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IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
Start Time: 14:00 Finish Time: 16:10
||1st September 2017
B e f o r e :
THE HONOURABLE MRS. JUSTICE PARKER
||- and -
||- and -
||NORFOLK COUNTY COUNCIL
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MRS. JUSTICE PARKER:
- I must decide whether a little girl 'L' aged two years and four months should be returned to Turkey pursuant to The Hague Convention on the Civil Aspects of International Child Abduction 1980. It is agreed by all that she was habitually resident in Turkey at the date of removal to this country in November 2016 when aged 18 months. Her parents are both Libyan although her mother also has British nationality as she, herself, has a British mother. Both parents were born in Libya and have, I assume, Libyan nationality as well. The mother was brought up partly in Libya but her family is now in England. There are various assertions made about the circumstances in which this happened which I do not need to consider.
- The mother is only 23 and was married just before her twentieth birthday in May 2014. The father is a little older than her. He works for the Libyan National Airlines in Turkey. The wedding was partly by proxy in that the father was not there but represented; that can provide a perfectly valid form of marriage. It is not suggested that this marriage is in any way to be impeached and the mother does not assert that she was forced into it. The parties lived together in Turkey immediately after the marriage. L, their daughter, was born there.
- It is the mother's case that particularly after L's birth she was subjected to domestic abuse, some of it very serious indeed, involving threats to her life and that of the child, and violence to the child as well as to herself. The father denies that saying that they were a compatible, loving couple who had chosen to marry. He cannot explain the mother's departure when she was brought L to this jurisdiction on 3rd November 2016. It is conceded that this was a wrongful removal, that L was habitually resident in Turkey beforehand, that this was in breach of the father's custody rights, and specifically that this was without his knowledge or consent and he knew nothing about the plan.
- Shortly after the mother arrived she went to the police in Norfolk (where her mother lives) to make allegations of domestic abuse by the father. In circumstances which I know little about, six weeks later, on 13th December 2016, the mother was stopped at Heathrow Airport attempting to travel to Turkey via Germany with L and the mother's father (L's maternal grandfather). I am told (although I have no direct evidence from the police about this) that because of concerns of honour-based violence to the mother, who was on a "watch" list, she was prevented from leaving.
- At some point that day the police obtained a Police Protection Order in respect of L. L was placed in a Local Authority emergency foster home overnight. Mother and child were reunited shortly afterwards. On the 16th December 2016 Norfolk County Council made an application, not on formal notice, in the Family Court sitting at Norwich for an interim care order, based on the risk alleged to be presented by the mother deliberately exposing the child to risk of harm from the father by taking her to Turkey, and asserted to be due to naivety on her part as to danger.
- Although this was technically an ex parte application the mother was present and represented at court and I note is recorded as having agreed to these orders. The father was not notified. The local authority ought to have contacted him in Turkey to inform him of the proceedings. This is in line with modern practice and no risk of harm could have been created by so doing. There was no suggestion that he had left Turkey, the mother was in court and protected there, and the mother and child were living safely in unidentified local authority accommodation.
- His Honour Judge Richards, a highly experienced section 9 Judge, declined to make an interim care order. It is not clear on the face of the orders he made, but I assume, as Mr. Setright, for the father, suggests, that he was immediately aware that this child was unlikely by then to be habitually resident in England or, in any event, was likely to be the subject of international proceedings. Firstly he ordered that L be made and remain a ward until further order and then made a raft of orders under the private law provisions of the Children Act. He noted that the child was a British citizen but found that she was not habitually resident in the United Kingdom, which gives support to Mr. Setright's suggestion. He gave leave to the Local Authority to apply for orders under the court's inherent jurisdiction pursuant to s100 Children Act 1989 and stated that the court was satisfied that the child was present in England and that the immediate exercise of its powers was necessary for her protection. The order states that the court was satisfied that in the absence of these orders being put into effect, the child "is likely to suffer significant harm", that the orders were in the best interests of the child, and therefore a proportionate interference. After making various other orders and recording certain recitals he ordered that "L shall not be removed from England and Wales until further order" and directed that she should be placed with the mother in a Local Authority Mother and Baby Foster Placement until further order.
- Judge Richards also granted care and control of L to the Local Authority. With the greatest respect to Judge Richards and to Moor J who later stayed the private law proceedings (but specifically did not stay the orders which arose under them), I doubt whether that was an effective order. Section 100 of the Children Act 1989, to which Judge Richards was certainly referred (because he gave permission to the Local Authority to make their application under that statute) says in terms by paragraph (2) that:
"No court shall exercise the High Court's inherent jurisdiction with respect to children –
(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;
(b) so as to require a child to be accommodated by or on behalf of a local authority" –
(c) is irrelevant –
(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
- Even if I am wrong and he did have power to make such an order, this intervention by the court – no doubt forced upon the Judge by circumstances and by the strength of the application that was made to him – indicates how very difficult are these cross-border disputes when it comes to invoking the powers of the authorities to intervene.
