S v A (Rev1)
[2022] EWHC 2300 (Fam) - full judgment here
S v A is a further judgment given in proceedings issued under the inherent jurisdiction of the High Court in which the applicant sought the return of the child to a non-1980 Hague Convention country, in this particular case the country in question was Pakistan.
Like Re A & B (analysed here), the application resulted in an order for return. This case is particularly interesting because of the detailed commentary upon the expert evidence that was received about the legal situation in Pakistan. Whilst there are a number of published and/or reported decisions on applications for summary return to Pakistan, there are few which set out the law that applies in that jurisdiction in such detail. Accordingly, this case may be helpful when advising potential applicants or respondents on the possibility of summary return to Pakistan.
The application and hearing
The proceedings concerned S, a girl born on 31 January 2018 and so aged 4 1/2 years old at the time of judgment. The applicant was S’s father, referred to in the judgment as ‘G’. He is a Pakistani national who is said to live in the Punjab area of Pakistan. The respondent was S’s mother, ‘A’. A was born in Pakistan and is a Pakistani citizen. At the time of the proceedings she was living with S in Greater Manchester. The judgment states that she had lived in Italy for a number of periods following her 16th birthday, and that her parents have a long-standing connection with Italy. S herself is described as a Pakistani citizen with a Pakistani passport. The mother had, however, been granted pre-settled status with limited leave to remain in the UK under the post-Brexit EU settlement scheme and S was entitled to remain in England as her daughter (paras 35 - 37).
The father’s application was made on 21 October 2021. He sought S’s summary return to Pakistan pursuant to the inherent jurisdiction of the High Court.
The hearing took place entirely remotely, with the father engaging from Pakistan with the assistance of an interpreter. The judgment records that the hearing suffered a number of technical problems, with the consequence that it ended up being heard over five days, spread between the end of July and mid-August. Judgment was delivered on 7 September.
Both parents gave evidence. The court also heard oral evidence from a lawyer in Pakistan (Mr A.K) and the Cafcass Officer, Mrs O.
Factual background
The mother and father had undergone an arranged marriage in Pakistan, marrying in April 2016. The mother fell pregnant with S in April 2017. She then travelled to Italy to stay with her parents. N was born in Italy in January 2018. The father said that he was unable to join them in Italy, as he did not have a visa.
The mother returned with S to Pakistan in May 2018, when S was around 4 months old. The parents evidence differed in relation to the father’s involvement with and interest in S. The mother alleged that the father was violent towards her. S remained in Pakistan with both parents until August 2018, when she returned to Italy to stay with her parents. S remained in Italy until the middle of 2019. The parents were apart as to whether S returned to Pakistan with the mother until May or July 2019.
Upon S’s return to Pakistan, the mother and S returned to the family home, living again with the father. They remained living in those circumstances until August 2020, a period of between 13 and 15 months. Again, the parents evidence differed as to the father’s level of involvement with and interest in S.
In May 2020, an incident took place between the parents. The mother alleged that the father had been violent. The father denied the allegation. The judgment records that the mother had produced medical evidence to corroborate her allegation. The father asserted that the mother’s evidence was fabricated. He pointed out that the mother had not made any report to the police. The mother left the family home and moved to live with her extended family “some distance away where her sister was living at the time”.
It was accepted that, following the mother’s departure from the family home (and a further incident which the mother alleged took place in July 2020 when she again asserted that the father had been violent towards her) the father had sent “wholly unacceptable and abusive messages to the mother along with threats to kill her and to use other lesser forms of violence against her” (Para. 47). Notwithstanding that, the judgment records that “there then appears to have been a reconciliation later in July 2020”.
The father’s case was that in August 2020, the mother asked if she could take S to Italy for when she described to the father as being a holiday with her parents. She told him that she would organise a visa for him so that he could follow. The mother and S left Pakistan on 31 August 2020. No visa was sent for the father. The father’s case was that he told the mother that if he was not granted a visa, she and S would have to return to Pakistan. In October 2020, the mother informed the father during a telephone call that she was in England with S and that they would not be returning to Pakistan.
In contrast, it was the mother’s case that the father had been aware that she intended to travel to England with S from prior to their departure from Pakistan in August. She asserted that the father had decided to move to live in England, and that they were all to go with him. The judge recorded, however, that even on the mother’s case, the father’s consent to them moving to live in England was conditional upon the father being able to obtain a visa to travel to England in due course (para. 49).
The father asserted that, following the mother and S’s arrival in England, the mother refused to tell him where they were living. He said that he had asked the mother to return S to Pakistan on a number of occasions, but that she had not. The father appears to have sent further abusive messages. Through all of that, the father maintained indirect contact with S. In December 2020, the mother’s brother submitted an application for a visa for the father to be permitted to enter the UK.
