England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		11th February 2014

MR. JUSTICE RODERIC WOOD:

THE PROCEEDINGS

1. I am concerned with a boy, JS, born on 29^th June 2008, therefore five and a half years of age. He has been the subject of disagreements and consequential court proceedings between his parents for most of his life. All previous applications have been under the provisions of Part 2 Children Act 1989 hereinafter referred to as "the Act", as are the two before me (see below).
2. The father seeks, by application dated 20^th January this year, permission to take JS for a holiday during his school half term to Dubai in the United Arab Emirates where the father's own older brother, his sister-in-law and their two children now live. He wants to travel on 15^th February and the holiday will be due to end in a return (if permitted) on 21^st February.
3. By notice of application dated 29^th January of this year the mother seeks a prohibited steps order to prevent the trip taking place.
4. The two cross applications came before District Judge Brown on 31^st January at the Kingston County Court when the father was acting in person, he having drafted at that point his own statement. She adjourned the matter with directions to be heard in the High Court today but at risk. Happily for the parties a judge has become free. She made provision in her order for the preparation of an expert report on any legal measures which might be taken in Dubai to ensure the return of JS to this jurisdiction at the conclusion of the proposed holiday.
5. Both parties are now represented by counsel: Mr. Bagchi for the mother and Miss Cole for the father. I have read their skeleton arguments, the statements of each party and heard oral evidence from both parents as well as counsels' closing submissions. My attention has been drawn to a number of authorities to which I shall make further reference below. I have also considered the report and annexures of Mary Barton, a solicitor entered on the Rolls of England and Wales, who currently practises in Dubai and has considerable expertise in this field.

ESSENTIAL BACKGROUND

6. The mother and father are both United Kingdom citizens, as is JS. Mother and father are Hindus who gave evidence after taking the oath on the Gita. I have no reason to doubt that each of them regarded that oath as binding upon their consciences.
7. They married in 2006, JS being born, as earlier stated, in June 2008. The parents separated in January 2009. There were contested financial provision proceedings, and proceedings concerning contact begun by the father in 2009, leading to a consent order at a conciliation appointment in February 2010. There was an attempt at reconciliation in the Autumn of 2010 but that foundered very quickly by, probably, November of that year. The mother immediately applied for a residence order and the father cross-applied for a shared residence order. In June 2011 at the final hearing of those applications the parties agreed a schedule of contact, giving the father staying contact on an incremental basis. He felt aggrieved at what he saw as an inhibition on his exercise of parental responsibility in the succeeding months, and he began to visit JS at his nursery school. The mother responded by issuing proceedings for a prohibited steps order to prevent this. The father, in due course, gave an undertaking in March of that year not to do so any longer. He has abided by it.
8. The start of primary school for JS led to yet more proceedings to rejig the father's contact. That application was issued at the start of the school year in September 2012. The mother also made an application to have the family name of JS changed to incorporate hers, thus creating what is colloquially known as a double-barrelled name. That latter application was refused by the court. The father's application for contact was compromised (in large measure) between the parties.
9. There was some discussion (query a more formal application) about holidays abroad for both parents and, in relation to the father, raising the possibility of a holiday with JS in Dubai in 2013. The mother objected to such a holiday on the basis of the age of JS, that it was a long haul flight, and that he had never been on one, and that it was to a foreign country. The mother tells me she had no prior warning of the suggestion and no opportunity to take legal advice, even though then represented, and that she was unaware in fact that Dubai was not a signatory to the Hague Convention upon the civil aspects of international child abduction. I find myself puzzled by that, for submissions must have been made by counsel to the district judge; but leaving that conundrum aside, the District Judge made certain limited observations including that in 2013 the father should have a foreign holiday but that it should be short haul, and in 2014 when JS was six, there should be no reason why such a long haul holiday with his father should not occur. A preamble to her order reported these propositions in the following words:

"And upon the court indicating that it would not be in JS' best interests to be taken by his father on a long haul flight or journey beyond Europe until 2014. For the avoidance of doubt the mother does not object to the father taking JS on a short haul trip to Europe in 2013 and will provide the father with JS' passport in advance of the holiday. The father shall return the passport at the handover following the holiday. "

I note that those provisions were by way (effectively) of recital and not by way of order.