- The father was served with notice of the care application after the hearing. This application for return of L to Turkey pursuant to the Hague Convention was not issued immediately. That is hardly surprising since, in my experience, these cases take some time, inevitably, to be processed through the Central Authority. I note that in the chronology it is stated that the date of the father's application to the Turkish Central Authority was unknown.
- At a hearing in the care proceedings on 17th January 2017, when the father was represented, and indicated his intention to apply for L's return to Turkey, directions were given including permission to instruct a psychologist, Dr. Latif, to prepare a psychological assessment of the mother. That report has found its way into these Hague proceedings. It is not suggested that its contents are relevant to establish a defence of risk or intolerability under Article 13(b) Hague Convention.
- I have the bundle from the care/ wardship proceedings, although these proceedings have not been consolidated with the Hague proceedings, quite rightly. Some weight is placed upon their content. I note that the child has a Guardian in the care proceedings, now stayed, but does not have a Guardian in these proceedings notwithstanding that applications are frequently made for a child to be a party in this type of action (I am not suggesting that she should have) although such appointments are normally made in respect of children who are voicing objections the court would have had power to consider the joinder of an infant particularly as it is asserted by the Local Authority that she has an interest separate from her parents in these proceedings.
- The father's Hague application had been issued by the 24th March 2017 when Moor J gave directions, in conventional terms, for an answer to be filed, stayed the previous proceedings, ordered that passports be held; and that Norfolk County Council notify the court of the confidential address at which the mother and child were being accommodated. Norfolk County Council was invited to attend the next hearing when the court was to consider whether it should be joined or, alternatively, should play any other role in the proceedings.
- On the 30th March the mother filed her defence which was confined to Article 13(b) of the Hague Convention, namely, grave risk of physical or psychological harm or the child being placed in an intolerable situation.
- When the matter came before Roberts J on 6th April, Norfolk County Council confirmed that it did not at that stage seek to make any application to be joined but asserted that it would assist the parties and, if necessary, the court, by advancing recommendations as to contact between father and the child and would be available on reasonable notice to assist the court in any other way. The case was then listed on the 12th June 2017 with a time estimate of two days, subject to confirmation with the Clerk of the Rules. Liberty was given to Norfolk County Council to apply for party status once the directions in respect of filing of evidence were complete. I note that the hearing date on the 12th June took place seven months after the wrongful removal of this child to this jurisdiction and almost three months after the issue of the father's application. This is not a BIIR case and therefore the six weeks' limit for completing the hearing does not strictly apply, but the 1980 Hague Convention itself at Article 11 states that these cases must be dealt with expeditiously.
- The matter came before Russell J on the 12th May. Norfolk County Council again stated that it did not wish to become a party. The Judge left the question of whether oral evidence was required to the trial judge. The hearing was to remain in the list on the 12th June but the time estimate was increased to three days. She approved the instruction of an expert to advise what protective measures are available to alleged victims of domestic violence in Turkish law and whether, because of her nationality or for any other reason, any such measures were not available to the mother. The case was to come back to court if there was a problem. The care proceedings were disclosed into these proceedings to form part of the bundle. This may be a matter of extreme technicality but I note that there was no order that the evidence in the Norwich proceedings was to stand as evidence in these proceedings. Perhaps that is simply an omission. She ordered the parties to attend the final hearing to give oral evidence, the father by video link if necessary.
- Then the matter came in front of a Deputy Judge, Mr. Nicholas Cusworth QC, on the 12th June. It is not clear why the hearing was ineffective. I suspect it was the non-availability of expert evidence. He ordered that the matter be listed for a pre-trial hearing with a time estimate of an hour on the 21st July (adjourned till 3rd August before Moor J due to lack of the expert's report) and then for a final hearing with a time estimate of five days commencing at 10.00 a.m. on 25th August and continuing on 29th August to 1st September.
- On the 3rd August, when counsel appeared for the father, the mother and Norfolk County Council respectively, Moor J indicated there should be no adjournment of the final hearing listed to commence on 25th August. He joined Norfolk County Council as a party, to be served with the papers. He indicated that the jointly instructed expert should, by 4.00 p.m. on 7th August, serve a copy of her report dated 31st July, and, if it was not sufficient, father and mother were to instruct a further expert; Professor Giray being named. The final hearing remained listed, with the first day of the hearing to be used as a pre-trial review, at which the court was to consider (i) whether oral evidence was required and if so from whom (ii) if the expert was required to give evidence how the costs should be divided, and (iii) the scope of Norfolk County Council's role in the final hearing.
- I note, as it so happens, that there was no specific estimate given within this five-day hearing for any opportunity for the Judge to read the papers nor was there any limitation on the amount of material to be put before the court. This is now two large bundles of pleadings, evidence and reports, the care proceedings (a slimmer but none the less full Lever Arch file) and 16 authorities to which a further authority has been added.
