England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		3rd July 2015

MR. JUSTICE MOYLAN:

1. These proceedings concern a young child ("RB") who is now aged four and-a-half. The parties to the proceedings are her father, represented by Mr. Gration, and her mother, represented by Mr. McHugh.
2. This is the hearing of an application by the father for an order that RB should move to live in Algeria and for a stay of the mother's proceedings in England. It is not an order for the return of the child to Algeria because, since her birth, the child has always lived in England and has never lived in Algeria. It is, in effect, an application for a summary relocation order. The application is made under the court's inherent jurisdiction.
3. The father has not, in fact, made a formal application. The only formal application is that made by the mother under the inherent jurisdiction, as referred to later in this judgment. In making his application, the father relies on an order made by the Algerian court. He cannot seek its direct enforcement under any international instrument, but he relies on the existence and the nature of this order in support of his application.
4. The mother opposes the father's application. It is her case that any substantive proceedings concerning RB, including in respect of where she should live, should take place in England and that no summary order should be made seeking to require her to move to Algeria with RB. She wants to remain living here and contends that it is in RB's best interests for her to remain living with her in England.

Background

5. Summarising the background circumstances, the father is aged 38. He was born in Algeria and came to England in 1999, when he was aged approximately 22, to study for a Master's degree and then a PhD in engineering. He completed his PhD at Imperial College London in 2005 and obtained employment in England. He obtained a number of jobs in what he describes as cutting edge engineering companies. He obtained indefinite leave to remain and subsequently became a British Citizen. He is, accordingly, an Algerian and a British national.
6. The mother is aged 31. She was also born in Algeria. The mother and the father married in Algeria in June 2009. Shortly thereafter the mother came to live in England. She has been living here since then. She has indefinite leave to remain.
7. RB was born in England. She is an Algerian and a British national.
8. The parties separated in April 2013.
9. The father moved to live in Algeria in October 2013. He left his employment in England and does not appear to have been working since then. He says that he moved back to Algeria to be with and to care for his parents, who are not in good health. It is the father's case that he intends to remain living in Algeria.
10. The mother and RB have remained living in England. It is the mother's case, as I have described, that she intends to continue to live in England.
11. The father commenced divorce proceedings in Algeria on 18^th April 2013, some two weeks after the parties had separated. He states that he obtained advice in Algeria and in England that he had to file for divorce in Algeria. If the father was given that advice in England, it was inaccurate advice.
12. In a statement filed in these proceedings the father alleges that the mother wrongfully kept RB in Algeria in 2012, as the mother kept her there for longer than had been agreed. He sought the assistance of the British Embassy in Algeria and of Reunite to seek to compel the mother to return. He was told he could not do anything as Algeria is not a party to the 1980 Hague Child Abduction Convention or any other relevant international instrument.
13. The mother returned to England with the child in September 2012.
14. The relevance of this incident is that, at that time, the father was insisting on RB being returned to England, clearly on the basis that this was her home.
15. Further, in April 2013 the father telephoned the police in England saying he was worried that the mother would remove RB from England. The mother had, at that time, left the matrimonial home with RB. The father expressly states that he was "so worried that (the mother) had taken (RB) outside the UK". This also contrasts with the father's current position.

