England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 May 2017

Sir Peter Singer :

1. This is an interim judgment in relation to what I regard as unsatisfactorily incomplete expert evidence as to Iranian law and practice, which at this late stage of this case remains uncertain in certain material aspects.
2. For present purposes the material background and chronology can shortly be stated. The proceedings concern the welfare and future living circumstances of A (now aged 2 ¹/₂), the daughter and only child of M (represented by Mr Zimran Samuel of counsel) and F (represented by Miss Charlotte Proudman of counsel).
3. In early September 2016 M brought A to England without F's foreknowledge or consent to escape (this is her case, comprehensively denied by F) what had become an unhappy and oppressive marital relationship.
4. In October 2016 M issued an inherent jurisdiction application to preserve and protect her and A's presence in England. Both parents and A have indefinite leave to remain in England and hold UK as well as Iranian passports, so no immigration considerations arise in relation to her desire to remain living with A in this country. F countered with an application launched in December 2016 for an order requiring A's return to Iran forthwith. For reasons in no way attributable to fault on either side these questions did not until the week commencing 24 April 2017 and before me reach the stage at which it would have been hoped a final determination might have been reached, at least on the question whether I should order A's immediate return to Iran.
5. When the April hearing commenced M and A remained (and remain) at an address in Manchester the detail of which is unknown to F. F maintains that he is willing and able to put in place a guaranteed risk-free environment to protect her and her ongoing relationship with A if together they return to live in Iran. M maintains that she will not, and could not without significant risk, return to Iran. So, on the face of it, whereas F would prefer them both to do so, an order for the child's return to Iran would involve the transfer of day-to-day care from her to him if M's position remains unchanged in the face of an order which would have that effect.
6. For reasons which I do not propose to rehearse at this juncture this is, as it appears to me, not a case where the child's situation demands an immediate return to Iran with only a superficial survey of welfare considerations. By contrast, I am currently of the view that sufficient and sufficiently profound welfare considerations arise, whether or not M would return to Iran with A if that is the court's order, as to require more detailed investigation and determinations in order to enable me to balance the outcome options so as to arrive at a solution which hopefully best promotes A's welfare interests in the short and (so far as can be envisaged) the medium and long term.
7. During the course of the April hearing I heard in-court oral evidence from both parents and, briefly, from the maternal grandmother. They all of them (and I) relied to a greater or lesser extent on the services of a Farsi interpreter, Mr Z , to whose unflagging efficiency we are all indebted.
8. He was also my and the parties' intermediary for the extensive evidence intended to be given via video link from Tehran by the jointly-instructed expert Mr A. Mr A is the senior partner of his firm of lawyers with 21 years of experience in, amongst other areas, family law. Unfortunately he was only instructed on 12 April (although I think he had previously been sent the prolific documentation which had by then built up in this case) and his report was only received on 22 April, the Saturday immediately preceding the hearing. His evidence ran over from its first to a second day, necessarily protracted by the translation process, but also fractured by technical difficulties in establishing and maintaining what in part could only be a telephone link.
9. At the conclusion of the allotted week the oral evidence was complete, but both counsel's submissions were outstanding. Significantly also, in a case where undertakings from F would be required to ensure a soft landing for the child (and M if she returned) back in Iran, F had not formulated these with the degree of precision which, I indicated in the course of the hearing, I would need to see. The evidence of Mr A as to the attitude likely to be taken to them and upon their optimal formalisation and presentation was therefore inevitably in general terms. These reservations notwithstanding, he was confident in his prediction that Iranian courts would unswervingly require compliance by the parties with undertakings recorded in an English court order, virtually whatever might be any change in circumstances meanwhile. I oversimplify his evidence, but that was its tone and gist.
10. I allowed Miss Proudman's request that she should have the fortnight from then (28 April) until Monday 12 May to complete her final submissions which should include F's finally-considered and proposed formulation of the undertakings which he said he would abide by and which he claims the Iranian courts would enforce.
11. Mr Samuel was to respond with his final submissions on behalf of M a week later, by 19 May. Due, I accept, to the demands of the hearing in which he was involved in Australia meanwhile they did not reach me until 25 May.
12. The undertakings H proffers cover a variety of issues, but those of particular concern from my perspective relate to A's continuing relationship with M, whether or not she remains here after A's return to Iran, if ordered.
13. Assessing their impact, in either situation, involves me in reaching conclusions not only about the continuing long-term willingness of F to abide by them, but also of the approach likely to be adopted by an Iranian court should he for whatever reason seek to change or resile from them. Put bluntly, M is not at present alone in her concern as to whether F has the ability, should he choose to alter the regime of the undertakings, to do so by an application to the Iranian courts.
14. At the April hearing I voiced these concerns in outline, and canvassed the possibility of inviting a supplemental opinion in the light of the finally-formulated undertakings once they became available, preferably from a London-based expert witness. Miss Proudman opposed this course. Mr Samuel's client would support such a proposal, although concerned as to its cost implications.
15. My belief that such an appraisal is necessary in the circumstances of this case, and indeed at this stage in its course, has hardened over the intervening weeks. The impact of an order which would result in this very young child being removed from her mother's to her father's care is profound. It would be all the more regrettable if it might lead to limitations or a rupture in the child's loving relationship with her mother.
16. As to the child's loving relationship with her father, a happy - and perhaps the only happy – element of the development of events so far is the stated intention of M to ensure A has as much appropriate contact with F as is practicable given on the one hand their physical distance if she remains here and on the other the availability of technology which can so significantly enhance the benefits of face-to-face contact at such distance. M has moreover demonstrated through her actions in recent months, after an initial two month break, that she can comply with suitable arrangements for contact which, between them, these parents have been able to agree as the case has progressed.
