Re: A & B (Children: Return Order: UAE)
[2022] EWHC 2120 (Fam) - link to full judgment here
UPDATE: The appeal in this case has been listed to be heard on 20 October 2022. It is going to be lived streamed. The Court of Appeal live stream page is here. The case is listed as Re H, with a brief summary of the facts following. At present, the link does not lead anywhere but all being well on Thursday it will take anyone that wishes to watch the appeal to the relevant YouTube page. If we get the chance to watch the appeal (or any of it) we will try to provide a further update as to the arguments advanced and the reaction of the court to those arguments.
This case involved an application made by a father, C, for the summary return of two children, a girl (A, aged 10) and a boy (B, aged 8), to the UAE.
In my experience, such applications are often made but very rarely granted. The legal system in the UAE is very different to the legal system in England. That difference often gives rise to an obstacle that at the least poses considerable difficulty, but which can in many cases prove insurmountable. An application for summary return is intended to bring about the return of the child to what has been described as their “home country” to allow “for any disputes about his future to be decided there” (Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40 at para. 32).
In Re J, the House of Lords (through a speech given by Baroness Hale) described this as a “choice”. At para. 28, it held as follows:
“It is plain, therefore, that there is always a choice to be made. 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.”
The choice is, as the whole of the decision in Re J makes clear, in fact a welfare assessment which must be made focusing upon the individual child, in the particular circumstances of the case (Re J at para. 29). The child’s welfare is paramount (para. 25). The court must consider the degree of connection of the child with each country, in order to identify where the child’s “home” country is. That includes consideration of “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…” (Re J at para 33). The court must also consider the length of time that the child has spent in each country, as “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.” However, “…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 decided than it would be to return” (Re J at para 34).
As the purpose of return is to enable decisions to be made about the child’s medium and long term future, the legal system of the country to which return is sought is a relevant factor. The House of Lords addressed this difficult point at paragraphs 35 - 41 of the decision in Re J. Paragraphs 39 - 41 are particularly relevant, and require to be quoted in full:
“39. 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. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Mr Justice Hughes put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight.
40. The effect of the decision upon the child's primary carer must also be relevant, although again not decisive. A child who is cared for by nannies or sent away to boarding school may move between households, and indeed countries, much more readily than a child who has always looked to one parent for his everyday needs, for warmth, for food, clean clothing, getting to school, help with homework and the like. The courts are understandably reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes be necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so, and what is to happen to the children if she does not.
41. These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be fought and decided here. Our concept of child welfare is quite capable of taking cultural and religious factors into account in deciding how a child should be brought up. It also gives great weight to the child's need for a meaningful relationship with both his parents. It does not follow, therefore, that a Saudi Muslim boy who is mainly cared for by nannies and nursery schools will be better off living with his mother and maternal grandparents in multi-cultural London than with his father or some other female relative in his home country.” (emphasis added)
At paragraphs 42 - 45, the speech moves to consider human rights considerations in this context, the analysis of which only serves to reinforce the conclusions stated in the paragraphs above.
Having set out the legal framework derived from Re J (which remains undisturbed, notwithstanding two further inherent jurisdiction cases which have reached the Supreme Court in recent years - Re NY (A Child) [2019] UKSC 49 and In the matter of KL (A Child) [2013] UKSC 75), it is necessary, bearing in mind the approach that was taken to the allegations of domestic abuse made in Re A & B, to consider the conclusion of the judgment of the Supreme Court in Re NY. Pursuant to paragraphs 56 - 63, the Supreme Court (Lord Wilson giving the judgment with which the other members of the court agreed) held that a judge deciding upon an application for summary return should give “at least some consideration” to eight, linked questions. Those questions can be summarised as follows (drawn from J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam) at para. 38):
“i) The court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order ([56]);
ii) The court ought to consider the evidence and decide what if any findings it should make in order for the court to justify the summary order (esp. in relation to the child's habitual residence) ([57]);
iii) 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; a decision has to be taken on the individual facts as to how extensive that inquiry should be ([58]);
iv) In a case where domestic abuse is alleged, the court should consider whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by one party of domestic abuse and, if so, how extensive that inquiry should be ([59]);
v) The court should consider whether it would be right to determine the summary return on the basis of welfare without at least rudimentary evidence about basic living arrangements for the child and carer ([60]);
vi) The court should consider whether it would benefit from oral evidence ([61]) and if so to what extent;
vii) The court should consider whether to obtain a Cafcass report ([62]): "and, if so, upon what aspects and to what extent";
viii) The court should consider whether it needs to make a comparison of the respective judicial systems in the competing countries – having regard to the speed with which the courts will be able to resolve matters, and whether there is an effective relocation jurisdiction in the other court ([63]).”
