FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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G |
Applicant |
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B |
Respondent |
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Michael Edwards (instructed by Hunters Law LLP) for the Respondent
Hearing dates: 30 April – 2 May 2025
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Crown Copyright ©
Mr Justice Peel :
The law
a) "… any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration" [18];
b) "There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it" [22];
c) "…in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration." [25];
d) "… the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960s, these came to be known as 'kidnapping' cases." [26];
e) "Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child" [28];
f) "… focus has to be on the individual child in the particular circumstances of the case" [29];
g) "… the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever" [32];
h) "One important variable … is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this" [33];
i) "Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests" [34];
j) "A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer term future is decide than it would be to return." [34]
k) "In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned" [39];
l) "The effect of the decision upon the child's primary carer must also be relevant, although again not decisive." [40]
"56. First, the court, which was sitting on 18 June 2019, should have considered whether the evidence before it was sufficiently up to date to enable it then to make the summary order. The mother's statement in answer to the claim under the Convention was dated 29 March 2019. In it she had devoted seven out of 67 paragraphs to assertions of the child's habitual residence in England and of particular circumstances said to demonstrate how happy and settled she had become. In his statement in reply dated 11 April the father had joined issue with the mother's assertions. The oral evidence given by the parties to the judge on 15 April had been limited to the issue of consent to the child's removal from Israel and so had not addressed these matters.
57. Second, the court should have considered whether the judge had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, did there need to be inquiry into the child's habitual residence at the relevant date, which, in the absence of an application, was in this case the date of the proposed order?
58. Third, the court should have considered whether, in order sufficiently to identify what the child's welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that inquiry should be: see para 49 above. It might in particular have considered that the third of those aspects, namely "the likely effect on [the child] of any change in [her] circumstances", merited inquiry.
59. Fourth, the court should have considered whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, how extensive that inquiry should be: see para 50 above. The judge had made no findings about them. Instead, in accordance with the E case cited in para 12 above, he had, for the purposes of the claim under the Convention, made a reasonable assumption in relation to the maximum level of risk to the child arising out of any domestic abuse to be perpetrated by the father and had considered that such risk would be contained within acceptable limits by undertakings offered by the father, the enforceability of which in Israel the judge had not explored. Consideration should therefore have been given to whether, in a determination to be governed by the child's welfare, the judge's approach to the mother's allegations remained sufficient.
60. Fifth, the court should have considered whether, without identification in evidence of any arrangements for the child in Israel, in particular of where she and the mother would live, it would be appropriate to conclude that her welfare required her to return there.
61. Sixth, the court should have considered whether, in the light of its consideration of the five matters identified above, any oral evidence should be given by the parties and, if so, upon what aspects and to what extent.
62. Seventh, the court should have considered whether, in the light of its consideration of the same matters, a CAFCASS officer should be directed to prepare a report and, if so, upon what aspects and to what extent. It is noteworthy that in the L case discussed in para 43 above, a CAFCASS report had been prepared. It had been designed to ascertain the boy's wishes and feelings and so was apparently made as if pursuant to section 1(3)(a) of the 1989 Act: see para 14 of Baroness Hale's judgment. In her careful weighing, in paras 34 to 37 of her judgment, of the welfare considerations which militated both in favour of, and against, the boy's return to Texas, Baroness Hale relied to a significant extent upon the content of the CAFCASS report.
63. Eighth, the court should have considered whether it needed to compare the relative abilities of the Rabbinical Court in Jerusalem and the Family Court in London to reach a swift resolution of the substantive issues between the parents in relation to the child and to satisfy itself that the Rabbinical Court had power to authorise the mother to relocate with the child back to England: see para 34 above.
Oral evidence
"As in all welfare decisions, the extent of the court's inquiry and the court's determination of what order to make will depend on the facts of the particular case".
i) Emotional harm and verbal abuse, including F calling her "mentally unstable", "a bitch" and a "disgusting nightmare" and saying that he would "destroy her".
ii) Financial control.
iii) Other matters such as accessing M's private emails when she was seeking legal advice.
iv) Intimidating behaviour, notably in an incident in August 2022 captured in a short phone video, and a highly charged episode in December 2024.
v) Threatening to "lose it" with the children".
i) This is an application for a summary return order rather than a child arrangements order. Usually, and as with 1980 Hague Convention applications, the purpose of the return order decision is essentially to determine where future welfare child arrangements should be decided, in this case in Dubai or in England. It is for the courts of the seised jurisdiction then to determine whether there is a need for a fact finding hearing/inquiry into domestic abuse, and if so how it should be case managed.
ii) It is open to me to adopt the approach in Hague Convention cases where the Article 13(b) defence is pleaded, by hypothetically taking M's case at its highest (albeit not making any findings), and assuming the maximum level of risk to the children alleged by her in the event of return. That was how Poole J took account of the allegations in Re A and B, and it seems to me to be a proportionate and pragmatic way to deal with an issue which can be highly contentious, and consuming of a considerable amount of court resources.
