England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2006

Sir Mark Potter, P :

Introduction

1. This matter is before me pursuant to an order of Mrs Justice Black, dated 19 June 2006, to decide the question of whether or not the court has jurisdiction in respect of the plaintiff's application for wardship in respect of her four year old son A, by the defendant, (her former husband) from whom she was divorced in Iraq (Kurdistan) in June 2004. The question at issue before me, as to which I have heard the oral evidence of the parties, is whether A is habitually resident in this country or in Iraq (Kurdistan), where he has in fact been living since the parties went there in January 2004 in circumstances of some dispute.
2. The background facts in this application are very much in issue. In hearing the oral evidence of the parties, I have found the mother to be a far more credible witness than the father, whom I am satisfied has not told the truth in a substantial number of respects. At the same time, the mother, who is in a state of considerable distress at being parted from her only child, has, I am also satisfied, taken refuge in a number of less than accurate assertions about her divorce in Kurdistan where she found herself in an isolated and unhappy position in relation to her child when the marriage started to break up.
3. The undisputed facts are as follows.
4. The defendant came to the United Kingdom in 1993, seeking political asylum as a result of his activities in Kurdistan. In 1995 his refugee status was recognised; he was granted indefinite leave to remain on 22 May 2000 and in November 2002 was naturalised as a British Citizen. By that time the defendant was able to return to Kurdistan, where he married the plaintiff on 23 August 2001. The marriage was a mutual family exchange, in that it was intended that the plaintiff's brother should marry the defendant's sister, but, in the event, that never happened. The plaintiff came with the defendant to the United Kingdom on 31 October 2001 and lived in the defendant's property at 3A Fernhead Road, London W9. At that time the defendant owned a garage and a car repair business run from premises in West London, which he has subsequently sold. A was born on 21 June 2002.
5. On 25 January 2004, when A was 19 months old, the defendant took the plaintiff and A to Teheran in Iran and then on to Karmansha on the Iran/Iraq border. Until that time there is no dispute that the parties, and hence A, were habitually resident in this country. The plaintiff says that she believed that they were simply going on a business trip and holiday. The defendant says that they went intending to move their home to Kurdistan, now that it appeared safe to do so.
6. In February 2004, the defendant returned to England, leaving the plaintiff and A living in the house of his mother in Kurdistan. He went back in April 2004, with a lorry filled with the parties' furniture and the plaintiff's clothes and belongings.
7. Soon thereafter the marriage began to fall apart rapidly for reasons which are in dispute and to which I shall return.
8. At the beginning of July 2004, the parties were divorced and the plaintiff left the defendant's mother's house. At or about that time she signed an agreement put before the court in Kurdistan and formally approved, under the terms of which the father was given custody of A. Thereafter she lived with her sister and saw A every week at the house of the defendant's mother. This arrangement lasted for approximately 1 year until the defendant and his family told the plaintiff that she could not see A again. She last saw A on 3 August 2005.
9. On 4 October 2005, the plaintiff went from North Iraq to Jordan so that she could flee Iraq. She contacted the Kurdistan Refugee Women's Organisation who wrote to the Home Office on her behalf and helped her in her contact with the United Kingdom Embassy in Amman. In December 2005 she obtained a visa to enter the United Kingdom and returned on 8 December 2005. She issued wardship proceedings in respect of A on 20 April 2006.
10. The court is thus faced with a wardship application in respect of a child of 4½ who at the commencement of proceedings had lived more than half his life in Iraq in a situation where, on the face of it at least, that country had become his habitual residence.
11. A dispute as to the habitual residence of a party or child is an issue of fact which falls to be decided in all the circumstances of the case. It would be surprising if, as the mother contends, A is still to be regarded as habitually resident in this country. However, that is the submission which she makes, on the basis of the following evidence as to the circumstances surrounding the 'bare' facts as I have recounted them.

