Tsfjsw v. Tlt

FCMP 131 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 131 OF 2010

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JUDGMENT
(Stay of Proceedings)

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Introduction

1.This is an application by a Respondent father for a stay of proceedings dated the 28 September 2010. Prior to that application being filed the Applicant mother had also issued a summons pursuant to the Guardianship of Minors Ordinance, Cap 13 dated the 30 June 2010 seeking inter alia joint custody of the two children of the family with care and control to her and defined access to the father. She also sought leave to remove the children from the jurisdiction of Hong Kong from time to time for holiday purposes. On the 8 April 2011 the mother further issued a summons for periodical payments for the children. On the 21 April 2011 the father also issued proceedings in the Principal Registry in London seeking to vary an English order for shared residence. The hearing was on the 24 May 2011. Those proceedings have been stayed pending this judgment.

Issue

2.The main issue to be determined by the court is one of jurisdiction. Should the parties return to England and Wales in order to vary the original orders, in which case a mirror order can be made in Hong Kong? Or rather should the Hong Kong courts accept primary jurisdiction and make orders here which can then be mirrored in England and Wales? This is in a situation where the mother has been given leave by the English courts to permanently remove the children from that jurisdiction.

3.This case throws up some interesting issues in relation to jurisdiction where, as here, the family is a truly international one. It has Hague overtones, but it is not a Hague case. It also highlights the difficulties for all sides with respect to governance and enforcement. 

Background to the marriage

4.The parents are ethnically both of Asian descent. The Applicant mother describes herself as being originally from Hong Kong and Vietnam, but says that she was brought up and educated in England. She holds a British passport and a Hong Kong permanent identity card. The Respondent father is Singaporean and he holds a Singaporean passport. He says that he moved to England in 1992 to study medicine and has resided there since apart from a short period when the whole family moved to Singapore when his father was terminally ill. The parties met in England where they were both studying at the time. They are both medical doctors. They married in March 1999 and had two children who are the subject of the present proceedings, O who was born in July 2000 and is now therefore almost 11 years old and A, who was born in October 2002 and is therefore now, aged 8. In August 2004 the parties divorced. The wife has since remarried and has had a third child with her present husband, who is a banker. He is Canadian and holds a position in the international sector of a well known banking corporation necessitating some travel to locations within Asia, Africa and the Middle East. The father has also remarried. His wife, also a medical doctor, is German. They have also had a further child.

5.The English orders of most importance are the three orders dated the 6 August 2009. These were made following a substantive hearing before HH Judge Brasse to determine the mother’s application for leave to remove the children from the United Kingdom in order to reside in Dubai, which is where the mother’s second husband then worked. There were also subsidiary issues relating to contact. I have had the benefit of reading inter alia HH Judge Brasse’s judgment together with the CAFCASS report and the three orders in question. Leave was given for the mother to relocate to Dubai with the children. In the relocation order it declares inter alia as follows:

(A) that this order has been made by a Court of Competent jurisdiction of England and Wales;

(B) that the mother and father have been present during the whole of the hearing, have given evidence and have been legally represented;

(C) that this is a final order, which is enforceable in the jurisdiction of England and Wales

(D) that this order is not the subject of an appeal.

6.There is also an acknowledgment that the parties have equal parental responsibility:

And upon the parties acknowledging that they have equal parental responsibility (meaning all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child) for O and A and that important decisions relating to them will be made jointly, to include their health, education and religion.

7.The parties also agreed amongst other things

(d) To co-operate with each other in the obtaining of a mirror (attested) order in Dubai and in Singapore; specifically for the obtaining of the Dubai order, the father agrees formally to acknowledge the application once received by him, to sign the attestation notice and provide a signed copy of his passport for identification purposes;

8.It is stated that the children will reside with their mother save for specified period when they will reside with their father. In so far as the mirror orders are concerned it is ordered that:

12. The mother shall take all reasonable steps to obtain a mirror order in the courts in Dubai at her own expense as soon as reasonably practicable.

13. The mother shall take all reasonable steps to obtain a mirror order in the courts in Singapore at her own expense, to replace the order made there in 2005.

