England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/06/2019

Mr Justice Williams :

1. I continue to be concerned with K, a little boy now aged 3 years and 10 months. He is represented in these proceedings by his Children's Guardian Lynn Magson from the Cafcass^[1] High Court Team and Mr Osborne from Cafcass Legal. His mother is V. She appears in person. His father is M. Although I ordered him to attend this hearing in person, he has not done so but has instead attended by telephone link.
2. I delivered a judgment on 7 February 2019 in which I refused the father's application for a stay on the grounds of forum non conveniens concluding that England, the country of K's habitual residence, was the appropriate forum for determining his welfare. I declined to grant an anti-suit injunction sought by the mother which would have prevented the father continuing litigation in India concerning the child because I concluded that the Indian courts should themselves consider my judgment, and the reasons for my decision, so that the Indian courts could consider whether they also agreed that the child's future was properly to be determined by this court. The child had been made a Ward of the English High Court on 25 October 2018.
3. My judgment followed on from the judgment of Deputy High Court Judge Gupta QC of 23 January 2019 which had concluded that the child was habitually resident in England when the proceedings commenced. DHCJ Gupta QC had heard oral evidence from the parties about the circumstances in which the child came to be in in India. He concluded that the father had intentionally deprived the mother and child of their passports, had intentionally stranded the child in India, and that these were premeditated acts which followed on from similar behaviour a year earlier. Those findings amount to findings of domestic abuse within the meaning of Family Procedure Rules 2010 Practice Direction 12J amounting to transnational marriage abandonment, controlling behaviour, and emotional abuse.
4. The two judgments of 23 January 2019 and 7 February 2019 provide the background to this judgment and I do not intend to repeat the history of the case or the conclusions reached. The father appealed against both of those judgments and on 27 March 2019, Lord Justice Moylan (Head of International Family Justice for England and Wales) refused permission to appeal.
5. On the 7 February 2019, I declined to make an order for the child's summary return to England both because of the lack of information about the arrangements that would be put in place on the ground, but also because I was conscious that the Indian court was due to hear an application shortly thereafter which might have removed the order that prohibited the child's removal from the jurisdiction of India. I adjourned the applications until 16 April 2019 for the mother to provide further evidence about the arrangements for a return in particular what therapy might be available to the child on an interim return. On the 16 April the matter came back before me. No material developments had occurred in the Indian litigation and I made a direction for the parties' Indian lawyers to file letters which addressed certain issues, in particular whether the Indian proceedings could be stayed, whether an application to discharge the order prohibiting the child's removal could be made, and how the court would deal with an application to enforce any order made by this court. I also directed that the mother set out in detail her proposals for the arrangements for the child to return. I listed a further hearing for the 2 May so I could monitor progress, and a hearing on 10 June to determine whether an order should be made for the child's summary return to this jurisdiction.
6. On the 2 May some progress had been made and I extended the timetable for the filing of evidence. Unfortunately, the father dialled into the hearing after it had been completed and so he was unable to participate. I directed that he should attend the next hearing in person but he has communicated with the court saying that he could not attend and so he has participated by telephone link. The hearing today was listed because it was anticipated that there would be a final hearing of the petition in the High Court in India on 3 June. That would have dealt with the injunction. Unfortunately, that hearing had to be adjourned and was re-listed for the 10 June. I was told this morning that the hearing has been further adjourned until the 17 June. The mother tells me that she intends to travel to India from the 19 June to 17 July 2019 and she hopes that her attendance will progress the 5 cases that are currently extant in India.