The Plaintiff's account

12. The plaintiff has set out her position at great length in three statements, as well as giving oral evidence before me. She has described her marriage to the defendant whilst living in London as one involving a considerable amount of domestic violence by the defendant, who was both dominant and manipulative. A good deal of evidence has also concerned false statements alleged to have been made to the immigration authorities about the family circumstances and, in particular (for reasons which are obscure), about the first wife of the defendant in Iraq, the existence of whom he asserts but the plaintiff disputes, and whose name he required the wife to assume to assist his immigration position. These matters were not explored at length in the oral evidence as being peripheral to the central issue, albeit going to credit. As I have already stated, I consider the husband a generally unreliable witness. I am satisfied that he has been both dominant and manipulative in relation to the plaintiff and that he has made false representations to the authorities in relation to immigration matters. I am not in a position, and do not seek, to resolve the question whether he has a former wife in Iraq.
13. As to matters more critical to the issue of A's habitual residence, the wife states that when she left this country with the defendant and A on 25 January 2004, it was on the basis that they were going on a business trip and holiday, the defendant saying that he did not wish to leave the plaintiff in the United Kingdom while he was away. However, one week after arriving in Iraq, the defendant told her that he had to go back to London as there was a problem with his garage and, on being asked to take the plaintiff and A back with him, he refused to do so saying that it was dangerous. He went back to London leaving the plaintiff and A with his mother, with whom they had been staying.
14. When the defendant returned to Iraq in April 2004 he arrived in a Mercedes car and with a large van which remained parked outside. It contained the parties' possessions from their flat in England. The defendant says that he did so pursuant to the intention of both to return to live in Kurdistan. However, the plaintiff says that she was unaware at the time what the van contained, only learning much later.
15. Following the defendant's return to Iraq there were angry arguments between the parties on a number of topics. In particular about the plaintiff having reported incidents of domestic violence to the police when she was in England; difficulties between the two families over whether the plaintiff's brother should marry the defendant's sister after all; and, in particular, about an influential older man named, Omar, whom the plaintiff had known before her marriage to the defendant and of whom he was obsessively jealous, believing that the plaintiff had resumed her relationship and committed adultery with him when the defendant was back in London between January and April 2004.
16. A few weeks after his return to Iraq, the defendant informed the plaintiff that he wanted to divorce her. She said that she did not want a divorce. She asked for return of her travel documents and A's British passport but the defendant refused to give them to her. The defendant then told her that he would not divorce her if she went to court and disowned her family, with whom he had by then fallen out. The plaintiff's own family encouraged her to stay with the defendant and, until June, she continued to live at his mother's house.
17. There were also arguments about an indecent assault which the plaintiff had suffered in 2001 at the hands of a friend of her brother. At one stage in June 2004, the defendant put a gun to the plaintiff's head and told her to tell her brother that she had been raped, so that her brother would kill the attacker by way of "an honour crime". The defendant forced her to say this and tape recorded her doing so, saying that, if she did not, he would tell the judge that she had had an affair and would be sent to prison. The defendant then bought a gun for her and said that she should kill her attacker; otherwise she would never see A again. Subsequently, he wrote a letter stating that she had left A with him, which she says she signed as she was frightened that, if she did not do so, the defendant would hurt her. She then signed some papers which had been prepared by the defendant's solicitor. She stated that the defendant did not allow her to read the papers and that she signed them under duress, he later telling her that they were divorce papers.
18. Following a divorce in June 2004, the defendant made the plaintiff leave his mother's house in July, telling her that she could see A every week as long as she did not tell anyone that he had forced her to sign papers leaving A with him.
19. The plaintiff went to live with her sister and, for a time (it is in dispute whether it was for merely 4 months, as the plaintiff states or longer as the defendant asserts) she took a job with the Iraqi Children's Fund, obtained for her by the influence of a relative of the defendant. At any rate, she continued to see A at the defendant's mother's house for just over a year until August 2005, when she was informed by the defendant (who was then back in London) through her family in London, as well as by the defendant's family in Iraq, that she could not see A again.
20. After this, the defendant told one of the plaintiff's brothers in London that the plaintiff had slept with another man and this was passed back to one of her brothers in Iraq. Her sister told her that her brothers intended to kill her as a result and had purchased a gun to do so. In those circumstances she left North Iraq and went to Jordan as set out in paragraph 9 above.
21. On her arrival in England, the plaintiff did not commence proceedings for a time, being in a state of depression. However, she was also encouraged by a telephone call from the defendant in London to one of her uncle's who lived in the United Kingdom, informing the uncle that he was going to Iraq in 3 weeks time and would return A to the United Kingdom to the care of his sister. Correspondence then followed prior to issue of proceedings.
22. So far as the defendant's intentions in relation to A's residence is concerned, it is the plaintiff's case that he has blown hot and cold. At the time of the divorce, she understood that the plaintiff wished A to live with his family i.e. in his mother's house in Iraq and she was told that that was what the defendant, with his solicitor, had decided. After the divorce, he told her that he would bring A back to England, but with his older sister to look after her saying that the plaintiff could see A for 1 day a week. However, he changed his mind shortly thereafter and make clear that A would stay and be brought up in Iraq.
23. As at today, it is the declared intention of the defendant and the current understanding of the plaintiff that he intends that A should continue to live in Kurdistan where, according to the defendant (though it is disputed by the plaintiff) A is happy in his extended family and where the defendant intends to make his permanent home when, shortly, he has wound up his business and disposed of his remaining flat in London.

