England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/01/2015

Mrs Justice Pauffley:

Preliminaries

1. These proceedings were listed as a matter of urgency with a time estimate of half a day on 27 January 2015 at 14.00. Most unfortunately, the court bundle did not arrive until the morning of the hearing and at a time when I was about to embark upon another 2 hour fixture.
2. During the lunch hour I read the statement evidence. I dealt with another listed case at 14.00, then heard full submissions in these proceedings and had the opportunity to consider the exhibits as well as other material throughout the course of the afternoon. It was simply impossible – because of my commitments elsewhere – to deliver judgment on the day of the hearing. Accordingly, the matter was listed for judgment today, 29 January, at a time convenient to Counsel on both sides.

The issues

3. The application made by the mother of a two year old child is for his summary return to Abu Dhabi, one of the United Arab Emirates (UAE).
4. The parties invited diametrically different approaches. On behalf of the mother, Mr Khan suggests there should be a summary return order and that the evidence filed would support such an outcome. He contends this is a serious and troubling case and that what the father did in removing the child from Abu Dhabi in late November last year was audacious, deliberate and cruel.
5. Miss Hartley, on behalf of the father, submitted there should be further evidence before any consideration is given to summary return which is, in any event, strongly resisted. Miss Hartley suggested there are uncertainties about the parents' and child's ability to live lawfully in the UAE which should be the subject of expert opinion; and that advice is also needed upon the procedure and substantive law in the UAE as it relates to disputed arrangements for children.
6. I gave anxious consideration to Miss Hartley's adjournment application during the hearing itself and I have reconsidered it since. Ultimately, I have decided that it is unnecessary to secure expert advice as suggested and for these reasons. Firstly, that as the result of the mother's swift action in applying for a visa to reside in the UAE, sponsored by her father, the vacuum of information about what would be permissible so far as she is concerned has been removed. She has produced authentic documentary proof that her visa exists and contends that the Ministry of Exterior has informed her she can sponsor S on the basis that he is in her custody.
7. The second piece of readily available information relating to immigration issues arises from foreign travel advice on the gov.uk website. The father as a British citizen is entitled to a 30 day visitor visa on arrival in the UAE which may be extended for a further 30 days by visiting an immigration office and paying a fee. A 'long visit visa' has the same requirements as a short visit visa but costs £200 and entitles the holder to a 90 day stay in the country. It would also have to be said, that if the father secured employment in the UAE then, as before, he would be entitled to residency. In all the circumstances, it is my view that an expert on the subject of immigration is not necessary.
8. As for advice in relation to the way in which disputed arrangements for children would be resolved in the UAE, I need go no further than the guidelines provided by the House of Lords in the case of Re J (A Child) (Custody Rights: Jurisdiction) [2006] AC 80. At paragraph 39, Lady Hale discussed the differences between legal systems, said they could not be irrelevant but added that their relevance will depend on the facts of the individual case. She continued, "The absence of a relocation jurisdiction must do more that give the judge pause; it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor may (not sic) be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight."
9. To my mind, this is indeed one of those cases where the connection with the UAE of the child, his parents and his paternal as well as maternal grandparents is so strong and so long established that any differences between our own and the legal system there should carry little weight. It is also relevant to consider that the parents have already had involvement with the courts there. The father relates that during a period of parental separation last year, he applied for visitation rights to S and agreed to take part in mediation organised by the Family Network Centre.
10. So much then for the application to adjourn for expert opinion. None is necessary in the particular circumstances of this case. That application is dismissed.