Algerian Proceedings

16. The father's divorce application in Algeria deals only with divorce and does not directly seek any order in respect of RB. It states that the parties will agree on all custody details, but if they cannot agree, he preserves his right to engage in independent legal proceedings. The application gives the mother's address as the family home in England.
17. The mother replied through her appointed lawyer in Algeria. It appears that the procedure is for a party's appointed lawyer to attend court and, in the presence of the public prosecutor, or perhaps some other official, to present their case which is then transcribed by a court clerk. In the mother's reply she asks the court to award her custody and guardianship.
18. In the father's reply to the mother's reply, he seeks an order for contact. A conciliation hearing took place on 7^th October 2013 attended by the mother's father.
19. The court's judgment was given on 18^th November 2013. The judgment contains a brief record of each party's claims, of the public prosecutor's analysis of the law and of the court's decision. It appears clear that the court simply applied the relevant provisions of Algerian law under which a mother has "priority" to the custody of a girl until the age of 19. The mother was awarded custody and guardianship of RB. In addition, but without any explanation, the father was given contact every Friday and Saturday and during holidays. The court also granted a divorce and made financial orders in favour of the mother.
20. The father appealed against the court's financial orders and the order awarding the mother custody. He sought an order requiring the mother to exercise custody in Algeria, and if she would not, an order giving him custody of RB. The mother's lawyer replied seeking to uphold the court's decision.
21. The appeal was determined on 11^th March 2014. The financial award was adjusted slightly but the father's appeal against the custody order was dismissed. This was on the basis that the appeal was unnecessary because the first instance court's decision had not "set the place to exercise custody outside" Algeria. Accordingly the father's application for an order that the mother must exercise custody in Algeria was "without basis".
22. It is clear that both the mother's and the father's Algerian lawyers had not appreciated that the first instance court's custody decision had implicitly required the mother to live in Algeria with the child.
23. The father then sought to enforce the order for contact through the Algerian court by the appointment of a bailiff to collect the child for contact. The father clearly knew that the order could not be enforced in this way because he knew that the mother remained living with RB in England.
24. The father then sought the mother's prosecution for failing to make the child available for contact in accordance with the order.
25. On 28^th October 2014 the mother was convicted, in her absence, of the offence of non-delivery of a child. She was fined and ordered to pay compensation. It appears to me that she was also sentenced to the maximum term of imprisonment, which is six months. This appears from the following passage in the appellate court's judgment. Under the heading "Upon these grounds" the court's decision is set out. Part of the decision is "... and fix the duration of imprisonment to compel performance at the maximum". As I have indicated, the maximum is a term of six months.
26. Thereafter, the father continued to seek to enforce the order through the Algerian courts. I have been told that, on 17^th May 2015, the mother was again convicted and sentenced to prison. During the hearing, I was told by Mr. Gration that although the mother has been sentenced to prison, no arrest warrant has yet been issued.
27. The mother also applied to the Algerian court seeking some sort of review of the court's initial custody decision. This was dismissed on 5^th February 2015. Her application appears to have been based on the fact that the father knew she did not live in Algeria. It was dismissed as she had not previously raised the issue of her actual address nor had she raised the issue of her exercising her right of custody in a foreign country. The court added that this latter issue was: "A matter that is governed by special procedures under the Algerian Family Code which must be followed." The order also says, somewhat puzzlingly, that the mother has not produced "what may support the issue of her actual residence".

English Proceedings

28. The mother commenced proceedings in England on 12^th June 2014. They were commenced with an application under the inherent jurisdiction. This was because the mother was seeking a passport order in respect of the father's and RB's passports. The other orders sought by the mother could have been made under the Children Act 1989 as this court clearly has substantive jurisdiction under Article 8 of Brussels IIa, pursuant to Section 2 of the Family Law Act 1986.
29. The proceedings were commenced without notice to the father, the mother asserting that she strongly believed the father would attempt to abduct RB if he was given prior notice of the application. The fact that the application was made without notice has been the subject of criticism by Mr. Gration on behalf of the father. Whilst I have concerns, I am not in a position at this hearing to determine whether the making of the application without notice was justified. However, I note that the parties had by then been engaged in proceedings in Algeria for approximately one year although, in fairness, I also note that on 28^th May 2014 the father had initiated criminal proceedings against the mother in Algeria.
30. An order was made on 12^th June 2014. The father only received this order on 18^th June, less than 48 hours before the next hearing listed on 20^th June 2014. Not surprisingly, he did not attend that hearing, nor was he represented. The court was not aware of the fact that the father had received little notice of the hearing on 20^th June. If it had known, I very much doubt that a declaration would have been made that RB is habitually resident in England and Wales. The facts supporting such a conclusion in this case are overwhelming but as, effectively, a without notice declaration, it was jurisdictionally unsound: see Re F (A Child) [2014] EWCA Civ 789, para.12.
31. The father only received the order made on 20^th June either on 30^th June or 2^nd July. Again, notice of the order was very substantially delayed for reasons which are not clear to me. The father is clearly right to question why this occurred. Orders must be served in a timely fashion so that parties have proper notice of the obligations created by them.