- Last week in the middle of an exceptionally busy and difficult applications list, I received e-mails from the parties. It appeared that father had obtained a leader and the mother now wanted one too. I gave as much attention as I could to lengthy e-mails whilst managing the rest of my list. I was asked not to deal with anything substantive on Day 1 until the mother had obtained a leader (which it was thought she might be able to do). It was suggested that if she could not, the case might need to be re-listed to a later date whilst she sought one.
- I can see the position from the mother's point of view. It is bad form for one side to obtain a leader without telling the other side of that intention, and it inevitably gives rise to anxiety about equality of arms. I have known Ms. Harding, mother's junior professionally for many years and am confident that she could have dealt with this case perfectly well. But I can also see that she would be concerned that the mother would feel disadvantaged. There was by then so much to read – whether necessary or not – that she would be concerned that she did not have the facility to conduct the case effectively as the sole advocate facing an experienced team on the other side. I said in terms – knowing absolutely nothing about the case at all, not even about the nature of the proceedings – that I would not adjourn this case, so I am pleased to see that Moor J had directed exactly that.
- The matter came before me on Friday 21st August 2017. By then Mr Momtaz QC was instructed for the hearing listed the PTR for 2.00 p.m. and I had read enough overnight to be confident that I understood what the case was about. But the exercise has not been easy. The second bundle consists very largely of a vast number of text messages passing between mother and father upon which the father places reliance and of which I must confess I have read very little, but of which I get the gist. Rather than burdening the Judge with this material it ought to have been kept for counsel and summarised in some way. A Hague case is intended to be quick, leanly presented and focused.
- At the hearing on 21st August I expressed concern about the role of Norfolk County Council - particularly about why it was a party at all. The rules in themselves give no guidance, but suggest that the court should apply the overriding objective, and that it is particularly relevant if the applicant for joinder has an independent view to advance. I was told that Moor J had taken the view that the test for joinder was a low one – see Family Procedure Rules 2010 r 12.3 and the notes to it in the Family Court Practice, and that I should would decide what part they should play. Ms. Geddes referred me to Re B (A Child) (1980 Hague Convention Proceedings)  EWCA Civ 375 in which she had submitted to Black J (as she was then) that where a Local Authority is involved or perhaps even before it has been formally involved, it ought to be made a party to Hague proceedings. Black LJ plainly was not attracted by that general proposition although she did not rule on it one way or the other. But she did say that there might be many ways in which a Local Authority could assist the court in a Hague return case, particularly in cases of older children where their personnel might have had contact with the children and know their wishes and feelings and perspective. That of course is not a factor here. I did not rule then since I wanted to think about the Local Authority's role after considering Ms. Geddes' submissions. She also took the opportunity – or maybe this had already been intended, I do not know – to bring in leading counsel. So I now have Mr. Setright QC and Mr. Edwards for the father, Mr. Momtaz QC and Ms. Harding for the mother and Mr. Twomey QC and Ms. Geddes for Norfolk County Council. I am grateful for their submissions in the case, but this has all taken time.
- I share Mr. Setright's view that a five-day hearing is completely uncalled for in a Hague case. The fact that I have sat over five days, admittedly with a lot of spare time along the way and the luxury of engaging with submissions in a case which I have not found easy, does not justify the time estimate. Black LJ said in Re C  EWHC 1804 (Fam) that Hague cases are expanding very significantly often for what does not seem to be a very good reason. The court simply does not have the capacity to deal with its current workload let alone if every Hague case which would previously have been taken a half day now takes several. I entirely share her concerns.
- This is perhaps an unusual case but then perhaps it will be the first of many. There may well be other cases where a parent arrives from a foreign jurisdiction having wrongfully removed a child asserting domestic violence and a Local Authority wishes to intervene. However, it was the mother's attempted removal of the child back to Turkey in December which gave rise to the Local Authority intervention, an unusual circumstance which may not be encountered in the future. I will return to that later.
- The first expert was instructed was Advocate Kezban Hatemi, who practises in Turkey specifically in Istanbul. Her report of 26/6/17 was translated. The parties considered that she did not assist on the issue of protective measures. On the contrary I considered that her exposition and understanding of the Hague Convention 1980 and 1996 in Turkey demonstrated an approach very much in line with that which would be adopted in these courts. She set out in detail the Turkish laws in respect of protection of women from domestic violence and what the penalties are for breach. She said in terms (although the translation is not the most comfortable to read) that protective measures exist:-
"In the Turkish law the prevention of violence against women and children and enforcement of violent cases has been specially regulated and in order to give the fastest decision, great significance and effort have been made."
"The view that women and children who are subjected to violence in Turkey will be protected in (sic) the fastest method is shared by the Court of Justice."
- Nevertheless it was decided that there should be a second report from Professor Giray, an academic, who has been in that post in the University of Istanbul for 21 years, since 1996. It was asserted that Professor Giray needed to be cross-examined notwithstanding that Mr. Setright's submission that there was nothing which required to be further elucidated by him In fact further questions had been posed by the mother's solicitors by letter. He had responded on 25th August 2017. It was suggested that this was insufficient.
