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22 JUL 2014

O v P [2014] EWHC 2225 (Fam)

O v P [2014] EWHC 2225 (Fam)
(Family Division, Baker J, 4 July 2014)

The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 77

Financial remedies – Children Act 1989, Sch 1 – Jurisdiction – Father’s conduct

The full judgment is attached below

Proceedings in relation to the, now 17-year-old, young person had been ongoing for 14 years and were initiated by an application under Sch 1 of the Children Act 1989 for financial provision in respect of the child. Proceedings had also taken place in Australia in relation to the child when the mother took the child after the father had made threats to kill her. The father was found guilty of incitement to commit murder in respect of the mother and child and sentences were imposed of 12 years, 6 years and 18 months’ imprisonment in Australia. He was not due to be released until 2018.

The mother was granted permission to relocate to Australia with the child and had been living there for 10 years, but their exact location was not disclosed to the father or the court. In a previous judgment the court found the child was habitually resident in England and Wales at the time the Sch 1 application was made and, therefore, the English court had jurisdiction to hear the application.

The mother’s application was revived after one of the father’s properties was sold and a freezing order was imposed on the father’s share of the net proceeds of sale.

The father applied to the child support agency in Australia for an assessment of his liability in respect of the child which was eventually assessed as nothing. An Australian expert informed the court that it had no power to make an award which pre-dated the child support assessment and, therefore, the mother could not recover arrears in Australia.

The father’s application for child arrangement orders from the Australian court was dismissed on the grounds that the English court was exercising jurisdiction. Proceedings were adjourned on numerous occasions but the father sought to revive his argument that the proceedings should be stayed on the grounds of forum non conveniens. He also filed applications in Australia seeking child support and lump sum orders to be assessed at nil.

When the matter was set down for a final hearing the court had to first consider the father’s application for a stay and whether the court had the power to do so having regard to the European Regulations and inter alia the decision in Owusu v Jackson (Case C-281/02) [2005] QB 801 and if so, whether a stay should be granted.

The judge applied to reasoning in JKN v JCN (Divorce: Jurisdiction) [2011] 1 FLR 826 and Mittal v Mittal [2013] EWCA Civ 1255 and held that the decision in Owusu did not apply in proceedings for financial provision in respect of a child where there were parallel proceedings in a non-contracting State such that the court had the power to grant a stay.

Baker J refused to grant a stay because: a substantial part of the mother’s claim, prior to 2010, could not be litigated in Australia; the application for a stay was made at a very late stage; there were gaps in the documentary evidence in the English proceedings but they were not so serious as to lead the court to conclude that the mother’s claim could not be determined fairly to both sides; although conducting the trial on the father’s behalf presented considerable challenges for his representatives, they were not insuperable.

In determining the mother’s substantive application the judge accepted the mother’s submission that the overwhelming influence over her life in the last 14 years had been the threat to her safety posed by the father which had profoundly affected both her and her child’s life. That had also affected her earning capacity. It was impossible to disregard the father’s conduct.

The mother was awarded £182,757 from which interim payments were deducted and a further award was made for the child’s tertiary education costs.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Case No: FD00P00001

Neutral Citation Number: [2014] EWHC 2225 (Fam)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/07/2014

Before :


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Between :


O Applicant
- and -
P Respondent

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Henry Setright QC and Stephen Lyon (instructed by Thomson Snell and Passmore) for the Applicant
Susan Jacklin QC and Caroline Willbourne (instructed by Kingsford LLP) for the Respondent

Hearing dates: 7th, 8th, 9th, 10th and 30th April 2014

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Please see attached file for the full judgment
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