Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Marcus Scott-Manderson QC (instructed by Haydens Solicitors) for the Respondent
Hearing dates: 14 and 15 July 2016
Crown Copyright ©
Mr Justice MacDonald:
i) The father confirms in his statement that when the mother fell pregnant it was his hope that they could "build a family together";
ii) Prior to the birth of N, the father's enquires as to where best to have the mother give birth to N were made on behalf of himself and the mother;
iii) The mother contends that the parents holidayed together, which fact the father concedes;
iv) Prior to the birth of N, emails from the father tend to indicate that the father considered the mother to be "my partner" and that the parents were residing together in "our apartment";
v) When registering N's birth on 23 June 2014 the father described the mother as a "full time mother", which description was entered on N's British birth certificate;
vi) Following the birth of N and the return of N and the mother to Azerbaijan, once again the emails from the father tend to indicate that the parents were co-habiting with N as residents in the apartment, which apartment was considered to be the family home;
vii) The father contends that he and the mother would at times discuss moving to England as a family;
viii) In an email dated 6 September 2015 the father describes that he has "recently split up with the mother" and that he is "very concerned at the conditions she is now keeping my son in";
ix) In his complaint to the Baku Police following the incident between the parents on 8 February 2016 the father is recorded as reporting that he was residing with the mother unofficially in their apartment (although at a later point he claimed they were living separately);
x) In his statement of 30 March 2016 the father contends that the mother is "not fit mother, she leaves the baby goes out";
xi) When speaking to CAFCASS on 15 April 2016 the father spoke in terms of "his relationship" with the mother;
xii) The father concedes in his statement that the mother cared for N each weekday whilst he was at work from 7am to 5pm, he contending that he would care for N in the evenings and for "nearly all" weekends;
xiii) Whilst the father contends that he looked after N overnight it is the mother who in her statement provides the details of what this involved in terms of N waking every four hours and her doing the night feeds. The father's statement is silent on the details of his care in the periods during the night he asserts he was caring for N.
"This is to certify that [N], date of birth: [date given], is recognised as a citizen of the Republic of Azerbaijan subject to the Article 4.1.5 of "Procedures to determine citizenship of the Republic of Azerbaijan of a person" approved by Decision No 84 dated 18.03.2015 of the Cabinet of Ministers of the Republic of Azerbaijan".
"Your contract with the company is endless. But you are assigned to project with Client which currently is signed until November 2016. Your contract with X is subject to the prolongation of this project. Or if Company can find another position for you."
THE EXPERT EVIDENCE
i) Pursuant to Art 440.1 of the Code of Civil Procedure of the Republic of Azerbaijan 2000 (CCPAR 2000), in civil and economic cases, if one of the parties is a foreign national, having his or her place of residence, location or place of usual attendance in the Republic of Azerbaijan, the Azerbaijani court will have jurisdiction.
ii) The family law of the Republic of Azerbaijan is primarily aimed at those family relationships which are legally recognised and registered before the State. However, by virtue of Art 5 of the Family Code of the Republic of Azerbaijan (2000) (FCAR 2000), which deals with "Application of Family and Civil Legislation to Family Relationships by Analogy", it is possible to apply the principles of the family law of the Republic of Azerbaijan to "similar" family relationships by analogy.
iii) Art 48 of the FCAR 2000 confirms that children born out of marriage have equal rights and obligations.
iv) Pursuant to Art 58.2 and Art 60.3 of the FCAR 2000, questions regarding the upbringing and education of children are decided on the basis of the mutual consent of the parents having regard to the rights and interests of the children.
