B e f o r e :
MR JUSTICE PEEL ____________________
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Herbert Anyiam for the Applicant Abiud Kaihiva for the 1st Respondent The 2nd Respondent did not appear and was not represented Hearing dates: 31 March 2021 ____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
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Mr Justice Peel:
The issue before me today is whether to make, on the application of the Mother ("M"), an anti-suit injunction against the Father ("F") requiring him to discontinue Nigerian proceedings pursued by him in respect of the parties' three children in circumstances where Lieven J determined after a contested hearing that (i) the courts of this country have jurisdiction over the children by reason of their habitual residence, (ii) England and Wales, rather than Nigeria, is the natural forum and (iii) the English court is substantively seized of ongoing proceedings concerning wardship and the welfare of the children.
The background
The children are aged 8, 7 and 5. All three children have been living with the F's brother (their paternal uncle) in Nigeria since July 2019 after they were abducted to that country by F. The paternal uncle is the second respondent to these applications, having been joined on 29 November 2019. Although he has been a party for over a year, he has not participated directly in any of the hearings, neither attending nor being represented. He has, however, filed evidence, and is well aware of this and previous hearings having been fully informed of them by the father and/or by the father's solicitors. Indeed, for this hearing I received a letter on his behalf from Nigerian lawyers complaining robustly about the courts of this jurisdiction purporting to exercise its powers over the children. It is quite apparent that the paternal uncle has no intention to assist in the return of the children to this country; on the contrary, he firmly opposes that course of action.
M and F married on 19 December 2010 in Nigeria under native law and custom, followed by a later statutory marriage on 4 January 2011. F was resident in England at that time, and in November 2011 M came to live in the United Kingdom on a spousal resident visa. All three children were born in England and lived here continuously after birth.
The marriage appears to have run into difficulties initially in 2015 and then broke down finally in 2018.
On 31 July 2019 F took the children to Nigeria for what he said was a four-week holiday, but was in fact a blatant abduction. He did not return them, and told M that she would never see the children again. Shortly afterwards, on 8 October 2019, F caused to be issued in Nigeria a petition for divorce based upon unreasonable behaviour, desertion and two years' separation. The petition is demonstrably false in parts. First, it gives M's address as being a village in Nigeria where she had not lived since 2011. Second, it states at paragraph 5 that after November 2016 F (i) lived continuously in Nigeria and (ii) the children lived with him; that is false on both counts. Third, it states at paragraph 11 that the children have been in the custody of F since 2016. That too is false. As found by Lieven J in a fact-finding judgment dated 16 March 2020, to which I shall return, "There is no possible dispute in this case that the mother was their primary carer before they were removed".
In the prayer of the petition, F sought custody of the children. No doubt because the incorrect address for M was given on the petition, it was not served upon her.
On 20 October 2019 F returned from Nigeria to England without the children, leaving them in the care of the paternal uncle in Nigeria. F was arrested and charged with child abduction. I am told that a criminal trial is due to take place at the end of this year.
Since the children were abducted, Mother has not seen them, nor has she even been able to speak to them. That is notwithstanding numerous orders for contact that have been made by Judges of this division which have been utterly ignored and flouted by both F and the paternal uncle. I have no doubt that the deprivation of even speaking to the children has been devastating for M. I equally have no doubt that the deprivation for the children of speaking to M has been highly damaging to their interests; neither F nor the paternal uncle appear to show any acknowledgment of what seems to me to be a self-evident proposition in the circumstances of this case.
On 8 November 2019, M applied for wardship and return orders.
On 21 November 2019, Lieven J made the children wards of court and ordered that F should return the children to this jurisdiction by 5 December 2019. They have remained subject to the wardship jurisdiction ever since.
On 29 November 2019, Lieven J varied that order to the extent that F was ordered to return the children by 13 December 2019. The paternal uncle was joined as second respondent and ordered to hand over the children to the care of the M's sister in Nigeria.
