England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		13th November 2015

SIR PETER SINGER:

1. This judgment will be transcribed and placed on BAILII subject to the usual safeguards to protect the family in question from identification as it represents a particularly poignant demonstration of the problems which can pragmatically arise for children, their parents and their wider families, and for the courts of relevant jurisdictions, when cultures clash. It will be published as AR v AS.
2. C, the child in question, was born in 2007 in the Kingdom of Saudi Arabia. Apart from one period of up to three months when he was maybe three years old, he has lived there until M (the mother) on 10^th August this year took him with her when she separated unannounced at the end of what was intended just as a holiday visit to London from F (his father, and the applicant in these Wardship proceedings).
3. The father is in his early forties and the mother is in her early thirties. They are first cousins: the mother's mother (to whom I shall refer as MGM) is the sister of the father's father (PGF). Both F and M were born and brought up in Saudi Arabia. Until July this year Saudi Arabia has been their country of residence, but for a period of uncertain duration (somewhere between early 2009 and September 2011) for the largest part of which they were temporarily in London improving their English (with unequal success) and with the primary purpose that the mother should take up a Saudi Arabian State Scholarship she had been awarded to study for a Master's Degree in finance at a university in the home counties. During that period C was raised by MGM who lives in Jeddah with her husband, MGF, and certainly until at least recently all their three adult sons. Their other daughter is married and with their other grandson lives next door to M's family home.
4. This then, both the nuclear unit with whose constituents I am concerned and their extended families, are firmly steeped in Saudi Arabian culture and traditions. They also all share an adherence to the principles and the precepts of Sharia Law established as the societal norm in that State. The father, the mother and the child are all Saudi citizens and hold only Saudi passports. They were, until at least this year's August separation, clearly habitually resident there and their roots and their day-to-day life lay there. C has been attending an English school there and his school friends and many members of his extended family on both sides have been familiar components of his upbringing. In many many ways his life and mode of upbringing within an affluent family in Jeddah are a world apart from the disrupted and straitened circumstances in which he has lived as a child of an asylum seeker with all the restrictions which that status brings. For in August the mother did take the decisive step, in a number of ways, of applying for asylum although the information available is that no documentation has yet been filed in that connection nor has she yet had her initial screening interview. I should say that the uncertainty which must attend the outcome of that application does not seem to me to impinge on the question I now have to decide.
5. Since July the father has remained living in London and has seen C in supervised circumstances on three occasions, the most recent of which was yesterday.
6. So for the time being the choice of destination for C is either to remain here in England with the mother for an indefinite period with an indefinite outcome in terms of their ability to make their home here on a long term basis or, as the father fervently hopes to achieve, to return to Jeddah.
7. The mother maintains that her life would in current and foreseeable circumstances be impossibly harsh and restricted were she to return to Saudi Arabia with C. The nature of the difficulties the mother would face would not, as it seems to me, be very different whatever the findings concerning the nature of her relationship with the father which I might make in these proceedings.
8. Ian Edge gave written and oral evidence in his capacity as a well-known expert on Saudi law and a person familiar with Saudi customs. He, of course, expressed no view as to the likelihood or otherwise of the mother's allegations, save to say that the fact that she had made them would be regarded in an extremely serious light by her own family as well of course as by the father. He described what in that society might be her expectation and her plight. He doubted whether it would be possible (although he did not rule out the possibility) by agreement if that could be achieved to obtain in effect a consent order in a Saudi Arabian Sharia Court recording (and thus endorsing) terms agreed between the parties. These should preferably be subscribed to by her own family to signify their agreement and would describe the circumstances in which she might live with C as either a separated or a divorced woman, and be intended to guarantee for her autonomy in relation to matters such as travel, employment and most importantly the continuing day to day care of C. Even if such an agreement could be reached (and necessarily the mother's consent would be a prerequisite) and were endorsed by the Sharia Court, it would need to be hedged about with the most effective safeguards that could be devised. But then still the mother could find herself in a position where months or, in the worst case, years might be required to resolve any attempt she might have to make to enforce any aspect of the agreement. Until it was established that such arrangements could successfully be negotiated and agreed and the willingness of the Saudi Court to endorse them established, Mr. Edge would expect the subject child not to travel to Saudi Arabia because of the power of his guardian (normally the child's father) to block the child's exit from that country.