Background
The father, C, is of Indian heritage, but a British national. The mother, D, was born in Kuwait, but is an Indian national. It appears that they made their life in the UAE. The judge describes them having lived there for over 15 years. The children, A and B, had been born in Britain but otherwise had lived with the parents in the UAE. The parents separated in 2018. Following separation, the children lived with their mother at her parents’ home, and spent time with their father during school holidays and at weekends.
In October 2021, the mother travelled with the children to England. She travelled on return flights. At the conclusion of the trip, however, the mother did not return with the children. There appears to have been discussions between the parents thereafter, and the judge recounts that there were a number of agreed and arranged return dates thereafter which the mother did not honour. The children were placed into state schools in London. The mother lived with the children in a house owned by the paternal grandparents. The judgment records that several of the rooms were locked, and that the mother and children shared a bedroom. Most of the extended family (maternal and paternal), including both sets of grandparents live in the UAE.
At paragraph 5, the judgment records that in the UAE the family were “well housed, financially comfortable, went on a number of holidays abroad, and the children were well educated”. The mother did not work, and she received financial support from the father and from her parents. There was a dispute about the time that the children spent with their father, but it was an agreed fact that they did spend time with him. The judge recorded that the children were excelling and achieving high grades in their fee paying school. There was no sign “…of distress or behavioural issues during the period of separation prior to October 2021. Indeed their school reports suggest that they were well-adjusted children who fitted in well”
Following the children’s arrival in England, in the circumstances described above, it appears (as detailed at paragraph 13 of the judgment) that the mother engaged in a plan to mislead the father as to her intentions. In due course, in January 2022, the father commenced a divorce in the UAE during the course of which he claimed custody of the children. The application for summary return was made on 25 April 2022, and at a directions hearing on 13 May 2022 the matter was timetabled to final hearing, which was heard on 28 and 29 July 2022. In the period that the children spent in England, and as aforementioned, they began at school. They had started very promisingly and are described as “hard-working and able students”. The judge records, however, that “There is little evidence, beyond their schooling, of the children integrating fully into social life in England” (para. 15).
Allegations of domestic abuse
The mother made allegations of domestic abuse against the father. They are detailed within the judgment at paragraphs 6 - 11. Particularly, the mother alleged that “…throughout the relationship the father was physically, emotionally, and financially abusive, and coercive and controlling of her”. She also alleged that he “…physically and emotionally abused the children”. She had exhibited photographs showing bruising and abrasions to her face and body from a number of different years. She also exhibited messages which showed the father “…to be angry and hostile to the mother including messaging about what he regarded as frivolous spending, and messages to A that show him to be angry with her apparently because he felt excluded from some activities in June 2021” (para. 6).
The children had spoken to a Cafcass Officer, Ms Baker. During their interview, they told her of occasions when the father had hit them, and of occasions when they had witnessed the father abusing the mother. A had described her father as being “violent and abusive” alleging that he would “hit, slap and pinch" the children for not doing their homework”. B informed Ms Baker that “he just used to like hit us when we went to his house and when we did something wrong he made us do punishments, but I miss him” (para. 8), Ms Baker appears to have accepted that B’s comments may have been a consequence of influence (para. 10). The judge recorded that the father denied the allegations made against him (para. 11) and noted that there was little or no corroborative evidence in the form of photographs of any injuries to the children, medical records of injuries, contemporaneous complaints to authorities or reports of abuse to the children’s school.