In April 2021, the father asserted that the mother terminated all contact with him, eventually blocking his number. The mother stated that the father began to become abusive in his communications with her in February 2021, and that she then blocked him in March 2021. The father responded that the mother had been equally abusive towards him.
The father’s application for a UK visa was rejected in April 2021. In May 2021, the father contacted solicitors in England. It appears that progress on the father’s case was delayed significantly whilst he attempted to obtain legal aid. He made his return application in October 2021, when funding was granted to enable him to do so. The judgment later records that his application was accordingly made 13 months after S arrived in England (para. 60).
On 28 May 2021, the father had issued an application in Pakistan by which he sought ‘custody’ pursuant to S25 of the Guardian and Wards Act 1890 (s25(1) of that Act provides that: “(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.”) The mother had issued divorce proceedings which were in due course consolidated with the father’s application. Divorce was granted on 22 November 2021. The father was required to reissue his application for custody. At the time of the final hearing in England, it appeared that the proceedings in Pakistan were ongoing (paras 68 - 70).
Domestic abuse
As referred to above, the mother had made allegations of domestic abuse against the father. Per Re NY (A Child) [2019] UKSC 49 (analysed within the judgment in this case at para. 12), the court was therefore required to consider (when addressing the eight ‘linked questions’ set out in Re NY at paras 56 - 63) whether “there needs to be an enquiry into [the allegations of domestic abuse], and, if so, how extensive should that enquiry be?” (para 59 of Re NY, drawn from para. 12 of this judgment). The judge addressed that question at paragraphs 76 - 80, as follows:
“76. I digress at this stage to note, once again, that allegations of domestic abuse and coercive control have been raised by the mother against the father. The father has also alleged that the mother has been physically abusive towards the child. As indicated earlier, on 2 February 2022 the court directed that schedules of cross allegations should be filed, which has taken place [21-31/344].
77. In terms of the management of the case, PD12J applies. However, no special / participation measures were sought as the final hearing was conducted on a wholly remote basis, with the mother joining the hearing from her solicitor's offices.
78. At the outset of the final hearing, I determined that there would not be any evidence by the parties in relation to their respective allegations of domestic abuse and coercive control / violence towards the child. I limited parental oral evidence to matters relating to the circumstances surrounding the child's arrival in England and the proposed arrangements for the mother and child in the event of a return. It follows that there will be no findings as to alleged domestic abuse / violence within this judgment.
79. In relation to this aspect of the case, Ms O, the Cafcass Officer, opines that the truth, or otherwise, relating to these allegations is an important part of the fundamental context to contact. I return to this aspect later when reviewing her professional evidence. If the mother's allegations are true, then it may explain what appears to be a negative surrounding attitude on her part to such contact, rather than gratuitous alienating behaviour. I direct myself that I must bear in mind that this important aspect of the background is not determined as part of this hearing and I should guard against any action that may unintentionally work unfairness in relation to the mother as the allegations may indeed be wholly or substantially true.
80. That said, I cannot leave this part of my judgment without observing, further to observations expressed in the hearing, that the mother's allegations, taken at their highest, are unlikely to impede the development of contact and the relationship between the father and the child. Indeed, it is part of the mother's own case that she does not, in principle, oppose direct contact taking place between them. She merely contends that any initial contact should take place in a contact centre.”
The expert evidence in relation to the law of Pakistan
The judgment includes what is described as a ‘short summary’ of the expert report, which beings at para. 85. The summary provided includes the following important features:
Gender based violence is widespread in Pakistan, with numerous new courts having been set up by the Chief Justice to address what is described as “this endemic problem”. Further, in the Sindh regions of Pakistan, a number of local Acts had been passed to “address domestic violence and improve protection for women in a civil law context”. The report also stated that there was “protection against domestic violence in terms of relevant criminal law”. The expert had said, however, that “prevailing social attitudes are reportedly slow in catching up with recent legislative changes” (para. 85);
S17 of the Guardians and Wards Act 1890, enacted during British rule in India, governed decisions about what is in the best interests of children. The report made reference to the decision of the Court of Appeal in Re S (Minors) (Abduction) [1994] 1 FLR 297 (INCADAT summary here) in which the Court of Appeal “concluded that the courts in Pakistan would try to give effect to the children’s welfare from the Muslim point of view and that the differences between English and Pakistani law were not such as to render the Pakistani court an inappropriate forum”. S17 of the 1890 Act is described as containing “…the equivalent of the English ‘Welfare Checklist’”. Authorities of the courts in Pakistan were described by the expert as confirming the priority of the child’s welfare over the parents’ interests (para. 86);
For ease of reference, S17 of the Act (drawn from https://khalidzafar.com/wp-content/files_mf/1527084484GuardiansWardsAct1890.pdf) is as follows:
17. Matters to be considered by the Court in appointing guardian.
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(5) The Court shall not appoint or declare any person to be a guardian against this will.