Current Position

7. The mother seeks an order for the child's return to this jurisdiction for a period of around 6 months in the first instance. That would enable her to have the child assessed by the NHS and/or Private teams and to start implementing any recommendations, would allow her to make applications to enter the child in nursery or primary school, and would allow the local authority to assess what resource best met the child's needs and would allow the Guardian to meet the child with the mother and with the father and to make recommendations as to the child's medium to long-term future. She has made considerable efforts to obtain information to evidence the arrangements that she could put in place and which she says would meet the child's welfare needs. She has filed a statement in support of that position accompanied by numerous exhibits which support the arrangements she has put in place. She filed a position statement in support of her application for today's hearing. In that position statement she also exhibited confirmation from her parents that they will travel to England to accompany the child and to assist in the care of the child and to support the mother. The letter is not entirely clear how long they will stay but the indication in respect of the maternal grandmother was that it would be not less than 6 months.
8. The father has renewed his application for a stay and invites me to stay these proceedings pending substantive decision-making in the Indian courts. Alternatively (albeit in reality it is an application for a stay in a different guise) he invites me to adjourn this hearing for 3 to 4 months for the same purpose. If unsuccessful, he opposes the return of the child to this jurisdiction. He has not put forward an alternative welfare proposal; his position is that the Indian court should determine such matters. The father filed a statement in response to the mother's evidence. He takes issue with the provenance of one of the documents that the mother relies on from the dietician in India. He also challenges the timescales for assessment and implementation of treatment were the child to be returned to England and the availability of Private health provision. He questions the mother's commitment to the child's welfare accusing her of having abused the child in the past, having failed to travel to India to see him since June of last year, despite having a Visa that would have enabled her to do so, and having failed to make appropriate arrangements for his entry into playgroups, for his OCI documents and others. He suggests that she terminated his treatment at the AIISH without consulting him and is perhaps using him as a tool for personal gain. He also filed a position statement for this hearing. In that he emphasises that in his view it would take between 1 and 2 years for the child to be assessed by the NHS given the pressure on resources in the UK and his previous experience of the NHS. He also accuses the maternal grandparents of abusing the child and that in India the child welfare committee said he should have custody of the child. Given it was intended that the child should return to live in India by the time he was 5, he says they should not now be a return to India. In particular he relies on the assertion that the child communicates only in Tamil and that were he to be treated in English this would be detrimental.
9. The Guardian has filed a very careful and comprehensive interim report. She emphasises that given that K remains in India that her enquiries have been limited but she has clearly dedicated considerable time and effort to speaking to the parents, considering the documents and carefully evaluating this child's welfare. Her report was supplemented by a position statement prepared by Mr Osborne on her behalf. Her finely balanced conclusion was that it would be in the child's welfare interests to return with the maternal grandparents to this jurisdiction to resume living with the mother and to embark upon the process of assessing his needs either through the NHS or through private health facilities. The Guardian emphasised the importance of the continuity of the care being given by the maternal grandmother in particular. She noted that for a child, who may have an autistic spectrum disorder and delayed speech and language, that the therapy that has been provided by the AIISH and more recently by the S team has been implemented in practice by the maternal grandmother, who described the child as requiring 24/7 care. She considered that for any child of 3 to 4 years of age that the attachments made in the last year would be of great significance to the child. She thought tentatively that this may be even more important for a child with the conditions that are involved here. However, she also considered it very important that if possible and safe he should be cared for by his parents. He is not cared for by his father in India and there is limited contact. He could be cared for by his mother in England supported by the maternal grandmother (and perhaps maternal grandfather). On balance the Guardian thought that the child's welfare would best be promoted by a summary return to England to be cared for by his mother and grandparents at the mother's home. The process of assessment could then be undertaken over a period of about 6 months and the Guardian would then be in a position to advise this court as to the child's medium to long term welfare interests. She retains an open mind at this stage about whether that future lies in England or in India. During any such period of return she would expect the father to return to England for some part of that time in order to enable her to assess his relationship with the child. As an aside I note that of course if he were to do so I could consider what time he should spend with his son and take steps to implement that.

Evidence

10. One of the most important documents that the Guardian had been seeking ever since her appointment was a report from the AIISH. A report has now been provided dated 3 May 2019. This is a discharge report. It seems to have been contributed to by Dr Shanbai, a speech therapist and a medical social worker. It records that:

i) He was brought to them with the complaint of inadequate comprehension and expression of speech and language skills.

ii) They carried out speech and language, clinical psychological, and autism spectrum disorder evaluations.

iii) They set a variety of speech and language goals.

iv) The child made progress in various areas.

v) The grandparents were given intensive home training over a period of 2 months, which emphasised certain skills.

vi) They discharged the child advising the caregivers continue speech and language therapy at available centres and carry out intensive home training. A follow-up after 6 months was advised.