9.There is no undertaking by the mother to return the children to the jurisdiction of England and Wales if called upon to do so.

10.The residence and contact orders more or less repeat the terms of the first order. It is clear from this and the judgement itself that this is a shared residence order.

11.What happens next is factually at the centre of the present dispute. It seems that a mirror order was not obtained in Dubai, or for that matter in Singapore. Both parties give differing versions for the reason for this. Needless to say both blame the other. In any event I accept that the absence of any order in Dubai further complicates the issue.

12.On the 2 May 2010 i.e. 9 months or so after the relocation order the mother wrote to the father and informed him of her and her present husband’s decision to move to Hong Kong with the children. Understandably I think, it is a carefully crafted letter. The mother explains the reasons for the anticipated move and seeks to reassure the father that it will make no difference to his contact with the children. She then says

We intend to establish a free-standing order in Hong Kong, which will reflect the terms of the August 2009 English Order, with necessary adaptations to reflect, for instance the Hong Kong school dates.  Most importantly, the Order will reflect your continuing parental responsibility for the children and ensure that the children continue to spend a similar proportion of their school holidays with you as they do at present.  We then propose that Order could be mirrored in England and in Singapore.  We suggest that the current Mirror Order proceedings in Singapore should be adjourned until we have obtained the Hong Kong Order.

13.She says that they have started to investigate into possible school and asks the father to look at the web sites as “we value your input”.  She says that she will consult him before any final decision is made and will keep him informed once the situation has been clarified.

14.She ends by saying

We are moving to Hong Kong in early July; we would be most grateful if you would consider the contents of this letter and confirm your agreement in relation to the educational and other arrangements.  We will liaise with you via email with respect to the summer holiday arrangements and any changes to the agreed contact schedule necessitated by the new school timetable.  These changes will, of course, be kept to a minimum and will not affect the proportion of the school holidays during which the children are with you.

15.The difficulty with this letter is that it brooks no opposition. It is telling the father what will happen. There is no sense of a genuine consultation. The mother’s counsel has since tried to portray the father’s response as a tacit agreement. I do not accept that an e-mail concerning flights between Dubai and Singapore signify a tacit acceptance of the situation. The father’s substantive email in response dated the 10 May is clear:

While your move out of Dubai is not unanticipated despite your claims made in court, the move in less than a year of relocating the children to Dubai is shocking.  There are many concerns regarding this move, and of paramount importance is the unsettling nature for the children.  There comes a time when we have to put the children’s interest first, and providing them a stable environment is fundamental for their education and development.  The children are very fortunate that both of us are willing to take on the daily parenting role.  We are both starting a new family, but we should nevertheless ensure our children are not a lost bunch.

I do not need to reiterate the obvious advantages for the children to be in London over Dubai and Hong Kong.  I am perplexed by some of the apparent advantages you listed for Hong Kong.  Perhaps you will clarify so that we can discuss this matter.

16.The mother does not respond to his concerns but informs him of school visits in Hong Kong to take place from the 13 – 22 May.

17.In her substantive letter of the 25 May she reports back on the schools and some of the other issues raised by the father.  She adds:

During the visit we also met with Stevenson, Wong & Co. with respect to establishing a stand-alone order in Hong Kong, having provided them with a copy of the final English contact and residence orders from August 2009.  They assured us that while there would need to be some changes in the language to reflect the standards of the Hong Kong courts, that the main features and details of the English order can be incorporated.  We have formally engaged Stevenson, Wong & Co. and have asked that they have draft of the stand-alone order prepared for review in the first two weeks of July 2010.  Assuming the terms of the order are agreed by consent the process should be relatively straight-forward.

18.In reply on the 16 June the father again could not be clearer: 

Thank you for your email letter 25.05.2010 and email 02.06.2010.  You have presented your relocating the children to Hong Kong as a fait accompli and this is not acceptable.  I have not given my consent as you have not address my concerns. It is not appropriate to prepare the stand alone order in Hong Kong for review only after your proposed relocation to Hong Kong.  It will also be unnecessary if we agree on the terms mutually now.  Any attempt to relocate without an agreement will be deemed a breach of the Court Order 2009.

