England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2015

MR JUSTICE KEEHAN:

1. In this matter I am concerned with three children: RU, who was born on 15 September 2005 and so is nine years of age; Sa, who was born on 31 December 2009 and is five years of age; and Ar, who was born on 3 February 2013 and so is two years of age. The mother of all three children is NH. Their father is JH.
2. There are three other parties to these proceedings: first, the paternal aunt, SuH, who has taken no part whatsoever, either at this hearing or at previous directions hearings; and two paternal uncles, AH, and HH. HH has, like his sister, played no active role in these proceedings. AH has attended previous hearings and this hearing and has given evidence and taken a full role.
3. Before me at this hearing are competing applications. The first is an application by the mother to discharge the existing wardship proceedings in respect of the children and for a child arrangements order to be made to provide for the children to live with her. She invites the court to make an order for no contact between the children and the father. She urges the court to continue a raft of protective orders that have been made, in particular since the children returned to this jurisdiction, and she invites me to make a section 91(14) order prohibiting the father from making any further applications without the permission of the court.
4. The father seeks a child arrangements order in his favour so that he may have, in the first instance, direct, but, if not direct, indirect contact with his children. He seeks a variation of the protective orders, in particular the order which prevents him from entering within the East Riding of Yorkshire, and he opposes the making of the section 91(14) order.
5. AH makes an application on his own part for a child arrangements order so that he may have contact with the children.

Background

6. The background to this matter may be stated shortly. The parties met in 2000. They married in 2001. On 25 February 2013 the father told the mother to leave the former matrimonial home which was then in London. The following day he drove the mother to her parents' home in East Yorkshire and left her there. On 8 March 2013 the mother applied for a without notice residence order, prohibited steps order, specific issue order and non-molestation order at the Kingston-upon-Hull County Court. On that day District Judge Besford made an order preventing the father from removing the children from the jurisdiction of England and Wales and transferring the case to be heard at Willesden County Court. The following day, on 9 March, the father was personally served with those orders.
7. On 14 March the matter was listed for a first hearing at Willesden County Court for 3 April. On 3 April both parties attended court. They were represented by counsel, and on that day the district judge in Willesden made an interim residence order in favour of the father in respect of RU and Sa, and an interim residence order in favour of the mother in respect of Ar. The father was required to make the children available for contact and the matter was to be listed for a further directions hearing on 21 May.
8. On 4 April the father purported to appeal the order made by Willesden County Court. On 9 April, unbeknownst to the mother, the father removed all three children to Afghanistan, the paternal family home, assisted by his sister, SH; and also assisted by his brother, AH, who was present at the airport when the children departed the country. On 10 April the father sent a text message to the mother saying that he would not bring the children to see the mother and that the judge's decision was unfair and unlawful.
9. Thereafter the mother's solicitors made various applications to the court. On 16 April the mother contacted RU's school to be informed that he had not been at school for the last two days. On 17 April the mother called the police because of her concerns in respect of the whereabouts of the children and the father. On the same day District Judge Kumrai in Willesden County Court made an order under section 34 of the Family Law Act 1986 for the whereabouts of the children to be found.
10. On 19 April the father attended Kilburn Police Station saying that he had taken the children to Afghanistan. The father was arrested, having returned to the country the previous day, and was charged with child abduction. On 21 April, on an out-of-hours application, Cobb J made the children wards of this court and made orders for the father to disclose the whereabouts of the children and made orders for the return of the children to the jurisdiction forthwith. On the following day, 22 April, Cobb J confirmed the wardship and repeated the return orders.
11. On 24 April the father was produced and appeared before Cobb J. He gave sworn evidence. He did not disclose the names of those people caring for the children. On 8 May the matter came before Singer J. The father refused to receive service of a location order made by the court. On 17 May, before Cobb J, the father and his brother, AH, gave oral evidence to the judge. The judge made further orders for the return of the children to this jurisdiction.
12. On 19 July the matter came before me on a committal application of the father for breach of the orders previously made by the High Court. I found that he was in breach of those orders and I sentenced him to 12 months' imprisonment for each breach to be served concurrently. Thereafter, in August 2013 the father, who denied abducting the children, stood trial at the Crown Court at Harrow. On 22 August he was found guilty on all three counts of child abduction. The trial judge adjourned sentence to 25 September in order to give the father time to return the children to the jurisdiction, stating that this would be his best mitigation.
13. On 25 September His Honour Judge Donne QC sentenced the father to five and a half years' imprisonment. In sentencing, he said the father was "a manipulative and devious man whose actions had deprived his children of their mother". The father is still currently serving that term of imprisonment and is not due for release until March 2016.
14. Between July and October 2013 the father sent a number of letters to the mother's solicitors for the mother in which he variously stated that the children had been adopted.
15. There followed a series of orders made by me and other judges of the division seeking to secure the return of the children to this jurisdiction, and respectfully requesting the Afghan authorities to cooperate with the return of the children. In August of last year Mrs Motley, at the request of the court, travelled to Afghanistan. The children were handed into her care and she returned the children to the jurisdiction on 14 August 2014.
16. On 3 November 2014 during the course of a directions hearing, I directed that a report be filed in relation to the children and issues of contact by the East Riding of Yorkshire County Council and a report was filed and served by Mr Lawry. On 16 February I began this hearing.