17. Whether or not and when and subject to what safeguards A might travel to Iran for visits to F and his family who remain there, with all the benefits which ideally that would bring her if her future home is to be in England, also crucially involve consideration of a protective regime which would reassure this court, and M, that there would be no risk of steps being taken in Iran to prevent her return at the conclusion of such a stay, or only so negligible a risk that on balance it should be disregarded.
18. I have taken account of the points made on behalf of F that no application was made on behalf of M during the week-long hearing for permission to instruct a second expert, and to the supplementary point made that no written questions were put in advance to Mr A. The second point is perhaps definitively resolved by the timing of the arrival of Mr A's opinion. The first point is indeed factually accurate, but very understandable given that the April hearing represented the third 'fixture', spanning the period since January, to find time and a judge for the case. I would very likely have refused such an application, if made, in the hope that the case might be concluded on the basis of Mr A's evidence, rather than adjourned yet again to a later (and very likely very much later) date. Whereas now, having heard and considered the evidence and submissions I am clear in my belief and decision to permit further expert evidence to be adduced.
19. These then are the reasons why I have taken what I recognise is the unusual case management decision to permit M to instruct one of the experts who her solicitors have identified and who, it seems, would be in a position to provide an opinion.
20. I have read the CV and profile of both Dr LA of [a UK-based educational establishment] and Dr HA and looked at the on-line information available in relation to some of the other Iranian lawyers referred to in M's solicitors' email of 12 May. Of these only Dr LA shows family law as an area of professional interest and experience, and she is based in London. I should stress that I have no previous experience (as far as I can recollect) of her work, nor indeed of that of any of the others. But she does appear to be the most obvious candidate for instruction. Whoever is instructed must of course be informed that although his or her instructions emanate from one party their duty to be impartial and independent is owed to the court.
21. M will in the first instance be responsible for the reasonable fees of the expert, subject to any costs order which may hereafter be made.
22. If M proposes to instruct, and F wishes to oppose the instruction of, Dr LA then I suggest that I be sent details of any suggested alternatives and invited to decide the issue. The same goes for any issue which arises upon the letter of instruction, to which I now turn.
23. Mr A was burdened at short notice with the whole of the core documentation, much of it but not all in both Farsi and English, a language in which he does not profess proficiency. That should not happen in relation to this next instruction. The briefest outline of the factual circumstances should suffice as a basis for this expert's instruction. The expert should not be sent nor referred to Mr A's written or oral opinions: this exercise is not intended to be a review or a critique, but an independent appraisal on specific questions raised.
24. In simplest form, I suggest, the expert should be sent a copy of the undertakings which F proffers (remembering to make it plain that the offer in relation to a motorcar applies only if M returns to Iran). The essential questions are for the expert to comment, either undertaking by undertaking or generically in relation to them all if that is appropriate, upon the methods and any formal requirements whereby they might become enforceable in the Iranian courts, and the extent to which on the one hand they might thereby achieve immutability, or to the contrary be subject to future modification or dispensation by those courts at the behest of either parent. These questions should be answered separately, if separate answers are appropriate, on the assumption that M does, or does not, return to Iran if this court orders the child's return.
25. We currently have a one-day fixture on 8 June. I suggest that be retained for the time being on the understanding that I will not finalise my judgment until after the further expert has reported, and that both parties should have an opportunity to put forward observations on the expert report, by email to me in the first instance. I relieve F of the requirement and expense of attending if his lawyers are content for him not to do so, but only on the basis that communication links between them are in place in case his instructions during the course of the hearing are required.
26. I observe that paragraph 38 of Mr Samuel's closing submissions indicates that events have, on his client's instructions, occurred since 28 April which might if substantiated arguably bear on my evaluation of F's reliability and consistency. I am loathe to reopen evidential issues, but if on consideration M's advisers take the view that her complaints would be relevant in this context, then I do not think I should exclude them from my overall consideration. M therefore has permission by at latest Monday 5 June to file (by email direct to me) and serve a succinct account of the matters upon which she relies. I appreciate that this gives F scant opportunity to respond by 8 June if that remains an effective hearing date, but it nevertheless only provides M and her advisers with 4 clear days to prepare any such statement.
27. It follows that the final determination of F's return application will be deferred. Such further delay is always to be avoided if possible. But here the imperative need for this child that the court should reach fully-informed welfare-based conclusions leads to my own conviction that the delay is both necessary and purposive, whatever the ultimate outcome of the applications. It is material that F makes no criticism of M's day-to-day maternal capacity so that, coupled with what I hope and will if necessary order are the currently agreed contact arrangements, does mean that notwithstanding the prevailing uncertainty as to the direction of her life A is currently in an acceptable situation. That is not to say that I overlook F's strongly-held belief that the best solution for her would be to return to Iran.

Signed: [Peter Singer]

28 May 2017

[Postscript: Dr AL reported in terms which departed significantly from the opinions expressed by Mr A; although offered opportunity to do so F neither sought to raise questions nor to voice expert opinion-based challenge; nor did he respond to the matters raised by M and referred to in [26] above; a deferred resumed hearing took place on 12 July; on that occasion F's solicitors applied (and were permitted) to remove themselves from the record; F's application to adjourn on the basis of alleged health issues was refused; F's application for A's return to Iran was refused and the arrangement whereby she lives with M in England confirmed.]