- Two other documents are relied upon by the mother in support of the suggestion that protective measures in Turkey are insufficient. They were firstly a report of the UK Home Office for use in immigration proceedings dated February 2016 and entitled, "Country Information and Guidance Turkey: Women Fearing Gender-based Violence". The second was M.G. v Turkey ECHR 101 (2016) which formed part of a large bundle of exhibits to one of the mother's statements. The Strasbourg Court criticised the lack of protection measures and delay caused by the Turkish prosecution authority's failure to progress allegations of domestic violence made between 2006 and 2014, by which time new legislation had been introduced in Turkey. The Home Office report was sent to Professor Giray but M.G. v Turkey was not specifically dawn to his attention, and was buried in the bundles which he had available only electronically. Questions were required to be put, so said Mr. Momtaz and Mr. Twomey, who was by now in the case as well, in order to put other criticisms as to institutional neglect of the interests of women and children in Turkey where domestic violence had occurred.
- It was submitted by Mr. Setright and essentially accepted by Mr. Momtaz and Mr. Twomey that this case is entirely about the efficacy of protective measures in respect of the mother and the child in Turkey.
- I decided not make a final decision on whether to hear oral evidence from the parents until I had heard Professor Giray's evidence. I was asked to direct myself in accordance with the decision of the Supreme Court in Re E  2 FLR 758 – and all parties agree – that I have to: (a) take the allegations at their highest; and (b) decide whether on that basis there is a grave risk that if the child returns to her country of habitual residence she will be exposed to physical and psychological harm or otherwise placed in an intolerable situation; and (c) if so, the court must then ask how the child can be protected against the risk. Only if I am not satisfied that effective measures exist might there be scope for oral evidence to determine how far the risk exits in reality.
- Having read the papers I expressed the view from an early stage that I would find it difficult to decide the disputed issues. No material evidence was produced to support the mother's allegations of serious assault, including sexual assault. It is her case that she was controlled and monitored domestically by her husband and therefore unable to make complaint or to seek medical attention. She produced photocopied photographs of alleged injuries to herself and the child. They did seem to show discoloration to the mother's limbs which resembled bruising but it was impossible for me to form any conclusion. She also produced poor quality photographs of reddening to the child's hands which she said had occurred when the father who was irritated with the child grabbing at items, smacked her very hard. The photographs indicated some discoloration which may or may not have been bruising; and may have shown swelling, although this appearance may have been caused by the angle of the photograph. The father said that the reddening was due to the child's eczema with which the child had indeed been diagnosed. It may or may not be relevant that the report that I have seen refers to the child having eczema on her arms and legs rather than her hands. I have no medical evidence.
- In the circumstances it would have been quite inappropriate for me to form any view of my own as to what the photographs demonstrated. On the one hand the mother's account of what she has endured is prima facie credible. On the other, the father says that it is undermined in certain ways. The mother had complained that he had reacted very badly and had abused her because she had distributed a photograph online of herself wearing a Western-style dress. To contradict that he produced a number of other photographs which she had sent to him wearing Westernised clothes. He also produced a vast number of affectionate, loving and indeed passionate text messages between the two, each expressing their feelings for one another and their delight in one another's company and appearance. The mother's response is that this correspondence was impelled by fear and a wish to placate; which may be true and is potentially credible.
- I concluded that I would find it impossible to decide this issue with no supporting evidence, even in the two and a half hours allotted to each party on the proposed witness template, for which the court was rapidly running out of time. More importantly, this is primarily a matter for the Turkish court and there may be much circumstantial evidence in Turkey to confirm or to disprove what each says.
- The mother's intended return to Turkey on 13th December may indicate a wish to reconcile with the father and thus undermine her account; or it may not. It may be, as is suggested particularly by the Local Authority, that she was inveigled into the journey by her own father. On the other hand, she and her father both told the police that they were intending to travel to 'sort out' the divorce proceedings in Turkey. The mother is keen to be divorced from the father and the jurisdiction to entertain her divorce proceedings here is as yet very uncertain. The mother has said inconsistent things about the trip. Her first account was that she was simply going to go to Germany to have medical treatment for hair loss. She took some time to accept that in fact they were planning onward travel to Turkey. She then said that they were intending to stay there for an indefinite period of time. She has been very vague since then as to precisely what her motivation was. The Local Authority suggests that the motivation of her father was to force a reconciliation, but she has never said that in terms herself. She has said that her father had 'duped' her but she has not said in respect of what. She says that he has accepted that he could have caused her significant harm but she has not said how and why. There is no other evidence that her father's motivation was other than what he said, namely, to travel for the purposes of assisting his daughter to resolve her marital problems by ending the union.
- I also note that Dr Latif's psychological report obtained in the Norfolk proceedings indicates, although she does not diagnose any specific disorder, that this young woman has quite a fragile personality and has had experience of domestic violence in her own family background, is easily influenced and may be gullible. I have no reason to doubt that assessment, certainly on the present information, and I shall take it as correct for the purposes of this analysis. But that does not assist me as to precisely why she left the UL with L.