The defendant's account

24. It is the defendant's case that, when the parties left for Iraq, they had agreed that they wished to reside there permanently, the plaintiff complaining that she had not settled in the United Kingdom, had no employment and was missing her family and friends. When he came back to England in early 2004, he did so by agreement to collect the parties' belongings and to sort out his business and finances prior to returning to Iraq to live with his family.
25. There were arguments upon his return and the marriage started to breakdown. He says this was because in his absence the plaintiff had been going out and about, contacting the man called Omar and, as he believed, had committed adultery with him. He agreed that he was jealous. However, he denied the wife's allegation of violence or that he had ever forced her to admit rape or adultery at the point of a gun.
26. He stated that the divorce was reached by agreement, the parties deciding that they could no longer continue to live together. He asserted that there were discussions, in which it was agreed that A would remain in Iraq. He said that the plaintiff, separately represented by a lawyer, went through a form of divorce in the Personal Civil Status Court in Sulaimany, the decree being dated 03/07/2004. Thereafter, she signed a document by way of acknowledgement or agreement dated 07/07/2004 by which she handed over A to the custody of the defendant. This was followed by a further decree of the Court dated 07/08/2004 recording (as translated) that the parties "have agreed that this child should be received by his father and issuing a decree to return this child to his father." The defendant exhibited to his statement photocopies of the signed agreement and of the decrees in Arabic, together with somewhat imperfect certified translations. The defendant stated that he was represented and advised by his own lawyer Othman Rahman and the plaintiff by her lawyer Bakhteyar Jamal Ashraf.
27. So far as events after the divorce were concerned until August of the following year the plaintiff moved out to live with her family and visited A every 7 to 10 days. In August 2005, she was told that she could no longer see A. The defendant stated that it was his mother who so informed the plaintiff while the defendant was himself in London. He stated that he assumed his mother did so because, by then, the plaintiff had made clear her intention of going home to England.
28. The defendant made clear that, since the divorce, he has been disposing of his assets in England, and that all that remains to him by way of property is the flat at 3A Fernhead Road in which the brother of the plaintiff has been living and which he plans to sell soon before his return to Kurdistan.
29. The only other oral evidence called before me was that of a relation by marriage of the plaintiff whom she calls "uncle", Youssuf Zangana, a British citizen of Kurdish origin, resident here since 1983. He was called to support the assertion of the plaintiff, denied by the defendant, that the defendant was in possession of a tape recording of the plaintiff as evidence that she had committed adultery with another man, which tape recording it was suggested that he had been playing to members of the plaintiff's family in order to justify his position and disgrace her. As a result of Mr Zangana's evidence, I was satisfied that, contrary to the defendant's denials, this was indeed so. It served to confirm my view that the defendant's evidence was largely unreliable.
30. That said, however, I do accept, despite the wife's denials, that she did have the benefit of the advice and services of her own lawyer in relation to the divorce proceedings. On this aspect her evidence lacked detail, was unconvincing and changed in the course of the case. It appeared to me that the form of the copy decrees exhibited were corroborative of the defendant's account, in that both of them referred to Bakhtyar Jamal as her lawyer and that of 07/08/2004 referred to the husband's lawyer as Othman Rhaman. The defendant stated in evidence and I accept that Bakhtyar Jamal acted separately for the plaintiff. I accept that, as the defendant told me, on 07/08/2004 both the plaintiff and defendant were in attendance with their separate lawyers and that, so far as the court was concerned, it was dealing with two parties independently advised in circumstances of apparent regularity.