10. In 2013 the father, along with his parents and younger brother and JS, had a holiday in the Netherlands. The mother did not object, though she considered Amsterdam to be an unsuitable place for a child of JS' then age. There were, however, chafing points between the mother and the father. For example, the mother refused to hand over JS' passport to the father in advance and only handed it over on the day he collected JS for the trip on the ground that she needed to retain it in order for photocopying. Since she had had that passport in her possession for years it is difficult to justify this position. I consider it to be borne more out of misplaced anxiety than hostility. She also required, though the court order did not require it, the consent to removal from the jurisdiction form to be signed by the father and witnessed by a solicitor. That requirement, as I have indicated, not imposed by any court, is again a matter I find to be (i) unnecessary but (ii) borne of anxiety not hostility.
11. In December last year there began a series of emails passing between the parents in which the father sought an extension by some two days of his February 2014 half term holiday with JS, and said he wanted to visit his elder brother and family in Dubai. In an email from the mother of 14^th December timed at 1840 hours she said this:

"As requested in your initial request I agree to you taking JS on holiday from Friday 14^th February return 9 a.m. on Wednesday 19^th February on the basis that the following information is given to me prior to the trip in a consent document signed by our solicitors – copies return tickets – names of all those who JS will be going to Dubai with and who he will be staying with – full and valid postal address and telephone number of where JS will be staying – contact number of where I can contact JS daily (sic)."

Also in that email the mother made it clear that she was not agreeing to an extension of dates because it was the child's first long haul trip and was to an unfamiliar country. It was not his first long haul trip though, for he had been to the United States of America to Florida with his mother in 2013 and that flight was some two hours plus longer duration than a flight to Dubai; and although it is fair to say that he would, when going to Dubai, be going to an unfamiliar country, so was the United States of America when his mother took him there. There is no account from her of any disturbance in his behaviour as a result of that trip. She gave me no sensible explanation for these objections to the father's proposals in her oral evidence but, on the finest of balances, although I found her to be illogical, I find it was borne of her mistrust of the father which is as profound as his mistrust of her. This mutual mistrust has led to frequent, low-grade friction between the two and a feeling (misplaced, I found) on the mother's part that she is being bullied and oppressed by him. His statement that in default of agreement with her about these matters he would ask the court to determine the issue is a perfectly proper one and criticism of it by the mother is, in my view, wholly misplaced. What other resources does he have for the resolution of such difficulties?

12. Within days of that consent she had changed her mind because, she tells me, and I accept, she had fully consulted her solicitors and the Foreign & Commonwealth Office and had discovered for the first time that Dubai is not a signatory to the Hague Convention to which I have referred. She asked the father in an email to get an expert report on the position in Dubai and gave him the contact details of three firms of experts who would be in a position to draw up the necessary material and report. She provided that information towards the end of December of last year. He did nothing about it, considering it to be unnecessary. It was only on 21^st January that he issued these proceedings and only on 31^st January at the hearing in Kingston County Court that an expert report was ordered by the district judge. Meanwhile, he had very unwisely bought tickets, he telling me that as the holidays approached, and of course it being half term, availability was decreasing and cost increasing. Nevertheless, even though I accept those were his reasons, this was a very risky approach to the hotly contested application. He will lose the best part of £1,000 plus legal fees if I rule against him, but that is not a factor I can properly take into account. I will come back to the expert report in due course.
13. In her statement of 29^th January this year the mother sets out a number of matters, in particular her assertion that the father's family have spoken in the past of relocating to Dubai, that the father's elder brother is established there, and that it is his word that determines issues within the family and that the paternal grandmother of JS has spent long periods in Dubai (for example three months last year). As to this last illustration I note that the father's sister-in-law in Dubai was pregnant in the course of last year and indeed some three months before the birth of the child she came to this country to spend time with her husband and other child, so that the new child would be born here, but that the paternal grandmother had, prior to that, spent about three months in Dubai offering her the sort of help any grandmother (one would hope) would offer a pregnant member of the family. Further, I note that although the older brother has been in Dubai for approximately six years, I understand he has to renew every two years what amounts to a permit or visa to remain. Thus, on one view of the evidence it could hardly be called a settled intention to remain there. There is no evidence either way which entitles me to make a finding one way or the other. It is noticeable, in my view, that all of her objections in this category pre-date her consent to the trip earlier referred to and yet she did not raise them at the time. Nor has she ever before, as I understand it, raised the fear of abduction even though she agreed in her oral evidence that the father had had ample opportunity in the past if that was what he was intent on doing, either during the course of domestic contact visits, or when the grandparents and younger brother joined him and JS on the trip to the Netherlands.
14. What does he say keeps him here? The main points are as follows:

(i)Paid employment with a well-known grocery chain, even though he freely admitted when questioned that his skills were transferable and would indeed transfer in all likelihood to Dubai should he have to practise his art there.