9. The father finds himself in this acutely painful dilemma that his predominant objective is to have C returned to resume what was his life in Saudi Arabia and again to reap the benefits of growing up in that society which is his and within his parents' culture, traditions and the religious observances which the father would have him share; but to his credit, another part of the father recognises that C's predominant wish is to live with and not to be separated from the mother.
10. The opposing directions in which this recognition leaves him struggling would only be reconcilable if the mother were prepared to resume life in Saudi Arabia, subject to whatever assurances and safeguards might be offered and put in place. The father asserts that he would do whatever is necessary to meet agreed requirements when there, to safeguard her and keep her secure (including from any risk from her own family), and that he should be trusted not to renege on those assurances.
11. There can be little doubt that C would prefer to live with the mother in Saudi Arabia, but the mother insists that she is not prepared to return to Saudi Arabia on whatever basis. So an important element in the decision-making necessary to cope with the harsh dichotomy of this case is whether indeed, assuming unbroken bona fides on the father's part, that would be a safe move for her.
12. Into that conundrum I must insert the consideration that the High Court Team CAFCASS Guardian appointed for C (Ms. Roddy, instructing Mr. Jeremy Ford, the CAFCASS Legal solicitor who represents C in these proceedings) has formed the view that C's expressed wish to remain living with rather than separating from the mother is his own genuine desire and moreover that it coincides with what is in C's best interests. To be separated from the mother would not just risk causing him substantial harm, but would in her view and in fact do so. That is how she assessed the consequences for him of returning to Saudi Arabia to live other than with the mother.
13. On 27^th August 2015 the father instituted Wardship proceedings at which juncture the whereabouts of the mother and the child remained unknown to the father, as indeed they still do.
14. Since however the mother was traced and instructed lawyers, the agenda has been primarily to determine whether, as the father requested, an order should summarily be made for C's return to Saudi Arabia. At the conclusion of the submissions - which last Friday afternoon followed three days of evidence from the parents, Ms. Roddy and Mr. Edge - I announced my decision not summarily to order C's return to Saudi Arabia. The reasons for that are, in effect, summarised in the preceding paragraphs of this judgment upon which I now expand.
15. The mother's written evidence asserts that she was the victim of a catalogue of miseries inflicted on her, on her account, throughout the marriage not only by the father but also by her own family. These include allegations of serious and sustained sexual and physical violence by the father and pressure from her own family to conform with their concepts of duty and honour exerted upon her by emotional pressure and blackmail including threats of violence and death and, on one occasion, actual serious violence.
16. A separate strand of her evidence, both written and oral, cast doubt on the nature of the bond and affection which the father maintains binds him to C. In addition she described one incident when C was about seven months old (so now some seven years ago) when, in the course of what was on both accounts a furious row involving a degree of violence on both sides, she says the father dangled the infant over the swimming pool at their then home in Jeddah and threatened to let him drop if she did not desist from what he says was her intention to take him and leave their home alone in the middle of the night. Let me say at once that I cannot be satisfied on the evidence I have heard and the conclusions I have formed about these parents that that element of this incident occurred as narrated by the mother. It is, however, in my view, irrefutable from the accounts of Ms. Roddy of her meetings with C that he has been exposed to and upset and no doubt frightened by a number of incidents of domestic violence and abusive behaviour between his parents and that he retains some recollection of some of those events. What is however as clear from the observations of the first two contact times the father and C spent together since August is that, whatever the shortcomings of the father as a parent may be, he has a strong place in C's affections; and, whatever the history, they have a valuable bond which should be promoted for C's benefit as he grows up to the maximum extent consistent with the measures which may be necessary to eliminate the risk of serious harm.
17. Pursuant to the directions given in the run up to this hearing, a Scott Schedule was prepared drawing together from the written evidence of the parents the specific incidents and the general course of the abusive and controlling conduct to which the mother says the father subjected her. There were certainly two months-long periods – the first before they came to England for the mother's university course and the second commencing in late 2014 after she had told the father that she no longer wished to remain married to him – when the mother with C returned to live at her parents' home. She says that her decision to separate from the father was not respected and indeed was not tolerated by her family and, in particular, by her own father and her brothers. She was restricted in a number of aspects of daily life. It was made plain to her that her duty and indeed her and their own family reputation required her to return to live with the father. On each of these two occasions she did in fact do so once negotiations, primarily conducted between her own father and the father, had established terms for her return. These, on the first occasion, included the father's agreement to go to England for the duration of her course while C remained in Jeddah cared for by his maternal grandmother, and on the second occasion involved his agreement to take her and C to visit Mecca and London.
