A High Court judge has rejected a father’s application for a prohibited steps order to prevent his eight-year-old and almost seven-year-old daughters’ return to South Africa, accusing him of “blatant forum shopping and process shopping”. Following a welfare-based assessment, Mr Justice Mostyn decided that it was in the children’s best interests to return to the place of their habitual residence.
Sarah Havers, a senior associate in our Divorce and Family team, examines the recent decision in RE I & L (Children)  EWHC 893 (Fam).
Before the breakdown of the parents’ marriage in 2017, following allegations of the father’s alcohol abuse and domestic violence, the family had lived between the United Kingdom and South Africa.
In March 2017, the mother and her new partner moved with the children to the UK without the father’s permission. The father followed them to the UK and when the mother then sought the father’s consent to relocate the children to South Africa, he refused. The mother took matters into her own hands and removed the children to South Africa in September 2017 without the father’s permission and then went to ground. In late 2018, the father eventually located the mother just over a year after she had disappeared with the children.
Following a period of negotiations that started in June 2019, a detailed parenting agreement was signed by both parents in August 2019. The agreement provided for the mother and children to stay in South Africa and for the mother to be the primary carer of the children. It also provided for the father to have regular holidays with the children, including a visit by the children to him in the UK once a year for a minimum of three weeks and unlimited visits by the father to South Africa.
By agreement, the parenting plan was filed with the court in South Africa to be made into an order, although the sealed order had still not been received by the time this case was heard in England in April 2020.
In accordance with the parenting agreement, on 14 December 2019, the mother and the two daughters flew to the UK for the children’s agreed three-week holiday with the father. Their return flight to South Africa was booked for 8 January 2020. At this time, both the children and the mother had been habitually resident in South Africa for over two years.
On 18 December 2019, just after the children had started their Christmas holiday with him, the father filed an application in the High Court for a prohibited steps order to prevent the mother from returning to South Africa with the children on 8 January 2020.
The court found it had jurisdiction to deal with the application, despite the children having been in England for only four days when the father issued his application. An interim order was made, which prevented the mother and children from returning to South Africa until the welfare hearing on 7 April 2020. This meant that they had to remain in the UK for three months longer than planned, by which point the world was in the midst of the Covid-19 pandemic and South Africa had closed its borders.
The court’s decision
Mr Justice Mostyn was extremely critical of the father, whom he considered “guilty not only of blatant forum shopping but also of process shopping” and as having “doubly shopped to his advantage”.
Given that the parenting agreement had been negotiated and signed in South Africa, and filed with the South African court to be made into an order, the judge was clear that South Africa was the appropriate jurisdiction for any dispute regarding the arrangements for the children to be adjudicated.
The father’s actions in issuing an application in the English court when the children were temporarily present in the UK, which he considered would be a more favourable jurisdiction to him, were wholly transparent and heavily criticised.
Mr Justice Mostyn was also extremely critical of the father for selecting a legal process that he considered most favourable to him.
Had the father simply not returned the children on 8 January 2020, the mother would have issued an abduction application (under the 1980 Hague Convention). The court’s starting point in an abduction application is that the children should be returned to their place of habitual residence, ie South Africa, unless the father could demonstrate a defence as to why they should not be returned. In such an application, the children’s welfare would have been considered but would not have been the paramount consideration.
Mr Justice Mostyn considered that the father, in order to avoid that starting point, had struck pre-emptively by issuing an application for a prohibited steps order (under the Children Act 1989). This application required the children’s welfare to be the paramount consideration in deciding whether they should return to South Africa or remain in the UK.
Despite the father’s attempts both to forum and process shop, the court found that it was in the children’s best interests to return to South Africa and the father’s application was refused (although their return continued to be delayed as a result of the Covid-19 pandemic).
Richard Hogwood, Partner, comments:
“This case is a good example of how disingenuous behaviour and attempts to manipulate the legal process can quickly unravel when the matter comes under the scrutiny of the court. It also demonstrates clearly the English court’s dislike of blatant forum shopping. When embarking upon litigation, it is important that you take legal advice at the outset. That advice should consider the available forums and processes and, of these, which will avoid unnecessary criticism from the court.”
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