At this point - it is important to record that the judge was invited by the mother’s counsel to hear oral evidence from the parties, but declined to do so. He addressed this decision within the judgment at paragraphs 21 and 22, the relevant parts of which are as follows:
“…I did not regard it as necessary or proportionate to hear oral evidence from the parties to determine the issues for the court to resolve. I have received detailed witness statements. I am aware of the allegations of abuse against the father and have Ms Hamade's evidence as to how the courts in E would deal with such allegations and any future allegations. The allegations of abuse against the mother nearly all pre-date the parties' separation and the most recent, and the only allegation of significance after the separation, is from 2019. I have evidence as to the effect of the alleged abuse on the children and the mother from Ms Baker and from the mother herself. The court has to make a welfare determination concerning summary return and the resolution of allegations of abuse is not required to make that determination. I cannot see any other purpose being served by hearing oral evidence from the parties, or how their credibility can be assessed without determining issues which they dispute which, in large part, concern allegations of the father's conduct.
22. The approach I take, borrowing from the approach in Hague Convention cases in accordance with In re E (Children) [2012] 1AC 144, is that I should make a reasonable assumption in relation to the maximum level of risk to the children arising out of any domestic abuse perpetrated by the father. I should, in particular, consider the risks to the children in the context of a return to E, with any undertakings or pledges offered by the father being formalised in the courts in E, and bearing in mind the enforceability of those undertakings in E.”
As a consequence, no findings of fact were made about the mother’s allegations.
Expert evidence
The court received written and oral evidence from Diana Hamade, Managing Partner of Diana Hamade Attorneys at Law, UAE. Ms Hamade is an expert in civil and sharia law who specialises in family law. The judge described her evidence as being “clear, balanced and very helpful”. He accepted her opinion. The judge summarised what he described as the “most important” aspects of it at paragraph 16 of his judgment, as follows:
“i) In the event of separation the mother has custody (or custodianship) of a child, the father is their guardian. Under sharia law the principle is that when a boy reaches the age of 11, the mother's custodianship terminates. The same happens when a girl reaches the age of 13. A father might waive his rights. However, if there is a dispute between the parents then a judge can determine whether the principles apply or not. In doing so the judge will have a discretion and will have regard to the best interest of the child. However, if the mother has re-married, Ms Hamade advised that whilst the children can remain with the mother if this was decided by the courts in E to be in their best interests, the mother would be "at serious risk of the children being taken away" when they reached the said ages.
ii) When considering the best interests of children the courts in E do not take into account the wishes and feelings of the children concerned. There is no concept equivalent to "hearing the voice of the child".
iii) A woman would not be able to establish allegations of domestic abuse unless there had been police involvement, abuse had been witnessed by reliable witnesses, there was clear medical evidence, or the court could see injuries for itself. Photographs or other evidence will not be relied upon to establish such allegations. Hence, in the present case the mother's allegations of past abuse will not be established in the courts in E.
iv) Allegations of abuse against children would be referred to the criminal justice system in E and would not be dealt with in the civil system.
v) The mother would have no chance at all of securing permission from the court to relocate with the children abroad if the father did not agree and he was living in the E. This would "never ever" happen.
vi) Visitation rights can be exercised in a way that safeguards children for example at contact centres or in public places.
vii) A settlement agreement could be reached by the parties which can then be entered as a judgment in the courts in E. It is binding and cannot be amended for one year. However, if there is a change of circumstances then a party can apply for an amendment even before the elapse of a year. Ms Hamade's experience is that these settlement agreements are honoured. Their terms can include custody, guardianship and visitation rights. The parties could agree that the mother shall have custody of the children with defined contact with the father. Settlement agreements can include pledges or undertakings including that the father will not instigate criminal proceedings against the mother. However there are no sanctions for breaching an undertaking although Ms Hamade's evidence was that a financial imbursement can be requested amounting to large amounts of money. Ms Hamade advised that rather than including within a settlement agreement a promise to withdraw the existing claim for custody in E which the father has made, she would advise any clients that it should be made a condition of return that the father has withdrawn his custody claim.
viii) Upon returning the children there would be no risk that the mother would face criminal charges or sanction so long as she is the custodian of the children. Therefore, if the father's application for custody were continuing upon return or determined in his favour prior to return there would be a risk that the mother could be arrested and the children removed from her care upon return to E. The father could withdraw his application at any time.”