Evidence

32. The parties have filed a number of statements, four by the mother and three by the father.
33. In his statements, the father says that he has never wanted to remove RB from the mother's care. He merely seeks to have contact in Algeria because that is where he is residing and because both the mother and RB are Algerian nationals. He points to the parties' connections with Algeria including that members of the wider family live in Algeria.
34. The father has clearly been deeply affected by the end of the marriage. He says that the mother's emotional abuse during the marriage caused him to have a number of panic attacks and that she has abused his "deep love, passion, trust, loyalty, care and respect for her".
35. In her evidence, the mother makes plain that she wants and intends to continue living in England. She says that both she and RB are very settled here. They have a large network of friends and several family members also live in England. RB has only spent approximately 160 days in Algeria, including three months in 2012, throughout her life. The mother sets out her plans for the future.
36. The mother says that she is now afraid to go to Algeria because of the criminal proceedings against her; because she would be unable to leave; and because of her concern that RB might be removed from her care. She also questions whether the father will remain living in Algeria, given the opportunities available to him there as against elsewhere in the world.
37. The mother is also clear that she is happy for the father to have contact in England, with appropriate safeguards, because, as a result of his actions, she is afraid that he could try and take RB to Algeria. She also says that she offered contact in 2013, before the father returned to Algeria, but he did not take up the offer. Indeed, she says that the father has not communicated with RB at all, including for birthdays and other significant days, since April 2013.
38. Expert evidence has been obtained from Ian Edge, a well-known expert in the field of Islamic law. He has provided written reports.
39. Under Algerian law a father is the guardian of his minor children. A divorced mother has defined rights of custody and can be made a joint guardian, as the mother has been in this case. The father, as a guardian, has the power to prevent his child leaving Algeria. Foreign travel must be authorised by him and this has to be recorded in a special official document.
40. A parent who has custody of a child can apply for permission for the child to live with them in a foreign country. In Mr Edge's opinion this is "very rarely" given. Mr. Edge was asked additional questions relating to this. He refers to a very recent 2015 publication which includes a chapter written by an Algerian Professor of Law. In this it is commented that "fathers are very rarely [successfully] sued for child abduction." The book also refers to a decision of the Algerian Supreme Court in which it was said that a Court of Appeal had "violated the law when they attributed custody to a mother living in a foreign country".
41. Mr. Edge was also asked what would be likely to happen to the child if she and the mother were to return to Algeria. In his opinion, the father would easily be able to obtain an order for interim custody on the basis that the mother has breached the Algerian court order. In any event the court would "almost certainly" require the mother to exercise custody by residing with RB in Algeria.
42. The father challenges aspects of Mr. Edge's evidence, limited primarily to whether he is a joint guardian with the mother or whether she is the sole guardian and accordingly, whether, as a result, he is able automatically to prevent RB leaving Algeria.
43. I do not need to address this dispute because whether or not the father is automatically entitled to prevent RB leaving Algeria, it is clear from the evidence that the mother requires the permission of the Algerian court before she would be entitled to exercise custody outside Algeria. This is the basis on which the Algerian court dismissed the father's appeal. Further, in his complaint dated 28^th May 2014, filed with the Algerian court, it is asserted that the order of 18^th May 2013 has "compelled" the mother to exercise custody in Algeria.
44. I am also satisfied, because this is what the father seeks, that even if he is not automatically able to prevent RB leaving Algeria, he would, if it was necessary, apply to and obtain from the Algerian court an order requiring the mother to exercise custody in Algeria. I accept Mr. Edge's evidence that such an order on the father's application would "almost certainly" be made.
45. Accordingly, if the mother were to go with RB to Algeria, I have no doubt that she would not be able to return to live with RB in England without the permission of the Algerian court and that such permission would be very unlikely to be given. I am also satisfied that the mother would be at a real risk of imprisonment on her return to Algeria.

