England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		27th October 2017

MR JUSTICE HOLMAN

1. What follows is not a judgment in any conventional sense, for I am not, by these words, deciding or ruling upon anything. I merely wish to summarise the state and stage that this case has reached after the several hours spent within, and outside the courtroom today.
2. The essential factual background is that both these parents are of Pakistani descent. The father has lived for many years in America. The parties married in Pakistan in August 2005. It was apparently an arranged marriage, and they only actually met each other a couple of times in the week immediately preceding the marriage. In due course, the wife, as she then was, travelled to America to live there with her husband. Now, both parents are citizens of the United States.
3. From their marriage, the parents have two children. The elder is a son, who was born in September 2009 and is now aged 8. The younger is a daughter, who was born in October 2012 and is now aged 5. Both those children were born in Florida; both of them are citizens of the United States; and both of them were plainly habitually resident in the United States and, more particularly, within Florida.
4. It is the case that on 1st May 2017 the mother travelled to England with the daughter, although not the son. Since then, the mother has spent time in Pakistan but is now living in the Sheffield area of England where some other members of her family live. These facts led the father to commence the present proceedings pursuant to The Hague Convention on the Civil Aspects of International Child Abduction for an order for the summary return of the daughter to America.
5. By her defence, the mother essentially deploys two principle arguments. The first is that she contends that she has not, in fact, abducted or unlawfully removed the daughter from America or wrongfully retained her here. She says, rather, that the father insisted on her travelling with the daughter (but adamantly not the son) to England with a one-way ticket. As it is put by her very experienced counsel, Ms Cliona Papazian, in her skeleton argument for today, this is not in truth a case of child abduction, but of a mother and child being "stranded" here by the father. I say no more about that aspect of the case for the purpose of these brief words.
6. The second line of defence is pursuant to Article 13(b) of the Convention that the return of the child to America pursuant to the Convention would expose the child to a grave risk of physical or psychological harm, or otherwise place her in an intolerable situation.
7. In support of that defence, the mother has made one statement in these proceedings. In that statement, she asserts at paragraph 7 that she, "Suffered twelve years of severe psychological, emotional, and physical torture and abuse by [the father] and..." her parents-in-law. She alleges, as part of the background to the whole marriage, that the father is or was "a chronic alcoholic". At paragraph 20 of the same statement, she refers to, "What, to me, had become a living hell for me and my children."
8. The father, in answer, has made one statement dated 16th October 2017 in which he totally denies and asserts to be untrue every allegation of any substance made by the mother. The only qualification upon that is that he does agree that, in the distant past, he had a drink problem; but he says that many years ago he undertook treatment or counselling as a result of which any drink problem has ceased.
9. One frequently sees considerable dispute between the parents as to the facts in cases of this kind. But it is not often that one sees such a polarised case with very severe and grave allegations on the one hand and almost total denial on the other hand. It seems, therefore, that in the present case the court is in the general territory referred to by the Supreme Court at paragraph 36 of the judgment of Baroness Hale of Richmond in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27:

"There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues."