18. The mother's account of her treatment at the hands of her family included an incident when her return to the father was induced by a serious family row during which her father struck her on the head and shoulders with a piece of furniture and one of her brothers was only restrained from continuing to strangle her by the intervention of her mother.
19. To counter this account all that was available was the father's description of the description he said the maternal grandmother had given him of their argument. This differed, he said, significantly both as to the cause of the eruption and its extent. I can only surmise as to whether the father has fully and accurately recounted his recollection of what the maternal grandmother told him; and, assuming that he has, as to what may have been her reasons for giving a sanitised account of this if indeed it was not both full and accurate.
20. The mother, for her part, says that she never told the father what she says happened and that, I think, he agrees. She said she never told him in part as he knew already because members of her family had already told him. I can see why the mother might, in fact, have been unwilling to discuss the detail with him. She says that she believed that part of his strategy was to encourage her return to her family if she was so bold as to say she wanted a divorce to give her a taste of the sort of life her family would make her live as a separated or divorced woman. But clearly I am in no position to form a safe conclusion as to what may really have happened and what really are the underlying family dynamics in this entwined family where the father, for instance, maintains a co-operative relationship with the maternal grandmother whom he regards as one of his family, but where the mother's contact with her own mother seems to be fractured.
21. The other involvement of the mother's own family which does have very significant impact on my decision can be read in two texts sent to her by two of her brothers in the aftermath of her disappearance with C this summer. They abuse her in the most offensive and indeed obscene manner for leaving the father and removing C, for claiming asylum, and for making the maternal grandmother so ill that she may die of it. They threaten to remove C from her. They warn her not to return to Saudi Arabia where she is hated and they threaten that they will all three come to London to "show [you] how you will run away from us". They refer to the scandal which her behaviour has heaped on them. There is a vivid threat "that if anything happens to [the maternal grandmother] I will cut your head off like we do to the sheep". They claim that "no one will protect you now".
22. The authenticity of these explicit texts is not disputed by the father. They, and his inaction in reaction to them towards her brothers, whom he described to me as like his own brothers, sheds some light on his practical ability and perhaps on his willingness to protect the mother were she to be living in Saudi Arabia from what he described as disgraceful conduct towards her. This is all the more so since he says that he is prepared to release her from their marriage as she wants whereupon the maternal grandfather would in Sharia principle and practise take his place as her guardian. As a divorced woman she would be subject to her father's authority and would customarily and in practice follow his injunctions, which might include that she should return to live at her family home; that she should not leave it save as permitted, and then only in the company of a close male relative; that she should not take up employment; that she should not travel within or outside Saudi Arabia without her father's permission; and, indeed, that she should surrender her child to the child's father's authority as the child's guardian.
23. Mr. Edge did not have an opportunity to say whether he could comment on the father's assertion, which came later in the case in his evidence, that the texts were so shocking that if brought to the attention of the Saudi police they would take steps to prosecute their authors.
24. As I indicated in the latter stages of the hearing that I might, I do have significant reservations both about my ability safely to make findings of fact in relation to the mother's allegations against the father on the available evidence; and also about whether in fact it is necessary to do so to resolve the immediate issue now presented, whether or not to order a summary return.
25. As to the first element of whether I can safely make findings, these are my doubts and reservations.
26. I heard evidence on the scheduled allegations, all of them flatly denied by the father save to an extremely limited degree which he put in what he said was their context while asserting that the mother had exaggerated them beyond recognition.
27. The mother was the first to give evidence on these issues, expanding to quite a significant extent with further detail. Her English is relatively good, but she was extremely softly spoken in the witness box and, despite repeated exhortations, much of what she said could not clearly be heard and was thus not immediately understandable. Everyone in court (and also I suspect the father with his interpreter in front of a speaker elsewhere in the court building) suffered from this disadvantage.