- Re E tells me to take the allegations at face value as I should where they are prima facie credible. There also may be cases in which the court can safely take the view that an Article 13(b) defence is not made out; for instance, where what is said by the abducting parent just simply does not establish the first base for gravity risk or intolerability. If what the mother says is true, certainly in respect of her husband, it establishes that she is at risk of domestic violence if she lives with him, as is the child either directly or indirectly from witnessing domestic violence. On the other hand, no evidence is produced by the mother to suggest that she has experienced or is at serious risk from harassment or harm from third parties, although it may be possible to infer that a spouse who can behave in a highly destructive way to the family is capable of almost anything including inciting harm by others. There is no evidence that L's father has sought the mother out or tried to do so in this country. They were in contact by text certainly at an early stage of these proceedings and there is no suggestion that he was anything other than civil to her or that he threatened her. Unusually in a case of this nature has maintained the mother financially, reasonably generously, since separation.
- The mother does not make any allegation in these proceedings that she is at any risk from her own father if she returns to Turkey despite the Local Authority's concerns. The furthest she goes, on instructions relayed through counsel during this case, is to say that he might put pressure on her to reconcile. Initially the Local Authority's case, based upon what it had been told by the police, was that the maternal grandfather did present a very serious risk against the mother, even going so far as to extend to honour-based killing or certainly honour violence. Thus, I received an application from Mr Twomey during the hearing to admit into evidence a risk assessment produced by the Norfolk Constabulary of which the Local Authority was aware and which they wanted to see to evaluate it. Against Mr. Setright's protestations, I agreed to its production. Although a lengthy document, it consisted mainly of a typed form with tick boxes and added nothing to what was already known had been alleged by the mother (supported by her mother) as to domestic violence from the mother's father towards her own sister when that sister's marriage broke down. The mother's case is not that she was forced to go to Turkey or to Germany (wherever she thought she was going in December 2016) nor that she was under physical or emotional pressure from any source.
- When looking at whether the protective measures are sufficient, I note that the mother's case is very different from the Local Authority's. Of course, a potential victim may not be aware of the risk to him or herself. But on the evidence, particularly since it is now known that the maternal grandfather is very ill and confined to this jurisdiction, the risk of him travelling to Turkey to harm the mother must be very low. The risk that he might employ a 'hit man' to target her is very low as well, although I suppose I should not wholly ignore that possibility. It is now proposed that on return until the Turkish court can fully assume charge of this case the mother's location will be confidential (as is her present residence). Therefore, the risk that the child's grandfather presents to her in England – which I must use as a comparator – is likely to be far higher than the risk that he may inflict harm on her or the child in Turkey.
- Although I decided not to hear oral evidence, counsel agreed that I am entitled to form at least some conclusion (relevant to any potential defence that the mother's psychological reaction to return to Turkey would be so intense and so adverse to create the relevant degree of risk or intolerability on return) from the fact that she was prepared to travel back there with the child shortly after her original departure. The mother was with her father which may have given her a sense of security and a greater sense of being able to deal with the outside world than if she had been on her own. But the fact that she was prepared to return to Turkey at all means that it cannot seriously be suggested that a return to Turkey in itself as such will be so psychologically harmful to her as to fall within the Article 13(b) criteria; nor indeed that physical proximity to the father by being in the same city, of 17 million inhabitants, would cause her such distress or that she would be so adversely affected as to give rise to the consequences required by Article 13(b). Taking at face value the account of both the mother and her father that they were intending to go to Turkey in order to resolve the divorce proceedings, it is highly likely that the father would have known that she was there and she must have appreciated that.
- The Local Authority's case, as it has now evolved – and it has taken various forms during the course of these proceedings – is that the risk to the child is of a resumption of cohabitation or contact between the mother and the father, who is assumed to be (on the basis of this analysis) dangerous; and that this will be uncontrollable by any protective measures made by this court or indeed in Turkey, particularly since the mother's isolation in Turkey may lead her to seek out the father or at least to be receptive to entreaties from him to mend their marriage. The mother, incidentally, says that there is no question of this happening.
- I have, in this context, asked myself (although I have not specifically heard submissions about this) whether the Local Authority has the status to put forward an Article 13(b) defence at all. Article 13(b) reads:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
- Article 13 does not provide that the "person, institution or other body which opposes its return" must be an entity or individual with any custodial rights in respect of the child. How far may Article 13 itself extend as to the category of persons who would be able to object to a removal?
- Discussion took place during the hearing with counsel about extreme cases where a Local Authority might have to take a view on return independent of a removing parent or other person with custody rights. It is quite possible, without being fanciful, to imagine a case in which a parent or other person might come to this country claiming to seek refuge against harm and then seek to remove the child for purposes of trafficking, sexual abuse or perhaps some form of ritual injury or even homicide. I agree with Mr. Twomey that it would make a nonsense of the legislation for a local authority not to be able to come to court and seek to prevent return.
