Kolah v Kolah [2015] EWHC 3877 (Fam)

Case No ZW 15 P 00773[2015] EWHC 3877 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 15 th December 2015
Before
MR JUSTICE HOLMAN(Sitting throughout in public)
Between
BEHZAD FAROKH KOLAHApplicantKASHMIRA BEHZAD KOLAHRespondent
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MR NICHOLAS WILKINSON (instructed by Zaiwalla & Co) appeared for ApplicantThe Respondent appeared in person for in person
JUDGMENT
[1]These parties have three children who range in age between 13 and 6. On 9th September 2015, their father issued an application in the West London Family Court seeking, amongst other matters, “a child arrangements order setting out when I will see the children”. That application, and indeed this case generally, was transferred for a directions hearing before a judge of the Family Division here at the Royal Courts of Justice by an order made by DDJ Carter on 19th October 2015.[2]The reason why it was transferred clearly emerges from paragraph 8 of that order, which recites that the court indicated:
“that in light of the ongoing proceedings in Singapore the court is not accepting jurisdiction today and is listing the matter before a judge of the Family Division to deal with the issue of jurisdiction.”
[3]The essential factual background to that concern by the deputy district judge with regard to jurisdiction is as follows. The mother of these children is British and they themselves are British. The father of the children is Indian. It appears that as a result of the course of the father’s employment, the parents, and the children with them, have lived in a number of parts of the world. About 15 years ago a property was purchased by the parties in Harrow which until very recently they had never in fact lived in but was, I suppose, some form of investment and a stake in the English property market.[4]Until recently, the mother and children had been living for a number of years in Singapore. There appear to have been some very intense proceedings between the parties before the courts of Singapore with regard both to child welfare issues and also to financial matters. In about June of this year the mother travelled to England with the children. Although this word was later withdrawn by Mr Nicholas Wilkinson, who appears today on behalf of the father, the word that was first used during the hearing this morning was that the mother had “abducted” the children from Singapore to England.[5]Despite that initial contention by the father, he himself does not seek that the children now return to Singapore. Paradoxically, the mother very strongly says that she does wish to return to Singapore with the children. The father says, however, that meantime he has obtained new employment here in England. He plans and wishes to remain in England, and wishes that his children should remain in England so that they are near to him and can spend periods of time with him.[6]The main issue now appears to be whether this mother may in fact return with the children to Singapore as she wishes, or whether she and the children must now remain here as the father wishes. It is against that background that the deputy district judge perceived there was an issue with regard to jurisdiction. It seems to me clear, however, that the courts of England and Wales do have jurisdiction in relation to these children. There is no connection at all with any other Member State of the European Union, and no connection at all with any other part of the United Kingdom or a specified dependent territory.[7]There may be some scope for argument as to whether the children have yet become habitually resident here. As I have said, the initial position of the father this morning was that they were children who had been abducted here, and the position of the mother is that she wishes to return with the children to Singapore. They have, however, resided here now for some six months and are at schools here. The house in Harrow is about to be transferred to the sole name of the mother pursuant to an order made in Singapore. At the moment, she and the children do not reside there, but that house is presumably about to be available as a home for her and the children, if she wishes.[8]Section 2 of the Family Law Act 1986 provides:
“A court in England and Wales shall not make a section 1(1)(a) order [which includes an order under section 8 of the Children Act] with respect to a child unless – (a) it has jurisdiction under the Council Regulation…, or (b) neither the Council Regulation… applies but – (i)…, or (ii) the condition in section 3 of this Act is satisfied.”
[9]Section 3 of the Act provides:
“(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned – (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory…”
[10]As I have said, there may be room for doubt as to whether these children are currently habitually resident in England and Wales, but they are certainly not habitually resident in any other Member State of the European Union. They are present in England and Wales. They are not habitually resident in any other part of the United Kingdom or a specified dependent territory.[11]Accordingly, it seems to me quite clear that the courts of England and Wales do have jurisdiction in relation to these children on the basis either that they are habitually resident here; or, although they are not habitually resident here, that they are not habitually resident in any other relevant State and are present here. For those reasons I determine on the issue transferred by DDJ Carter that the courts of England and Wales do currently have jurisdiction in relation to these children.[12]During the course of argument this morning the mother used the phrase of this court “taking” jurisdiction. That, in fact, is not a correct understanding or portrayal of what is happening. The father has issued his application which the court is, in fact, bound to entertain unless it concludes that the court does not have jurisdiction. I have concluded that the court does have jurisdiction for the reasons that I have given; and I, in fact, have no discretion not to accept and entertain the application of the father.[13]Clearly, this matter, which appears to be highly contentious on almost every aspect, will require to be resolved more locally to where the mother and children are living and does not require to be further heard by a judge of the Family Division here in the Royal Courts of Justice.[14]For those reasons, I will now transfer this matter back to the single Family Court sitting in the West London County Court. I will make directions for the progression of the case and for it to be heard by a full time circuit judge there with maximum judicial continuity.[15]Regrettably, there appears to be a dispute even with regard to interim contact. This case was listed this morning for 30 minutes as part of a long list. It has now occupied about 80 minutes of court time, and I simply cannot engage on the issue of interim contact. There must either be such contact as the parties are able to agree or else this matter must be listed for a short interim hearing before the allocated circuit judge in the West London Family Court on the first available date.[16]There are clearly huge issues between these parties with regard to finance. At the end of protracted proceedings in Singapore, apparently finalised only by an order as recently as 4th December 2015, the father was supposed to be paying to the mother 10,500 Singapore dollars per month, which is approximately the equivalent of £5,000 sterling. For many months now he has not in fact paid a thing. He says that he cannot afford to pay that amount. He says that online researches by him indicate that the most that he can be required to pay to maintain his three children under the law of England and Wales is £1,339 per month or thereabouts. He undertakes today that he will immediately make payment in that amount and monthly payments thereafter by standing order into the bank account, whose details the mother has given today. That undoubtedly leaves significant arrears of the order of £40,000 to £45,000 sterling, and leaves currently in place the subsisting order for maintenance made by the court in Singapore at a time when it was the court of competent jurisdiction.[17]How these financial matters will resolve in the future I cannot say, but the most that the father offers to pay today is the figure that I have mentioned, and I have no power or jurisdiction today to order him to pay any greater or different amount.