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Cite as: [2004] EWCA Civ 1238

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		Neutral Citation Number: [2004] EWCA Civ 1238
		B1/2003/0027 (B)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE HEDLEY)

Royal Courts of Justice
Strand
London, WC2

19 July 2004

B e f o r e :

LORD JUSTICE THORPE
LORD JUSTICE CLARKE
MR JUSTICE MUNBY
____________________

S-M (children)

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(Computer-Aided Transcript of the Stenograph Notes of
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____________________

MR MARCUS SCOTT-MANDERSON (instructed by Levine Mellins Klarfeld of Stanmore) appeared on behalf of the Appellant
MR EDWARD CROSS (instructed by Hodge Jones Allen of London) appeared on behalf of the Respondent
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HTML VERSION OF JUDGMENT
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LORD JUSTICE THORPE: The parents in this appeal are originally Iranian. They are fortunate to have two sons, now aged 12 and 8. There were hotly contested proceedings in the Family Division that lasted some four days before Mr Justice Hedley. He delivered his judgment on 13 December 2002.

The mother was dissatisfied with his refusal to place more stringent safeguards on the enlargement of the father's contact from supervised to unsupervised, so she applied for permission to appeal. The application came before Lord Justice Ward and my Lord, Lord Justice Clarke, on 5 February 2003 when the court granted permission but directed that the appeal was not to be listed until there had been an expeditious pursuit of a mediated settlement. Thereafter it seems that the mediation went off the rails. It is a matter of real concern that what was directed as an urgent mediation in February 2003 did not reach a mediator until 26 February 2004. The mediation was not perceived to have failed until 27 April 2004.

The wife immediately sought the restoration of her appeal and this, apparently, was the first available date for listing. The solicitors to the parties have agreed to submit a report to this court demonstrating why the mediation has proved so ineffective and so costly to the family in terms of stagnation.

The pattern of contact which obtained before Mr Justice Hedley has remained unchanged as a consequence of a stay order made on 5 February 2003, despite the fact that the boys are now nearly two years older than they were when Mr Justice Hedley had the case. The natural extension and development in the pattern of contact to the father has simply not taken place. The passage of time has also changed the issues raised by the mother's grounds of appeal almost out of recognition.

At the conclusion of lengthy exploration of the respective positions of the parties today, through the medium of Mr Scott-Manderson for the mother and Mr Cross for the father, it now emerges that on the central issue of whether the mother should be safeguarded by mirror orders in Iran, there is very little, if anything, between them. At the end of Mr Cross's submissions his client was offering a consensual recognition of the London orders in the form of a document to be executed by the parties at the Iranian Embassy and certified by the Iranian Consulate. He further accepted that there should be a mirror order in Tehran. The previous sticking point for the father, which was whether such orders should be freestanding or incorporated in an Iranian divorce, evolved to the extent that the father accepted that there should be an Iranian divorce provided that the grounds of divorce were acceptable to him.

The mother's position has perhaps been more consistent since she has, throughout, both in the court below and in this court, contended that the position of the children and her own position could only be safeguarded by mirror orders of the Iranian court that were incorporated in the Iranian divorce. There are two ingredients of that safeguard. The first was the obviously perceptible safeguard for the children, namely that they would not be abducted to the Iranian jurisdiction or wrongfully retained in that jurisdiction in breach of orders of this court. The other safeguard which she sought was a freedom of movement safeguard for herself as an adult so that - in the event of wrongful abduction or retention compelling her to return to Tehran to litigate - she would not be trapped in that jurisdiction for lack of a declaration of freedom of movement. The concession that she has made in the face of the court this morning is that she is perfectly willing to collaborate with the father over the grounds of the divorce. Once that concession is recorded, it seems plain sense that there is at last an agreed way forward to a solution which is acceptable to both parents and manifestly in the interests of the children.

The interests of the children are not hard to perceive in this case. It is in their interest to have unsupervised contact with their father. It is in their interest to have a pattern of contact that reflects their increasing age and maturity. It is in their interests that whatever arrangements are made in this court should be safeguarded by the strongest possible mirror orders obtainable in Tehran. It is in their interests that the marriage of their parents should be dissolved without acrimony at the earliest possible opportunity, not only in this jurisdiction but also in Iran. The dissolution in this jurisdiction was achieved as long ago as 17 October 2002. Given the accord which has finally emerged during the course of argument this morning, I can see no reason why the Iranian dissolution should not now be achieved very quickly.

In those circumstances, it seems to me that the form of order that is required today is an order allowing the mother's appeal and directing that the extension from supervised to unsupervised contact should not take place until the process of obtaining the Iranian divorce, including within it the Hezanat order mirroring the order in London and including within it a direction of freedom of movement for the mother, is achieved. That outcome does not require any further consideration of the rival submissions advanced in relation to the judgment of Mr Justice Hedley.

As a consequence of the very protracted mediation, time and events have moved on rendering it unnecessary to consider further those submissions.

LORD JUSTICE CLARKE: I agree.

MR JUSTICE MUNBY: I agree.

Order: Appeal allowed