The matter returned on 10 December 2019 before Cobb J. On that occasion F asserted that M had consented to the removal of the children on a permanent basis on 31 July 2019, and that the whole family had planned to relocate from England to Nigeria. He also asserted that at the time of M's application for a return order, the children were not habitually resident in this country. Finally, he asserted that Nigeria rather than England is the appropriate forum for issues relating to the children. As a result, Cobb J stayed various parts of the previous orders, including the return order and the order against the paternal uncle to hand over the children to the maternal aunt, until determination of (i) the habitual residence of the children and (ii) forum conveniens. At that hearing M was informed by F for the first time of the existence of the Nigerian divorce proceedings.
The two issues identified by Cobb J came before Lieven J on 16 March 2020. It was a fully contested hearing. She received oral evidence. She reached three clear conclusions, having reviewed both the evidence and the law:
On 15 June 2020, F obtained from the Nigerian court an order within the divorce proceedings preventing M from removing the children from Nigeria. M was not notified of the application or the date of the hearing which led to that order being made.
On 13 July 2020, and because of the competing proceedings in Nigeria, an order was made by Lieven J for expert evidence on Nigerian law to be obtained in order to assist this court.
On 17 September 2020 M applied for an anti-suit injunction against F.
On 25 September 2020, M lodged an Answer to the Nigerian divorce petition.
On 29 October 2020 the joint appointed expert reported on Nigerian law. The report is clear and comprehensive. The author is a barrister, called to the Bar both in this jurisdiction and in Nigeria. He has practised English and Nigerian family law, and he has all the necessary qualifications and expertise to provide an expert opinion in this case. His conclusions, in summary, are as follows:
On 19 November 2020, no doubt as a result of the contents of the expert opinion, M applied to set aside the order of 15 June 2020 made in Nigeria. A hearing took place in Nigeria on 23 March 2021, which was adjourned to 17 May 2021.
On 25 February 2021, at a hearing attended by M and F, and their representatives, I gave judgment and made an order which included the following;
Neither F nor the paternal uncle has complied with the orders. Nor has F made any attempt to fulfil the court's expectations as to the Nigerian proceedings. He has taken no steps to discharge or vary as appropriate. In short, they both continue to disregard orders of this court.
F, through counsel told me that he had done his best to secure the withdrawal of the Nigerian proceedings relating to the children, including instructing his lawyers to do so. However, he has produced no evidence of this at all. The letter from the Nigerian lawyers sent on behalf of the paternal uncle, who are the same lawyers instructed by F in the Nigerian proceedings, says nothing about attempts made by F to ensure the return of the children by taking appropriate steps in the Nigerian court. On the contrary, as I have indicated, the said letter trenchantly objects to the involvement of the English court. If F had instructed his lawyers to take the required steps, they would no doubt have acted on his instructions to do so. Alternatively, he is able to act in person and enter into the appropriate consent order with M's Nigerian lawyers. The suggestion that the paternal uncle controls F's legal proceedings is not made out. I therefore do not accept that it is beyond his ability to discontinue or amend his Nigerian application as appropriate so as to ensure that there is no obstacle under Nigerian law to a return of the children to this jurisdiction.
An application for committal will no doubt follow in due course.
Anti-suit injunction
I am invited by M to make an anti-suit injunctive order in the same terms as those reflected in the recital to my order of 25 February 2011.
The starting point is s37 of the Supreme Court Act 1981 which provides:
"(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.
(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just."
McFarlane LJ said in Mustafa v Ahmed [2014] EWCA Civ 277:
"13. In South Carolina Insurance Co. v Assurantie Maatschappij "De Zeven Provincien" NV [1987] AC 24 the House of Lords held that, although the power of the High Court to grant injunctions under [Senior Courts] Act 1981, s 37(1) was very wide, it was, in effect, limited to two situations:
i) Where one party to an action can show that the other party has either invaded, or threatened to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court; ii) Where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable to the prejudice of the other party.
In Airbus Industrie GIE v Patel and Others [1999] 1 AC 119 at 133D Lord Goff summarised the nature of the anti-suit injunction jurisdiction:
"The broad principle underlying the jurisdiction is that it is to be exercised when the ends of justice require it."