S26 of the Guardians and Wards Act 1890 was said to indicate that “…parents are able to apply for permission to remove a child from Pakistan, albeit subject to furnishing a recognisance bond” (para 87);
S26 provides that:
26. Removal of ward from jurisdiction.
(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.
(2) The leave granted by the Court under sub-section (1) may be special or general, and may be denied by the order granting it.
The expert pointed out that Pakistan has now signed the 1980 Hague Convention (though the UK has not accepted its accession) and that the Convention has been implemented by domestic legislation. There had also been case law where foreign orders in favour of custodial parents had “…effectively been respected and upheld in response to conduct by abducting parents” (para. 88). Further, undertakings given by a parent to a court in England and Wales can be recognised and enforced in Pakistan. There was, however, “…no automatic procedure for a ‘mirror order’ to be made. The aggrieved parent has to institute proceedings in the relevant Pakistani court. In relation to undertakings given to a court in England and Wales, in order to make them binding in Pakistan, the relevant parent would need to make the undertakings again in a Pakistani court” (para. 89). It is not entirely clear how that paragraph is internally consistent in relation to the undertakings point;
In terms of timescales, the expert suggested that the Pakistani Family Court system aims to deal with cases within 6 months of issue. There is no legal aid routinely available (para. 90);
If the father repeated undertakings offered to the English court to the court in Pakistan, and then violated those undertakings, he could be liable to penal consequences in the form of a fine and/or 6 months imprisonment (para. 91);
Within his oral evidence, the expert added the following:
Pursuant to the Punjab Protection of Women Against Violence Act 2016, which was extended to all provinces in the Punjab save Islamabad, the court can make protective orders for the benefit of women. Breach of such orders can lead to a fine and / or imprisonment (para. 92). Honour based violence remained a worrying and prevalent concern (para. 93);
Court fees are modest, and some women pursue cases in person due to lack of funds. There are usually lawyers available at court who may tailor their fees to meet the limited financial circumstances of some litigants (para. 94);
The court in Pakistan may decline to accept undertakings if any part of them was in some way ‘un-Islamic’, but the father’s proposed undertakings (set out below) did not in his view meet that criteria (para. 95);
The expert did not accept the mother’s contention that judges in Pakistan could be inappropriately influenced.
If the father removed the child from the mother, the expert considered that the court could make an order that the child be returned, which order would be enforced by a bailiff (para. 100).
The father’s proposed undertakings
Whilst the father’s undertakings do not appear until considerably later in the judgement (at paras 166 - 170), bearing in mind their consideration by the expert it is convenient to set them out here. They are recorded as having been as follows:
“(i) To pay for the cost of return flights for the mother and the child, and any Covid tests they may need to re-enter Pakistan;
(ii) Not to initiate criminal proceedings against the mother regarding the abduction of the child to England;
(iii) Not to use or threaten violence against the mother, nor to instruct or encourage another person to do so;
(iv) Not to attend at or approach the property at which the child and the mother are residing;
(v) Not to attend at the airport when the mother and the child return to Pakistan;
(vi) Unless the mother decides to live in the maternal family home, to fund and provide the child and the mother with appropriate accommodation, and fund their utility bills, pending the first inter partes hearing in Pakistan seised with the welfare of the child;
(vii) Not to remove the child from the care of the mother, save for such periods of contact as may be agreed in writing between the parties, pending the first inter partes hearing in Pakistan seised with the welfare of the child;
(viii) To take steps to lodge or otherwise make enforceable the undertakings given to this court, in the family court with competent jurisdiction in Pakistan seised of welfare proceedings in respect of the child.”
Oral evidence
It is not necessary to record the parties’ evidence within this summary, the interesting and important aspect of this case is the expert evidence set out above. The court gives a relatively detailed account of the evidence that was heard beginning at para. 105, as follows: a) Cafcass Officer, Ms O at paras 105 - 127; b) the father at para. 128 - 130; c) the mother at paras 131 - 136.
The judge considered the father to be the more reliable witness in relation to important events concerning the child and the events following the mother and child’s departure from Pakistan in August 2020.