- There is no doubt that the Local Authority has the capacity to apply for protective measures pursuant to the Children Act 1989 which come within Article 20 BIIR, which applies here even though the child may not be habitually resident in the UK, but does not in Turkey. There is a good argument that presence is enough to justify proceedings which lead to a care order in a non-BIIR case particularly where a child's country of origin simply is not known or a case where the other country has no child protection measures which apply to a child, particularly a non-national.
- I accept that there is a duty on a local authority to protect all children in their area. Furthermore, this child is now a British citizen and may now be habitually resident here. Therefore, I have concluded, contrary to my immediate reaction to these proceedings, that the Local Authority may have a role independent of the parents. I do note however that some of the submissions made by Mr. Twomey, and prior to him, Ms. Geddes, made it clear that the Local Authority was advancing the case on a wholly different basis from that advanced by the mother, as well as supporting her, different perspective.
- I now turn to the protective measures available in Turkey relevant to both the mother's case against the father, and to the Local Authority's concern about what may happen if the mother returns to Turkey from her present environment. She is effectively under Norfolk's control. Every movement is monitored or at least attempted to be and she is not permitted to live anywhere else, or indeed to visit anyone when she has care of the child without the Local Authority knowing where she is.
The Protective Measures Offered and Available
- The father's initial undertakings were: to pay for L's and the mother's return tickets to Istanbul; not to instigate or support any criminal proceedings in Turkey against the mother in respect of the abduction; not to use or threaten violence against the mother or instruct anyone else to do so; not to separate the mother and L except for the purposes of contact; not to be present at the airport when the mother returns; and to pay for the mother's accommodation and to provide maintenance. After discussion in court various potential refinements, have been added at my suggestion. First, that the father should provide a sum of money to the mother so that she can instigate proceedings in Turkey and progress them for at least a time. Second that any accommodation that she occupies must be kept entirely confidential and only made known to the father if the Turkish court specifically directs. Third moneys for accommodation, or at least a down payment for accommodation and for maintenance, should be available before she leaves for Turkey. Fourth that she herself should be made the subject of an order here preventing her from living with the father, bringing him into contact with L or permitting unsupervised contact without permission of the Turkish court. And, lastly, that the Turkish proceedings should be commenced while she is in this country and interim protection be put in place before she departs.
- In respect of that last measure, my only hesitation would be my experience in a recent case where the registration of an order in the State of Florida led, for various reasons, to six months' delay which then led, in its turn, to an application to set aside the Hague Return Order on the basis that the delay created a change of circumstances. I refused to set it aside but that decision may be being appealed. So, any such provision would need to be hedged around with safeguards on the understanding that the court would be rapidly accessed to bring this matter back if there is a difficulty.
Turkey and Protective Measures
- Professor Giray tells me, as indeed had Advocate Hatemi – as is not contested – that Turkey is a signatory to important international instruments. It is, of course, a signatory to the 1980 Hague Convention, and is now a signatory to and in January 2017 acceded (subsequent to L's wrongful removal) to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (Hague 96). It is also a signatory to the United Nations Convention on the Rights of the Child, and to the corresponding UN Charter.
- Professor Giray set out the essentials of the relevant provisions of Turkish law in his report. Equality before the law for women and children is assured under the Turkish Constitution Guarantee of Fundamental Rights and Freedoms. Article 41 of the Turkish Constitution protects family and children's rights and mandates the State to take necessary measures and establish the necessary organisation to protect the peace and welfare of the family especially of mother and children. The Turkish Civil Code, since 2002, enables a judge to 'interfere in family relationships' to protect against domestic violence, and provides for economic support to be ordered. The law protects the family and prevents violence against women. Protective measures can be put in place, which include financial aid, psychological, professional, legal and social guidance and counselling and provide temporary protection. It contains legal guarantees to protect children. The Family Court Act enables the Family Court Judge to 'grant authorisation' to control domestic violence and violence against women. The Turkish criminal jurisdiction applies even where an offence is only partially committed in Turkey. Abuse for political, philosophical, racial or religious reasons is regarded as an offence against humanity and the Turkish Criminal Act includes punishment by way of imprisonment if there is a breach. Kidnapping is a criminal offence. Discrimination is prohibited. Foreigners are both protected and subject to Turkish laws and Turkey is also a signatory to international conventions in respect of elimination of discrimination. Turkey, although not part of the European Union, is a contracting party to the European Convention on Human Rights, thus the Strasbourg case to which I have referred.
