England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Connell)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday, 26th September 2000

Tuesday, 26th September 2000

1. LORD JUSTICE WARD: This is a tragic case in which the father of two young daughters seeks permission to appeal, firstly, the order of Connell J of 14th June 1999, although the order is dated the 16th; and, secondly, he seeks permission to appeal an order of Bennett J of 19th August 1999.
2. These are the unhappy facts of this case. The parents, who lived in Pakistan and who had married in Pakistan, had their home in Pakistan and allowed the girls to grow up there. The daughter, D, is just 13 years of age. The second daughter, M, was born in January 1989, so she is 11 years of age. The marriage of the parents broke down in February 1998 when the mother left the matrimonial home. She is, by all accounts, an intelligent woman; and, having seen the father in person, I have no doubt at all about his intelligence and his integrity. He is a police officer in Pakistan and, as I read the papers, must be a well-respected member of the police force there having been trained at some stage at the Massachusetts Institute of Technology.
3. The aftermath of the separation was that the wife applied to the Pakistan courts for orders for custody of the children to be in her favour. But, quite extraordinarily, on the very day that she made that application, 23rd May 1998, she left Pakistan with the children and came to this country and settled in Wales. She acted by subterfuge. Her conduct was thoroughly wrongful. It would have been judged so to be under the Hague Convention, had the Hague Convention applied between this country and Pakistan, which it does not, but, by any view of the matter, this was a case of international child abduction and is thoroughly to be condemned by every court.
4. It was so condemned by Connell J, who first had occasion to deal with the matter on 18th May 1999. There was an application made to him in wardship for the summary return of the children. In a considered judgment given by him, having heard the parties and having heard counsel, he ordered that the children should remain wards of court in order that he could receive further evidence as to the state of the law in Pakistan. He was influenced by a decision of the House of Lords in the case of Shah, an asylum case where concern had been addressed to the treatment of women in Pakistan, and he was concerned as to the rights she would have to a fair trial in that country. That evidence was duly obtained, and so the matter came back to the judge on the 14th June.
5. On that occasion the learned judge expressed himself quite satisfied that the courts in Pakistan would approach the child related issues in a judicial manner, applying the relevant law within a properly constructed judicial system. That appears from page four of his judgment. He recited the fact that under the law of Pakistan the father would be judged to be the guardian of the children and would carry parental responsibility and rights for the children, although, until puberty at least, the mother would be likely to be regarded as the most suitable custodian for the girls. His conclusion was to this effect:

"In summary, therefore, the mother could expect a proper trial in Pakistan of children based issues in accordance with the relevant law, which was, of course, the law to which this family was unquestionably subject until the mother's wrongful removal of the children to this jurisdiction in May 1998. In my view the courts in Pakistan would apply principles to the case, which, although different in emphasis from those which the courts here would apply, are nonetheless acceptable as appropriate in all the circumstances of this case."

6. In other words, the judge was quite satisfied that the mother would not be under any hardship were she to return to the country of habitual residence of these children. Nonetheless, he addressed himself in accordance with the judgment of Charles J in the case of Re Z Abduction Non-convention Country [1999] 1 FLR 1270, where the judge summarised a growing body of law on this subject in a way which I need not repeat but which seems accurately to describe the proper approach: that the welfare of the children should be the dominant consideration and the paramount concern of the court. So the judge dealt with the matter in conventional form along conventional lines.
7. Not surprisingly, Mr H feels (and I have, as I have indicated, a very real sympathy with his concern) that he at all times acted properly by approaching the authorities in Pakistan, obtaining an order from that court that the children be returned to Pakistan. That court, presided over by the senior civil judge, came to a conclusion that the mother's application should be dismissed.
8. Why, therefore, asks this father rhetorically, should effect not have been given to the order of that body of the court? It is a very powerful comment. The answer, however, is that, unfortunately, too much time has passed and too much change has occurred. The court has to have regard to the children's wishes and feelings. In this case the girls, although young, are absolutely and impeccably determined that they will not go back to live with their father.
9. The judge concluded at page 10:

"As to the father he is obsessed by the injustices which he believes have been inflicted upon him by the mother and is quite unable to accept what I conclude is the reality, namely that these children are now more attached to the mother than they are to the father, and that they have a genuine apprehension of the possibility that they might be required to live with their father in Pakistan."

10. He accepted evidence from a niece of the mother's family that she had seen the father in Pakistan and had never seen any closeness between father and children. Mr H complains about that evidence having been admitted when he could bring, he says, 35 witnesses from Pakistan to prove the contrary. But it seems to me that it is not actually the real point in the case. The real point in the case is as the judge expressed it at page 13:

"... my conclusion is that the resentment of the children at an enforced return would be such that the relationship between father and daughters would be likely to become damaged beyond repair."