Findings of fact
In summary, the judge made the following key findings:
In relation to the mother’s allegation that the father was seeking to use the child to obtain a visa to leave Pakistan for Italy or, alternatively, the UK, the judge did not find that made out. He considered the father to be motivated by genuine feelings of love, affection and commitment towards his child (paras 139 - 146);
The judge found that the child was habitually resident in Pakistan prior to August 2020;
The father was only made aware by the mother of her intention to undertake a visit to Italy in 2020. He rejected the mother’s case that the father knew she intended to travel from Italy to the UK and thereafter to remain there (paras 151 - 158);
The child remained habitually resident in Pakistan as of November 2021, the date of commencement of the father’s application for return. That is a lengthy period, in this context, and as a consequence his reasons are relevant and interesting to read. At paras 163 - 165, the judge held as follows:
“163. I confess that I found the determination in relation to the child's habitual residence at the relevant time of the father's application finely balanced and challenging. Whilst not determinative, she had been living in England for a significant period, in excess of 12 months, at that time. She was settled and living with her mother and members of her extended family. She was clearly exposed to the English language at that time. I specifically remind myself that part of the test involves only some integration.
164. Nevertheless, I have ultimately concluded on the evidence before the court that the child's habitual residence had not changed from Pakistan at the relevant time. Whilst she had been in England for in excess of 12 months, she had not, in my judgment, sufficiently integrated. I have found as follows: (a) Her period in England has to be seen in the context of a number of earlier international moves and her periods living in Pakistan; (b) In view of her past integration in Pakistan, the slower will be the attainment of sufficient social integration in England; (c) She was not enrolled in any nursery over this period; (d) She was living at home with her Urdu speaking mother and members of her Urdu speaking maternal family; (e) Some of the members of the maternal family had been away for periods of time up to November 2021. It was said that the visa application was not made until December because the paternal uncle, who had to make the application, was not in the country. The maternal grandmother was also back in Pakistan during part of this period; (f) I am satisfied that all of the members of the maternal family present at times with the child in England had much closer connection with Pakistan than England. Their respective connections were, if anything, stronger with Italy than with England; (g) Her grasp of the English language was probably very limited over the relevant period, allowing for her age and stage of development, in the light of the language spoken at home. I note Ms O's evidence as to the child's improved grasp of English by the time of her face to face meeting in March 2022. On any view, the child had been in nursery by this time; (h) There was a degree of uncertainty as to the child's long term presence in the UK over this period; (i) There were very significant ongoing ties for the child with Pakistan at this time; (j) There was no change to child's nationality / right of abode in Pakistan; (k) I have found that there was no consensual plan involving both parents for the child to travel to England and (l) There had been limited and hasty planning by the mother in relation to the move to England.
165. In the event that I am wrong in terms of this specific finding, I bear in mind that this aspect is not in any way determinative of the application. If I had reached the conclusion that the child's habitual residence had changed to England by the time of the father's application, this would not, as part of considering all the relevant circumstances, have changed my final determination.”
The comment at para 165 relates back to the analysis of the law at paras. 10 - 34, during the course of which the judge held that a determination on habitual residence and, specifically, that the child was not habitually resident in the country to which return was sought, would not be decisive. In reaching that conclusion, the judge relied particularly upon the decision of the Supreme Court in Re KL (A Child) [2013] UKSC 75.
Determination
The judge sets out his conclusions at para 171 onwards. He begins by reflecting on the fact that it is an application for return that was determined summarily, without a full welfare evaluation, and hence that his role was to “determine where the child should be located whilst that fuller welfare assessment and final long-term determination of her future should take place”. He reminds himself that the child must be the focus of his assessment (para. 171).
The mother’s case was set out in summary, as follows:
“172. There are a number of significant points advanced on behalf of the mother. I accept that the child is settled in her care. There are no concerns, in the light of the findings I have made, about her as a parent, save for her apparent attitude to the child's contact with the father. The child has members of her maternal family around her. She was living in England for in excess of 12 months at the time of the father's application. She has been living in England now for nearly 2 years, albeit significant portions of that period have arisen for reasons beyond the control of the parties. The child is settled in a nursery and is progressing well in terms of her attainment in the English language. There is every reason to suppose that her mother will be permitted to remain in the UK long-term.
173. There are also some legitimate concerns if the child is made to return to Pakistan. Such a move would amount to a significant change to the child's life, who is now rising 5 years old and is far more aware of events occurring around her. I accept that her mother will be distressed at having to return to Pakistan. There is a risk that this change could lead to an adverse impact on the child's social and emotional development.”