Cafcass
Ms Baker, the Cafcass Officer, was evidently concerned about the children’s situation, most particularly in relation to their relationship with their father. The judgment points out that she had not observed the children with their father, nor had she been told what the plans were for them to spend time with their father were they to remain in England. She was concerned about the evidence given by Ms Hamade about the legal system in the UAE, particularly in relation to how restrictive it was in terms of the mother’s rights. She maintained her opinion, as expressed in her written report, that it was in the children’s best interests to return to the UAE, but was described as being “less sure” having heard Ms Hamade’s oral evidence. A’s hostility to her father is noted as being a particular point of concern (paragraphs 17 and 18).
Conclusion
The judge set out his conclusions in a number of subparagraphs (para 26 i) - xviii)). He then ‘wraps up’ his overall decision at paragraphs 27 - 29.
The key factors which informed the judge’s decision appear to be the following:
The UAE was the children’s home country. Their connection to it is very strong;
The parents had been able to reach accommodations about the care arrangements for the children whilst in the UAE;
But for the mother’s allegations against the father, which had only emerged post October 2021, there would have been no grounds at all for considering that relocation to England would be in the children’s best interests;
Beyond their British citizenship, the children had no substantial connection to England prior to their retention here. The evidence suggests that the children and their mother were isolated in England. The mother was reliant upon the paternal grandparents for housing, and had no independent financial means. The children’s situation in England was precarious;
The mother’s allegations in large part concern events prior to the parents’ separation. The most recent allegation was from 2019. After then, there was “…no credible evidence of domestic abuse by the father against the mother” and “…no credible evidence of continuing coercive and controlling behaviour by the father, nor of physical or emotional abuse”.
The evidence in relation to alleged abuse of the children included some evidence (from messages) of the father being petulant with A. The children said that the father physically chastised them, but B still said he missed his father. A’s messaging with the father prior to coming to England showed affection between them. Both children showed signs of having been subject to direct and/or indirect adult influence, likely from the mother. A’s hostility towards her father appeared to have arisen, or at least deepened significantly, since October 2021 whilst A had been living only with her mother.
Further, detailed investigation of the allegations of abuse would not assist the court in making decisions about return. The judge approached the allegations on the basis that they were true (the approach drawn from In re E (Children) [2012] 1AC 144 referred to within the judgment at paragraph 22) but considered that there had been no allegations since 2019, and that the mother would be in a more supportive environment in the UAE than in England. The judge recorded that he did not “…see her allegations as making out a case that the children were being significantly harmed by any ongoing abuse of her by the father after the separation”. He went on to hold that “The extent and impact of the father’s abuse of the children is also quite limited when objectively examined”. Overall, he considered that “…the father’s treatment of his children is not so concerning that it would preclude return. If the allegations of abuse of the children are all true, then they do not give rise to a significant concern that return to E would in itself put them at risk of harm in the future”
The judge accepted Ms Baker’s analysis that the separation of the children from their father is damaging to them. He considered that the children’s relationship with the father has been caused by their retention in England. The retention had had consequences. The children had been uprooted. The longer that the children remained in that situation, the more likely it would be that the damage would deepen beyond repair.
The mother had accepted she would return to the UAE with the children. She could live with them in their previous home and the children could return to their previous school.
Whilst the children, particularly A, expressed strong wishes to remain in England, their views had been directly and/or indirectly influenced by the mother and by the circumstances of their retention and the litigation.
If the parents entered into a settlement agreement as described by Ms Hamade, that would give some measure of protection of the best interests of the children. For that to be most effective, the father would have to withdraw his custody application prior to the return of the children. It was concerning that the father had not yet done that, but the judge held that it was “…an essential condition for protecting the best interests of the children that prior to return his custody application is withdrawn and that a settlement agreement is entered into and issued by the E courts”
The inability of the mother to apply for relocation was a factor that weighed against summary return, but “…in my judgement the mother’s application would, even applying principles that would be applied in this jurisdiction, be very likely to fail.” The judge went on to hold (though it is not clear how much weight, if any, this factor had in his analysis) that “Of more concern is that if circumstances changed so that it did appear to be in the best interest of the children to relocate, the E courts would still not countenance it if the father objected and lived in E”
The judge then summarised his conclusions as follows:
“28. Not all of the factors point the same way. The court has to consider all the circumstances and balance them. The allegations against the father, the wishes and feelings expressed by the children, and the E courts' approach to relocation applications, the voice of the child, and allegations of past domestic abuse, weigh in favour of refusing the father's application for summary return. The children's strong connections to their home country, E, the damage caused by their retention in England which is likely to deepen the longer they remain here, the protective factor of the wider family and their school in E, weigh in favour of ordering summary return. These are some of the key relevant matters, but all the matters set out earlier in this judgment must be taken into account.
