England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
SITTING AT THE ROYAL COURTS OF JUSTICE

		No. FD13P00212
		9th December 2014

MR. JUSTICE PETER JACKSON:

1. These proceedings concern two children: H, a boy, born on 19^th August 2002, now aged twelve; and R, a girl, born on 12^th March 2004, now aged ten. They are the children of AB (to whom I shall refer as "the father") and TB ("the mother").
2. The proceedings are in the form of an application made by the father as long ago as 2^nd February 2013, for a specific issue order allowing him to take the children on a visit to Jordan during the summer holidays of that year and in subsequent years. The application necessarily seeks the discharge of a pre-existing prohibited steps order made on 5^th July 2010 that prevents him from removing the children from England and Wales.
3. It is an incidental feature of the proceedings that they have been going on so unacceptably long that both parties have been legally represented before the court. Had they been issued after April 2013 neither party would have been entitled to legal aid. The court's task has been difficult enough with the benefit of expert advice and high quality legal submissions for which I am grateful.

The History

4. The mother is now forty-five years of age. She was born in Afghanistan and is a Sunni Muslim. She came to England in 1980 and she is now a citizen of Afghanistan and of Great Britain. The mother has family members here, particularly her parents. Unfortunately, her father died quite recently; her mother lives near to her in the North London area.
5. The father is forty-six years of age. He, too, is a Sunni Muslim. He was born in Kuwait into a Palestinian family, but as a small child moved with his family to live in Jordan. He first came to England in 1985 to study. He then returned to Jordan before coming back to England and marrying the mother in 1999. The two children were then born.
6. In 2005 the parents separated for a period of little more than one year before reconciling for a further period. During the period of separation, the father made a trip with H (then about four years old) to Jordan for about ten days. That is the only time that the father has taken either child to Jordan. There had been a previous visit by the parents alone at a time when they were considering whether to live in England or in Jordan.
7. The father has a large family network in Jordan. Of his four brothers, three live there working and supporting their families. There are several first cousins for the children on that side of the family. The father also has three sisters, themselves with families. He also has a brother in the United States. The father's parents are now elderly and his father is not in good health. The picture is of a well-established family of some means, but, not of any great wealth, so far as I am aware.
8. The parents themselves are both in straitened circumstances. The father has not worked for four or five years. The mother has only been able to work part time around her responsibilities for the children and is not currently working at all, although she is actively studying in the hope of obtaining employment again.
9. The marriage came to an end in September 2009 after an argument. The mother at that point decided that she wanted to leave the relationship. The parties' separated; their family home having been repossessed, they began to live separately in small accommodations not far from each other. The children attend local schools; H having begun secondary school and R in her last year of primary school.
10. In July 2010 the mother issued an application for a prohibited steps order amongst other things, fearing that the father would take the children to Jordan. There was then a flurry of court activity during the remaining months of that year. The net result was that the prohibited steps order made on 5^th July 2010 has continued ever since and that, in November 2010, the mother was granted a residence order with the father to have contact. There had been an interruption in the father's contact because of issues around the children's passports. The children are entitled to British and Jordanian citizenship, but the father had left their Jordanian passports in Jordan. They had in fact expired, but it took some time (about which comment has been made) for him to produce them to the court.
11. At all events, following those proceedings and moving into the year of 2011, the father's contact with the children was re-established and has been taking place with regularity every other weekend with the father collecting the children from school on a Friday afternoon and returning them to the mother's care on the Sunday evening, and every Tuesday afternoon from afterschool until 7pm. There is no issue between the parties about the children living with their mother and seeing their father. The mother considers that the children enjoy their time with their father, that they have a relationship, typical in their culture between children and their father, of a combination of love and respect.
12. The civil divorce between the parents was made absolute in February 2012. The parties were also religiously married. The mother says that the father spoke words of divorce to her. The father says that he did not do so. Were it necessary to make a finding about this, it would be that the parties remain religiously married with the mother having produced no corroborative evidence and the father having given a clear, if rather unattractive, explanation for maintaining the religious marriage. This is that he has not pronounced a divorce because he does not want to pay whatever the marriage contract provides in such circumstances. Indeed, it is a feature of the matter that the father only contributes to the welfare of the children financially when they are in his care. He has never made any financial contribution to the mother's household. He says that it is because he has not been in employment. That may be the foundation for the absence of regular maintenance, but it does not explain the absence of any contribution at all. That is better explained by the father's stubbornness. There matters stood as 2013 arrived.
13. The father has, ever since the parties were married, and particularly since they separated, wanted to take the children to visit his family in Jordan. Any discussions between the parties have reached nowhere for these reasons: Firstly, in general, there has unfortunately been no meaningful communication whatever between these parents since September 2009 (a period of five years). The reason I find for that is that it was the mother's decision to end the marriage and that this was a blow to the father's pride. He has, to put it bluntly, engaged in a prolonged sulk about that since 2009. He has refused to engage in any direct discussions with the mother instead preferring - in a way that spares his feelings, but puts the children in difficulty - to communicate with her through them. He has visited Jordan fairly regularly since the separation, but he has not had the courtesy to inform the mother directly when he will be coming or going even though it affects the arrangements for the children. Instead he departs and he returns. I have already mentioned the father's attitude towards obtaining a divorce and his abstinence from maintaining the children in the mother's home. So that is the father's side of it.
14. The mother's responsibility for this situation is lesser in my view, but she has still permitted herself to give up on attempts to communicate with the father or to make allowances for the consequences for him of her decision to bring the marriage to an end.
15. In their different ways, the parents are equally critical of each other. Neither of them spoke a word of self-criticism during the evidence that they gave. The father has taken a line with the children about certain forms of behaviour and dress, in particular the way that R has, on occasions, worn unsuitable leggings, the way that she has enjoyed classes to do with singing and dancing and issues of diet. But I find that the mother's characterisation of this as being a hardness or even an aspect of fundamental religious belief greatly overstates the matter. What we have here, essentially, is a difference in parenting style and attitude and it should be viewed in that light. I view the continued inability of the parents to communicate with concern from the children's point of view. The evidence that each of them gave at the hearing yesterday was the first time that either of them has listened to the other for many years.