11. He said at page 14:

"The children have now been in this jurisdiction for approximately 13 months. In this respect I make no criticism of the conduct of the father, who has followed proper procedures in an attempt to secure the children's return. But a return to Pakistan on that basis, within say three or four months of their arrival here, would have been much less damaging to these children who would not in those circumstances have put down such firm roots in Wales. As I have said, no doubt if they were to live with him, the father, assisted by his family, could make satisfactory arrangements for the physical care of these children. I have already recorded that on the evidence it looks as if his mother would provide the help which he forecast that she would provide, but the emotional damage to them would be significant and the relationship between the father and his daughters would, I believe, be damaged, probably beyond repair."

12. The judge took account of the cultural background of the children, who are practising Muslims. He took account of the father's wish, as a muslim who has his home in Pakistan, for the children to be brought back there and to live the life which they had been brought up to expect until their wrongful removal to this country. But the judge's conclusion was:

"... the best way of achieving this..."

13. (namely the improvement of a relationship between children and father)

"...is to take the pressure off these girls by removing from their lives the worry of an imminent return and to replace that with a structured plan for contact with the father, to include unsupervised contact here whenever the father can visit..."

14. In order to succeed on an appeal the father must show that the learned judge erred in law. There is, in my judgment, no prospect at all of showing that. He directed himself along perfectly proper lines. Alternatively, the father must show that the judge erred in the balancing exercise and reached a conclusion which was outside the generous ambit within which reasonable parents disagreed. That is a formidably difficult task; and in my view the judge has taken the right matters into the balance and has given weight to them, with which this court could not possibly interfere. In my judgment there would be no reasonable prospect of appeal in any event.
15. The position of the father is rendered even more hopeless, unfortunately, by the long delay in bringing this application. He did not apply for permission until the 17th April of this year, which is nearly nine months late. I have not dismissed the application on that ground alone, although on that ground alone one could say that the delay was inexcusable. He had solicitors and counsel acting for him during this period. The advice he was given was that his appeal would be hopeless. For that reason no steps were taken, so one could have dealt with it summarily. But in fairness to the father and because I have real sympathy with him, that is not the approach I adopt.
16. Unfortunately, however, as I think he recognised when subsequently seen by a consultant child psychiatrist in dealing with the contact problems, the psychiatrist records this at page 89 of the further evidence bundle:

"As far as the future is concerned, he" [that is the father] "would like to see the girls having an opportunity go back to Pakistan, but not now because he recognises that they may well have forgotten a lot of their relationships in Pakistan and they have put down roots in Wales and in their new school environment. In his heart of hearts he has a real fear that the children will never come back to Pakistan and that even if he returns there that they will not come back to see him and the paternal family."

17. That, I fear, may be the tragedy of this case.
18. The father's second application relates to an order made ex parte by Bennett J. That related to the contact difficulties that were being experienced. The mother became concerned -- and is this not a terrible case of the pot calling the kettle black -- that the father would abduct the children from this country. Hence she wanted to protect her position by ensuring that his passport and their passports were lodged with the court. Bennett J ordered that all passports relating to the father and to the children in his possession or control be handed to the mother's solicitors pending a further hearing of the court. That order was made on the 19th August and was directed to be heard inter parties on the 23rd August. It came before the court on 23rd August before Deputy Judge Miss Florence Baron, Q.C. She adjourned it until September to come before Bracewell J. She in turn sent it back to Wales to be heard by the section 9 judge in Wales. After innumerable interlocutory skirmishes, including the ordering of the psychiatric report to which I have referred, it was finally determined, according to the papers before me, on the 11th May of this year. The sad result was that the children are now so impeccably hostile to their father that they want no more direct contact with him, and the judge has so ordered. Poor Mr H acknowledges that today he has no prospect of appealing that order, and the result is that, unfortunately, there is nothing I can do to assist him at all, except to proffer the advice, which will not be well received, that if he does go back home, resumes his career, tries to establish the written contact with his children, it may just be that as they grow into adolescents and begin to wonder why they are missing their father, they will accept the offer he puts forward in tender and loving letters to pick up the threads again. That, I am afraid, is the only realistic hope he has and it is the only consolation I can give him.
19. Both the applications, I am afraid, are without any prospect of success and, with sympathy and with somewhat of a heavy heart, I dismiss the applications.
Order: Application dismissed.