The Law

17. In considering the applications before me, I bear in mind that my paramount concern is the welfare best interests of all three children as provided by section 1(1) of the Children Act 1989. I take account of all those matters set out in the welfare checklist of section 1(3) of the 1989 Act in coming to a decision about the best interests of these children. I bear in mind the Article 6 and Article 8 Convention rights of the children, the mother, the father and AH, but I also take account that, where there is a tension between the Article 6 or Article 8 rights of the children on the one hand and of adults on the other, the rights of the children prevail (Yousef v. The Netherlands [2003] 1 FLR 210).
18. In relation to the making of a section 91(14) order, I bear in mind that it is an order to be made in the most exceptional of circumstances, and I have taken account of those cases and the principles enunciated in them set out in the Family Court Practice for 2014 between pages 695 and 697.
19. In relation to the principles to be applied in considering applications for contact, counsel for the father has helpfully referred me to two decisions of the Court of Appeal, the first being Re C (Direct Contact: Suspension) [2011] EWCA Civ 521. In giving the judgment of the Court of Appeal, Munby LJ (as he then was) said that case law from the European Court of Human Rights and domestic laws have established that a child's welfare must have precedence over any other consideration. This included ensuring the child grew up in a healthy environment, free from harm to health and development, but it also meant maintaining links between the child and her family, except in wholly exceptional circumstances.
20. She also referred me to the case of Re W (Direct Contact) [2012] EWCA Civ 999. In that case McFarlane LJ said the following at paragraphs 74 to 78:

"74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires.  I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

75. In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden.  Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough.  Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy.  It is not easy, indeed it is tough, to be a single parent with the care of a child.  Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child.  Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order.  Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be 'a very big ask'.  Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

76. Where parental responsibility is shared by a child's parents, the statute is plain ... that each of those parents, and both of them, share 'duties' and 'responsibilities' in relation to the child, as well as 'rights … powers … and authority'. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

77. Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent.

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard."

Evidence

21. I have read all of the central statements, reports and documents filed in these proceedings. I heard oral evidence from the mother, the father, AH and from the social worker, Mr Lawry. I am extremely grateful to counsel and to AH for helpful written closing submissions.

The Mother

22. The mother attended each and every directions hearing to secure the return of the children. The mother was plainly distressed and under very real stress about the welfare and whereabouts of her children. Ar was just two months old when he was abducted. She was hugely relieved and thrilled when the children were returned to her care. Unsurprisingly, she greatly fears the children being removed from her once more in the future. She told me about letters the father had sent to her when the children were in Afghanistan. He referred to the children as having been adopted. That, in my judgment, was cruel and heartless. The mother, understandably, found the letters to be hurtful, manipulative and controlling.
23. She is against the father having any direct or indirect contact for the foreseeable future. She has fears that (a) he will once again, when he is at liberty to do so, abduct them or otherwise remove them from her care; or (b) that he will turn the children against her. Despite all that has happened and all she has had to endure since April 2013, she readily conceded in evidence that prior to the abduction the father had been, as she put it, "a pretty OK dad".

The Father

24. I have no doubt that, in his own way, the father deeply loves his three children. He sent me a letter dated 1 December. In it he spoke of his feelings about the children. He said:

"It is unspeakable cruelty, heartless and unhuman for not allowing me to see and have contact with my own children which I was caring for them. I am greatly sorry for what happened and I regretted everything I did wrong. I was betrayed very badly and I was angry for what was happening to my life.

