| NIFam 10||Ref:||McB10048|
|Judgment: approved by the Court for handing down||Delivered:||18 Nov 2016|
|(subject to editorial corrections)*|
Applications before the Court
(a) The father’'s appeal against the decision of the Family Proceedings Court sitting at Newtownards on 9 July 2014, whereby it refused his application to transfer the proceedings to a higher court, ordered that SY reside with her mother and further ordered that the father was not to remove SY from the jurisdiction of Northern Ireland.
(b) The father’'s application, under the inherent jurisdiction of the High Court, for the return of SY to Egypt.
(c) The father’'s application under the Family Law Act 1986, that the proceedings in Northern Ireland be stayed, on the basis that proceedings in respect of SY are either continuing outside Northern Ireland or that it would be more appropriate for decisions about SY to be determined in proceedings to be taken in Egypt.
(d) In the event that the father’'s applications for a Return Order and for proceedings to be stayed are both refused, the father seeks a Contact Order.
(e) The mother’'s application for an Occupation Order. This Order was granted in the Family Proceedings Court on 23 February 2015 and the proceedings were then transferred by the Family Proceedings Court to the Family Care Centre for onward transmission to the High Court to consolidate all proceedings.
(a) The court’'s refusal to transfer the case to a higher court was wrong in law and in fact as the case involved jurisdictional issues, conflict of laws and the need to invoke the inherent jurisdiction of the High Court.
(b) The court lacked jurisdiction to make any order as SY was not habitually resident in Northern Ireland.
(c) The court failed to have any or adequate regard to the father’'s Convention rights.
(d) The court failed to give any or proper regard to the welfare checklist.
Consideration of the Appeal
“"The following proceedings shall be transferred to the Family Division of the High Court:
(1) all cases involving the inherent jurisdiction of the High Court;
(2) abduction cases;
(3) all cases involving issues as to whether the Court has jurisdiction as opposed to another national jurisdiction;
(4) all cases involving the recognition and enforcement of orders made by the Courts of another national jurisdiction;
(5) all cases involving conflict of laws, inquiry into foreign jurisdiction or requirement for mirror orders;
Father’'s application for a Return Order
The relevant Legal Principles
“"… in all Non Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child … the child’'s welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-convention case.”"
And at paragraph 29 stated :
“"the focus has to be on the individual child in the particular circumstances of the case.”"
(a) The degree of connection of the child with each country. This involves a consideration of his nationality, where he has lived most of his life, his first language, his race or ethnicity, his religion, culture and education.
(b) The length of time he has spent in each country.
(c) The extent to which the legal system of the other country is different from our own.
(d) The impact of return on the primary carer.
(e) The factors set out in the welfare checklist as enumerated in the Children (Northern Ireland) Order 1995, namely:“"(a) the ascertainable wishes and feelings of the child concerned;
(b) his physical, emotional and educational needs;(c) the likely effect on him of any change in his circumstances;(d) his age, sex, background and any characteristics of his which the court considers relevant;(e) any harm which he has suffered or is at risk of suffering;(f) how capable of meeting his needs is each of his parents and any other person in relation to whom the court considers the question to be relevant;(g) the range of powers available to the court under this order in the proceedings in question.”"
Evidence before the Court
(a) Statements made by the mother on 1 July 2014, 22 May 2015 and 13 August 2015. In addition the mother gave oral evidence.
(b) Statements by the father dated 10 May 2015 and 16 June 2015. The father also gave oral evidence via Skype.
(c) Report by the Official Solicitor dated 14 September 2015.
(d) An expert legal report by Mr Sarwat Abd El- Shahid, lawyer of the Supreme Court in Egypt, dated 28 February 2016.
The Father’'s Case
• SY’'s main connection was with Egypt, given that both her maternal and paternal extended family resided in Egypt and the only family member who lived in Northern Ireland was her mother.
• SY is Egyptian in terms of her race, religion and culture and therefore Egypt would be the best place to meet and promote these needs. He expressed concern that these needs were not being met or promoted whilst SY lived in Northern Ireland.
• SY would benefit from the education system in Egypt as her academic progress was much greater in Egypt than it was in Northern Ireland.
• He was in a position to provide suitable accommodation and had the financial wherewithal to provide for SY’'s needs.