Submissions

46. Turning now to the father's case, Mr. Gration submits that it is in RB's best interests for the Algerian orders to be recognised and enforced and, consequently, for the proceedings in England and Wales to be stayed. The parties are Algerian. They have litigated in Algeria and should, he submits, be bound by the orders made in those proceedings. The father says that he does not wish to punish the mother or to seek to deprive RB of her mother. He simply wishes to be involved in the child's life, and to be able to do so as provided for in the Algerian court's order. This cannot happen if he and the child remain living in separate countries.
47. If the mother wants to live in England with RB she should make an application to the Algerian courts. The father would not take any step to prevent the mother from making such an application following her return to Algeria. Whilst he might not seek to prevent the mother making any such application, it is obvious that he would oppose any such application.
48. The father does not seek to argue that RB is not habitually resident in England. However, Mr. Gration made clear in his oral submissions that he is not in a position to concede the issue because his client does not accept that RB is habitually resident in England. In my view, this is a puzzling but, more significantly, a worrying approach for the father to take.
49. Mr. Gration has referred me to a number of authorities, in particular In Re J (Child Returned Abroad: Convention Rights) [2006] 1 AC 80; M v M (Stay of Proceedings: Return of Children) [2006] 1 FLR, 138; JKN v JCN (Divorce: Forum) [2011] 1 FLR, 826; and In Re J (A Child: Custody Rights: Jurisdiction) [2006] 1 AC 80. I will refer to some of these later in this judgment.
50. Mr. Gration submits that the proceedings in England should be stayed because Algeria is the more appropriate forum, applying the test referred to in The Spiliada [1987] AC 460. The Algerian proceedings were first in time; the mother engaged in those proceedings; the Algerian court has made a final order, upheld on appeal, which is being enforced; both parties are Algerian nationals; both parties have close connections with Algeria; and the child is an Algerian, as well as a British, national. Accordingly, Mr. Gration submits, this case has a more real and substantial connection with Algeria. Further he submits, somewhat opaquely, that the Algerian courts will have a better understanding of matters relevant to RB's welfare, such as the wider family and cultural issues.
51. Mr. Gration submits that it would be a proper exercise of this court's welfare jurisdiction to order the child to be taken to Algeria. He recognises, of course, that the cases of M v M, In Re J, and In Re L were all dealing with orders requiring the return of a child. However, he submits that it would be in RB's best interests for the Algerian court's order to be enforced. Otherwise, for so long as the jurisdictional dispute or conflict continues, RB will not be able to visit Algeria and not be able to have contact with her father. The latter depends, of course, on how the father responds to my decision and how he seeks to have contact with RB. Conversely, Mr. Gration submits, there is no disadvantage either to RB or to her mother of their returning to Algeria.
52. Mr. McHugh submits that it would be contrary to RB's best interests for a summary relocation order to be made giving effect to the Algerian court's order. He submits that England is clearly the more appropriate forum for determining issues relating to RB's welfare.
53. Mr. McHugh relies on the evidence of Mr. Edge and submits that, if the mother were to return with RB to Algeria, she would be very unlikely to be able to leave with RB again, certainly to come and live here. She also might be imprisoned, the father having specifically applied for enforcement through the criminal courts in Algeria. He questions why the father did this when he has known all along that the mother and RB are in England, and that the mother wants to remain living here. He also questions why the father has had no contact for the past two years, choosing instead simply to pursue his legal remedies in Algeria.
54. Mr. McHugh submits that this court is better placed to make welfare decisions. RB has lived here her whole life and all the evidence most relevant to a welfare decision is here. This case has a significantly more real and substantial connection with England. Finally, the mother has public funding in England, whilst in Algeria she would not.
55. Mr. McHugh has also referred me to Re V (Forum Conveniens) [2005] 1 FLR, 718 in which Munby J. (as he then was) said that: "the country in which the child habitually resides … has a strong but not conclusive claim to be the forum conveniens."