19.The mother responds on the 26 June inter alia in equally clear terms:

Hong Kong Order

We do not agree with your position with respect to a breach of the Final Order of 2009 or your assessment of the appropriateness of the timing or the establishment an Order in Hong Kong.  We are firmly of the view that establishing an Order in Hong Kong once the children are resident in Hong Kong is in everyone’s best interest.  As in most legal systems getting a hearing date will take some time, we are advised two to three months in Hong Kong, and consequently it is both appropriate and desirable to proceed without delay.

There will be a period of time to reach a mutually satisfactory agreement and the court hearing could then be used to ratify the agreement.

20.On the 30 June the mother issued her application before the courts in Hong Kong. The children had been in Hong Kong for three days. On the same day the father wrote to the mother and said as follows:

Hong Kong Order

I am disappointed that you have not chosen to agree on the terms before moving to Hong Kong.  I look forward to your proposal which I hope I do not have to contest.  You already have my views and I would suggest that any replacement order should not be detrimental to the nature and amount of contact the children have with me. Naturally, the children will remain in our “share residence”.

21.The father was only served with the mother’s application on the 13 August 2010.

The mother’s case

22.The mother says that the courts in England and Wales do not have jurisdiction to now deal with the matter or in the alternative that given that the children are now habitually resident in Hong Kong, that Hong Kong is the natural forum and that the matter should in any event be dealt with in this jurisdiction.

23.She has proposed, what she describes as a stand alone order. This almost reflects the three English orders. The main difficulty with it, is that it proposes joint custody with care and control to her and defined access to the father. Although she may argue that the terminology more closely reflects the reality of the situation, the fact remains that the English courts made an order that acknowledged joint and equal parental responsibility and ordered shared residence, as opposed simply to contact, which as I understand it would have been the alternative open to it. Mr Coleman SC argues that she is not to be blamed for the vagaries of our antiquated system (my words and not his), which is true. But it is also true that an order for either shared care or joint care and control would have been an alternative which would more closely resemble an order for shared residence. As it stands it does not seem to me that the draft order proposed mirrors the English orders in any event.

24.Mr Coleman SC has also sought to argue that no great reliance should be placed on this difference because, in his words

The making of such an order was clearly primarily to deal with TL’s [the father’s] own feelings that he might be marginalized.  There was no question of any finding that F [the mother] had marginalized TL, or would ever do so.

25.With respect I do not agree. The courts in England and Wales made the order they did after a full hearing and after having had the benefit of a detailed CAFCASS report. It was not a decision that was made lightly and it is not now open, in my view, to the mother to change this through the back door so to speak. If there is to be an order in Hong Kong that mirrors or reflects the English orders then it must truly do so.         

The father’s case

26.The father argues that in the first instance that England should retain primary jurisdiction and that a mirror order should be made in Hong Kong, in the same way as had been originally envisaged for Dubai. He also asks for a mirror order in Singapore.

27.The father is aggrieved by what he perceives as the mother’s efforts to affect a fait accompli. He complains, with some justification it seems to me, that the mother’s approach has been somewhat high handed. He seeks to draw an analogy with an abduction case. He maintains that the mother sought to keep him in the dark. In the words of his counsel Ms Remedios

Faced with the fait accompli, F took what he regarded as a realistic step: he offered to agree to a variation of the English Removal Order to take into account the fact of the further move.  However, he was not prepared to agree to M’s application to replace England as the appropriate forum: he considers that this would be tantamount to approving of her unilateral selection of the place to which the children shall be relocated and the forum in which she seeks ex post facto ratification.  Hence F seeks a stay.

28.I should add that that I have also been very aware that the parties have now been involved in ongoing litigation with respect primarily to the children for a considerable period of time and that to a certain extent both sides display signs of being somewhat “battle weary”. This may also explain in part the approach taken by both sides to the present application.

29.As an aside the father also maintains that an agreement had been reached and that without prejudice letters should be made available for my perusal. I declined at the end of the day to read those letters. I accept that this may become relevant at a later date on the issue of costs.