Essential background

11. The background for the purposes of this hearing may be shortly summarised. The mother is 25 years old; she is a Jordanian national who is living in the UAE where her parents also live. The father, aged 28, is a British national and was born in England. His parents, the paternal grandparents, as well as his sister have lived in the UAE for over twenty years. If he was looked after by his own parents when he was a child as seems likely, then for the majority of his childhood the father also lived in the UAE. In 2009, after he'd completed a university education in the UK, the father moved to the UAE and secured employment there.
12. The parents were married in November 2011 in the UAE. Their only child, S, was born there in early December 2012.
13. The mother asserts, though the father denies, that she suffered domestic violence and that there was physical violence involving a referral to the police in February 2014. There was a separation between the parents in April 2014 after, as the mother claims, a further episode of violence. The parties reconciled in mid June 2014. They and S were on holiday in Scotland for a three week period in October 2014.
14. According to the mother, the father wrongfully removed S from her and from the UAE on 24 November 2014. At her instigation, wardship proceedings were issued on 5 December. Notwithstanding a series of disclosure orders it was not possible to locate the father and S until 15 January at an address in Manchester which belongs to the paternal grandparents.
15. When the proceedings came before Mr Justice Roderic Wood on 19 January, the father was represented by Miss Hartley of Counsel. An order was made providing for statements, the matter was listed for two hours for summary disposal or directions and the father was directed to bring S with him to court.
16. It had not been anticipated that the mother would have been able to attend the hearing. It had been thought that she did not have a visa which would enable her to travel here and would only be able to secure such a visa if the father were to sponsor her. The mother's passport had been in the possession of the paternal family. When on 14 January it was restored to her in the UAE, it became apparent that in fact the mother holds a visa, additional to the first, which does not expire until March this year. The mother travelled to London and was present throughout the hearing.

How S came to leave the UAE – the rival accounts

17. It is necessary to consider in a little detail what is said by the parents about S's departure from the UAE so as to illuminate the question as to how he came to be in this country. As I perform that task, I'm keenly aware that because perforce this is a summary process, I've not heard oral evidence. It may be useful though when comparing the two versions of events to scrutinise any relevant documentary material as it may tend to support the claims of one or other parent.

Mother's version

18. The mother's account of what happened between 23 and 24 November is as follows. On 23 November the father had entered the bedroom at 06.00, shouted at and slapped her. The father told the mother their marriage was over, that he would take her back to her parents and would collect S for contact on 27 November. S who was awoken by the shouting was breastfed so as to settle him back to sleep.
19. In fact, maintains the mother, the father then physically removed her from the home without S. The father, she says, deliberately broke her mobile phone and she was pushed out of the door. The mother went to the police from where she was collected by her parents and they went to court. She produces a copy of the order made by the Abu Dhabi Court of First Instance on 23 November 2014 "to the effect that that the (father) is obligated to hand over to the (mother) her son S and to inform the court within 3 days."
20. In addition the mother secured a further court order permitting her to go to the matrimonial home so as to retrieve her own and S's possessions. The mother's case is that she told the police about the orders made by the court and was asking for confirmation that the father had received them. According to her, the police response was that they had tried without success to contact the father. His phone appeared to be switched off. The mother asked for a check as to whether he and S were still in the country and supplied their passport numbers. A police officer called the mother to say the father and S had left for the UK at 01.00 on 24 November.

The father's account

21. The father's version of events is very different. He maintains that on 20 October he was told by his employer that his contract of employment would not be renewed. Under UAE law, without a job he would not be able to renew his residence permit which was due to expire on 26 November. The father says he told the mother that unless he was able to find a job in time they would all have to leave the UAE or they would be treated as overstayers and fined AED 100 per day for each family member.
22. The father states he told the mother they would need to leave the country on 23 November, that she agreed and said she would start to pack her things. As 23 November approached, according to the father, he would ask the mother if her things were packed and if she'd said goodbye to her friends. She had said everything was ready.
23. The father's account is that on the morning of 22 November the mother left the house shortly after 06.00. He called her throughout the day but there was no response. He says he needed to purchase the flight tickets but could not get through to the mother by 'phone. He was very upset, he states, that she had disappeared without any warning. The father's case is that he tried to locate the mother's passport so as to buy a ticket for her but "could not find it anywhere" (although his family later found it in the house after he had left the country). The father maintains that "as time was running out" he purchased tickets for S and himself "in the hope that the mother would get in touch. She never did."
24. He and S left the UAE at midnight. Shortly before the flight left the father says he received a phone call from the Family Network Centre (a mediation service with which the family had had dealings) asking him to return home with S. According to the father he had replied that his residence permit was due to expire and that he and S were required to leave.
25. The father states that the mother never contacted either him or his family again. She knew he would be living in Manchester though he accepts she might not have had the address. The father suggests the mother had his own and his family members' phone numbers and that although he had tried to call her on several occasions he "could never get through." He emphatically denies the mother's account of events, maintaining what is described by her is untrue and that no such incidents occurred.