(ii) Ownership of an investment property in this country.

(iii) That all his friends and his wider family (in other words, relatives beyond the nuclear family) are based in the United Kingdom.

(iv) He fully accepts that JS is well and settled in school with good friendships of his own, and he would not wish to disturb that progress and socialisation of his son.

THE EXPERT REPORT

15. It is dated 10^th February of this year. It is lengthy and clearly and closely argued. It discusses the approach of the courts of Dubai to welfare issues relating to minors and in Annex A sets out various points of the relevant code of the Dubai State applied in the relevant courts, further pointing out that such issues are determined in Sharia courts. It is no surprise to me, given that venue, that the provisions of the code largely follow the classical exposition of Sharia law as I have seen it in case after case over many years. I shall refer only to a handful of aspects of that report, simply to give a flavour for this is already an overly long judgment prepared in the course of a short break over the short adjournment. In summary, and again I repeat, only by way of modest illustration, Miss Barton the expert says this:

(i) There are two concepts central to these issues: guardianship (akin perhaps to the concept of parental responsibility under the Act) automatically vested in the fathers, and custodianship (akin to residence orders or care and control in the United Kingdom) which is automatically vested in mothers, but subject to various provisions (which I need not recite).

(ii) It is only in exceptional circumstances that a married father will lose guardianship. Guardianship itself bestows the right to determine questions arising from the exercise of parental responsibility.

(iii) Whilst the law provides for mothers automatically to be a custodian of a child yet the father has the right to demand custody of the child at specific ages.

(iv) Sharia law is mandatorily applied when the parties are Muslim and still applied to non-Muslims if those non-Muslims do not rely on the law of the country of their nationality, or, if they do so, they do not adduce that law in such a manner as to persuade the court that it is applicable law. That proposition of itself raises a host of difficulties which she illustrates at some length about how to go about provinging to the Sharia court how a common law system might resolve issues.

(v) There is a discretionary power in the Dubai courts to execute foreign judgments and orders, but it is heavily circumscribed by a number of conditions she sets out in paragraph 22 and which I do not repeat here.

(vi) Even if the mother obtained the care of the child in Dubai it would not automatically mean that she could return with him to England if his father were to resist such a return.

(vii) The Sharia courts approach these issues, as do the English courts under the Act, bearing in mind the best interests of the child.

(viii) Miss Barton says frankly at paragraph 28 that foreign court orders are "best viewed as shields and not swords". In other words, they are anything but determinative of the issues in a Dubai court.

(ix) She emphasises that no litigation in those courts is ever a foregone conclusion, unless the parties are in full agreement and asking the court to give judgment that does not offend Sharia law or public morals.

(x) Again, I need not read it out in full, but in paragraph 38 she gives a sort of timetable and list of stages if contested proceedings are issued in relation to such matters.

(xi) She gives a time estimate for the sort of procedure I refer to in the previous subparagraph, giving as an example a case in her recent experience which took four months.

In paragraph 59 she refers, quite rightly, to the fact that this father has given insufficient notice of his application to put in place protective measures that would ensure the return of JS to the mother and the jurisdiction of England and Wales. That sentence itself, however, seems to me to be putting it at its highest, for there is no guarantee, as she makes abundantly clear throughout her report, of any such outcome irrespective of how much time and notice was given.