28. This notwithstanding the mother did show hints from the witness box that she could well be assertive as the father maintains was her propensity, and that she could at least on occasion stand up for herself in a row with him. It is also clear, as was pointed out on the father's behalf, that there have been various stages when the role of a young woman and daughter and then a wife within the hierarchy of her family framework have not prevented her from achieving her personal goals. Thus, on her own account she appears, assisted by the intervention of the maternal grandmother, to have resisted her father's desire that she should either marry or become betrothed to the father (there was a dispute as to which it might have been if indeed her account was accurate) at the age of fifteen and so it was that she was able to conclude her schooling. She was able to negotiate entry to university in Jeddah, despite the opposition of her brothers, albeit not in her preferred course of medicine where she would have been studying alongside males. She proved able to achieve and the father was persuaded to facilitate her desire to take up the opportunity of coming to this country for the further educational opportunity which her scholarship afforded her. And she succeeded in her efforts to visit Mecca and to come to London earlier this year.
29. The father, by contrast, when his time came to exchange places and to give his evidence through an interpreter was certainly audible as was the interpreter. But there are inevitable deficits in evaluating interpreted evidence. How can a Judge be sure that important nuances have come across? There were far more points of disagreement between the parents than were in the schedule, such as the nature of their acquaintance with each other between the mother's age of nine or fourteen and the first "paper" ceremony which would have been officially, if not socially, accepted as making them man and wife at a time when she was eighteen; and did their intimate sexual life begin that night at Hotel A or only at Hotel B three years later after the large gathering of family and friends convened to celebrate her traditional passage from her father's to her husband's home? Without external evidence, either documentary or from third parties by way of authentication or corroboration, there are difficulties a Judge from one very different culture must have to be able to form a safe view – safe that is on the balance of probabilities – about events and attitudes in a setting of which he (and in this case I) has no personal experience. At the end of the day some of these disputes, for instance which year it was, how old she was, rather than what then transpired are less important; but, nevertheless, the point remains, even on basic issues, that I am left in some perplexity.
30. Ms. Gartland, who represented the father as ably as Mr. Jarman did the mother, invited me to conclude that the very absence of corroboration was in some instances a safe key to a reliable finding. But would it be safe (I ask myself and conclude not) to draw an inference from the lack of evidence of bruising or other injury or even an attempt to seek treatment or to lodge a complaint in a setting where a victim wife would be reliant on the allegedly aggressive husband to allow her out of the house or to drive her or tell his chauffer to do so to a doctor or to a police station? Nor can any inference, to my mind, be safely drawn from the innate reluctance of a wife in those circumstances to give rise to the possibility that such a complaint might indeed achieve publicity or sufficient notoriety of itself to inflame sensations of family dishonour and perhaps to bring down such further chastisement as a husband might regard as within the bounds permitted by his faith.
31. I draw attention to the need for conclusions on these factual issues to be safely based if the defining line of probability is to be crossed. I do not gullibly suppose that my findings on factual issues are always correct. In circumstances such as these I am very aware that there is a risk that the findings may in fact be wrong and thus that an injustice may be inflicted both on the parent impugned and upon the child.
32. Of course (by which I mean unsurprisingly, at least to me) I would have little difficulty in concluding that each parent's account of this or that incident or generally was exaggerated whether simply in hindsight or for tactical forensic impact, but that in this case would apply to them both.
33. Simply by way of example: I did find it hard to credit that the father in circumstances where any husband would inevitably have a suspicion of a concealed and improper association with another man – or indeed and in particular if this be the case any husband who operates with a permanently raised level of suspicion of suspicion that his wife has indeed conducted or concealed such an association – would not, as the father said he did, merely console himself with the thought that he who contemplates that his wife might have dishonoured herself by that very thought brings dishonour on himself. He said he remained calm. Fairly, when the point was put to him, he accepted that he was indeed both suspicious and angry. But that of itself does not help me conclude whether the mother's description of what then took place is true, exaggerated or invented.