iii) There is a welter of written evidence for me to evaluate and consider when determining whether a return to Dubai should be ordered.
iv) As it happens, a significant amount of unsupervised contact between F and the children is taking place and M has stated in her evidence that it is "vitally important" for the children to have a relationship with F, and that they should continue to see him on an unsupervised basis in this country, but not in Dubai. Although it will be a matter for another court to decide whether inquiry into domestic abuse is relevant and proportionate for any welfare disputes, on the face of it, there may not be a justifiable need to do so given the apparent acceptance about the benefits to the children of ongoing contact with F.
v) I note that usually in these cases, to conduct a fact finding hearing will lead to a lengthy delay before the adjudication of the application for a return order. That is contrary to the summary nature of the proceedings. I was told that oral evidence would take two days, which would have inevitably led to adjourning the case part heard for submissions and judgment.
Background
i) The oldest child had lived in Dubai from March 2019 to June 2020 and from August 2024 to January 2025, and in England from June 2020 to August 2024 which amounts to about 1 ½ years in Dubai and just over 4 years in England.
ii) The middle child had lived in England for about 3 ½ years, and in Dubai about 4 months.
iii) The youngest child had lived in England for about 1 ½ years, and in Dubai for 4 months.
i) For a travel ban in respect of the children, made on 30 December 2024. An order was made without notice, but only registered or activated after their departure.
ii) An application made on 31 December 2024 for M to facilitate visitation rights in Dubai. An order was made on 2 Jan 2025.
iii) An application made on 31 December 2024 for M to deliver up the children's passports to F. An order was made on 3 January 2025.
iv) A divorce application made on 31 Dec 2024. A final divorce order was made on 25 February 2025, which M is appealing on the ground of want of jurisdiction.
i) The order for delivery up of the children's passports.
ii) The order for her to make the children available for visitation in Dubai.
I say "may be" because F thinks that the making of the divorce order automatically discharged these two orders. However, that was not made out in the evidence and (taking M's case at its highest) I proceed on the assumption that she remains in breach.
M's mental health
Evidence of Mr Edge
i) On 1 February 2023, the UAE brought into force a Federal Law of Civil Status ("FLCS") to apply a civil/secular set of family law principles to non-Muslims in a separate court from cases brought under Federal Personal Status Law ("PSL"), of which the most recent iteration was brought into force on 15 April 2025, which is principally aimed at Muslim families. Where the FLCS has gaps, it will be filled by application of the PSL. For example, the travel ban and the passport order were both obtained under the PSL.
ii) The FLCS changes, which are designed to move towards a more international legal approach for non-Muslim families, have not yet been fully explored and tested, and so there is a level of uncertainty as to how these provisions will be applied by the courts. The principal changes are to provide for equal treatment of parties, and to evaluate child arrangements according to best interests.
iii) Divorced parents have joint custody in raising the children. The amount of time spent by the children with each parent may be equal or unequal, subject to what the court considers is in the best interests of the children.
iv) After divorce under the FLCS, a mother is entitled to (i) a residence to raise the children in accordance with the previous standard of living, and (ii) maintenance which can be paid monthly or by lump sum.
v) The behaviour/conduct of the parties can be taken into account in determining custody and/or financial arrangements. F could raise the removal of the children by M as behaviour suggesting she is an untrustworthy/unfit mother, but there is no indication yet how the court would approach that suggestion.
vi) There is a duty contained in many of the provisions about children to consider the best interests of the child, although there is not one overriding requirement to do so.
vii) Mr Edge does not believe the mother is at material risk of any criminal proceedings in UAE, by reason of the removal of the children.
viii) M could make an application for relocation in Dubai based upon Article 10(3) of the FLCS (although relocation is not specifically mentioned). It is not clear how that will be interpreted. There is no real case law on such applications.
ix) The parties may submit an agreement (including one entered into in England) which can be confirmed and enforceable locally as a judgment/order in the court.
x) A new Domestic Violence Law came into force in 2024. It defines domestic abuse to encompass physical, psychological, sexual and economic harm. Coercive control is not expressly referred to but the identified factors could combine to be interpreted in that way. It makes provision for setting up shelters and safe spaces. Again, it is too soon to know how it will be implemented by the courts. In the past, the courts have required evidence of physical abuse and it remains to be seen whether the recent law change will expand the approach of the courts.
xi) The courts take account of domestic abuse in children cases, although they tend to deal with all matters on a rolled up basis, rather than a separate fact finding hearing.
xii) It is possible to obtain a Protection Order either from the Public Prosecutor or from the courts, but Mr Edge said this can be a bureaucratic process and take some time, which he measured in months.
xiii) It would be straightforward for F to apply to discharge the existing passport order, travel ban, and visitation order.
xiv) Legal proceedings are likely to be expensive and lengthy.
xv) Undertakings given to an English court are not enforceable in Dubai, but can be made anew to a Dubai court or before a Notary, although I was not told what sanctions are available in the event of breach.