11. Since the child's discharge from the AIISH, therapy at the local hospital in S has commenced. This is far closer to the child's home. I understand that for the last month or so he has been having thrice weekly sessions of occupational or speech and language therapy.
12. The evidence the mother has compiled shows that the arrangements upon the child's return would be as follows:

i) She has a tenancy of a two-bedroom property which she would share with the child and her mother and/or father.

ii) She has a full-time job albeit with some degree of flexibility.

iii) Upon the child's return he would be registered with the GP within 5 days. The health visitors letter says that he would be referred to a community paediatrician for a development assessment. The waiting list currently is 18 weeks but he could be seen sooner. If he was assessed as having additional needs he would be referred to appropriate services which have their own waiting lists. A written treatment plan following assessment with the paediatrician might take a further 4 weeks. In the meantime, the mother could attend a weekly session to access advice from a speech and language therapist or support worker. Local children centres would also be available.

iv) The mother has private health cover which would contribute towards the cost of an assessment of K but would not cover speech and language therapy itself. The mother says that she and her parents would pay for such sessions if they were required in the interim.

v) Advice from the child's Indian dietician would continue to be available via Skype. The child's diet is an important component of his treatment plan.

vi) The child would be able to access education and therapy either in English or in Tamil. The mother says that in India children are educated in English as the primary language with their local language as a backup. Thus she says language will be no more of a problem in England than it is in India.

vii) The mother would make enquiries with the local authority about school and nursery places. She has already identified one nursery who it appears would be able to take him. However, they of course have not seen him or been able to assess his needs. He would be able to attend full day sessions 4 days a week and the mother would be entitled to 15 hours a week funding through childcare vouchers.

viii) Her parents would be able to obtain visas which would allow them to come to visit for six-month periods. This would provide continuity of care and implementation of the intensive training at home and would provide support for the mother whilst she was at work.

13. The father casts doubt in particular on the availability of health care from the NHS. In particular he says that experience shows that securing treatment for the child will be a minimum of 10 months and up to 2 years. He refers to the delay that the family experienced in 2018 and their travel to India to plug that gap. However, I note that although the family travelled to India in February 2018, the child had a paediatric appointment on 21 May 2018 and so well within the 18 weeks which the health visitor advises. In his submissions the father suggested that it could in fact take up to 3 years and referred to information available on social media sites and the BBC along these lines. He says that the private health insurance the mother has does not cover existing conditions and thus it is unlikely that it will assist in the costs of the child's treatment. In comparison in India, £5 pays for thrice weekly therapy for one month. The father doubts the provenance of the support letter that the mother has produced from the dietician which says that advice can continue to be given remotely. He identifies the absence of a date and the difference in the letterhead between that produced by the mother and a previous letterhead of January 2019. He says he has spoken with the dietician and that she has not issued any document for court purposes. He says that currently the child is only communicated with in Tamil and that the use of English would worsen his condition. He also expands upon his doubts about the mother's commitment to the child pointing out that she has been able to return to India at any stage and has not done so and in particular since she had a Visa in March she could have travelled to India to see her son. He poses the rhetorical question 'is there an emotional connect towards the child?' He also criticises the fact that he has not been consulted over the child's discharge from the AIISH and refers to the allegations of abuse against the mother. He referred me to a statement which was filed in the earlier proceedings which purports to be from a friend of the mother's which says that she has hit and shouted at the child.
14. The Guardian's analysis of the case is as I have already said a measured and careful assessment of this child's welfare. She records her conversations with each of the parents and her evaluation of the evidence that has been compiled by the mother and the father. In submissions Mr Osborne emphasised that the Guardian gave credit to the mother for the extensive efforts that she has obviously undertaken in order to put together the evidence of the arrangements; in particular noting that she has persisted even though it has been difficult given the child's absence from this jurisdiction. She considered that to be a positive marker of the mother's commitment to the child. She also observed that the conclusions reached by DHCJ Gupta QC amounted to abusive behaviour on the part of the father. She noted that although the father now makes allegations of abuse against the mother and the grandparents, the father himself left the child in the care of the mother when he returned to England in 2018 and that the Madras High Court stayed the S welfare committee's direction that custody be given to the father. She inferred from both of these events that the concerns about abusive behaviour by the mother and grandparents might be less concerning. Although she was cautious because she did not have all the evidence that she would ideally like to see in a case such as this she did reach a clear 'on balance' conclusion that the child welfare would best be promoted by his summary return to this jurisdiction and to the care of his mother provided that the maternal grandmother in particular was able to accompany him. She considered that the continuity of care was particularly important given the attachment that the child will have developed to his maternal grandmother and the very important role that the maternal grandmother has in implementing the intensive home training. She identified a number of tasks that the mother would need to undertake in order to support the child's welfare in the event of his return and thought that an interim return of 6 months would be required to allow the process of assessment to be completed by the health professionals and to allow her to undertake a full welfare assessment.
15. The letters filed by the Indian lawyers on behalf of the father and the mother understandably set out a mixed picture. They do not amount to expert opinions. What does appear to emerge from both is the following:

i) There are a number of interrelated cases and issues.

ii) There is currently an outstanding application by the mother and her parents to discharge the order of 9 November 2018 which provides that the child is not to be taken out of India without the order of the court. It has been adjourned on a number of occasions.

iii) An order of the English court would be considered by the Indian court but would not be subject to automatic enforcement. It might carry considerable weight. The Indian courts would consider the best interests of the child in determining any matters before it.

Discussion and conclusions

16. I am concerned with the welfare of a little boy. In accordance with section 1(1) of the Children Act 1989 his welfare is my paramount consideration.
17. Since July of last year, a little under a year, his future has been the subject of dispute in the courts of India and of this country. I'm particularly conscious of the fact that delay is likely to prejudice his welfare: section 1(2) Children Act 1989.
18. As a matter of general principle but also reflected in section 1(2A) of the Children Act 1989, the involvement of a parent in the life of a child is presumed to further the child's welfare. In this case this vulnerable child has not been cared for by either of his parents over the last year as a result of the situation that the father created. His mother was forced to return to this country without him. His father has left this country to return to India but has not become his primary carer. The multiplicity of proceedings that the father has commenced in the Indian courts do not appear to me to be likely to promote an early resolution of his claim for custody of the child in India. As a result, this child has been cared for by his maternal grandparents over the last 11 months and has had almost no direct physical relationship with either his mother or father. His mother has maintained their relationship to a degree by Skype or FaceTime contact. His father has had limited contact it seems through the child welfare committee processes. For any child this would be a significant loss. Prior to July 2018 the mother was the child's primary carer from birth until he was nearly 3. He lived with his father also albeit it is reasonably clear that the father worked and the mother undertook more of the childcare. Hence when the father left India in 2018 he left the child in the care of the mother and her parents. For any child the resumption of the provision of care by their parent would be a priority. It seems to me that for a child with the vulnerabilities that it appears this child has the resumption of care by his parents, but particularly by his mother his previous primary carer, is critical.
19. In considering what will best promote this child's welfare I consider the welfare checklist in section 1(3) of the Children Act 1989:

i) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).

We have no information about the child's current wishes and feelings. Given what I do know about his limited ability to communicate whether in Tamil or otherwise, it may be difficult to ascertain his wishes and feelings. Without in any way undermining or criticising the care that has been given to him by his grandparents I think I can safely assume that he would wish to be cared for by his parents if possible. Given the amount of time he has spent with his maternal grandparents and in particular the maternal grandmother on balance I think he would also wish that she continued to play a role in his care at least in the short to medium term.

ii) His physical, emotional and educational needs.