10. If these parents only had the one child, the daughter, or if both the children were currently here with the mother in England, then this court might have earnestly to consider whether the defence under Article 13(b) has been established and whether it could be sufficiently ameliorated by appropriate protective measures. But, in this particular case, the mother is in an acute dilemma. She says very strongly that for all the reasons set out in her statement, she and indeed the daughter cannot be expected to return to America. On the other hand, if what the mother alleges in her statement is even partially true, it is impossible to envisage that the father would ever agree voluntarily to the son, who remains living with the father, travelling to England in order to see his mother and sister here. Further, there can be no question of the courts of England and Wales being seized at all of any issue in relation to the son. There is simply no connecting jurisdictional factor between the son and the courts of this country. He is an American citizen. He is not a British citizen. He is habitually resident in America. He is currently present in America.
11. It thus follows, frankly, and however cruel the dilemma, that if the mother wishes ever to see her son again in the foreseeable future, and wishes her son and daughter ever to see each other again in the foreseeable future, she has no realistic alternative but to return sooner or later to America and sort out the position there, either by agreement with the father or by litigation in the courts of America. That dilemma has been fully and frankly recognised today by Ms Papazian on her behalf.
12. So, the reality of this case is that even if, in other circumstances, this mother might have a good defence under Article 13(b) of The Hague Convention to a summary return of the daughter to America, she herself must, sooner or later, face up to travelling to America. So, the reality is that what needs to be considered at this stage, either by agreement between the parents or by adjudication by the court, is the protective measures and safeguards which should be, and can be, put in place to provide as much protection to the daughter and her mother as is appropriate until matters can be properly and fairly resolved in America, if necessary by litigation.
13. Notwithstanding paragraph 8 of the order which, coincidentally, I myself made on 12th September 2017, the father has not personally attended the present hearing. Yesterday, Ms Papazian lodged and served her skeleton argument for this hearing which set out at paragraphs 23 and 24 some of the protective measures and mechanisms which the mother would seek before she could contemplate return to America.
14. There is, of course, a five-hour time difference between here and America, but relatively early this morning (and very early this morning in Florida), Ms Katy Chokowry was able to have the first of now several telephone conversations with her client in America. As a result of those conversations, there is some measure of agreement about undertakings and other protective agreements and arrangements that the father will put in place to pave the way for a return of the mother and the daughter to America.
15. The parties are not fully agreed, and there remain some areas of important disagreement which will need to be resolved either by further negotiation or, ultimately, by the court at the further hearing to which I will later refer. But quite apart from the content of any agreed or adjudicated undertakings and protective measures, Ms Papazian has made very clear by paragraph 24 of her skeleton argument that, on the facts and in the circumstances of this case, the mother could not contemplate return to America unless the protective measures are already enshrined in some way within appropriate proceedings in America to ensure their enforceability there and that the mother can safely rely upon them.
16. In this, she gains support from the decision of the Court of Appeal in Re M (Abduction: Hague Convention: Article 13(b)) [2016] EWCA Civ 942. That case also concerned return to America. Although the Court of Appeal is expressed as having allowed the appeal from the judge, it is quite clear, in particular from paragraphs 24 and 25 at the very end of the only judgment given by the court, that the Court of Appeal were only allowing the appeal and contemplating immediate return on the basis that the father:

"24. ...provides evidence first of all that a consent order has been entered into [in] the Superior Court of New Jersey...

25. ...The terms of the draft consent order in the bundle before us are inadequate and will require further negotiation between the parties..."

So, just as in that case the Court of Appeal clearly considered that a precondition of any actual return was the entering into of a consent order in the relevant American court in carefully and fully negotiated terms, so Ms Papazian justifiably says that a similar approach is required in the present case. Ms Chokowry has accepted that approach in principle.

17. It has accordingly been agreed between the parties that I cannot, and should not, finally resolve the present case today. Instead, it will be adjourned for a further one-day hearing on 23rd November 2017. As it happens, I personally will be away from London at that time and throughout November because of personal holiday arrangements and, later, sitting on circuit away from London. So, perforce, the next hearing will come before another judge and not me. That, however, is not fatal in the present case because, as I indicated at the outset, I am not in fact adjudicating or ruling upon anything.
18. There will, by consent, be an order, in more detailed terms that I can rely on the two counsel to agree, to the effect that this case is now adjourned to that date. The mother will, within a reasonable period to be specified, serve upon the father a draft order or similar document setting out with clarity the full and precise terms upon which she would submit to an order for the return of the child to America pursuant to the Convention. The father will then have a reasonable period of time to be specified in order, first, to comment upon the order and undertakings proposed by the mother and to state the extent to which he is willing or unwilling to give those undertakings. Secondly, to file and serve evidence to be obtained by him in America with regard to the enforceability of undertakings there, and the timescales and cost of establishing some appropriate set of proceedings before an appropriate court in which, as in the Re M case, a consent order could be made prior to return.
19. Of course, if the father (or indeed the mother) is able actually to commence an appropriate set of proceedings before the next hearing here, then so much the better; but it may be that, by that stage, the father will merely have evidence as to the nature of proposed proceedings and their timescales and costs as I have indicated.
20. So, for those reasons, it is common ground between these parents today that I cannot fully resolve this matter today and it must now leave me in that somewhat uncertain state. It does seem to me, however, that considerable progress has been made today, although I continue to regret that the father is not personally present.