The law

Jurisdiction

30.As I have already said Mr Coleman SC for the mother argues that given that the children are now habitually resident in Hong Kong, that it follows that Hong Kong is the most natural forum to deal with this matter.

31.I accept that Hong Kong does have jurisdiction to deal with this issue. That cannot be seriously disputed. The issue is rather whether or not Hong Kong should accept primary jurisdiction or whether alternatively and in the first instance the matter should more properly be dealt with by the courts in England and Wales.

32.Mr Coleman SC seeks to rely on the English authority Re: I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 FLR 361 in support of his suggestion that it is at least arguable that England does not now have jurisdiction over this matter in any event. Re: I states that Brussels IIR Art 12 can apply to children resident outside of the European Union. In that case it was held that   

(1) The parties’ right of ‘prorogation’, to ‘opt in’ to the jurisdiction of an EU country which would not otherwise have jurisdiction to determine a child’s future, contained in art 12 of the Regulation, could apply to a child who was habitually resident outside the EU.  Nothing in art 12 limited jurisdiction to children who were resident within the EU. 

(2) In the instant case, the criteria in art 12(3) of the Regulation were made out. The child had a substantial connection with the member state as required by para (a); at the time the proceedings had begun, both parents had been habitually resident in the UK and the child was a British national.  More difficult question arose under para (b), such as whether the words ‘at the time the court is seised referred to a moment in time or to any time while the proceedings were continuing.  However, it was not necessary to resolve that question in the instant case because there had been unequivocal acceptance of the jurisdiction both before and after proceedings had begun.  The mother had plainly accepted the domestic jurisdiction.  Furthermore, the father’s conduct indicated his acceptance of jurisdiction both expressly and in an unequivocal manner from the outset of the proceedings.  Although he had recanted when the court itself had indicated that there might not be any basis upon which there could be jurisdiction, there was also a binding prior acceptance; he had given an undertaking to return the child to the domestic jurisdiction when required by the court to do so.  Finally, in the circumstances, the exercise of jurisdiction was in the interests of the child.  Accordingly, the appeal would be allowed and it would be declared that the courts of England and Wales had jurisdiction.   

33.I accept that at first flush in the event that I stay the proceedings here that there may be an argument over jurisdiction in England and Wales. According to the judgment itself art 12(3) of Council Regulation (EC) 2201/2003 provides that:

Article 12(3) of Brussels HR provides:

“The courts of a Member State shall … have jurisdiction in relation to parental responsibility in proceedings … where

(a) The child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and

(b) The jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.’

34.As in Re I, paragraph (b) may cause some difficulty.

35.The father points to the fact that the English order states that it is enforceable in England and Wales and maintains that the English courts must have jurisdiction over children who are British nationals and whose original relocation was not permanent. This may or may not be the case. I would prefer not to second guess how the English courts may approach this matter. I have noted that the mother did not give an undertaking to return the children to the jurisdiction of England if called upon to do so. Further there is no agreement or order that the matter should return to England in the event of further difficulty. The mother was not required to provide a surety, the existence of the mirror orders being deemed sufficient security for the children’s arrangements.

36.I have been referred to two other cases namely AP v TD (jurisdiction: Brussels II Revised Regulations) [2010] ALL ER 248, [2101] EWHC 2040 and Re: S (Residence Order: Forum conveniens) [1995] 1 FLR 314.

37.In AP v TD (jurisdiction: Brussels II Revised Regulations) [2010] ALL ER 248 the English courts retained jurisdiction even though the children were habitually resident in Canada and the Canadian court also had jurisdiction, particularly with respect to residence. The court inferred that the mother accepted the jurisdiction of the English courts by reason of her conduct. It was held inter alia that

(1) Once the parental responsibility jurisdiction has been established under Art 12(3), it cannot be terminated by the decision of a court in another country.  This must be particularly so where the application to the other court has been made unilaterally.