It seems that this child's physical needs are somewhat more complex than the average 3 to 4-year-olds. I'm told that diet is particularly important for him hence the involvement of the dietician in India. Although the father questions the provenance of the letter that the mother has produced in support, I have little doubt that the appropriate input in relation to his dietary needs could either be obtained from his current Indian dietician or from a dietician in England. If payment were required for the Indian dietician to advise by phone or over the internet I see no reason why that would not be possible. I'm not in a position to determine the father's allegations that the mother (or someone on her behalf) has fabricated the document, I note the father's concerns about the watermark and the difference in appearance of the document produced by the mother and the document from January 2019 which is handwritten. Without forensic document analysis or evidence from the dietician herself I cannot resolve this. However, I do not consider it to be critical to the outcome of the case.

This child has a particular emotional need to resume relationships with his parents given that nearly a period of a year has elapsed in India where this has not proved possible, the likelihood of him being able to re-establish a full relationship with his mother if he were to return to England is a particular benefit to him. I also consider that he has an emotional need to re-establish a relationship with his father.

His educational needs will need to be assessed. Given the difficulties identified by the AIISH and which both parents acknowledge it seems likely that great care will need to be taken in choosing the nursery or school that is best placed to meet his educational needs. I note that the mother and her parents have not placed him into nursery in India although he could have been entered. This was because the focus was on implementing the treatment recommended by the AIISH.

iii) The likely effect on him of any change in his circumstances.

A change from being cared for by his grandparents to being cared for by his mother and grandparents will be a significant change. However, it will be a significant change for the better in respect of the reintroduction of his mother into his life. The loss of his two parents, in particular his mother in July of last year must have been a significant loss for him and is likely to have added to the difficulties that he experienced as a result of his conditions. I emphasise the loss of his mother more because his father chose voluntarily to strand the mother and the child in India whilst he returned to England to seemingly windup his affairs here.

Leaving India and the environment that he has become familiar with, language, climate, home will all be changes for him. If the father chooses not to return to England the absence of any contact with his father will also be a loss albeit it may be possible to introduce some form of Skype contact. The reintroduction of the English language and English climate and home environment will all be a change. However, I consider that the reintroduction of his mother's care would more than offset any negative impacts.

I was initially particularly concerned about the impact on the child of a change from communicating primarily in Tamil to communicating also in English, and in particular the provision of therapy in English. However, the prominence of English within the Indian education system and generally satisfies me that the child would have been exposed to a significant amount of spoken English had he remained in India and that in any event the presence of his maternal grandmother and his mother who both speak Tamil will ease the introduction of English into his world. In any event Tamil is commonly spoken in this country and it seems probable that therapeutic and other resources will be available through Tamil speakers to one degree or another.

The child's health needs are currently being met by a combination of thrice weekly therapy through the S-based clinicians and through the implementation of the intensive home training by the maternal grandparents. It seems clear that on travelling to England the thrice weekly therapy will be lost and will not necessarily immediately be replaced. It cannot be provided by internet from S. It is clear that there will be a delay in accessing NHS resources. I do not consider that the delay will be as prolonged as the father submits. The evidence from the GP and health visitor together with the evidence of the family's previous involvement with the NHS suggests that the timeframes set out by the health visitor and supported by the Guardian are more accurate. In any event it seems to me that a very significant component in meeting the child's health needs is the implementation of the strategies advised upon by the AIISH in the home environment. That task has fallen upon the maternal grandmother and will continue to be implemented by her, albeit the mother will also be able to directly support this. I am also impressed by the mother's commitment to seeking support and maintaining pressure in order to obtain relevant information. I'm satisfied that between her and the maternal grandparents, they will do their utmost to ensure that any delay is minimised and that they will seek Private therapeutic support to supplement what they do at home. Thus the effect of moving out of the therapeutic work of the S professionals will be reduced to a minimum. The fact that they have only just begun to do their work and that the AIISH felt it was appropriate to discharge the child satisfy me that the effect of a change of this sort can be managed.

iv) His age, sex, background and any characteristics of his which the court considers relevant.

His age, his heritage and his health needs are all significant features. I have dealt with them in the preceding sections.

v) Any harm which he has suffered or is at risk of suffering.