The Application

16. The father's case is that the children need to know their paternal family, that a visit to Jordan during Ramadan and the succeeding festival of Eid would be an important experience for them, bringing together the natural benefits of time with his family and the cultural and religious experiences of celebrating the festival in a Muslim country. He points to the difficulties in the children meeting their grandfather if they do not visit Jordan. He assures the court that there is no risk whatever of his keeping the children, that he has approached matters in a law-abiding way, that he is now settled in the United Kingdom and that he can offer safeguards.
17. The mother's case is that she does not trust the father. She points to his dismissive attitude towards her and the fact that his family has not made any real effort to get to know her or show her respect. She says that he has few, if any, reasons for remaining in the United Kingdom due to his unemployment, that there would be disastrous consequences for the children and for herself if they were retained in Jordan, and that there are no guarantees that could be given to prevent this from happening.
18. I have said enough, I think, to illustrate that to refer to the matter as Mr. Edwards did in passing as "a simple application to go away for three weeks" does not do justice to the issues.

The Law

19. This is, to my mind, most helpfully found in the decision of the Court of Appeal in Re A (Prohibited Steps Order) [2013] EWCA Civ 1115. In the course of the court's judgment at paragraph 23 through to paragraph 25, it was reaffirmed that:

"The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of visiting that country outweigh the risks to welfare of a failure to return."