34. I am invited by Mr. Ford to make findings that will assist the Guardian in further assessments, for instance, of the risks which may attend contact occasions whether in England or in Saudi Arabia. But the precedent risk is that it would be all too easy for any conclusions I reached to be incorrect. Assessments of that sort must, it seems to me, be made with the principle in mind that even a slight risk that harm may occur must be assessed in the context of the degree of magnitude of the harm to which it would give rise if it eventuated. I recognise the desirability for everyone concerned to have a satisfactory basis in relation to disputed facts relevant to the approach to contact issues, but where the findings genuinely (as I feel here is the case) cannot on the evidence as it now is be reached then everyone must make the best they can of an imperfect situation. It is to be borne in mind that this is not a case where the mother or anyone else suggests there should be no contact between the father and the child.
35. So I decline to conclude the fact-finding exercise because I find myself unable to say which, if any, of the allegations involving the father are probably true and, if so, to what extent or with what frequency.
36. The fact remains, and on these elements they are agreed, that this has been a turbulent and seriously disjointed married relationship with at least two significant episodes of relatively lengthy separation and that these parents' child has grown up all too aware of the tensions within his family.
37. The second matter I referred to is whether it is necessary to make findings on the Scott Schedule facts in order to decide for or against C's summary return to Jeddah at this juncture. I am quite satisfied on the evidence that I can safely conclude that at this juncture such an order would not serve C's best interests.
38. So I turn to a summary of the reasons why I believe I can safely conclude that it would not at this juncture serve C's best interests to return to Jeddah. Mr. Edge's confirmation that no opposed application for permission to take C out of Saudi Arabia would be entertained by the Saudi Courts once he is there is important as the mother, if no longer married, would require the maternal grandfather's permission as her guardian to institute such an application. It would seem to follow that if he opposed her departure that would constitute another barrier to such a remedy.
39. Mr. Edge did not rule out the possibility that protective measures to secure the safety and potential mobility of both the mother and child might, if agreed, be endorsed and made subject of a Saudi court order. In cases of which he has had experience, the potential difficulty of a bar by the mother's guardian on her approaching the Saudi Court to enforce the order if need arose was met by establishing a 'fighting fund' accessible for their fees by local lawyers given irrevocable permission to apply on a mother's behalf if the circumstances required it. It is to be observed that that perhaps does tell one something about the realities of getting to court against one's guardian's wishes for a divorced woman in Saudi Arabia. The risk must be sufficiently perceived as real for those concerned to take such steps to circumvent it.
40. I did not understand that the efficacy of such an arrangement had ever been put to the test. Mr. Edge explained that the cases of which he had actual knowledge where the Saudi Court orders had been secured by consent in advance almost all involved holidays visits rather than the terms upon which a mother and child might live on a permanent relocation back to Saudi Arabia. The court might frown as un-Islamic and thus contrary to its public policy precepts on some of the safeguards and circumstances which an agreement would need to contain to provide safely for this mother and child.
41. These uncertainties as to the court's willingness to validate a consent order approbating an agreement could be tested in advance. The agreement would of itself likely take some significant time to negotiate involving, as it would, not only the father but the mother's father and, in view of their animosity and their texts, her brothers. But if, as she does, the mother reiterates her prime intention not to return to Saudi Arabia whatever might by way of safeguard be on offer from the other necessary participants, this avenue does not start to offer a way from the impasse.
42. The father's proposal was based on the mother accepting to remain married to him, so that as her guardian (which he remains so long as they are married) he will be able to protect her, for instance, from her family. Leaving aside the question whether that continuing role would render his protection successful, the mother is adamant that she wants to be divorced and to live an independent life. Remaining married to the father would, for instance, obviously mean that she could not re-marry another were the option to present. So that protection route would, it seems, be barred.
43. The father's amended proposal emerged as he gave evidence and has only to be described for its impracticability and its ineffectiveness in the long term, at least, to be seen as non-viable. It is a mark of the strength but also of the desperation with which he strives to achieve C's return to Saudi Arabia. He suggested that if, as she says she does, the mother wants their marriage to end, he will take the necessary steps but without informing her family. He would then install her and C at his expense in a secret home of her choosing, which would be within reach of his home in Jeddah to enable regular contact with C to take place. He will furnish the house contents and appliances, continuing financial support, a car and a driver and other staff and necessaries. Her family would be led to believe that she and C were living in England. He would fly her and C to England for her mother to see C there rather than in Saudi Arabia to confirm the illusion. He would find her employment, not exercise his authority over her and thus she would be a free agent. It is impossible to see how that could safely work however much the father's goodwill is genuine and however long he proposes it should last.
