England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
FAMILY DIVISION
(Her Honour Judge Darwall Smith)

		Royal Courts of Justice Strand London WC2 Tuesday, 3rd July 2001

1. LADY JUSTICE HALE: These are applications for permission to appeal, an extension of time in which to appeal and permission to adduce further evidence. The applicant wants to appeal against the orders of Her Honour Judge Darwall Smith made in the Bristol County Court on 2nd March 2001. The judge refused the father's application to make an order which would enable him to take or send his daughter, S, who was born on 4th November 1992 and so is now aged 8, to Nigeria. His application for permission was only a few days late. So I would grant an extension of time if an appeal had any real prospect of success.
2. The circumstances of this case are unusual. The mother and father are both Nigerians of the Muslim faith. They married in Nigeria in 1990. The father is a university teacher in Nigeria. He had previously done a Masters Degree in this country and he was fortunate in 1991 to obtain a World Bank grant so that he could come to this country again to study for his PhD. He was later joined by his wife. They had two children who were born here. From 1994 to 1996 the mother returned to Nigeria with both children. This was, the father tells me, because he was responsible for their maintenance in this country but he was a student and he was not allowed to work. He took the view that it was better that they were back in Nigeria.
3. The relationship ended then. The father divorced the wife in 1996 while he was on a visit to Nigeria. At the end of 1996 the mother came back to this country, bringing S with her. The other child was left in the care of the father's family. They stayed with the father for a short time but then, he tells me, went into a refuge and they have lived apart ever since. In July 1997 the mother went through a Muslim ceremony of marriage in this country with her present partner. That ceremony is not recognized in English law, although it is said that they do plan to marry in due course. They have two younger children. S lives with them. She has lived with her mother all her life. She has in fact seen little of her father. They were here together in her infancy. There were those few weeks in 1997. Apart from that, there have been only two meetings which were arranged by the court welfare service during these proceedings.
4. The mother applied for a residence order last year. On 20th July 2000 District Judge Wyn Rees, sitting in the Cardiff County Court, made an order that S should live with her mother. The father was not at that stage able to put forward any proposals for her care, not surprisingly. He is a student. His responsibility is to his studies. He has no female relatives living in this country. However, the father does want to be able to take her back to Nigeria so that she can be kept by his relatives there together with her sister.
5. His basic case, which he put before the judge and he has also put in considerable detail in the papers before me, is that this is a Nigerian Muslim family. He is responsible for his children. He is a responsible person. He is not an eccentric. The extended family is extremely important within his culture. It would be standard practice for him to arrange for his daughters to be looked after by his family in these circumstances. The mother ought never to have removed S from Nigeria contrary to his wishes. She was allowed back here and relied upon his name in order to return, but now she is basically rejecting his name and him and wants to stay here for other reasons. He is extremely angry at her behaviour and draws attention to certain anomalies in the documentation which she may have used in order to obtain permission to be here. He also argues that the court welfare officer simply did not understand the cultural background and was biased against him as a man and a foreigner. He feels very deeply his responsibilities as a parent from his own culture and his responsibility as somebody who is not permanently settled here but is in transition to cater for his children in accordance with the demands and customs of his own culture.
6. Her Honour Judge Darwall Smith, however, had to apply English law. She was correct to do this. S has been resident in this country since the end of 1996 and the proceedings are properly brought here. This means that they are governed by the Children Act 1989. By section 1 of that Act the court has to regard the welfare of the child as the paramount consideration. In considering the welfare of the child, the court has to have regard to various factors. These do include the cultural and religious background of the child and Her Honour Judge Darwall Smith clearly had that in mind. But that is only one of the factors. The court also has to have regard to the wishes and feelings of the child, to the capacity of each parent to meet the child's needs in the widest possible sense, not only her physical and material needs but also her emotional needs and her developmental and educational needs. Another of the factors is the effect upon the child of a change in her circumstances.
7. The judge made various observations in the course of the judgment which are important. She said:

"I was able to see that the father's wishes to remove S to Nigeria do, sadly, still override any consideration by him of the real effect and consequences of removal, and the breaking of the attachment between S and her mother. I was unable to find, in the father's evidence, any true concern as to the effect upon his daughter. His concern was much more to establish how it was the mother had illegally arrived in this country, and why she should be able to keep his child, when her rightful place was in Nigeria."

8. She went on to say:

"It is to the father's credit that [during contact] he was able to be calm, to talk about S's education and things that she likes to do, and that he coped with the visit in a sensible way. Nevertheless, the welfare officer's conclusion was that these visits did not contain any emotional warmth between either the child or the father.... I have the firm impression from all the evidence before me, ... that there is no real attachment or bond between the father and S. He has spent so little time with his daughter, and it has been very difficult to develop any attachment."

9. She turned to the child's life with her mother and pointed out that:

"The evidence is that this is a caring, happy environment in which she is well settled, both at home and at school where she is doing well. She is described by the school as well presented, excellent attendance at school, a quiet but happy child, a caring child who looks after other children well and a child who is above average with her reading and has made progress with maths."

10. She concluded that if she was to remove S from her mother at this stage, it would have a devastating effect on her. Furthermore, the father's plan for change was not well ordered but, even if it were, she would come back to the emotional effect upon S and the effect that it would have upon her to remove her from her mother and her sisters. She reached the firm conclusion that it was contrary to S's welfare to remove her from her mother and take her to a different country, about which she had limited knowledge, and move her to her father with whom she has a very limited if any bond at all. It was for those reasons that she refused the application.
11. She clearly found the whole issue of contact more difficult. The father was planning to return to Nigeria later this year. The circumstances were not such as could allow S to visit him there. There was a lack of trust between the parties and a lack of relationship between father and daughter. Hence she concluded that the way forward was to keep in touch with her through cards and letters. It would be otherwise of course if he was to remain here for a considerable length of time. Again, he should be starting with cards and letters but he might wish then to apply to the court to establish a degree of direct contact in the future, but for the time being that was why she made the orders simply for contact by cards and letters.
12. In making this application, the father has basically made the same case that he made to Her Honour Judge Darwall Smith. In my view, however, she correctly applied English law. She went carefully through all the relevant factors that had to be considered. She balanced those various factors, as she was required to do. She also balanced the rights of all three, father, mother and child, under the European Convention on Human Rights. If all three agreed, then no doubt the father's views would prevail. But they do not. The mother and, in particular, the child have rights which also deserve respect. In the circumstances the judge reached a conclusion with which this court could not possibly interfere. For these reasons any appeal in this case has no real prospect of success and the application must be refused.
Order: Application refused.