proceedings before the Royal Court of Jersey, the Court does not have jurisdiction to make Article 10 orders in respect of a child unless the child is habitually resident in Jersey or, in urgent cases where the Court is asked to make orders pursuant to its inherent jurisdiction, if the child is present in Jersey.

"5       Jurisdiction other than in matrimonial proceedings

(1)       The Court shall not have jurisdiction to make an Article 10 order, other than an order to which Article 7 applies, in any proceedings unless the condition in Article 6 is satisfied.

...

6         Habitual residence or presence of child

(1)       The condition referred to in Article 5 is that on the relevant date the child concerned -

(a)       is habitually resident in Jersey; or

(b)       is present in Jersey and is not habitually resident there nor in any part of the United Kingdom,

and, in either case, the jurisdiction of the Court is not excluded by paragraph (2)."

21.      The Law recognises that, even where the Court has jurisdiction to make an Article 10 order in respect of a child where there are ongoing matrimonial proceedings, the Court may consider that Jersey is forum non conveniens and decline to make an Article 10 order:-

"7(3)   Where the Court -

(a)       has jurisdiction to make an Article 10 order in or in connection with any matrimonial proceedings; but

(b)       considers that it would be more appropriate for matters relating to the custody of the child to be determined      outside Jersey,

the Court may by order direct that, while the order under this paragraph is in force, no Article 10 order with respect to the child shall be made in or in connection with those proceedings."

22.      Article 8(2) to 8(4) of the Law further provides:

"8(2)   Where, at any stage of the proceedings on an application made to the Court for a Jersey order, or for the variation of such an order, it appears to the Court -

(a)       that proceedings with respect to the matters to which the application relates are continuing outside Jersey; or

(b)       that it would be more appropriate for those matters to be determined in proceedings to be taken outside Jersey,

the Court may order a stay of the proceedings on the application.

(3)       The Court may order the removal a stay granted in accordance with paragraph (2) if it appears to the Court that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that paragraph, or that those proceedings are stayed, sisted or concluded.

(4)       Nothing in this Article shall affect any power exercisable apart from this Article to refuse an application or to grant or remove a stay."

23.      Advocate Glynn referred to the recent case of C v D (Matrimonial) [2018] JRC 068A in which reference was made to the application of the doctrine of comity (per De Sa v Luis [2009] JLR 44 and its application in this jurisdiction.  Registrar O'Sullivan also referred to Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460:-

"The test is not one of convenience, but the suitability or appropriateness of the relevant jurisdiction".

25       The burden of proof is on the Wife to satisfy the Court that "there is some other available forum which prima facie is clearly more appropriate for the trial of the action". A Court has to look at the factors which point in the direction of another forum, considering the "natural forum" in which the action "has the most real and substantial connection".

24.      Advocate Glynn drew my attention to the following passages from Spiliada:-

"(a)     The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

(b)       As Lord Kinnear's formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay.... It is, however, of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country".

The mother therefore has to persuade the Court that the UK is a more appropriate form to deal with the issue of the child's residence.

Submissions on the Law on behalf of the father

25.      Advocate Godden agreed with Advocate Glynn's position on the legal position as set out in paragraphs 18 to 24 above, save that he did not accept that the Court only has jurisdiction under Article 7 of the Law to make an Article 10 order.  He submitted that the Court would also have jurisdiction under Articles 6 and 22 of the Law because the child was habitually resident in Jersey at the time the proceedings commenced even though he had been removed from Jersey without the consent of the father. 

26.      This Court is best placed to consider the argument of "forum conveniens".  Advocate Godden also referred to the passages from the case of C v D set out in paragraph 23 above and in addition:-

"Lord Templeman held that:-

"Domicile and residence and place of incident are not always decisive"

He went on to say at paragraph 465 the solution of such disputes is a matter for the judge, does not require reams of authority, oral evidence or lengthy submissions and that:

"An appeal should be rare."

27.      Advocate Godden cited the passages from Spiliada referred to above in paragraph 24 above stating that the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, and went on to cite a passage from In Lubbe v Cape Plc [2000] 4 All ER 268

 "In applying this principle the court's first task is to consider whether the defendant who seeks a stay is able to discharge the burden resting upon him not just to show that England is not the natural or appropriate forum for the trial but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is had to the fact that jurisdiction has been founded in England as of right (Spiliada, page 477). At this first stage of the inquiry the court will consider what factors there are which point in the direction of another forum (Spiliada, page 477; Connelly v RTZ Corporation plc [1998] AC 854, [1987] 4 All ER 335, at 871 of the former report). If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action that is likely to be the end of the matter. But if the court concludes at that stage that there is some other available forum which prima facie is more appropriate for the trial of the action it will ordinarily grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum (Spiliada, page 478; Connelly, page 872) but on whether the plaintiff will obtain justice in the foreign jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum (Spiliada, page 482; Connelly, page 872). It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused (Spiliada, page 482; Connelly, page 873)."