The risk of harm that the father most prominently relies upon is the risk to the child's health as a result of the change from the Indian health system to the NHS or private provision in England. As I have said above I'm satisfied that this can be managed.

The father also alleges that the child is at risk of physical abuse from the mother. Although I have read the statement of the mother's friend, it has not been tested in evidence and that sort of behaviour seems both inconsistent with the mother's apparent dedication to her son but also with the father's own behaviour in leaving his son in her care.

The father also alleges that the grandparents have been abusive. There is nothing that emerges from the AIISH or the Guardian that supports the contention that this child is at risk from his grandparents. That they made the 18-hour round trip to the AIISH 24 times seems a testament to their commitment to this little boy and the Guardian's conversation with the maternal grandmother would appear to support this.

Conversely the father has acted in such a way as to harm his son. His behaviour in May and June 2018 has led to the current situation where his son is not being cared for by either of his parents.

vi) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs?

The evidence suggests that the mother is capable of meeting the child's physical emotional and educational needs. Her commitment to putting in place the arrangements is evidence of this. She appears to be a capable and committed mother. The father criticises her commitment to their son and suggests that she ought to have returned to India earlier. Had she done so she would have burnt her bridges in England or at least put them at very great risk. The delay between March and now appears to me to be entirely understandable; she was attempting to put together the package which would secure her son's welfare interests in this country. I do not think any valid criticism can be made of her for that.

The evidence suggests that the father is capable of meeting his sons physical emotional and educational needs to a degree he is also committed to his son. However there seems to be a significant flaw in his capability, namely the emotional risk that he exposes his son to as a result of his attitude to the mother. That was most plainly evidenced by his stranding her and his son in India last year but continues to be evident in his extensive criticisms of her. This would create a significant risk of emotional harm to his son were he exposed to the sorts of criticism that the father makes of the mother.

vii) The range of powers available to the court under this Act in the proceedings in question.

I could make a final order for the child's return however far more evidence needs to be collated before I can reach a final decision as to where this child's medium to long term welfare lies. I could make no order. I could make an order staying these proceedings or adjourning them.

20. I have reached the clear conclusion that an order for this child's interim return to this jurisdiction should be made. I do not consider that these proceedings should be stayed or adjourned any longer. I concluded in February that a stay was not appropriate and I see no reason to alter that decision. The progress in the Indian proceedings that had been anticipated has not come to pass in any event. I suspect that the multiplicity of proceedings must be contributing to this. I'm not sure to what extent any other litigation strategising is also contributing to the delay in the Indian court progressing matters. It would seem to be in the mother's interests to make rapid progress in the Indian proceedings whereas it would be in the father's interests to delay. I have no doubt that my brother and sister judges in India will be doing their utmost to progress matters but ultimately the approach that the parties' have taken is bound to have an impact on the progress that the judges can make. I do not consider that there is any benefit at all to adjourning these proceedings still less staying them. If anything that seems more likely to promote further delay within the Indian proceedings. I hope that by this court reaching an interim welfare decision that it will assist my brother and sister judges in India in progressing decision-making in their courts.
21. I have no doubt that on an interim basis this little boy's welfare is best promoted by being reunited with his mother and the care that she can provide in tandem with the continuation of the care that his grandmother and grandfather have provided over the last year. I am satisfied on the evidence that on an interim basis the arrangements on the ground in England for accommodation, health provision, financial provision and otherwise will promote his welfare to a greater extent than can be achieved by his remaining in India. Most importantly I consider that the arrangements in relation to K's health needs can be managed and that any loss in that regard will be more than offset by being reunited with his mother. Counterintuitively were his father to return to England (and I see no reason why he shouldn't at least for short periods of time) it may be more possible for arrangements to be made for him to spend time with his son than has proved possible in India.
22. I will therefore order this little boy's return to the jurisdiction of England and Wales for a period of 6 months from the date of his return. This is of course subject to my brother and sister judges in India removing the order that prohibits his removal from that jurisdiction. I very much hope that they will agree with the conclusions that I have reached having regard to the evidence that has been before me, and that this method will best promote this little boy's welfare in the interim. The medium to long term future requires further assessment following his return.

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