THE LAW

16. I have been referred to a number of cases. They are Re A (Security for return to jurisdiction - Note) [1999] 2 FLR 1; Re K (Removal from jurisdiction - Practice) [1999] 2 FLR 1084; Re L (Removal from jurisdiction - Holiday) [2001] 1 FLR 241; Re S and O (Temporary removal from jurisdiction) [2009] Family Law 114; DS v. RS [2009] EWHC 1594 Fam; [2010] 1 FLR 576 and finally Re R (a child) [2013] EWCA Civ 1115. In the majority, if not all, of those cases the court clearly considered there to be no risk of non-return, yet nevertheless sought protective measures, for example the obtaining of a bond, the proffering of undertakings to the court by a parent wishing to go on such a holiday, supported in appropriate cases by the taking of solemn oaths on the holy book binding on the conscience of the parent – sometimes in the presence of, for example in the case of a Muslim, an Imam or a priest for a Hindu. Not unnaturally, the authorities also require the provision of extensive information to the left behind parent concerning plans for the holiday, the duration of it, what accommodation there is, telephone numbers, etc.
17. The last of the above-named cases sets out in clear terms the Court of Appeal's recently expressed summary of the proper approach to these cases. I incorporate by reference only paragraphs 23 to 26 of the judgment of the Court of Appeal given by Patten LJ. It is clear that the judge at first instance in that case had determined that there was some risk of non-return, though not a great risk, yet the risk nevertheless required the imposition of terms. The approach which this court should adopt seems to me to be spelled out in paragraphs 25 and 26. I further remind myself that these applications should be approached applying also Section 1(1) the welfare principle, and Section 1(3) the Welfare Check List of the Act, and should bear in mind also the considerations of Article 8 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, substantially incorporated into domestic law. I remind myself, when considering the conflict of those interests (for there will be many in play), it is JS' interests under Article 8, consistent with European and domestic law, which have primacy.

DISCUSSION

18. I have already made clear that I find the mother to be over-anxious and at times inconsistent in her approach, for example, to the existence of the alleged threats by the family to relocate. I do not find those threats to have been proven on the balance of probabilities, but even had I found them to have been made, they have in my view (given their historical context according to the mother) long been overtaken by events, and in all the time since there has been no attempt by the father, nor by any other member of the family, either to leave this jurisdiction permanently or to take the boy with them. Nor, I remind myself, did the father avail himself of any number of opportunities to abduct JS in periods of contact, nor indeed when in Amsterdam with the family as earlier noted. He could, and I find it strange that this matter has never been argued before me in all the cases I have tried on this subject until Miss Cole raised it today, simply have walked across an airport terminal and gone to Dubai without any sort of effort at all, even if the country he had first arrived in was a signatory to the Hague Convention.
19. Overall, I find the father to be a credible witness and find, on the basis of the totality of the facts, that if there is a risk of abduction (which I doubt) it is a minute one.
20. Yet it seems to me that even on that basis the tenor of all the authorities, and particularly bearing in mind the consequences of an abduction if one occurred, is that some safeguards should be put in place. In her supplementary note for me Miss Cole offers the following on behalf of the father:

(i) an undertaking to return JS to the jurisdiction of England and Wales on 21^st February.

(ii) An undertaking that in the event that JS was not returned that he would cooperate with the respondent mother and not seek to impede the return of JS to the country (that is, the United Kingdom).

(iii) That he will not commence any legal proceedings in Dubai, nor will he instruct or encourage any other person to do so.

(iv) An undertaking that he will not apply for a travel ban in respect of JS in Dubai. Further,

(v) He is also in agreement with an order containing a declaration that JS is habitually resident in England. Further,

(vi) he has offered to pay a bond of £5,000 to be paid into the court (although for my part I understand that particular provision of the court offering itself as the keeper of monies to have been abolished) . That would not in itself be fatal for, as Mr. Bagchi pointed out, were I tempted by that proposal the £5,000 could be lodged with solicitors to the order of the court.

What do I think of these proposed safeguards?

21. The undertakings would in fact in my view be worthless if the father does abduct JS and stays in Dubai himself, for they could only be acted upon by way of, for example, committal proceedings if he returned here.
22. The declaration of habitual residence, in the light of what Miss Barton says about the approach of the courts of Dubai to foreign orders, would be, in my judgment, of very limited value if any.
23. The bond, which I accept is probably the only sum the father can raise in time for this hearing, might pay (according to Miss Barton) for a contested application for a return order in Dubai, but would not meet the ancillary costs (at least in full) of accommodation, flights, etc and in any event does not begin to address the question of the time taken to proceed to a determination.
24. Ultimately, bearing in mind crucially the consequences of a retention in Dubai for this child, I consider these safeguards offered to be too little and, on Miss Barton's observations, too late.
25. I therefore dismiss the application.
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