The Law

31. In approaching the question of habitual residence in this case I have gained considerable assistance from the decision in Al Habtoor v Fotheringham [2001] EWCA Civ 186 [2001] 1 FLR 951, a case in which not dissimilar legal issues arose in wardship proceedings relating to a child whose parents had taken their adopted son (the child of a citizen of Dubai) out to Dubai to live with them there, to enable the child to see his natural father (a citizen of Dubai) and enjoy the benefits of his father's wealth and influence in Dubai. When the arrangements made broke down in Dubai, the parents returned to this country leaving their child in Dubai, under a parental responsibility agreement negotiated with the natural father which, by the time of the hearing of the wardship proceedings, had been embodied in a consent order of the Dubai Court. It was contended for the parents (though not accepted by this court) that the consent order was effectively obtained by fraud or duress in proceedings commenced by the natural father on the basis of false evidence. It was also asserted by the parents, as by the mother in this case, that the trip to Dubai was essentially a reconnaissance trip and that habitual residence had never been acquired by them (and hence had not been acquired by the child) in Dubai prior to commencement of the wardship proceedings.
32. In reversing the findings of the judge at first instance (based, of course, on facts very different from this case), the Court of Appeal found the family had acquired habitual residence in Dubai after their arrival there. The court reaffirmed the principle stated by Lord Scarman in Akbarali v Brent London Borough Council [1983] 2 AC 309 that the determination of a person's habitual residence is a question of fact to be decided by reference to all the circumstances of the case. It also made clear that, whereas in many cases the question (which is the essential question) whether a child is no longer habitually resident in this country depends upon the question whether and/ or when he has become habitually resident in another country, that is not always the case. Appropriate circumstances may give rise to a third alternative, namely that the child is not habitually resident in either jurisdiction.
33. Of particular relevance to this case, the court in the Al Habtoor case made clear that (a) habitual residence may be acquired in a foreign jurisdiction despite the fact that a move there by the parent or parents may only have been temporary or on a trial basis and (b) the fact that the mother was habitually resident in England and Wales when proceedings were commenced did not mean that the child was also habitually resident here. It is not possible for a person (including a child) to acquire residence in one country while remaining physically present in another. On the basis that the Court of Appeal found that the evidence as a whole demonstrated that the parents had acquired habitual residence in Dubai between the date of their arrival there in September 1999 and the breakdown of their inter-familial relationship 3 months later, the child similarly became habitually resident in Dubai at that time. However, the return of the parents to England and Wales and their re-acquisition of habitual residence here, did not mean reversion of their child's habitual residence to this jurisdiction, given that he remained physically present in Dubai.
34. In this respect the court quoted and reaffirmed the observation of Balcombe LJ in Re M(Abduction: Habitual Residence) [1996] 1FLR 887 in which he stated at 895:

"Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times. Temporary absence on holiday or for educational purposes (as in Re A), will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence, that [the child] became habitually resident in India. He has never to this day come back to England... (g) one thing about which I am quite clear is that the child's residence in India will not become a residence in England and Wales without his ever having returned to this country. As I said before, the idea that a child's residence can be changed without him ever leaving the country where he is resident is to abandon the actual basis of "habitual residence" and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicil"

35. Having rejected the parents attempt "to establish jurisdiction by dependency", as Thorpe LJ put it, the court rejected the suggestion that the court could make a declaration that the child was illegally detained in Dubai. It made clear that the exercise of the inherent jurisdiction of the court should not be based simply upon the nationality or domicile of the child concerned, emphasising that the simpler fact-based concept of habitual residence is the international standard.
36. Finally, Thorpe LJ also made observations upon the effect of pre-existing orders made in a friendly foreign state as bearing upon the question of the habitual residence of a child. In the Al Habtoor case there was a clear conflict between any finding by the English court that the child was habitually resident in this country and the order of the Dubai court which provided for the natural father to have parental responsibility for the child.
37. At paragraph 44 of the Al Habtoor decision, Thorpe LJ observed:

"In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-orders in any friendly foreign state. The principle of comity requires no less. Particularly is it so where the order, as in this case, is unenforceable and thus empty. The temptation to make conflicting orders arises from a contemplation of the gulf between legal systems based on a Judaeo-Christian model and legal systems applying the Sharia Law. But if there is to be progress and the development of understanding and collaboration in international family law it is vital that we should attempt to build bridges over the divide rather than issue empty challenges. Of course no court in this jurisdiction would have awarded a transfer of residence from the mother to the father on the application of the paramount welfare test. The fact that that was the outcome in Dubai, even the fact that that would probably have been the outcome in Dubai without compromise, does not mean that the welfare of the child is not the first consideration of the judge of the Sharia Court. Both systems are child centred. It is the interpretation of child welfare, governed as it is by different religions, cultures and traditions, which produces such starkly different outcomes. In the years ahead it is to be hoped that there will be more frequent and profounder exchanges between diplomats, policy makers and judges to ensure that these differences of interpretation are not magnified by ignorance and misunderstanding".

The parties submissions

38. The argument of Miss O'Rawe for the mother is as follows. She acknowledges the height of the hurdle to be surmounted where a child aged just less than 4 years at the start of proceedings has lived in a foreign country since the age of 19 months. However, she submits that A's removal from the jurisdiction in January 2004 was upon a temporary basis only (a holiday so far as the mother was concerned) and that, from June 2004, when the parties' marriage break-up was confirmed by their divorce, A has in effect been unlawfully detained in Iraq, first pursuant to a divorce and custody agreement obtained by duress on the part of the defendant, and thereafter by the plaintiff's enforced sojourn in Iraq by reason of the defendant's retention of her travel and immigration documents. In these circumstances, submits Miss O'Rawe, the defendant should not be permitted to rely upon his own unlawful acts in asserting his case. In this respect, Miss O'Rawe relies upon the dictum of Hale J in Re A (Wardship Jurisdiction; Abduction, Habitual Residence) [1995] 1FLR 767, a case where the court was concerned with parties whose habitual residence was in this country, but their child was in Pakistan at the date of the proceedings. The mother stated that the child had been sent there for educational purposes only, whereas the father asserted that it was also for the purpose of being brought within the father's extended family. Hale J observed at ….

"It would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully in breach of the other parent's rights"

Miss O'Rawe submits that the same must be true where one parent unilaterally retains the child in a foreign jurisdiction, when the child was taken there for temporary purposes only.

39. Miss O'Rawe emphasises that the mother never has and still does not consent to A's retention in Iraq in the care of his paternal grandmother and relies upon the fact that the burden of proving a change in the child's habitual residence from England and Wales to Iraq rests on the father.
40. I would only observe that so far as the observations of Hale J in Re A are concerned, it seems to me that they were directed to a physical removal of the child from the jurisdiction by one parent without the consent of the other, rather than the situation where (as here) the removal from the jurisdiction was consensual, albeit the understanding or intention of the parties may have differed as to the period of such removal.
41. Finally, Miss O'Rawe makes a submission based on what she asserts is the joint habitual residence of the parents. She submits that the mother, during her residence in Kurdistan, never became reconciled to living there or abandoned her intention to continue living in the United Kingdom. She thus never became habitually resident there herself. Nor, it is submitted, has the defendant yet lost his habitual residence in the United Kingdom of which he is now a citizen, in that he continues to have a residential and business connection, living here and making forays to Kurdistan rather than vice-versa. If that is so (i.e. there is joint parental habitual residence in the United Kingdom), submits Miss O'Rawe, it cannot be properly be said that A is habitually resident in Kurdistan.
42. Mr Fox for the defendant submits as follows.
43. First, if, as the defendant states, on leaving England it was always intended that the parties would return to live in Kurdistan with A as the defendant has stated, and as the winding-up of his garage business and later removal of the parties' possessions to Kurdistan in April 2004 appear to confirm, then that is really the beginning and end of the matter. Within a few months, and by the time of the divorce, the habitual residence of the family in the UK had ceased.
44. However, even if that was not the case, it is clear from the circumstances of the divorce and the custody agreement, that the plaintiff was accepting the position that the defendant had custody of A at a time when he had expressed the intention that A should stay in the extended family in Kurdistan. Thereafter, the plaintiff continued to live in Kurdistan, working there and visiting A for contact purposes, and she thereby acquiesced in a situation where A was continuing to reside in Kurdistan in the care of the extended family.