Advocate Godden submitted that the mother cannot discharge the burden placed on her to show that Jersey is not a more appropriate jurisdiction for this matter to be heard i.e. the first stage of the analysis.  However even if it were to be decided that the UK is prima facie more appropriate than Jersey, a stay should still not be granted in these proceedings because the circumstances are such that justice undoubtedly requires that a stay should not be granted, i.e. the second stage of the analysis.

28.      Advocate Godden submitted that the grant of a stay would lead to a delay in concluding these proceedings.  Any application to stay proceedings on the ground of forum should be made at the outset of proceedings before steps have been taken in the action and costs have been incurred.  He cited the case of Mansour v Mansour [1989] 1FLR 418 which held that:

"The application was very late. For my part, I think much the most important consideration was that the application was made so late.  If people want to raise the issue that the action would be more conveniently tried in a foreign court, they should do so at the very outset before costs are incurred in the proceedings....I think it is of paramount importance that any application of this nature, which in effect is in much the same position as an application based upon the proposition that the court has no jurisdiction, should be made at the outset and that no steps, or very minimal steps, should be taken in the action before it is made."

29.      The Court has a wide discretion under the Law that gives it considerable flexibility in deciding which country is the appropriate forum for determining matters concerning the child.  Whilst it is accepted that a child's interests are not paramount in these considerations they are nonetheless very important In Re V (Forum Conveniens) [2004] EWHC 2663 where Munby J said:-

"(i)      it is for those who seek a stay of the English proceedings to show that a stay is appropriate;

(ii)       it is, accordingly, for those who seek a stay of the English proceedings to show that the English Court is not the appropriate or natural forum;

(iii)      In considering whether the Rotterdam court is the appropriate forum (that is, the court in which the case may be tried more suitably for the interests of all the parties and the ends of justice) I must look to see where the case has the most real and substantial connection, for example, in terms of convenience,      expense, availability of witnesses, etc, etc.

[18]     In the course of argument there was a certain amount of debate before me as to whether, in deciding issues of forum in a case such as this, the child's interests are paramount, as Waite J held in (numerous cases cited) the child's interests are not paramount but nonetheless very important.

[19]     I have no doubt, with all respect to Waite J, that the latter is the correct view."

Although Mumby J did decide that the Dutch Court was the more appropriate forum, one of the factors he took into account was that the Dutch Court was already seised of the case, whereas that it is not the situation in these proceedings.

30.      Advocate Godden, whilst accepting that Article 15 of the Council Regulation (EC) No. 2201/203 ("Brussels II") is not applicable in Jersey Law, submitted that there are helpful overarching principles set out under the authorities in relation to the transfer of cases.  In N (Adoption: Jurisdiction) [2016] UKSC 15 the Supreme Court considered the proper approach to be taken on an application to transfer care proceedings to a Court in another member state under Article 15.  The Court considered the facts that have to be taken into account when asking which Court is better placed to hear the proceedings and whether the transfer is in the child's best interests.  The former question being linked to the procedural advantages and disadvantages of the competing forums, such as the ability to conduct assessments and taking evidence.  In relation to the child's welfare Baroness Hale stated:

"The factors relevant to deciding the question will vary according to the circumstances.   It is impossible to be definitive.  But there is no reason at all to exclude the impact upon the child's welfare, in the short or the longer term, of the transfer itself.  What will be its immediate consequences?  What impact will it have on the choices available to the Court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests.  It is deciding whether it is in the child's best interest for the Court currently seised of the case to retain it or whether it is in the child's best interests for the case to be transferred to the requested Court." (paragraph 44)

Decision

31.      As the father agrees that the child is habitually resident in the UK there is no need for comment on the law in this regard and the arguments with regard to acquiescence.

32.      As can be seen above, Advocates Glynn and Godden did not disagree on the law to be applied to this case.  I accept that the passages cited above clearly outline the matters which I had to consider in reaching my decision and I do not intend to repeat them.  Moreover, Registrar O'Sullivan recently considered the issue of jurisdiction in great depth in C v D.  I do not propose to repeat that judgment in detail but accept and adopt her findings on the law and the conclusions reached.

33.      It is clear that the issue of the child's residence can be dealt with in the UK provided that the Jersey proceedings are stayed.  I have to decide whether or not the Court in England is "clearly or distinctly more appropriate" than the Jersey forum.

34.      I do not agree with Advocate Glynn's submission with regard to the witnesses.  If the witnesses the mother wishes to call are willing to give evidence, I do not consider that it will make any difference to the content and relevance of the evidence if given via video link rather than in person.  Indeed, it has always been envisaged that the experts would give their evidence via video link. As the headnote in Re V states:-

"No real weight attached to the convenience of the witnesses, as in either case key witnesses would have to travel some distance to attend the hearing."

35.      The submissions that the incidents which the mother alleges have taken place in England, and that contact mostly takes place in England are not relevant or convincing reasons for executing a stay of the Jersey proceedings.

36.      I accept that the parties' lawyers might not yet have carried out much by way of preparation for the fact finding or final hearings, apart from the Scott Schedules.  However, the numerous hearings which have taken place with regard to contact and the evidence given during those hearings, may or may not have a bearing on the residence applications.