44. The last of the main realities which it seems to me must be taken into account in the case at this phase is the consideration that, whatever the arrangement, the mother if she returned to Saudi Arabia would be in my view permanently and reasonably anxious lest the father's bona fides as expressed might be overtaken by a change of mind, and what continuing degree of risk of harm (including the risk of so-called honour-based violence or murder there might be from her own family) she might need to accept and tolerate, whether she was married or single, to their knowledge or not.
45. Mr. Edge confirmed that the degree of offence she has given her own family already was very great, as evidenced by what he described as the unusually strong invective she had received from her brothers and indeed the vulgarity of its phraseology bearing in mind the family's position at what he described as much closer to the traditional than to the liberal end of the spectrum of Saudi society. It is unlikely that this judgment will make her close adult relatives better disposed towards her. I have had that in mind in anonymising it, but it seems inevitable and could certainly not be prevented that its terms may come to their attention. This is the case, even though the father described how much the mother is the maternal grandfather's favourite and much-loved child. As the mother has suggested in a quite different context, people have different ways of showing their love. If, as the father told me he had heard, one of the text-writing brothers has recently been made to leave home as a result of sending that text, it is clear that the impact of the mother's unacceptable behaviour rumbles on.
46. I therefore wish to emphasise that I am not making any finding at this stage that the father does not make his safeguarding proposals in good faith nor that he might already plan to go back on them or might contemplate ever departing from them: but that there is a risk that he might and that the consequences for the mother and the child might be very severe indeed cannot be disregarded.
47. I accept Ms. Roddy's observations which established, when taken with the account of an independent social worker's description of the second contact occasion, that the father behaved appropriately towards C even in the artificial confines of a meeting held indoors in unfamiliar circumstances, in the company of an observer and an interpreter. It was at best foolish for the father to pull at C's emotions by telephoning the maternal grandmother during that contact. Much as everyone accepts C has great affection for her which is reciprocated, that can only have emphasised the dilemmas of his situation to him as a child who clearly has affection for both his parents with which of whom he should live to the day-to-day exclusion of the other has been an undecided question. That apart (and the similar attempt to put C in telephone contact with the family chauffeur) he showed in Ms. Roddy's estimation that he can be an emotionally-attuned father to C. He needs to continue to be so during the coming months and perhaps years if he is to foster his desire to play an effective and beneficial role in this child's life notwithstanding whatever may be the circumstances of their separation.
48. This is a case which, like every other involving decisions about children, for its appropriate outcome depends largely on its own facts. I do not believe that in this judgment I have enunciated any new principles of law or that it is necessary to support my conclusion by anything more than a reference to the authorities which have been cited to me and of course which have assisted me in arriving at this outcome. They are the Supreme Court decision in Re J (Child returned abroad: Convention) [2005] UKHL 40, [2005] 2 FLR 802 and in particular passages at [29] onwards from the speech of Baroness Hale; and Re A (Security for return to jurisdiction) (Note) [1999] 2 FLR 1. Reference was also made to the Court of Appeal decision in V (a child) [2015] EWCA Civ 274; and finally Re H (Child abduction: Mother's asylum), a decision of Mr. Justice Wilson (as he then was), [2003] EWHC 1820 (Fam), [2003] 2 FLR 1105.
49. I have read them also as expressions of the principle that the child's welfare is the paramount objective of our courts, balancing and weighing the aspirations of the parents and taking into account, in particular in a case such as this, important cultural aspects as per the welfare checklist and taking into account also as appropriate the child's own wishes and feelings.
50. This intelligent and aware and articulate eight year old is a credit to both his parents and to his upbringing. He has a preference and a need to be brought up day-to-day by his mother. The father does not criticise the mother's capabilities as C's mother and bravely acknowledges C's wish and indeed his need. He does not seek to separate C from his mother, even though his desire for C to make his home again in Saudi Arabia remains undiminished. That approach to that need for C not to be separated from his mother leads in this case, inevitably it seems to me, to the conclusion that I should not make a summary order for C's return to live in Saudi Arabia, which would (and in my view justifiably upon the evidence I have heard) lead to him living there without his mother.
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