Within that welfare judgment the court must consider the issue of risk broken down into three related elements:

a) the magnitude of the risk of breach of the order if permission is given;

b) the magnitude of the consequence of breach if it occurs; and

c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

20. I have been provided with and have reminded myself of several decisions in this area that seem to me to be consonant with this approach. A number of them deal with the situation that does not arise here, namely a decision to permit a trip abroad when expert evidence was not available to the court. But if I can refer to paragraph 24 of Mr. Edwards' document, there are to be found there some four decisions which have the common feature of cautioning the court against a too ready dismissal of the risks involved in cases of this kind.
21. In approaching the assessment of the evidence, I consider it helpful to have regard to the welfare checklist as a means of assembling the information that is available.
22. So far as the children's wishes and feelings are concerned, they would seem to be in favour of going to Jordan if the opportunity arises. As their mother very candidly put it, "Of course the children want to go". But for me that cannot be the major consideration because the children cannot be aware of all the ramifications of the matters.
23. I do not wish to pass over the question of the children's feelings to the extent that they bear on this decision. Those, I am sure, are feelings of great tenderness for both parents, but they must be tinged with a considerable regret at their parents' chronic inability to act responsibly and get over the differences between them. I am not referring here to the issue of a trip to Jordan. I am referring here to an ability to co-operate for the children's sake on a day to day basis. The children must feel pained by their parents' failure in this respect.
24. I next turn to the children's background and characteristics. These are plainly delightful children who are a credit to both of their parents. They are also children with an unusually rich heritage on their mother's side, on their father's side and from their own British background. It is clearly in the children's interests for that richness to be fostered if it can safely be done. In terms of their futures as they approach adolescence, at the moment they are limited in their experiences largely for financial reasons. Neither parent is in the category of being able to afford regular trips overseas. The father only travels to and from Jordan sponsored by his family. The mother is not able to take a trip to Pakistan, much though she would like to, for financial reasons. In legal terms the mother has the benefit of a residence order and in consequence may take the children abroad for up to one month, but, as I have said, that does not occur. The father, on the other hand, currently has no right to take the children abroad at all. So, in considering the children's situation, I am faced with a position that this decision is likely to endure, one way or another, for years to come. If the children are not able to travel overseas with their father now then it is not possible to foresee a time when it could happen during their minorities.
25. As to the children's needs, they clearly need better relations between their parents, they need a continuation of the good surroundings in which they are being brought up in other respects.
26. As to their parents' capacities to meet the children's needs, I consider that these are able parents who both love their children very much and who both have the potential to succeed in a way that (at the moment) is escaping them. I have commented already upon the way that the parents have not yet shown their real ability to do their best for the children. They can, in my view, do better.
27. As to the likely effect of a change of circumstances, I consider that the children would benefit from knowledge of their paternal family and origins particularly if this was accompanied by an improvement in parental relations and provided that it could be safely achieved.
28. The range of powers available to court include the imposition of conditions on any grant of permission and include the possibility of making the children Wards of Court to emphasise this court's interest in them.
29. I come last to the issue of the likelihood of harm, which is of course at the core of this case. The first question to address is what is the likelihood of a breach? Having considered the evidence as a whole, I assess the likelihood of the father breaking his word and retaining the children in Jordan to be very low. I say that for these reasons: There is a solid history of regular compliance with court-ordered contact. The father has pursued his application by legal means over an extremely protracted period for which he does not bear responsibility. I accept the evidence that he gave to the effect that he has no intention of keeping the children away from England or from their mother. This assertion was by now repeated with an air of resignation. It is true that the father's situation in England is not particularly favourable at the moment. However, he has been here for many years. He has a home and an entitlement to benefits, even if he is not working. He values the education that the children are receiving. I find that for him the ideal situation is to live here while making regular trips to Jordan.