As you know that I am not a clever person and I made a mistake. I was very wrong and very naive for what I did. If I had any options to change things, I would have changed everything. But I was in a no-win situation. I could not do much and I thought whatever I was doing, it was for my children's best interests.

You have got what you wanted. Please stop punishing me even more, not allowing me to see my babies. Now I am a very breaking man with full of regrets, forgiveful and forgetful. I am looking like a 50-year-old man now. I am devastated for what happened and very distressed to be going through this painful process.

I have forgiven everyone for what they did to me and I am moving on. Please allow me and help me to forget what happened. More punishment makes me more angry and stubborn and punishment is revengeness and not forgiveness."

25. At the start of his oral evidence the father told me he did not wish to talk about the past but to concentrate on the future. He further told me that for some time he has worked in the chaplaincy at Her Majesty's Prison Highpoint. He gave similar information to Mr Lawry, the social worker.
26. This stance is in very marked contrast to the father's case as set out in his two statements filed and served in this matter. In both statements he denigrates the mother in strong and emotional terms. He claims the mother was a bad mother; that she was verbally and physically aggressive to him; that she had previously abandoned the children; that she kept the company of drug dealers and drug abusers; and that she neglected the children. In terms, he undertook a complete character assassination of the mother. I have no hesitation in rejecting each of these allegations. None of them, especially as they relate to the care of the children, is supported by the social worker's enquiries into this family.
27. The father's assertions of regret, remorse and change of approach were quickly revealed to be false during the course of his cross-examination. He has no regrets at all, save perhaps that the children were eventually returned to the United Kingdom. Just moments into his evidence, and a propos nothing at all, he said that Sa had been a twin and the twin had died at birth; "The baby was lost because the mother was mixing with bad people." He then added, "possibly the cause". This was a gratuitous remark made for no other reason than to cause heartache to the mother and to upset her. He said the mother had been involved with crackheads and drug dealers; that she was a violent person who had been a heavy alcoholic.
28. Despite my findings made on 19 July that he had abducted the children in April 2013 and despite his conviction on three grounds of child abduction, the father steadfastly maintains he has done nothing wrong and that he did not abduct the children. He stands by the ludicrous fiction that he merely took the children on holiday. He asserted he had been convicted on a false basis. He maintained that, because he was in prison, he was powerless to take any steps to secure the return of the children from Afghanistan. I do not accept that proposition. His brother, AH, visited him at least once every two weeks and could easily have passed on to the maternal family in Afghanistan the father's instruction or request that the children be returned. He did not do so. Moreover, he, on at least one occasion, had access to a mobile phone in prison and spoke to one of his uncles and RU in Afghanistan.
29. He was asked why, when the social worker interviewed him in January of this year, he had been so negative about the mother. His answer was illuminating. He said it was because the social worker needed to know the truth to write his report. The father sought to assure me on a number of occasions that, if he had contact with the children, he would not speak to them about the mother. I do not accept that for one moment. The father is a devious, manipulative and controlling man. He is totally convinced that his version of events is correct. I am in no doubt that he would see it as his right and duty to convey "that truth" to the children.
30. In any event, his hatred of the mother is so deeply ingrained and so viscerally held that, in my judgment, he would be wholly incapable of not expressing those views to, and in the presence of, the children. He would not consider such actions to be harmful, damaging or unsettling. There is no doubt that the children would be emotionally and psychologically damaged if they heard or became aware of the father's views of the mother.
31. Those conclusions and findings are reinforced by the father's conduct towards the end of his evidence. He was explaining why the exclusion zone of the whole of the East Riding of Yorkshire was unnecessary and unfair. He said he had been educated in Hull and had many friends there with whom he had kept in contact over the years and would wish to visit them, as before, on his release from prison in March 2016. He then announced that he knew where the mother and the children lived, notwithstanding that it is supposed to be a secret and confidential location. He refused to give me the address, claiming he could not remember it. He had written it down, he said, in code on a piece of paper which was in his cell at Highpoint. He claimed a member of the maternal family had given it to him, but refused to say who. I gave the father a warning in clear and strident terms that I wanted him to reflect carefully on that aspect of his evidence overnight.
32. The following day he returned to the witness box and handed out small pieces of paper on which he said he had written the address. It turned out to be the maternal grandmother's address. The father claimed he had not been able to remember it the day before because of the strain of giving evidence, because I had shouted at him and because he felt intimidated by me. That is palpable nonsense. The maternal grandmother's address is well known to the father. In earlier times he had visited there regularly and has since used the address to send correspondence. I reject the notion that the father could not remember that address. In any event, even if he could not remember the postal address, he could have said it was the maternal grandmother's home. He chose not to do so. Why? I am entirely satisfied the sole reason for saying he knew where the mother and the children lived and then refusing to disclose the same was to unsettle and disturb the mother. It is yet another example of the father seeking to use these proceedings to upset, to manipulate and to control the mother.
33. As in so many of his beliefs and actions, the father acts in an entirely selfish and self-serving manner.