The Mother’'s Case
Official Solicitor’'s Report
Consideration regarding Return Order
(a) SY has been living in Northern Ireland for 3 years since the date of removal.
(b) The father has participated in proceedings in this jurisdiction since the date of SY’'s removal and during the course of these proceedings he informed Maguire J on 14 April 2015 that he had not sought an immediate return of the child due to her expressed views.
(c) There is no evidence before the Court that the removal of SY was unlawful. The expert legal evidence confirms that the mother had legal custody of SY at the time of the removal. There is no evidence that there was any legal impediment to the mother removing SY from Egypt and this view is corroborated by the fact the father, on foot of legal advice, sought to obtain a travel ban to prevent her removing SY from Egypt. At the time of the removal no travel ban was in place and therefore I am not satisfied that the father has established on the balance of probabilities that the removal was unlawful.
Degree of connection of the child with each country
 SY was born in Northern Ireland. She has lived in Northern Ireland for 11 out of her 14 years and holds an Irish passport. Her first language is English. She has received most of her education in Northern Ireland. Whilst she lived abroad she attended English speaking schools. SY informed the Official Solicitor that she regards Northern Ireland as her home, she is settled here and has made friends here. SY is of the Muslim faith and is Egyptian in terms of race and culture, although her parents hold dual British and Egyptian citizenship. SY can speak some Arabic. She has lived in Egypt for 1 year and her entire extended paternal and maternal families live in Egypt. She informed the Official Solicitor that she did not like her extended paternal family. Taking all these factors into account I find that SY has a much greater connection with Northern Ireland than Egypt.
Time spent in each country
Legal Systems in each country
Impact of return on the primary carer
“"The effect of the decision upon a child’'s primary carer must also be relevant, although again not decisive.”"
The mother is SY’'s primary carer. She gave evidence about how life in Egypt was intolerable due to the father’'s “"controlling behaviour”", the unsuitability of the accommodation and the father’'s physical and verbal abuse. The father denies that the accommodation in Egypt was unsuitable. SY, however, corroborated her mother’'s evidence, that the accommodation lacked running water and was in an unsafe area, when she spoke to the Official Solicitor. I therefore accept that the accommodation was unsuitable and that the area in which they lived was not safe. I also find that the father is “"controlling”" as evidenced by his application to the Egyptian court on 25 June 2013 to terminate the mother’'s legal and financial rights. I also accept the mother’'s evidence, which was again corroborated by SY in her statements to the Official Solicitor, that the father was abusive and violent to the mother.
Welfare Checklist Factors
“"Where, at any stage of the proceedings on an application made to a court in Northern Ireland for a [Part I Order]… it appears to the court-
(a) That proceedings with respect to the matters to which the application relates are continuing outside Northern Ireland …
(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside Northern Ireland …
the court may stay the proceedings on the application.”"
Relevant Legal Principles
(i) The court approaches a question of forum conveniens on the test set out in Spiliada Maritime Corporation v Cansulex Ltd  AC 460.
(ii) The burden is on the applicant for such a stay to persuade the court that the stay should be granted.
(iii) The welfare of the child is a relevant consideration in determining the question of convenient forum but it is not an issue, that determination to which the paramount principle in the Children Order applies.
(iv) If jurisdiction is established and if a stay is not imposed, then the court is free to go on to make more general welfare determinations with respect to the child’'s future.
(i) A stay will only be granted where the court is satisfied there is some other available forum having competent jurisdiction in which the case may be tried more suitably for the interest of all the parties and the ends of justice.
(ii) The burden of proof is on the party seeking a stay. If the court is satisfied another forum is appropriate, the burden shifts to the party wanting to keep the proceedings here to show special circumstances which require the trial nevertheless to take place here.
(iii) The court can consider whether jurisdiction is founded as of right.
(iv) The court looks to see which forum has the “"most real and substantial connection”" with the action, in terms of expense, convenience, the availability of witnesses, the law which governs the relevant issues which the court has to decide and the place where the parties respectively live or carry on business.
(v) If there is a prima facie more appropriate forum then a court will ordinarily grant a stay unless there are special considerations.
Consideration of the stay application
Application for Prohibited Steps Order and Contact Order.