What can be drawn from the available material?

26. There is, accordingly, a very large factual dispute about the circumstances of S's departure; and although the parties rival accounts were not tested by cross examination it is nonetheless possible to make some sense of what happened as the result of several important indicators.
27. The father's account of a planned consensual relocation which faltered as the result of the mother's disappearance just before the date of departure encounters very considerable problems when account is taken of the following incontrovertible facts. There can be no doubt but that on 23 November the mother approached the Court in Abu Dhabi for an order requiring the father to return S to her – documentary proof is available. Also on 23 November, the mother was examined by a physician, at the instigation of the police and found to have bruises and redness of the left side of the face. Again there is documentary support from an identified physician. The mother has produced a mobile phone containing several photographic images of the left side of her face showing red and raised marks consistent with slaps to her cheek.
28. As early as 25 November as the result of an approach to Reunite, the mother made contact with Mr Craddock of Brethertons who instituted these proceedings on 5 December. The mother's speedy action in seeking out and giving instructions to a specialist lawyer supports her claim that this was an abduction rather than planned relocation.
29. On 10 December the Juridical Department wrote to the Head of the Capital Police Directorate asking that the father be arrested so as to investigate whether he should be imprisoned for failing to hand over S to the mother. Once again, there is a document which establishes that happened.
30. There is then to be considered the information about the mother's passport and the extraordinary way in which it was restored to her. I remind myself that the father's statement evidence is that he could not find it on 22 / 23 November but that his family found it in the house after he left the country. In the same statement, the father explains that the mother has a visa to visit the UK which expires in February 2015.
31. The mother's passport – which had not been in her possession since 24 November – was returned to her father, the maternal grandfather, on 14 January by DHL. It had been consigned by the company where the paternal grandfather is employed in Abu Dhabi. Page 7 of the passport – upon which according to the mother her visa to visit the UK (expiring in February 2015) appeared – was missing. There is the tiniest piece of torn paper at the top where page 7 of the passport should be which might suggest it had been torn away.
32. When the father was visited by the Tipstaff on 15 January so as to execute the location order made by Mr Justice Newton on 18 December, the father indicated (and it was subsequently confirmed during the course of a Skype call) that his own and S's passports were with the paternal grandmother in Abu Dhabi. The paternal grandmother was stopped at Manchester airport on 18 January when her own as well as the father's and S's passports were seized.
33. It is accepted on behalf of the father that his own, the mother's and S's permits to reside in the UAE were cancelled by the paternal grandfather on 6 January. Presumably he needed the passports to effect those cancellations. According to the mother, that was done without there having been any contact with her; and it is not suggested otherwise by or on behalf of the father.
34. It is also relevant to note the father's evidence about the loss of his employment has not been substantiated by any documentary material and is contradicted by the mother's inquiries of his former employers, though that is undoubtedly hearsay evidence. More materially, the father maintains he was informed by his employer on 20 October that his contract would not be renewed and under UAE law he would not be able to renew his residence permit which expired on 26 November unless he had a job. As a result, maintains the father, he, the mother and S are not actually permitted to live in the UAE.
35. The mother contends that on 20 October she, the father and S were all on holiday in Scotland. They left Manchester at 21.00 that day and flew to Abu Dhabi arriving on 21 October. The father, she says, returned to work on 26 October.
36. Towards the end of his written statement the father expresses the hope that the mother will join him and S in England. He has been advised he would need a secure offer of work before he would be able to sponsor the mother for a spousal visa. However, I was also told by his Counsel during the course of argument that he is "applying for jobs all over the world."