In the context of family law, a "Hemain injunction", deployed to prevent one party from pursuing divorce proceedings overseas where there is an existing divorce suit in this country, is the most familiar species of anti-suit injunction. As Baker J (as he then was) pointed out in S v S [2010] 2 FLR 502 a "Hemain" injunction is an interim remedy designed to hold the ring while the competing courts determine which has jurisdiction.
There is no reported authority to my knowledge of an anti-suit injunction in the field of children law being granted. In K (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 Williams J at paragraph 40 said:
"Counsel have been unable to locate any reported cases in the field of children in which the use of the jurisdiction has been argued. In Hallam v Hallam [1992] 2 FCR 197, sub nom H v H (minors) (forum conveniens) (Nos 1 and 2) [1993] 1 FLR 958 and Hallam v Hallam (No 2) [1992] 2 FCR 205, Waite J made an anti-suit injunction to prevent the father continuing to litigate in the USA after Waite J had determined England was the appropriate forum. He assumed the jurisdiction existed."
In my judgment it would be extraordinary if the jurisdiction does not extend to children law. There is no logical reason in law or as a matter of fairness why the remedy, available elsewhere, would not be exercisable where appropriate. I am satisfied, as was Williams J, that the jurisdiction does exist.
The question then is what principles to apply.
The established justification for an anti-suit injunction requires fulfilment of 4 criteria.
First, the English court must have personal jurisdiction over the Respondent in respect of the dispute. If the English court has jurisdiction over the substance of a dispute to which the Respondent is a party, then it will ordinarily have personal jurisdiction over the Respondent; Masri v CCIC (No 3) [2009] 2 WLR 669 . Usually, an injunction is sought ancillary to existing or pending proceedings and the requirement is easily satisfied. Relief cannot be granted unless valid service on the Respondent can be effected: Airbus Industrie GIE v Patel [1999] 1 AC 119 . Thus, a person outside the jurisdiction may nevertheless fall within the personal jurisdiction of the court if s/he can be served and is a party to substantive existing or pending proceedings.
Second, "the English forum should have a sufficient interest in, or connection with, the matter in question to justify the direct interference with the foreign court which an anti-suit injunction entails"; Airbus Industrie GIE v Patel [1999] 1 AC 119 . This will usually require an inquiry into the nature of the substantive proceedings.
Third, there must be an appropriate ground for obtaining relief. The applicant must demonstrate some form of unconscionable conduct on the part of the Respondent which justifies the injunction being granted. Commonly this is found in contractual applications where the parties agree an exclusive jurisdiction for resolving disputes, but one party then brings a claim in a country other than the contractual forum. In non-contractual applications, examples include restraining a subsequent foreign action proceeding in parallel with an action established in the English courts: hence the source of the Hemain injunction. The applicant must demonstrate that the bringing or continuing of those foreign proceedings is unconscionable (which can include oppressive or vexatious behaviour); an example is evidence of bad faith where the Respondent is exerting extreme pressure on the Applicant, as in Cadre SA v Astra Asigurari SA [2006] 1 Lloyds Rep 560.
Fourth and finally, if all of the above are satisfied, the court must then exercise a discretion whether or not to grant an anti-suit injunction; Star Reefers v JFC Group [2012] EWCA Civ 14 . In so doing the court will have regard to all the circumstances which include the facts upon which the application is based, the connections with each jurisdiction, the nature of the substantive proceedings both in this jurisdiction and in the foreign jurisdiction, the principles of judicial comity, the circumstance in which the foreign proceedings are brought, the balance of prejudice to each party depending upon whether the injunctive relief is or is not granted, and any other relevant matters. In the case of children, the exercise would surely also consider their welfare.
The principles are neatly brought together by Toulson LJ (as he then was) in Deutsche Bank AG v. Highland Crusader Offshore Partners LP [2010] 1 WLR 1023 at [50]:
In the end, F did not object to an anti-suit injunction being made, and I hope that the court in Nigeria will take this into account at the next hearing there, for it must be in the interests of these children to be returned to this country where both their parents live, rather than remain living with their paternal uncle.
Applying these principles to this case:
I make the order sought. It will be expressed in mandatory terms i.e F will be ordered to take the steps required of him in the Nigerian courts.