Legal Framework

56. Turning to the legal framework, this court has substantive jurisdiction because RB is habitually resident in England and Wales. I would respectfully agree with Munby J. when he said that the country in which a child is habitually resident has a strong claim to be the forum conveniens. This can be seen, for example, from international instruments such as Brussels IIa and the 1996 Hague Child Protection Convention, both of which give primary jurisdiction to the authorities of the child's habitual residence, although both also provide for cases to be transferred (Article 15 and Article 8 respectively) and for jurisdiction to be prorogued.
57. For the purposes of this judgment, I will assume that there is jurisdiction to stay the English proceedings under section 5(2) of the Family Law Act 1986 or otherwise, although I note this was left open by the Supreme Court in Re A (Jurisdiction: Return of Child) [2014] 1 FLR 111.
58. I would further add, in respect of section 5(2), that this requires, by paragraph (a), that proceedings are "continuing" outside England and Wales. In my view it is debatable whether proceedings are continuing in Algeria as a final substantive order has been made and the court appears to be engaged only in enforcement proceedings. Even those might have concluded as well.
59. However, I do not need to address these issues (nor section 5(1)) because, in any event, it is clear that I have jurisdiction to make a summary order if I consider such an order is in RB's best interests.
60. As Wilson J. (as he then was) said in M v M, the two applications being made by the father stand or fall together. If I were to refuse the father's application to enforce the Algerian order by ordering RB to be taken to Algeria, it would clearly make no sense to stay the proceedings in England. If I were to order a stay in those circumstances there would, in effect, be no forum available to the parties to determine any issues concerning RB. The father would have an order which he could not enforce in England, whilst the mother and RB would continue to live here. Conversely, if I were to make an order which had the effect of enforcing the Algerian order, it would make no sense not to stay the English proceedings. This conclusion is probably why both parties agree that I should first consider whether I should make a summary welfare order.
61. It is obvious that in making this decision my paramount consideration is RB's welfare. To quote from Baroness Hale's judgment in In Re J, starting at para.25:

"Hence, in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in the best interests to do so, not because the welfare principle has been superseded by some other consideration."

Then later:

"Hence, the two propositions set out by Hughes J in this case are entirely correct: the child's welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case.

"26. Thirdly, however, the court does have 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."

She then goes on to address what she describes as "kidnapping cases".

62. An example of the court exercising its summary jurisdiction is In Re L. In that case Baroness Hale, starting at para.28, said:

"28. ... Furthermore, it has long been established that, in the interests of international comity, the existence of an order made by a foreign court of competent jurisdiction is a relevant factor..."

Then, in para.32, she refers to what she calls "the correct question".

"... is it in K's best interests to remain in this country so that the dispute between his parents is decided here or to return to Texas so the dispute can be decided there? As the judge heard no oral evidence, we are also in as good a position as he was to answer it.

"33. Although the question comes before the court in an application to invoke the inherent jurisdiction, it might have come before the court in the shape of an application under section 5 of the Family Law Act 1986 to refuse an order or to stay the English proceedings on the ground that the question has already been determined, or that it is more appropriate for it to be determined, in proceedings in another jurisdiction..."

Then later:

"Although the circumstances of each individual child and his family are different, it is worth recalling that the Court of Appeal stressed how similar were the approach and procedure of the Texan and English courts in these cases.

"36. The crucial factor, in my view, is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. Whilst conflicting orders remain in force, he is effectively denied access to his country of origin. Nor has his mother been exactly enthusiastic about contact here. The best chance that K has of developing a proper relationship with both his parents, and with the country whose nationality he holds, is for the Texas court to consider where his best interests lie in the long term. It is necessary to restore the synthesis between the two jurisdictions, which the mother's actions have distorted."