How and why S left the UAE

37. At the end of my assessment of the written evidence it was straightforward to determine that S left the UAE as the result not of a consensual relocation plan but because the father had decided to take his son away from the mother and also from the country of his habitual residence. Moreover all the signs are that very considerable steps were taken by the paternal family in the aftermath of the abduction so as to make it impossible for both parents and S to reside in the UAE. Indeed, it had been a central plank of Miss Hartley's argument on behalf of the father that the parents and S are not entitled to reside lawfully in the UAE and, therefore, a summary return order could not be made. In her Position Statement Miss Hartley said this – "Clearly if the parties and / or the child cannot return to the UAE, they cannot embark upon substantive litigation there in relation to S's arrangements. Potentially the courts may not even have jurisdiction to try any such application if S does not have a right to reside in the UAE."
38. That, so far as I can see, was exactly what the father was intent upon seeking to ensure by the instructions he gave to the paternal grandfather in relation to residence permits. The signs are that the father is intent upon remaining in England with S and determined to thwart any suggestion that there should be litigation in the UAE so as to resolve where he lives and with whom.

Legal principles

39. The principles which guide the court when considering applications for summary return in non Convention cases are well known. They derive from the judgment of House of Lords in Re J (supra). I mention the key themes.

•    The welfare of the children is paramount. If a decision is made to return the child it must be because it is in his best interests to do so not because the welfare principle has been superseded by some other consideration.

•    The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non Convention case.

•    The court has the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.

•    'Kidnapping' or abduction, in common with other forms of unilateral action in relation to children is to be strongly discouraged, but the discouragement must take the form of a "swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law".

•    There is no presumption that it is likely to accord with the child's welfare needs to be returned. The most one can say… is that the judge may find it convenient to start from the proposition that it is likely to be better for the child to return to his home country for disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what may be best for him in the short run. It should not be assumed that allowing a child to remain here while his future is decided here inevitably means he will stay here for ever.

•    One important variable is the degree of connection of the child with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion, culture and education thus far will all come into this. Another closely related factor will be the length of time he has spent in each country.

•    The extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not necessarily inevitably to be preferred to another … We are not so arrogant as to think that we (in England and Wales) know best.

•    If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes… then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give a judge pause for thought… it may be a decisive factor… There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight.

•    These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country even if that country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be litigated here. Our concept of child welfare is quite capable of taking religious and cultural factors into account in deciding how a child should be brought up.

Additional submissions on behalf of the father

40. Before I turn to my overall conclusions it should be said that although Mr Anderson did not invite me to hear submissions today, additional to those made by Miss Hartley on Tuesday, I afforded him that opportunity. He addressed me briefly observing that Miss Hartley's submissions had been full and detailed, as indeed they were.
41. Through Mr Anderson, the father wished to emphasise three matters. Firstly, that the father doubts, notwithstanding the visa recently obtained by the mother as the result of sponsorship by the maternal grandfather, that in fact she has the right to reside in the UAE. Though Mr Anderson had to concede that the visa as it appears within the mother's passport seems valid. The father's second anxiety is as to the mother's financial status in the UAE – a matter which, in fact, had not featured during the hearing. This morning Mr Khan was able to indicate, as I had assumed, that the maternal grandfather has been and will continue to provide financially for his daughter. The father's third concern was as to broader welfare issues – that S would be better in his own than the mother's care. The father emphasised that he only wants the best outcome for his son, that he and the mother should seek to resolve issues for themselves and that exercise would be best achieved here in the UK rather than the UAE.