AH

34. AH represented himself in these proceedings. He was a reluctant witness. He only agreed to give evidence after I explained that, if he wished to pursue his application for contact, he would have to do so. He spoke of his love for his nephews and that he would wish to see them. Unfortunately, AH was involved in the abduction of the children. He was at the airport on the day of departure with the children, the father and his sister. He lied to the police about the whereabouts of the father and the children when they made enquiries. He lied to the court on oath when he was asked when he had last seen the children. He said he had last seen them at the family home. He made no mention of being at the airport with them. In his evidence to me he denied that he had told lies to the police or to the court; that is plainly wrong
35. I find that AH is very clearly in his brother's camp and is closely allied with him. He sees no reason why he and his brother should not see the children. He did not evince any insight into the plight or position of the children or of the mother. In his written submissions he said this:

"Surely you can see, I am doing all I can to fix this family and ensuring it doesn't break. It is heartbreaking this could be acceptable and it makes no sense as I, nor my brother, have done anything to be in such a position."

I should clarify that the reference there to 'his brother' is to his brother, HH, and not to the father, JH. But I regret to find that that clearly demonstrates that AH has no recognition of the role that he played in the abduction of the children and of the very real concerns that the mother, rightly, in my judgment, has that he would work with his brother to secure the ends that the father wants to achieve.

Mr Lawry

36. Mr Lawry interviewed the parties and prepared a useful report for the court. He did not recommend direct contact to the father but recommended indirect contact between the children and the father by way of letters and cards four times a year. He made the same recommendation in respect of AH.
37. It is vitally important to note two matters in respect of Mr Lawry's report and recommendations: (1) a case of this nature in which there has been a prolonged abduction of the children is outside his experience as a social worker; and (2) his recommendation is predicated on the basis that the father has changed as he asserted in his evidence.
38. At the suggestion of counsel, Mr Lawry gave his evidence last, having had the benefit of hearing the evidence of the mother, the father and the paternal uncle. When I asked him whether he could point to any part of the father's testimony which was evidence of or gave any indication that the father's views and approach had changed, he said there was none. I agree.