Determination

63. Turning now to my determination, I start by noting that the cases to which I have just referred involved the return of a child. Counsel were unable to point to any decision in which the court has summarily ordered a child to move from the country of their habitual residence to a country in which they have never lived. In effect, the father is asking me to make an order requiring the mother to relocate to Algeria, as I am confident that she would not allow RB to move there on her own, and the father has expressly said that he does not seek to remove RB from her mother's care.
64. In my view this would be a very robust order indeed. How is it said to be justified, and justified without any proper welfare investigation and assessment being conducted in this jurisdiction?
65. The principal argument advanced by the father is that I should enforce the order made by the Algerian court. As the father submits, this was an order made in properly constituted proceedings in which both parties participated. However, it is only one factor. In the course of her judgment in In Re L Baroness Hale quoted from the Privy Council's decision in McKee v McKee [1951] AC 352 at 364."

"Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case."

I repeat: "what is the proper weight will depend on the circumstances of the case".

66. The question I have to ask, as adapted from In Re L, is whether I am in a position to decide, on a summary basis, that it is in RB's best interests for her to move to live in Algeria.
67. Absent the Algerian court order there would be no question but that, in the circumstances of this case, any such decision should only be made after a proper welfare investigation and assessment. RB has been habitually resident in England throughout her life. She is settled here. Her mother is settled here and wants to remain living here. Such a major change, as proposed by the father, should, in my view, only be made after proper consideration.
68. The father relies on the factors which connect this family to Algeria, principally, their nationality (although the father and RB are also British nationals), and the fact that much of the wider family lives there (although some members also live in England). These factors are not strong when placed in the balance against the closeness of the child's connections with England. England is her "home" country, as described by Baroness Hale in In Re J at para.33, and the mother is settled here.
69. Does the existence of the Algerian order outweigh the other factors in this case and justify a summary welfare determination? In my judgment, the weight I can properly give to the Algerian order is significantly diminished by the fact that no consideration was given at all to the issue of whether the child should continue to live in England or move to live in Algeria. As explained by the Algerian Appellate Court, it is merely because the order was made in Algeria, and did not provide for custody to be exercised outside Algeria, that the mother is required to exercise custody in Algeria. Both of the parties' lawyers misunderstood that this was the effect of the Algerian court's order. It was not, therefore, an issue considered by the court (or addressed by the parties) at all.
70. Further, as referred to above, I am satisfied by Mr. Edge's evidence that the relocation jurisdiction which would be available to the mother in Algeria is a tenuous one at best. It is more of a theoretical jurisdiction than a practical one. My concern as to the impact on the mother and RB of moving to Algeria is increased by the criminal process initiated by the father and the punishment apparently imposed by the Algerian court. I am also concerned that the father has had no contact at all for over two years.
71. In conclusion, in my judgment I am clearly not in a position to decide, on a summary basis, that it would be in RB's best interests to make the orders sought by the father. Indeed, in my view, to make a summary order uprooting - to use Baroness Hale's word from In Re J, para.34 - RB from her home and requiring her to move with her mother to Algeria would be contrary to her best interests.
72. I do not accept Mr Gration's submission that there would no disadvantage either to RB or to the mother of returning to Algeria. There would be a very substantial disadvantage as it would be likely to lead to the mother and RB being unable to return to England, disregarding any other potential consequences. The continuation of any jurisdictional dispute will depend on the father's response and does not outweigh the other factors in this case.
73. In those circumstances, it would be illogical for me to stay the English proceedings. As explained above, having decided not to enforce the Algerian order, I need to ensure that this court is available to make welfare decisions in respect of RB.
74. I am also satisfied that England is clearly the more appropriate forum. It is clearly the forum with which the case has the more real and substantial connection.
75. Accordingly, I dismiss the father's application.