The judge held, however that “…there are compelling, and ultimately determinative, reasons in favour of ordering the child’s return to Pakistan for the further assessment of issues informing the decision about her future” (para 174), which included that:
The cross allegations that each parent made about the other which “may have a bearing on the evaluation of the mother’s approach to paternal contact and the precise arrangements for that contact”. The judge considered that there “…are significant challenges to the forensic evaluation of the mother’s allegations in this jurisdiction”. He held that the most convenient forum for the future determination of such issues is in Pakistan (para 175);
There would need to be a fuller evaluation of the father’s contact with the child and her attachment to him as part of a future, fuller welfare assessment. The judge held that it would be “…very difficult for this to be conducted when their contact is indirect via video and assessed remotely”. The father had failed in his attempt to get a visa, making it unlikely that he could travel to the UK for direct contact to be set up and assessed (para. 176);
A return could encourage the development of a relationship between the child and her father (para. 177). The Cafcass Officer considered that the child yearned for a relationship with her father (para. 179);
Whilst a return would amount to a significant change in the child’s circumstances, the judge was satisfied that the mother would return with the child and that, whilst the mother would be distressed by such a return, she would be assisted by family support and would adjust (para. 182);
The child had suffered harm through the interruption of her relationship with her father. There is a risk of serious long-term harm as a consequence of this in the future (para. 184);
The judge concluded his judgment with a detailed summary which is helpful to consider as it sets out the arguments advanced, and the judge’s conclusion on those arguments. Para 186 reads as follows:
“I must also ensure that I apply all the relevant principles that are relevant to the determination of this application from established case law. In addition to my earlier conclusions, I also confirm the following: (a) I am satisfied that there are sufficient findings within my judgment to make an order for return; (b) I have, in fact, made a determination as to the child's habitual residence and concluded that it had not changed from Pakistan at the date of the father's application; (c) However, even if that determination is wrong, I am satisfied that the child lived in Pakistan for significant earlier periods in her life and has always lived in a de facto 'Pakistani' home wherever geographically she has been resident; (d) I am further satisfied that the child is most closely connected with Pakistan, in terms of its culture, language and religion; (e) I specifically remind myself that the most that can be said in relation to this aspect in any event is that it may be convenient to start from the proposition that it is likely to be better for a child to return to the 'home country'; (f) The case against a return in this case has, in my judgment, limited merits; (g) I am satisfied that there has been sufficient evaluation of the child's welfare needs to determine this application; (h) I am satisfied that the proposed practical arrangements on return will provide a sufficiently 'soft landing' for the mother and the child in Pakistan; (i) I have allowed oral evidence by the parties which, in my judgment, helped to inform the court's determination; (j) The court's determination has also been informed, in part, by the evidence by Ms O, both in terms of her reports and her oral evidence; (k) I am satisfied that there will be an appropriate assessment of the child's welfare needs in Pakistan, which will be applied and prioritised in informing the Pakistani court's decision about her future; (l) I am specifically satisfied that the mother will be able to apply in the relevant Pakistani court for permission to return with the child to England and (m) I also specifically remind myself that the mother is a bright, well-educated and articulate young woman, who is already engaging, with the benefit of legal representation, in other family / civil proceedings involving the father in Pakistan. I am satisfied that she, sadly unlike some other women there, will have effective access to justice in Pakistan.”
Analysis
This judgment makes for very interesting reading. As mentioned within the summary of Re A & B (Children: Return Order: UAE), orders for return to Sharia law states are rare. Re A & B adopted a relatively unusual approach of considering the strength of the mother’s likely relocation application following return, finding it to be largely without merit and therefore concluding that the disadvantages that the mother would face through the legal system in that country (within the UAE) would not be of significant importance. This case adopted a wholly different approach, as the judge was able to conclude on the basis of the expert evidence that: a) the mother would be able to obtain protection from any risk of domestic abuse posed by the father; b) the father had offered sufficient protective measures by way of his proposed undertakings, and that a mechanism could be arrived at by which those undertakings could be rendered enforceable in Pakistan; c) whilst an Islamic approach was taken to the determination of cases concerning children, the children’s best interests would be a significant consideration; and d) there was a relocation jurisdiction that the mother could access in Pakistan.
Accordingly, the judge was able to approach the case in what might be described as a more ‘conventional’ way, as an application for return pending determination of the fuller welfare argument. That was possible because of the expert evidence, which paints a more optimistic picture of the legal situation in Pakistan than might previously have been thought to be the case.
This case is, therefore, significant. It is important for practitioners to recognise that there are remedies available in Pakistan for mother’s in the situation of the mother in this case. If the approach taken in this case is found to hold by other judge’s on applications for leave to remove, it will certainly make it more likely that return will be ordered. The focus perhaps shifts to the adequacy of the proposed protective measures and whether they can truly be made enforceable.