The background cannot be ignored and it would take a new judge a great deal of time to get "up to speed" with the facts of this case.

37.      The submission that the father might have difficulty in enforcing any order made in Jersey is not a sufficient reason for granting a stay.  It could be argued that the mother might have the same difficulty in registering a UK order in Jersey but mirror orders are regularly made in both jurisdictions.

38.      I agree with Advocate Godden's submission that this application for a stay should have been made much earlier in the proceedings.  In Mansour Lord Donaldson MR said:-

"The application was very late and may well have been a tactical move. For my part, I think much the most important consideration was that the application was made so late. If people want to raise the issue that the action would be more conveniently tried in a foreign country, they should do so at the very outset before costs are incurred in the proceedings".

Although the mother was not legally represented when she wrote to the Court requesting a transfer in June 2017 she did have legal representation from September 2016 to sometime in June 2017.  She took no steps to institute proceedings in the UK when she removed the child from the Island in August 2016.  The mother herself chose to issue the divorce proceedings in Jersey not in the UK.  Now is not an appropriate time to stay the Jersey proceedings and start again in the UK.  The mother has not applied for the stay of the divorce/ancillary relief proceedings.  The transfer of the proceedings in respect of the child to the UK would lead to the unacceptable position of children proceedings in one jurisdiction and divorce proceedings in another.  The additional costs to the mother and the father would potentially be enormous.

39.      One of my main concerns in considering whether or not to stay the Jersey proceedings, was the uncertainty as to when substantive English proceedings to determine the child's residence would likely be heard in the UK.  I asked Advocates Glynn and Godden to make enquiries of their UK Counsel but unfortunately neither could provide a likely timetable.  The fact that there are final hearing dates fixed in the Jersey proceedings played a great part in my decision, with the possibility that the child's residence might finally be determined in October rather than at some unknown time in the future.  I have taken into account Rule 4 of the Children Rules 2005 which sets out that the overriding objective is to deal with cases justly, expeditiously, fairly and with the minimum of delay.  The impact of moving the proceedings to the UK would clearly mean that the issue of the child's residence would not be dealt with expeditiously and would duplicate and increase costs which both parties have incurred to date.

40.      I accept Advocate Godden's submissions concerning the effect of these proceedings on the child.  The experts involved with the child have all expressed their concerns about his welfare and, in my opinion, any further delay in the proceedings would have a detrimental effect on the child's well-being to such an extent that in this case I take the view that the child's interests are more than just "very important".  Advocate Godden, quite rightly in my opinion, placed a great deal of importance on the relationship that Mrs Green, the JFCAS officer appointed as the child's Guardian, has built up with the child.  She has carried out a substantial amount of work both here and in the UK.  All of her time and expertise spent on this case would be wasted if the Jersey proceedings are stayed as it is highly unlikely that she would continue as the child's Guardian if proceedings are moved to the UK.

41.      In conclusion, applying the Spiliada analysis to the facts of this case:

(i)        It is upon the mother who seeks the stay to establish that the stay is appropriate.  She has not done so.

(ii)       The mother must show not only that Jersey is not the natural or appropriate forum, but that there is another available forum which is clearly or distinctly more appropriate.  The mother has shown that there is another available forum (but only if the Jersey proceedings are stayed) but she has not persuaded me, for the reasons set out above, that Jersey is not the natural or appropriate forum. There are real and substantial connections with the UK in terms of convenience, expense and availability of witnesses but in my opinion, as stated in Spiliada "there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country". In the case of James Capel (Channel Islands) Limited v Koppel and Fenchurch Trust Limited [1989] JLR 51 the Royal Court decided that the forum conveniens was Jersey, as the foreign defendant had not shown he would suffer an unfair disadvantage if the action were tried in Jersey or that the Jersey Court could not give more effective relief.  I do not consider that the mother will be unfairly disadvantaged by my decision.

42.      There are advantages and disadvantages for both parties whether the proceedings are in Jersey or the UK but on balance I decided that the Jersey proceedings should not be stayed.  

43.      This Court has to consider the costs to the parties if the case remains here or not.  If new proceedings were started in the UK, the costs incurred in relation to the considerable amount of work already done so far in the Jersey proceedings would be thrown away.

Authorities

Family Law Act 1986. 

Child Custody (Jurisdiction)(Law) 2005. 

Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460. 

Re F (A Minor) (Jurisdiction) [1991] Fam 25. 

C v D (Matrimonial) [2018] JRC 068A. 

De Sa v Luis [2009] JLR 44. 

In Lubbe v Cape Plc [2000] 4 All ER 268. 

Mansour v Mansour [1989] 1FLR 418. 

In Re V (Forum Conveniens) [2004] EWHC 2663. 

Council Regulation (EC) No. 2201/203. 

In N (Adoption: Jurisdiction) [2016] UKSC 15. 

Children Rules 2005. 

James Capel (Channel Islands) Limited v Koppel and Fenchurch Trust Limited [1989] JLR 51.