Immigration expert
i) M's spousal visa can be cancelled by F, her sponsor, at any time by a simple administrative procedure, although "If an amicable agreement is reached between the mother and her ex-husband, the current residence permit arrangements could be maintained until at least the mother is able to find suitable alternatives".
ii) If M and the children are out of the country for 180 consecutive days, which in this case means up to 1 July 2025, they are at risk of "automatic invalidation" of their residence visas.
Positions on child arrangements
F's submissions
M's submissions
Conclusion
i) As set out above, they have all lived a far greater proportion of their lives in England rather than Dubai.
ii) Neither parent is Emirati. M is British. None of the children have UAE passports; two have British passports as well as Swiss passports.
iii) The period from June 2020 to August 2024 was one where the family put down deep roots in England; work, family life (including M's extended family), education, community, social life and so on were the environment in which the children were brought up. It was their home. They spent no time in the UAE.
iv) From August 2024 to 2 January 2025, I accept that Dubai became their home as a result of the relocation. But as Mr Hale KC rightly acknowledged on behalf of F, the roots developed in that time were shallow. It was only a matter of 4 months. The relationship of the parents was tense, and broke down in acrimony. The atmosphere must have been unsettling for the children. This period was precarious.
v) In my judgment the degree of connection with England, in terms of time spent, family roots and quality of family life was and remains incomparably greater than the connection with Dubai.
i) I accept that there is no psychiatric evidence on M (an application for a report was, in my view rightly, refused at a case management hearing). However, the evidence which I have outlined suggests to me that it is likely her mental health would be negatively impacted by a return to Dubai where (i) she would no longer have her family support network (particularly her mother), (ii) she would be (on her case) forced back to a country where she has been the subject of domestic abuse, (iii) she would be dependent on F in practical and financial terms even though the relationship has ended, (iv) there is some uncertainty about her visa situation and (v) she would be facing prolonged litigation in Dubai and no immediate prospect of a return to England. This constellation of factors is likely to be distressing and detrimental to her wellbeing.
ii) Linked to (i), a negative impact on M is likely to feed through to the children, potentially affecting her parenting ability (adverted to by F) and at the very least exposing the children to a low, depressed atmosphere.
ANNEXE
Protective measures offered by F
In advance of the children's return to Dubai:
a. Cancel/discharge the travel ban, Orders in respect of passports and arrangements for children as previously ordered in Dubai;
b. Settle M's legal debts to solicitors in UK and Dubai, including the costs Order made against M within the Dubai divorce proceedings/discharge that order;
c. Agree reciprocal terms equivalent to a non-molestation/Occupation Order with M;
d. F will meet the cost of flights for M and the children to return to Dubai.
Upon landing/return to Dubai:
Living/Education Arrangements:
e. M and the children to return to reside at the current family home in Dubai until completion of the financial issues between the parties.
f. F will vacate the property prior to their arrival and not to return, save for any agreement reached in respect of contact/handovers at the property.
g. F to continue to meet the costs of the children's education at their current International School/nursery in Dubai.
h. Agree not to attend the airport upon M and the children's return to Dubai (M to confirm to father that she and the children have landed and when they have re-entered the family home).
Visas:
i. F undertakes not to undermine or withdraw his sponsorship for the current valid visas in place for M and the children.
j. He will provide his assistance/support/sponsorship (as may be necessary) to M in the future, in obtaining any new visas she (and children) may require to remain in Dubai.
k. F shall meet the reasonable costs of the mother/children obtaining new visas when required.
Financial:
l. F will provide M with a lump sum of £20,000 immediately upon her return to Dubai (into her personal bank account), to use as she wishes, the only caveat to such funds is that when necessary, and upon expiration of her current medical insurance, she shall set up and meet the costs of her own personal health insurance going forward; allowing her autonomy/confidentiality in respect of this policy. F confirms he will continue to meet the costs of the children's medical insurance.
m. F will continue to meet the costs of accommodation until completion of the financial settlement.
n. F will provide an interim monthly sum of maintenance in the sum of £2,500 (in Dirham to ensure that M is able to meet her reasonable outgoings for herself and the children).
o. Meet the costs of mediation for a period of up to four months (M can choose location of the mediation - including UK mediator if required by screen). Following such period of mediation, and in circumstances in which court proceedings remain necessary, F shall meet M's costs of such representation by her current Dubai lawyer on a monthly basis up to a cap of 30K.
Other:
p. F will undertake not to seek nor support any prosecution or civil punishment of any nature of M in Dubai, England or any other jurisdiction in respect of her unlawful removal of the children to England and Wales.
q. The children's passports will be deposited with a Dubai based solicitor (independent from both) pending resolution of arrangements for the children in Dubai at F's cost – only to be released by agreement [OR 1 passport with F and 2 with M? – at no costs].
r. F confirms he remains willing to engage in mediation or other and all forms of non-court dispute resolution to try to resolve the child arrangement issues relating to the children.
s. Transfer the Car in Dubai to M for her sole use [save by agreement with M for F to use on occasion - F does not have a car].