- Professor Giray tells me that there is no reason, including nationality, for any of those measures not to be available to the mother. The applicable law is Turkish law not the law of Libya - save in respect of the actual obtaining of the divorce itself, which will not prejudice the mother. English court orders will be recognised and enforced. Save in respect of property rights of children, Turkey is a full participant in Hague 1996, pursuant to which recognition, enforcement and co-operation is effected. Under Hague 96 undertakings given by the parents in this jurisdiction will be directly recognised and enforced in Turkey. All the undertakings offered by the father are enforceable either pursuant to Article 23(1) Hague 1996 or the Criminal Code, or the specific laws which protect individuals. Specifically the Turkish law which prevents violence against women provides a full repertoire of orders very familiar here (although using slightly different terminology), in the form of an order against molestation including not to approach friends, relatives and children of the protected person, not to damage belongings and goods, not to communicate in a way such as to cause distress, to hand over weapons to the Law Enforcement officials, not to use alcohol, drugs or stimulants in places where the protected people are present, and to apply to the Health Centre for examination or treatment and to ensure treatment. The Turkish court can make a mirror order which reflects an undertaking. The mother will not be prosecuted for an offence of child abduction, unless the father himself brings a complaint, which he has undertaken not to do.
- Professor Giray told me that interim measures can be granted in one week in the Turkish courts. He denied that there were any problems in the Family Courts because of recent reported difficulties between the Government and Judges in Turkey. In commenting upon the Home Office Country Report, he said that the examples of domestic abuse in that report were likely to be replicated in any other jurisdiction. That I agree, but that does not in address whether there is institutional neglect of remedies in Turkey. Professor Giray also expresses a perhaps contentious view that in Turkey violence against women arises most often from cultural differences, in marriage. I do not share that last viewpoint which does not accord with my experience in this jurisdiction. His own personal view is that the mother would not be at risk in this case because both parties are Libyan nationals. These views do not undermine the general thrust of Professor Giray's report.
- Professor Giray told me that each of the three courts in Istanbul which deal with family matters for Istanbul's 17 million people has 25 judges. Emergency interim relief can be granted within a day. Proceedings can be brought before the mother and L return to Turkey. A reservation in a court order that a party does not accept the truth of the allegations does not undermine the effectiveness of the order or its enforceability. The relief sought may be in a criminal, civil or child case, which may be combined. The child always has a Guardian in children's proceedings. Social Services exist, as does a form of proceedings whereby children can be protected. Orders are enforceable by the mother, the father, the child's Guardian or the Public Prosecutor.
- It was put to Professor Giray that these were fine words but in G. M. v Turkey the wife had had to wait an unconscionably long time – years – before any form of effective remedy was put in place. Professor Giray had not previously been familiar with that authority and was criticised, in my view unjustly, for that. He confirmed as stated in Re G. M., that Turkish legislation was enacted in 2014 to remedy the defects there identified. It is not inappropriate for me to remind myself, as I discussed with counsel during the case, that similar experiences have been encountered here. For instance, I think of the implementation of the Mental Capacity Act 2005 in response to the very serious criticisms of the Strasbourg Court.
- I accept that the Home Office Report is in a form very commonly used in immigration cases and advanced by the Government Department. Mr. Momtaz satisfied me that it is admissible, and therefore permissible for me to refer to it. Nevertheless, this court is entitled to examine the report, not to doubt the perspective of the authors, but to examine its context.
- It contains several extracts from reports of important international organisations particularly operating under the United Nations, and of NGOs who must be assumed to have some knowledge of the circumstances described in Turkey. However, many the quotations are extremely generalised and do not indicate what proportion of cases are referred to; a point made by Professor Giray in his answers to the questions. Reports of individual incidents from informants do not indicate whether they have been tested for validity in any sense. It is not clear what time period these complaints relate to. From my perspective, many the complaints do not address the issues with which I am currently concerned, namely, domestic violence and protection of a vulnerable child. For instance, employment statistics as to women generally are not particularly helpful, although I do note that the number of women judges in Turkey does not seem to compare particularly unfavourably to our record in this jurisdiction.
- The purpose for which this report was created seems quite different from the purpose for which it is relied on in this case. It records information capable of supporting an individual claim for asylum or for admission outside the rules. It does estimate the degree of likelihood that a litigant in the Turkish courts will not be able to obtain redress. It does not, for instance, provide what I would regard as the crucial information of how many applicants were, deliberately or by neglect, let down by the system, and in what circumstances. Of course, within this kind of report also there is the concern, as one finds in looking at legal decisions generally, that when a court rejects an application it may well be because the application is unsustainable or not established as opposed to ignored without justification.
- Professor Giray's evidence, which I found increasingly impressive as he continued, related to his own experience and knowledge. He has not practised, apart from a brief period in 1996 as an intern, but I accept that he has personal and professional knowledge of Turkish law and procedure from his research. I observe that the parties did not regard the Advocate Hatemi who does have experience of the court as helpful (although I see nothing in her generalised conclusion as to the capacity of the Turkish to provide necessary protection inconsistent with Professor Giray's report). It is also significant, although this does not apply to every single specific area of complaint about the Turkish system in the Home Office report, that many of the problems which arise appear to do so in the rural South East of the country near the border with embattled territory, rather than in Istanbul which I am entitled to regard as likely to offer the best practice and the best service to individuals in a major urban centre. Also, many of the complaints about investigation and handling of offences against women raised in the Home Office report and indeed some of the complaints about lack of action could also reasonably be levelled against authorities in this jurisdiction. I think of the Rochdale or Oldham cases as examples.