29. The approach of the courts in E to a relocation application by the mother gives me most reason to question whether summary return is in the best interests of the children, but in the circumstances as they would be on return, I would regard such an application as being without substantial merit in any event. The allegations against the father, at their highest, are not a determinative factor in this case. The children's wishes and feelings have, I conclude, been heavily influenced by the circumstances of their retention in this country, their isolation from the father and the wider family and their emotional reliance on the mother as the only person close to them with whom they now have regular contact. Their wishes and feelings are taken into account but their weight is reduced by the circumstances leading to their expression. Weighing all the evidence and considerations together, in my judgement it is in the best interests of the children to be returned now to E.”
Analysis
The judgment is detailed and full. The judge has taken great care to set out the factors that he weighed in the balance when making his decision. There were plainly matters of considerable concern, particularly in relation to the children’s reaction to their father, and the allegations that they made against him. On any view, the children had spent time with their father prior to return. Whilst of course those reading the judgment to not have the benefit of all of the evidence that was before the court, the judge does not record within his judgment that the children expressed any difficulty about going to spend time with their father during the period between the separation of the parents and the mother’s retention of the children in England. The evidence of the Cafcass Officer, which was plainly robustly challenged, is concerning.
All of the above having been said, there were obviously serious issues for both the mother and children upon return being ordered, particularly as a consequence of the approach taken by the courts in the UAE.
The clear conclusion of the expert evidence is that, following return, if the mother wished to pursue an application to relocate with the children to England or to any other country, she would be unable to do so. There is a presumption that the custody of the children will shift from the mother to the father at a certain age. For the children involved in this case, that is only 3 years away. On the experts evidence, there was a “serious risk” that the children would be removed from the mother at that point in time if the mother remarried. Effectively, therefore, the mother would be prevented from progressing any other relationship if she wished to remain custodian to the children. As the courts in the UAE would not ascertain, still less consider, the wishes and feelings of the children, that would happen even if the children were adamantly opposed to it. The mother’s allegations of domestic abuse (including towards the children) would not be considered at all. They were not determined by the English court.
Of course, other factors may outweigh all of the above in a welfare analysis. That is what has happened in this case. It may have been arguable, however, that here the judge gave insufficient weight to those factors. Questions might arise as to the extent to which (if at all) the approach that was followed accords with PD12J, as Re NY holds it should (see para. 59 of the judgment in that case). There must be a question as to whether it is appropriate to apply Re E in an inherent jurisdiction case in the manner that the judge did. A further question arises as to whether, assuming for this purpose that it is appropriate to apply the Re E approach in an inherent jurisdiction case, the judge applied it properly here, particularly when the judgments of the Court of Appeal in In re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99 at para. 97 and, following that decision, B (Children) (Abduction: Consent: Oral Evidence) (Article 13(B)) [2022] EWCA Civ 1171 (19 August 2022) at para. 72 are considered.
Further, there is no express consideration of the mother and children’s human rights (as, for example, occurred in Re J at paragraphs 42 - 45).
The judge was plainly entitled to consider that the mother did not have a viable relocation case, with the consequence that the lack of any effective relocation jurisdiction was a factor of lesser weight. Paragraph 39 of Re J (quoted at the outset of this analysis) invites such an approach. Perhaps the sense of disquiet that arises is because, through ordering summary return, it appears that the judge has in fact made a summary determination of a relocation application, in a way that would be very unlikely to happen in an application made pursuant to S8/S13 Children Act 1989.
What this judgment does show is that in appropriate circumstances, the English High Court will order the summary return of children to countries that apply Sharia law.