(2) … Both parents unequivocally and expressly accepted the jurisdiction of the court in respect of contact, and that it should endure.  The mother could not unilaterally withdraw her acceptance that the English court should have jurisdiction, by the issue of fresh proceedings in another jurisdiction.  To allow her to do so would undermine the whole purpose of Brussels IIR.

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(6) The same considerations did not apply to the issue of residence.  The children were habitually resident in Canada and the Canadian court had jurisdiction.  There is no bar in principle against proceedings in respect of different aspects of parental responsibility being heard in different jurisdictions, although it might be undesirable to do so, at this stage.  For the moment, it was in the best interests of the children that the court should retain jurisdiction in relation to all aspects of parental responsibility, so that the parties could concentrate on the way forward in one jurisdiction.  It was therefore a matter for the judge determining the contact application to decide whether residence should be resolved in England or Canada.

With respect it seems to me that the same could be said here.

Stay of Proceedings

38.I have been referred to the classic exposition of the principles in Spiliada Maritime Corp [1987] AC 470 as follows:

(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) in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. Each party will seeks to establish the existence of certain matters which will assist him in persuading the court to exercise 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 (see para (f) below).

(c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established …… .

(d) The question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. … the “natural forum” as being “that with which the action has the most real and substantial connection”.  So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business. 

(e) 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, it will ordinarily refuse a stay;

(f) If, however, the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted.  In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions.

Discussion

39.I am persuaded for reasons that are in part set out above that England is the more appropriate jurisdiction to deal with this matter in the first instance than Hong Kong. I accept that prima facie Hong Kong does have jurisdiction and that in the event that the English courts do not accept jurisdiction that a stay in this jurisdiction could then be uplifted. I am concerned that there should be some “governing jurisdiction”, in an environment where there is at least a possibility that the husband may be expected to relocate again to a jurisdiction that may or may not be a signatory to the Hague Convention. It does not seem to me to be sensible or reasonable for the parties to “start again” in the event of any or every possible relocation. The husband has, at least in the first instance, accepted that the original order in England and Wales should be upheld and that a mirror order be made here. I would urge him not to renege from this original stance.

40.I accept that notwithstanding that the children are presently resident in Hong Kong that the husband has been able to show that England is clearly the more appropriate forum. In particular I accept that there are real and connecting factors to England, including the fact that there has recently been a full hearing on all of the issues in dispute and mirror orders were ordered but not carried out. I am conscious of the fact that this is a truly international environment and that the children had only been in Hong Kong for three days when the mother’s application was submitted to the court. There is no guarantee that the children will remain in Hong Kong on a permanent basis or even on a long term basis. They are dual passport holders (UK and Singapore). Until recently the children had been long term residents of the United Kingdom. They were born there. The father, who has equal parental responsibility and a shared residence order, still resides there. It is clear that initially at least the parties submitted to the English jurisdiction and that it was contemplated that the order would be enforceable in England and Wales.

41.I do not accept the fact that a stay should not be granted by reason of the children’s habitual residence. Although undesirable I also accept that in some circumstances, and this case may be one of them, it is possible for two jurisdictions to deal with issues pertaining to children, if not in parallel, then within a reasonable period of time of each other. It may be for example that an English court will be happy to deal with issues arising out of the recent relocation and the mirror order, but refer issues pertaining to residence to Hong Kong.

Conclusion

42.I will therefore make an order that the proceedings be stayed. This means that in the first instance the matter should return to the principal Registry in London for adjudication.

43.There are clearly issues in relation to a possible agreement being reached previously. I have no doubt that there may be attendant cost implications in relation to that. However this is first and foremost a dispute concerning children and in those circumstances I will make an order nisi to be made absolute in 14 days time that there should be no order as to costs. In the event that one or either parties disputes this please write to the court for further directions. I should add that the mother’s solicitors wrote to the court on the 13 May 2010, after the hearing, seeking to put forward further proposals in relation to a possible mirror order. The father’s lawyers objected to the contents of that letter. For the avoidance of doubt this judgment has been written without reference to it.

Mr Russell Coleman SC instructed by Stevenson & Wong for the Applicant

Ms Corrine Remedios instructed by Ip & Heathfield for the Respondent