- I accept Mr. Momtaz's comment, even criticism, not entirely dissented from by Mr. Setright, that Professor Giray was rather defensive about his own country's position when cross-examined. That would not be surprising. It was not suggested that his evidence to me was untruthful. The existence of appropriate laws was not challenged. The claim was a lack of commitment in Turkey to enforcement. Criticism was also made that Professor Giray was unable to give precise details of enforcement methods, notwithstanding that he had referred to various routes by which it might be pursued. That would be, if it were necessary – and I hope it would not be – a matter for legal advice.
- Professor Giray was not always easy to understand. He was on holiday in Bodrum and gave evidence over an extremely poor telephone link to his mobile phone. But with perseverance and repetition, I could hear and understand enough. At the end of his evidence I had no reason to doubt his evidence that a complete code, both accessible and effective, is available to protect the mother.
- I am satisfied that the father's undertakings are binding in Turkey. There is no risk arising from the mother's father if she is in unidentified accommodation which would be enough to protect her until the Turkish court can assess the risk. The Turkish Code permits a child's contact with his or her parents to be regulated by the Turkish court.
- The objectives of Hague 96 are to determine which State has jurisdiction and which law is to be applied, to provide for recognition and enforcement and to establish co-operation, and that pursuant to that objective the court has wide powers pursuant to Article 3:
The measures referred to in Article 1 of the Convention may deal in particular with –
a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b) rights of custody, including rights relating to the care of a person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence;
c) guardianship, curatorship and analogous institutions;
d) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
e) the placement of the child in a foster care family or in institutional care, or the provision of care by kafala or an analogous institution;
f) the supervision by a public authority of the care of a child by any person having charge of the child;
g) the administration, conservation or disposal of the child's property.
- I therefore have powers to make a wide range of orders which will provide a strong measure of security for this child.
- Mr. Twomey rightly says that it may not be possible to replicate in Turkey the "wall of steel" presently surrounding the mother, but if I refuse to return this child and the care proceedings continue in England, such measures are unlikely to be enforceable in the long term in any event. The mother has not sought the protection forced on her by the Local Authority and the Court. It must be unlikely that she will be compelled against her will to live indefinitely under the current regime impressed on her.
- Mr. Setright submits to me, and I accept, that I could make an order placing the child in the care of the Turkish authorities pursuant to Article 3 of Hague 1996 which would be recognised in Turkey. That would not be appropriate on the present information. The measures which I make pursuant to Article 11(1) of Hague 1996 will lapse under Article 11(2) as soon as the Turkish authorities have taken the measures required by the situation and it would be wrong for me to second guess what their actions may be. The farthest I should go is to place the mother under embargoes just as I place the father.
- I disregard for the purposes of my assessment the Local Authority's submission that the aftermath of the Turkish Coup presents physical dangers to the mother which surpass the 'grave/intolerable' test. The father says that he did not wish the mother to go outside the house in the immediate consequences of the Coup, but the mother does not suggest that it was or is unsafe for her to be outside. In fact, her case is that she wished to be out and about far more than the father let her.
- I must return this child, who has been removed in circumstances which make her return mandatory, and where the mother has failed to establish the Article 13(b) defence. In that context, some debate took place with counsel as to whether there was a burden of proof on either party to establish either that the protective measures were sufficient or that they were not. These are not investigatory proceedings. They are arm's length proceedings between parties in the civil sphere and therefore not equivalent to the approach that a court might take when assessing welfare at the end of care proceedings.
- I have approached the case on the basis that the mother must establish a defence. She has not done so. I am entirely satisfied that the protective measures available in Turkey are sufficient. So, I prefer to leave the question of burden of proof and whether there is a duty on the mother to show that they are insufficient or on the father to prove that they are insufficient, to another day and another case.
- It had become inevitable that I should not hear evidence from either of the parents as counsel accepted when I announced my decision on the sufficiency of the protective measures before proceeding to judgment.
Conclusion as to the form of the hearing
- I have felt considerable unease at the extent to which I have been requested to scrutinise in such minute detail the provisions available in a contracting State, a State with a strong system of civil justice notwithstanding the recent political problems. Turkey should be regarded as entirely equivalent to our own in respect of effectiveness of its justice system and its ability, in the words of counsel, "to deliver". In my view – and this is the one piece of guidance that I might feel able to offer – Mr. Setright was broadly right when he submitted that an opinion of the depth and detail of Professor Giray's, setting out what measures are available, tells the court as much as it needs to know; although it has, of course, been of assistance for me to know precisely how soon measures can be put in place in Turkey, because it helps with the fine tuning of the order and the undertakings.
- I find it difficult to lay down any prescriptive guidance, if indeed that would even be appropriate, as to what should happen in another similar case save that the court should try to contain and limit the documentation and presentations. Also, since cases inevitably expand to fill the time available, it is best to provide for shorter not longer hearings.
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