v) In cases where there is an absence of agreement between the parents as to the custody of the child then, pursuant to Art 22.2.1 of the FCAR 2000, the determination of that dispute is left to the discretion of the court within the context of the following principles:
a) Art 3 of the FCAR 2000 is aimed at providing comprehensive protection of the interests of mothers and children and ensuring a happy life for every child;
b) Art 5 of the Law on the Rights of the Child of the Republic of Azerbaijan 1998 (Azerbaijan ratified the United Nations Convention on the Rights of the Child on 13 August 1992) prioritises the best interests of the child and Art 18 of the LRCAR 1998 recognises the right of a child to communicate with a parent who lives separately from the child;
c) The non-binding Resolution of the Plenary Session of the Supreme Court of the Republic of Azerbaijan on The Implementation of Legislation by the Courts in the Cases of Dissolution of Marriage, Child Custody, Claim of Withholding Alimony for Children was adopted to assist courts in resolving disputes of child custody, which non-binding Resolution has to have regard, when considering the importance of the child's welfare, to (1) the age of the child, (2) the opinion of the child, (3) the child's relationship with each of the parents and siblings, (4) the moral and other characteristics of the parents, (5) relations between the child and each of the parents, (6) competence of the parents to create conditions for the education and cultivation of the child and (7) other circumstances related to the residential area/place of each parent. The non-binding Resolution further provides that pecuniary advantages cannot be taken into account as "a decisive standard" and the parent having care of any siblings should be preferred.
vi) Where there is no consent regarding the place of residence of the child (as distinct from the custody of the child) pursuant to Art 60.4 of the FCAR 2000 the court will decide the issue primarily taking into account the rights and interests of the child, the opinions and other circumstances of the child (including the attachment of the child to his or her siblings as well as the parent, the behaviour and other characteristics of each parent, the child's age and the possibilities for creating conditions for their development and education) and the terms of Supreme Court of the Republic of Azerbaijan on The Implementation of Legislation by the Courts in the Cases of Dissolution of Marriage, Child Custody, Claim of Withholding Alimony for Children as set out above.
vii) The principles of Azerbaijani law applicable to determining disputes as to custody and residence will apply to the father and N in this case. Pursuant to Art 153 of the FCAR 2000:
"The rights and duties of parents and children, including the duties of parents to maintain the child, shall be established in accordance with the legislation of the country in which they live together. In the absence of shared residency of children and parents (father / mother), the rights and duties of children as well as parents (father / mother) shall be defined in accordance with the legislation of the country of nationality of the child. At the request of the plaintiff, for alimony liabilities and other relationships that may exist between parents and children, the law of the country in which the child permanently resides can be applied."
viii) The general timescales for determination of an application filed by a citizen of the Republic of Azerbaijan to state of authorities is 15 days pursuant to the Law on Applications of Citizens of the Republic of Azerbaijan, although this can be extended to 30 days if there is a need for necessary assessments but cannot be extended for a period greater than three months. Claims involving alimony must be dealt with within one month (CCPAR 2000). Timescales for applications by foreigners are not covered in the legislation.
ix) Where there are restrictions on the ability of either parent to relocate a child to another jurisdiction, the notarised consent of the other parent to that relocation is required pursuant to Art 11.2 of the Migration of the Republic of Azerbaijan (2013) (MCAR 2013). The FCAR 2000 does not articulate a formal procedure for an application to court for permission to relocate with a child. Further, in circumstances where N is not an Azerbaijani citizen for the reasons set out below, there are no restrictions imposed on the removal of N from Azerbaijan.
i) The court has the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits.
ii) Any court determining any question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration.
iii) There is no justification, either in statute or case law, for extending the principles of the Hague Convention on the Civil Aspects of International Child Abduction 1980 to countries that are not parties to that Convention (which Azerbaijan is not).
iv) In the circumstances, in all non-Convention cases the court must act in accordance with the welfare principle. If a return order is made, it must be because the child's welfare, as the court's paramount consideration, demands it.
v) Summary return should not be the automatic reaction to every unauthorised removal but summary return may very well be in the interests of the child. The court may find it useful to start from the proposition that it is likely to be better for a child to return to his or her home country for any disputes to be decided there, although the weight to be given to this proposition will vary enormously from case to case.
vi) Kidnapping is strongly discouraged, like other forms of unilateral action in relation to children, but that discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the prompt return of the child to their own country but not by sacrificing the child's welfare to some other principle of law.
vii) The focus in each case has to be on the individual child in the particular case.
" The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.
 One important variable, as indicated in In re L  1 WLR 250, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his "home" country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.
 Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return."
