[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> R (Children: Temporary Leave To Remove From Jurisdiction), Re [2014] EWHC 643 (Fam) (03 March 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html Cite as: [2014] EWHC 643 (Fam), [2014] 2 FLR 1402 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
FAMILY DIVISION
LEICESTER DISTRICT REGISTRY
B e f o r e :
Sitting as a Judge of the High Court
____________________
Re R (Children: temporary leave to remove from jurisdiction) |
____________________
Mr Alex Verdan QC for the First Respondent father
Mr Martin Kingerley for the Children's Guardian
____________________
Crown Copyright ©
JUDGE BELLAMY:
Background
Expert evidence
'Thank you for your telephone call today. I am writing to confirm the difficulties we have experienced in cases of parental child abduction to India.
India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The 1980 Hague Convention exists to allow children who have been abducted or wrongfully retained by a parent to be returned to the country where they normally live so that matters of residence and contact can be decided by the courts in that jurisdiction. In cases where a child has been removed from the UK to a country such as India, without such a mechanism in place, a left behind parent will usually have to go through lengthy and costly legal proceedings in the hope of getting their child/children returned to the UK.
The Child Abduction Section also sees many 'child retention' cases in countries without an effective mechanism in place to return children. These are cases in which a child is taken out of the jurisdiction of the UK for a temporary period of time, the dates of this period often incorporated in to a UK court order. The courts in India are under no obligation to uphold a UK court order, just as there is no obligation for the UK courts to uphold any court orders from foreign jurisdictions. With this in mind, a left behind parent would have to employ a legal representative in India to initiate legal proceedings, which can be both costly and distressing.'
'23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.'
'28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President's responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ's exhortation for these cases ordinarily to be dealt with by the judges of the Division.'
'And Upon the Court observing that:
a. the expert's report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;
b. the report is appropriately the instruction of the mother and the Children's guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, 'support' the father's case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children's Guardian, in order that she can advise the court from a position of informed neutrality.
c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;
d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.'
The law
'25. As the quotation from Thorpe LJ's judgment in Re K (see paragraph 19 above) confirms, applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
a) the magnitude of the risk of breach of the order if permission is given;
b) the magnitude of the consequence of breach if it occurs; and
c)the level of security that may be achieved by building in to the arrangements all of the available safeguards.
It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave.'
'[28]…in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.'
The mother's evidence
'I am also seeking permission from the Honourable court that I be granted permission to take the children to India in December 2013 for a period of approximately three weeks. I propose to take the children during the Christmas period and one additional week. I have already spoken to the children's school who have said they have no objections to this and in fact have been very supportive and said it would be a good idea for me to have a break.'
That last point was not true. In an e-mail dated 21st May 2013 from the Acting Head of Infants at the children's school, it was said that,
'the school cannot offer a letter in support of extended leave for the family…for the hearing tomorrow, as the attendance levels for the children falls below the level at which we would consider applications for leave during term time.'
'My children have never met my grandfather or my brothers, I would like to take my children to India to visit my family, particularly my grandfather, as I do not know how long he will be alive for. The children have never been to India before and I feel it is an important part of their cultural identity to see where their mother grew up…'
The father's evidence
'Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
Explanation – for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand'.
'when a marriage breaks up the woman is often able to get her husband and many members of his family arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrong-doers…In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children…She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot set foot in India because he will be arrested…'
Mediation
'The Applicant and First Respondent do attend a maximum of 6 sessions of mediation with SW, or a similarly qualified mediator to be suggested by the Children's Guardian, such sessions to be completed by the date of the review hearing herein and at a maximum cost of £1,000 plus VAT, such cost to be split between the Applicant and First Respondent on an equal basis and are deemed for the purposes of the First Respondent's public funding certificate to be a reasonable, proportionate and legitimate expense…'
The Children's Guardian's evidence
'52. While there may be some benefits of the children having a holiday in India these are outweighed by the harm the children would suffer if they were not returned to the UK after the holiday. The children have always lived in the UK, they are settled in the education system and if they were to remain in India they would be denied a relationship with their father.'
Discussion
(1) appropriate police checks have been undertaken in respect of HB;
(2) appropriate information has been provided concerning HB's immigration status;
(3) the mother has notified the father of her proposed address in London;
(4) the mother has consulted with the father over choice of school in London; and
(5) the mother has informed the father of the date when she intends to move to London.
The Legal Aid Agency
'there are additional issues on which our High Court Cost team will have to consider further, namely the hourly rate of your new proposed expert, and the cost benefit to the fund of paying what appears to be a considerable sum of tax payers' money to determine whether an individual may go on holiday. I am unclear how you consider the reasonable private paying client test to be met, and so it may help if when you submit your new estimate to the High Cost team, you address these points.'
'I note that the expert refers to mirror orders and research of the same. I must stress that all work in this respect will not be covered, this is to include, but not limited to, research, reporting, advice and recommendations in relation to mirror orders, and obtaining and implementing the same. Further to this, the amount of time sought for research is surprising considering the expert to be instructed is an expert in this area, i.e. Indian case-law, hence the reasoning behind the instruction. We would expect to see this reduced significantly prior to an agreement being reached.'
'Experts of foreign law jurisdiction:
S19(1) of the Access to Justice Act 1999 says, 'The Commission may not fund as part of the community Legal service or Criminal Defence Service services relating to any law other than that of England and Wales, unless any such law is relevant for determining any issue relating to the law of England or Wales'. Consequently you should distinguish how the prior authority you have sought can be distinguished from this rule.
Reasonableness:
It would appear unreasonable to allow an expert report for the purposes of a holiday now that the main reason for this application (the death of a relative) has altered. It would be necessary to know who would be funding the cost of the holiday or travel and if it is someone other than the client's mother whether they would contribute to the cost of this application. The cost benefit ratio would not appear to be met.
Appeal:
There is no right of appeal against this decision however, if you have any further information you wish to put to the Legal Aid Agency in support of your application, the same will be considered de novo.'
'In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child'.