Conclusion

45. As I have already indicated, with the reservations I have mentioned, I broadly accept the plaintiff's account of events. I do not consider that, whatever the defendant's intention, the plaintiff went to Kurdistan with the intention of remaining there, though she may well have been prepared to contemplate doing so if conditions appeared favourable. Nor do I consider that she ever reached a state of mind where she willingly remained in Kurdistan save on the basis of an essentially forced acceptance of a position which she had to accept if she wished to continue to see A on a regular basis. I also accept that she was harried and harassed into a divorce by the defendant's jealous and threatening conduct. At the same time, and this is my principle reservation about her evidence, I am not satisfied that she was a divorced in a situation in which she had no independent advice or was unable to make her own decision (albeit under great pressure) as to whether or not she consented to part with custody of A. I do not accept, as she asserted, that she was unrepresented in the divorce and lacked the services of a lawyer to advise and represent her in relation to proceedings in respect of which she asserted very little memory. Nor do I accept that she was not well aware of the documents she was signing or their effect. I consider that she is effectively in denial of her participation in what were apparently regular proceedings, in relation to which she was represented, albeit the familial pressures acting upon her at the time were almost intolerable.
46. Whether or not that is so, I consider that, following the divorce, she became resigned to remaining in Kurdistan, living with her own family and taking employment in Kurdistan in order to make her life there and so as to remain close to A. On her own evidence, it was only after a period of a further year that she resolved to return to this country, the trigger for her return being fear for her own safety and the intimation that she was no longer to see A. By that time she had herself became habitually resident in Kurdistan.
47. During that period, the defendant was absent from Kurdistan for much of the time, still attending to business interests in London. In those circumstances he may well himself have remained habitually resident here, although intending to return to Kurdistan in the near future. However, there is no doubt that his own intentions in relation to A were and are that A should continue to reside and be brought up in Kurdistan where he has remained, and that, on the face of it, there is a decision of the court in Kurdistan under which the defendant is entitled to the custody of A.
48. Thus, whatever may have been the position prior to the divorce, there was thereafter a common parental intention, or more accurately a state of intention on the part of the defendant and acceptance on the part of the plaintiff, that A should reside in Kurdistan. It was that position which prevailed until the plaintiff returned to England and, after a further interval, commenced proceedings.
49. Whether or not there was coincidence of parental intention, I remind myself that, in cases of this kind, the legal focus is upon the factual position. The question of habitual residence of a child is not always determinable by reference to the combined intention of the parties. It ultimately depends upon whether, in all the circumstances, it can properly and realistically be said that the child is (i.e. in this case A has, since January 2004, remained) habitually resident in England and Wales. In this case, I consider that the answer to that question is "No".
50. In relation to that question, it is the regrettable fact that A is, or at any rate remains, in Kurdistan in the effective custody of the defendant as the result of a sustained campaign of harassment and threat on his part. The court may properly seek to lean in favour of a plaintiff who has been the victim of such conduct. Nonetheless, in wardship proceedings, it is not the function of the court to make declarations of unlawful detention abroad based upon the nationality or domicile of the child concerned (c.f. the Al-Habtoor case at paragraph 42), nor upon the removal/retention of a child from the custody of a carer who is within the jurisdiction (c.f. cases brought pursuant to the Hague Convention). The jurisdiction of the court rests upon the fact-based concept of habitual residence in relation to the child the subject of the proceedings.
51. Looked at in the round, and despite my sympathy for the position of the plaintiff, I find myself quite unable to hold that, at the commencement of these proceedings, A was habitually resident within the jurisdiction.