And at :
" The effect of the decision upon the child's primary carer must also be relevant, although again not decisive. A child who is cared for by nannies or sent away to boarding school may move between households, and indeed countries, much more readily than a child who has always looked to one parent for his everyday needs, for warmth, for food, clean clothing, getting to school, help with homework and the like. The courts are understandably reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes be necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so, and what is to happen to the children if she does not."
"The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on, should be made."
 Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. Once upon a time it was assumed that all very young children should be cared for by their mothers, but that older boys might well be better off with their fathers. Nowadays we know that some fathers are very well able to provide everyday care for even their very young children and are quite prepared to prioritise their children's needs over the demands of their own careers. Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery were only fit to care for their children if the father agreed to this. Nowadays we recognise that a mother's misconduct is no more relevant than a father's: the question is always the impact it will have on the child's upbringing and wellbeing. Once upon a time, it may have been assumed that there was only one way of bringing up children. Nowadays we know that there are many routes to a healthy and well-adjusted adulthood. We are not so arrogant as to think that we know best.
 Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known "check-list" in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child's point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.
 In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Hughes J put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight."
"…the optimum programme for a child's future will substantially be identified by reference to past events; to the personality, abilities and needs of the child, and of those around the child, whether parents, siblings or others, and to the relationships between them, as illumined by past events; and to the physical, emotional, social and cultural milieu in which the family lived; and that all these matters, including in particular any resolution of factual disputes relating to past events, are more satisfactorily addressed in the courts of that state."
i) Pending the first inter partes hearing in the Azerbaijani court in my judgment it is in N's best interests for his living arrangements to reflect broadly the position that the evidence tends to suggest pertained prior to the parents' separation, namely that the care of N was shared. In the absence of contrary agreement between the parties, I am satisfied that it is N's best interests that the mother should care for him from Monday to Friday each week and the father should care for N from Friday to Monday each week. It will be for the court in Baku to consider any amendments to this arrangement at the first inter partes hearing;
ii) Prior to the return of N to the jurisdiction of Azerbaijan, and without prejudice to any submissions the mother or the father may seek to make regarding jurisdiction in the Azerbaijani court, the mother and the father should, subject to confirmation being sought, declare and confirm to the court that:
a) No warrants for arrest are in existence in Azerbaijan in respect of either the father or the mother;
b) No orders in Azerbaijan or other legal processes in Azerbaijan are in existence which remove the parental rights of either parent, which regulate the physical custody care and control of N or which limit in any way the freedom of movement of the father to move freely into and out of the jurisdiction of Azerbaijan;
iii) The mother and the father should each give the following undertakings to this court (which undertakings will not prevent either parent from referring to any facts relating to allegations of removal or domestic violence in the factual determination of any issue in the Azerbaijan Court with regard to determining the welfare issues in respect of N or other civil proceedings between the parties arising out of their relationship):
a) Not to institute, continue or support in Azerbaijan or elsewhere any process, determination or proceedings or seek any warrants for arrest or other orders or process, whether criminal or civil, for the punishment of each other (whether by imprisonment, arrest, fine or howsoever otherwise) arising from the removal or retention of N;
b) Not to institute, continue or support in Azerbaijan or elsewhere any process, determination or proceedings or seek any warrants for arrest or other orders or process, whether criminal or civil, for the punishment of each other (whether by imprisonment, arrest, fine or howsoever otherwise) arising from any allegation in respect of each other occurring prior to the date of N's return to Azerbaijan in accordance with the terms of the return order;
c) Save in a case or urgency, not to make any applications or seek any orders, including any without notice applications, pending the first inter partes hearing on notice in a Court in Azerbaijan at which orders may be made in respect of the physical care and control and contact in respect of N, save to list the matter on notice to the other on a date not earlier than two full working days following the return of N;
d) To jointly and promptly send copies of these undertakings with translations to the appropriate court in Azerbaijan and to the Ministry of Justice in Azerbaijan and to provide evidence of the same not less than two working days prior to the return;
e) At all times following the return of N to Azerbaijan, to facilitate, support and not to seek to limit or restrict in any way, the full and absolute personal freedom of movement of each parent to freely enter and to freely depart Azerbaijan without N;
iv) The mother should undertake to support (in so far as she is able to do so) prompt resolution of all Azerbaijan immigration applications of the father in order for the father to be able to exercise his parenting time with N.