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Forum Disputes in Children Matters

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Forum Disputes in Children Matters Forum Disputes in Children Matters When a dispute arises as to which country should have jurisdiction in relation to matters concerning children, the focus is usually on where the child in question was habitually resident at the time the application was made. Habitual residence is an undefined factual concept which requires analysis on a case by cases basis but which usually looks to establish where the child was living on a regular (or habitual basis) and where they have their centre of interests (e.g. school, doctor etc.). An alternative for resolving jurisdiction disputes, particularly when no international conventions apply, is called forum non conveniens. This literally means ‘an inconvenient forum’ and it can be used to argue that a country should not be dealing with a matter because another country is better placed to do so. This debate arises more often in commercial cases or divorce cases where, for example, the dispute relates to property or people in a different country to where proceedings have been issued. It would therefore be inconvenient for another country to consider the dispute as, for example, they would not easily have access to witnesses or information. Forum non convieniens does not often arise in the context of children proceedings but this is exactly what happened in the recent case of Re K [2019] EWHC 466 (Fam). The Family Court had already established that the child in this case was habitually resident in England & Wales. The child had travelled to India with both parents for a temporary visit, however, the father then seized the child's travel documents and refused to allow him to return to England with the mother. One parent cannot unilaterally change a child's habitual residence without the consent of the other parent and so, despite the fact that the child was present in India at the time, the mother issued an application so the Court was satisfied that they were still habitually resident in England. The father tried to argue that England should not be dealing with matters concerning the child on the grounds that it was not the appropriate forum given the child's location in India and that therefore the proceedings in England should be stayed, or put on hold to allow India to deal with the matter. The mother tried to stop the proceedings in India by applying for an anti-suit injunction. This is a mechanism, again more commonly used in commercial matters, to bring an end to proceedings in another country. To be successful the mother would have to show, not only that England was the natural forum for the dispute, but that the proceedings in India were vexatious or oppressive. Both the father's application for a stay on the grounds of forum non conveniens and the mother's application for an anti-suit injunction failed. The Court held, in respect of the father's case, that he had failed to demonstrate that England was not an appropriate forum, nor that India was clearly more appropriate. In respect of the mother's application, the Court found that, whilst it could grant an anti-suit injunction in children proceedings, the circumstances in Page: 1 which it would do so would be very limited. This is because many of the reasons for an anti- suit injunction being required in commercial cases (e.g. avoiding irreconcilable judgments), were less relevant in children cases. In addition, the best interests of the child would be a primary consideration and the Court did not want to prevent a local Court in another country from being able to provide emergency relief for the child if necessary. In some ways this case highlights both how there can be similarity between commercial cases and children cases particularly in relation to disputes as to jurisdiction, but also how they are very different. At the end of the day, where the Court can exercise discretion a child's best interest will almost always be the deciding factor. Emma Nash [email protected] [2] The International Family Law Group LLP www.iflg.uk.com [3] © February 2020 Posted by Emma Nash [9] Source URL (modified on 10/03/2020 - 12:52pm): https://www.iflg.uk.com/blog/forum-disputes- children-matters Page: 2.
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