30. I understand why the mother does not trust the father. He has shown an inflexible willingness to put the past behind him. I have considered whether this characteristic of his amounts to an additional risk factor. I do not find it so. It is a complicating factor, but it is not an indication that he is not to be trusted. At one point in his evidence the father said this: "The children have a mother. I will not take them away from their mother. I am not going to do what she did." and later "I want the children to have the chance to see their family. The years are running away. It is only fair. In future the children will blame their mother and ask why they were not allowed to go." Once again the father's way of thinking may not be appealing, but it had for me the signs of truthfulness. When he was asked about the consequences for the children if he was to break his word, he said that they would be huge: the loss of their mother, their friends and their education. So assessing the father's evidence I find that he retains a degree of anger towards the mother and she to him, but that this is channelled in a way that suggests inflexibility not unreliability.
31. Understandably, given their religious views, the parents referred to the significance of giving evidence on the Koran. The father invited me to the view that this strengthened his bond. The mother said that it had not prevented him from breaking his marriage vows. I fully respect the parties' own beliefs in the matter, but find that the swearing of a religious oath is something which is capable of supporting the word of a witness whose good faith is accepted in other ways. It cannot provide any support for a witness whose evidence is not otherwise dependable. So I do not criticise the mother for her views in this respect. The father has invited suspicion by the way in which he has decided to deal with the fallout from the divorce. To give an example: the father has freely accepted that he has complimented the children as being "pure Arab", which he says is a jocular compliment. The mother was, in my view, entitled to say, as she did, that from her point of view this was insulting. As to the likelihood of a breach, therefore, I find that while the possibility can never be ruled out the likelihood that the father would break his word if he was allowed to take the children to Jordan is very low.
32. What would the consequences of a breach be? They would of course be extremely serious. The mother points to the utter disruption of the children's lives and of hers. She has no foothold in Jordan, she does not speak the language and she is not in a financial position to operate easily in that country. All of that I accept. I do not accept the mother's further case, which is that the father is connected to people in high places in Jordan so that he or his family could get special treatment outside the law. The fact that the father and his family are Jordanians is enough of an advantage in itself, but accounts of connections with former heads of security or high ranking Government officials add nothing.
33. Central to the consequences of a breach is an appreciation of the nature of Jordanian law. That is summarised in a comprehensive expert report by Mr. Ian Edge, the well-known expert in this area. In his report Mr. Edge explains that the courts in Jordan operate the Sharia system of law as mediated by a Royal decree passed in 2010, namely the Personal Status Law. Mr. Edge points to the added disadvantage that a married woman would face in litigating against her husband in the Jordanian Court, a disadvantage that would be slightly relieved if the parties were considered to be religiously divorced. So far as that situation is concerned, there are certain criteria applied in the Royal decree as to the age at which male and female children live with one parent or the other. There would be no possibility of automatic recognition or even the paying of particular respect for decisions of the English Court or any foreign Civil Court. There are no treaty provisions that are relevant in this case nor is there any procedure for obtaining mirror orders automatically. On the other hand, Mr. Edge, in his report and his oral evidence, advised that it is possible for the parties to submit an order by agreement to the Jordanian Court in order that that order should be registered under a procedure described as Tasjil. That would then lead to the order becoming domesticated in Jordan and being enforceable as a Jordanian order. However, Mr. Edge did not in any way overstate the effectiveness of such a procedure. He said:

"The difficulty with all these agreements is whether a local court would enforce the agreement in the face of a concerted project of negation brought by the father once the children had been returned to the particular Islamic country. The success of any such agreement ultimately lies in the integrity of the parents and the parents' families and the English Court's willingness to accept that all the relevant persons will comply with the agreement."

Mr. Edge gave some detailed evidence in support of the general point made at paragraph 42 of his report as to the particular matters that might be put in place to give strength to any order proposed to the Jordanian Court. The giving of oaths by the father or his family would be of material assistance as would the provision of the consent order and posting of a financial bond. The effect of Mr. Edge's advice is that, provided that these matters are clearly set out and are free of any hint of coercion, it would be more difficult (though not impossible) for someone in the father's position to escape from what he had agreed to. In summary, Mr. Edge concludes:

"There is no method by which a court in England can be absolutely sure that the orders that it makes in family matters will be applied by the Sharia Courts in Jordan, although there are methods by agreement and judgment by consent which will give the English Court some security. But any order for the children to have a holiday in Jordan would not result in their being unlawfully retained without any means to get them back to the United Kingdom safely."

34. So having indicated that it is possible for the children's legal position in Jordan to be protected to a large but not complete extent, Mr. Edge finally observed that in reality in these cases the main safeguard for the children is this court's assessment of the credibility of the applicant. That is a conclusion that he has reached having been involved in many such cases.
35. Again, for reasons that I understand, the mother characterised Mr. Edge's advice as being vague and no more than common sense. However, in fairness to him, I would say that I found his written and oral evidence to be well-informed and realistic. The conclusion nevertheless remains that the consequences of a breach would be, as I have said, extremely serious and the mother's position in that event would be unenviable.
36. I next turn to what safeguards are available. I have touched upon this already. The evidence of Mr. Edge has brought forth from the father a draft order in which he proposes a number of things: Firstly, a series of declarations about the children's habitual residence and this court's jurisdiction over them; secondly, a series of undertakings on oath by the father about his commitment to return the children at the end of the holiday; a number of provisions follow to assure the Jordanian Court that the father's acceptance of these requirements is freely given and will not be affected by changes of circumstances whatever they may be. The father further offers a financial contribution to be held during the period of the children's absence in the sum of £2,500. He also offers a small amount for the mother's legal representation in Jordan to achieve the registration of the order. He will not agree to divorce the mother, but will agree to be divorced by her and not to make any financial claim arising from the divorce.
37. The precise extent of the safeguards is a matter for more detailed discussion, but the proposal that is now made by the father goes as far as it can without entering territory that would be likely to be in any way offensive to the Jordanian authorities. Overall, I find that the safeguards offered by the father provide assurance to some extent. They are capable of placing the children's safe return in the hands of the Jordanian authorities with an expectation that they will ensure that it happens, but it must be recognised that those safeguards are not watertight and can only mitigate such risks as exist to some extent.

Conclusion

38. As is common in these cases, the advantages of a trip or holiday of this kind are easy to identify and predict. Here, the benefits for the children of such visits are very considerable. As is also common, all the circumstances tend to point in one direction except for the issue of a risk that the court is being misled. Mindful of all that, I nevertheless find myself positively satisfied (to use the words of authority) that the advantages to H and R of visiting Jordan outweigh the risks to their welfare that will be entailed. The nature and extent of the risk of retention cannot be absolutely eliminated, but I find that it is highly unlikely to materialise. It will be somewhat reduced by the safeguards that will be put in place, failing which the trip will not happen. The risks in this case are not only risks of retention, extreme though the consequences would be if that were to happen. There are also risks of a different order arising from the children being deprived of any experience of their Middle Eastern background, not only now but in reality for most of the rest of their childhoods.
39. My conclusion is that the children will be allowed, subject to the conditions that will be put in place, to visit Jordan with their father at the end of the school term next summer 2015 for a period of two weeks and for a period of three weeks in subsequent years. The mother will have liberty to apply after the 2015 trip in case there are any issues about subsequent years that have arisen. The permission will be subject not only to undertakings by the father but undertakings that are conditions of the permission. They will, in particular, relate to the provision of a bond. I agree with the observation of Ms. Breese-Laughran that the amount offered at the moment is insufficient. The father does not have means himself and is dependent upon his family. I do not consider it inappropriate against the history of this case for his family to continue to be called upon. The amount that the father will provide on each occasion by way of a bond will be £5,000. The father will also co-operate and pay for the mother's divorce proceeding against him. The 2015 holiday will not begin until the end of R's school term, it being her last at her current primary school. If that means the children miss the festival of Eid in 2015 it is unfortunate, but it does not unduly reduce the benefit of a trip to see their paternal relatives.
40. The way in which the judgment is framed will be subject to discussion during the course of this afternoon once the parties have had further opportunity to communicate. It will include a series of requests to the British and Jordanian authorities to use their best offices to support this programme allowing the children to see their relatives in Jordan while reducing to an absolute minimum the potential disadvantages of that course.
41. Although it does not bear upon the decision that I have given, I hope that this latest round of litigation between the parties - which has now gone on for nearly two years - will be the last. I urge both parents to apply their undoubted intelligence to finding a way of breaking down the barriers between them, not for their benefit as that time has passed, but for the benefit of H and R who need them to do this.