Welfare assessment

42. I have well in mind all that was said most persuasively by Miss Hartley at the hearing as well as those matters just mentioned by Mr Anderson today. Now I turn to my assessment – swift, realistic and unsentimental – of S's best interests. I have concluded and by a wide margin that he should be returned to the UAE and for these reasons.
43. First, that he has the strongest connection possible with that country having lived there for all of his life. He had holidays elsewhere but Abu Dhabi was his home; and although the father's written evidence suggests otherwise it was conceded in argument that S was indeed habitually resident in the UAE at the time his father brought him to England.
44. Until November 2014, S was immersed in the culture and religion of the UAE surrounded by all of his closest family members, spoken to in Arabic which is his first language. To allow him to remain here where his mother cannot stay for long and far away from his maternal grandparents with whom he has a close relationship would be against his welfare interests. Similarly, so soon as the dust has settled and some rapprochement between the two sides of the family is achieved I can see no reason why S should not continue his relationships with all of those paternal family members who live in the UAE. There is nothing to stop the father travelling and finding work there if he chooses so to do.
45. Everything that was familiar to S including the loving presence of his mother, his principal carer, was suddenly denied to him when his father decided, unilaterally, to bring him here. S has been away from his home, his maternal grandparents and other social contacts these past two months; and because he is so young it will have been impossible for him to make sense of or comprehend why and how he has been required to undergo such radical and drastic changes.
46. S's separation from his mother is likely, in my assessment, to have caused him considerable emotional difficulty. She, after all, has been his primary carer. After S was born, the mother did not work outside the home whilst the father was in full time employment. The father also went, so he says, to the gym three times a week and played football. He may have been, as he suggests, deeply involved with S from the time of his birth but that does not detract from the fact that the mother was with him almost all the time, attending to his every need.
47. I have considered the father's claims against the mother of having ill treated S and whether I should therefore pause before ordering his return with her. The father cites an occasion in July 2013 when S was discovered to have a fracture of his right leg. There is no suggestion that it was an inflicted injury. The father's complaint is that nothing was done about it until he returned home which the mother disputes. She maintains it was a hairline fracture that the doctor was not intending to apply a cast but she insisted so as to ensure she did not move S's leg whilst changing him.
48. The father also complains that when he returned from visits to the maternal grandparents S would have bruises, that the mother would lock him in the bathroom or kitchen for several hours until he stopped crying, that she would leave hot cups of tea within S's reach causing him to sustain scalds to his hands and once suggested a photograph should be taken of S's penis which might be shown to him when older. All of those claims are denied by the mother. She says she would take S into the kitchen if he was crying at night so as to allow the father to sleep. Photographing a child's infant penis was something a fellow student had mentioned to her which the mother had described to the father, she says, as "the weirdest thing."
49. None of the father's assertions against the mother causes me to be deflected from ordering S's return. It seems to me that they constitute little more that an attempt on the father's part to blacken the mother's character in a bid to improve his own claim to retain S here. More importantly, my view is that it should be for the Courts in Abu Dhabi, already seised, to resolve any factual disputes between the parents so as to make appropriate welfare arrangements. The Courts there would be better placed to determine the welfare issues for S.
50. The way in which the Court in Abu Dhabi resolves disputes about children may be and probably is different to that in the Courts of England and Wales. The parents, in all probability, know of the essential differences. It seems likely that the father believed he would fare better in an English court which may account for the steps he took to cancel his own, the mother's and S's rights to reside in the UAE. But I am in no position to say that our ways of resolving parental disputes are better or to be preferred over those of the courts in the UAE. There are, as Lady Hale said in Re J many routes to a healthy and well adjusted adulthood.
51. Insofar as I have not already touched upon welfare checklist factors, I should make clear that in my assessment S will have been emotionally harmed as the result of his enforced separation from his mother. It was precisely because of the almost inevitable impact upon him of two months continuous interruption in his relationship with his mother that I ordered he should stay with her between the hearing on Tuesday and judgment this morning.
52. Lastly, I should indicate what may be drawn from the parties' respective recent behaviour about their capacity as parents. The mother describes her sense of devastation when she discovered that the father had taken S to England, an indication of her attachment and devotion to her son. When the hearing began she was extremely distressed, crying piteously, as the result I was told of some incident in the corridor at which S had been present. It is inevitable that the events of the last two months will have had a profound impact upon the mother. She has yearned to be reunited with S.
53. The father's actions in bringing S away from his mother, his country and all that was familiar to him seemingly paid scant or no regard to S's well being. The father's instructions to the paternal grandfather to take the passports to the authorities in the UAE so as to cancel the parents' and S's residence permits indicate a cynical and single minded determination to thwart the mother in any attempt to secure S's return.
54. At the end of this assessment process in all its various facets, I am in no doubt. It is overwhelmingly in S's welfare interests to return with his mother to the UAE as swiftly as can be arranged.