Analysis

39. I take full account of the authorities to which I have been referred in considering the issue of contact between the children and the father and the children and their uncle, AH. I have well in mind the submission of Ms Renton that, when approaching the question of contact, I should not seek to punish the father for his actions. He has already been punished by this court and the criminal court. I entirely agree. Any decision that I reach must be based upon the welfare best interests of each of the three children.
40. The overwhelming need for each of these three children is a loving home in a secure and stable environment. They need to recover from and to settle after the trauma they suffered on being separated from their mother and primary carer for some 16 months. They need to recover from the care they received when in Afghanistan, which RU has referred to in terms as being less than loving and kind.
41. The wellbeing of each of these children is inextricably linked to the emotional and psychological wellbeing and stability of their mother. No step must be taken which would place this stability and security at risk. To do so would be to inflict further significant emotional and psychological harm to these young and vulnerable children. They have settled surprisingly well since they were returned to this country. That is entirely due to the loving and protective care given to them by the mother.
42. In the light of my assessment of and findings about the father, I am in no doubt that direct contact with him now or in the future would cause significant harm to the children, and/or would so unsettle the mother that she would not be emotionally and psychologically available to them. The risks are that, when at liberty, the father would seek to abduct the boys again or to remove them from their mother's care. I assess the risks on the facts of this case to be high, especially in the light of the very strongly held views of the father. Further, the father would seek to tell the boys "the truth" and he would not hesitate to undermine the mother. That he would do so is, in my judgment, a certainty. Such an outcome would be wholly inimical to the welfare best interests of the children and could not be countenanced.
43. The children have a right and a need to know about their father. Sa and Ar have made no mention of their father. RU told Mr Lawry he would want to see his father once in the future. I note and accept that RU had nightmares after seeing Mr Lawry. How might that right and need be met? In my judgment, it could be met by limited indirect contact.
44. On the basis of Mr Lawry's lack of experience in cases of this sort and in light of the erroneous basis upon which his report is predicated, I part company with him on the frequency of contact. In light of the high need for the boys' lives to be protected, the boys can be reminded of their father and have knowledge about him by indirect contact taking place, at this early stage, once per year. The letters and/or cards must be sent via the local authority, who will monitor the content and only if the content is appropriate should it be sent to the mother to be given to the children. The children would of course be at liberty, should they wish to do so, to send a reply. In light of my findings about AH, the same provision will apply in respect of him.
45. The father's alleged desire to visit Hull and to seek a variation in the current protective orders preventing him from entering the East Riding of Yorkshire is a ploy. It is part of his longer term plan to track down the mother and the children. I am in no doubt that for the present the current order must, in the welfare best interests of the children, remain in force.
46. In light of (a) the involvement of SH and AH in the abduction of the children; (b) the close relationship between the father and his siblings; and (c) my findings against AH, I am satisfied that it is necessary in the interests of the children for the raft of protective orders to apply to them as they do to the father. I am in no doubt that once more in the future they would do his bidding as they both did in April 2013.
47. There is no evidence that HH was involved in the abduction of the children. Prior to the children's abduction the three brothers lived together in London. They are close and loyal to each other. I am in no doubt that HH would do his brother's bidding to (a) seek to find the mother and the children and (b) seek to remove the children from her care or otherwise to denigrate her. As I have made clear such actions are wholly contrary to the best interests of the children. Accordingly, I am satisfied that in order to promote the children's welfare protective orders should continue in force against HH as they do to the father and his other siblings.
48. This is the first application made by the father for contact. A section 91(14) order would ordinarily only be made where there have been repeated unmeritorious applications. I accept, however, it may be, in an appropriate case, justifiable to make a section 91(14) order where there is a very strong need for there to be a lull in litigation to promote the welfare best interests of the children.
49. Plainly, in my judgment, there is a very great need for the stability and security of these children to be unaffected by any role played by the father. Accordingly, I have seriously considered whether I ought to make a section 91(14) order at this stage. Ultimately, I have decided that would not be an appropriate order, but I will direct that any further or future applications in respect of these children will be reserved to me. I give fair warning that, if further or repeated applications are made, I will readily reconsider my decision about whether it would be appropriate to make a section 91(14) order.
50. At this stage, and in light of the progress made by the children, it is, in my judgment, appropriate to discharge the wardship in respect of each of them. I am content to make a child arrangements order in favour of the mother that the children shall live with her. I shall make the orders for indirect contact in respect of the father and in respect of AH, as I have indicated, and I shall continue all of the protective injunctive orders in the terms as previously made. It is not, in my judgment, in the welfare best interests of any of the children that those orders should be varied, and in particular the exclusion from the East Riding of Yorkshire must be maintained to ensure the maximum security for the children living at home.
51. How matters will move on in the future cannot yet be decided. It may be that, in time, it would be appropriate for AH to have some direct contact with the children. That can only happen at a time when the children are fully stable, secure and settled with their mother and when she is more reassured that the children are safe and secure with her. It would also, in my judgment, require AH to take a more realistic and honest view of the role that he played in the abduction of the children.
52. It may be in time, as the children become older, that it would be appropriate to increase the amount of indirect contact that the father has with the children. It may in the future be safe and appropriate for him to have direct contact with them, but, as I have emphasised and referred to on a number of occasions so far, the depth of his feelings against the mother are so strong and the rightness of his course is so strongly held by him, that unless those views undergo a real and significant change, the prospects of the father being able to have direct contact with the children are poor. The father believes that the children should live with him. He does not accept that the children should live with the mother. As matters stand, any direct contact with him would present a very high risk of very significant emotional and psychological harm being done to these children.
53. That is the judgment of the court.
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