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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> T v T [2023] EWFC 243 (12 December 2023) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2023/243.html Cite as: [2023] EWFC 243 |
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This
judgment was delivered in private.
The
judge has given leave for
this
judgment
to
be published on condition
that
(irrespective of what is contained in
the
judgment) in any published
version
of
the
judgment
the
anonymity of
the
children and members of
their
family must be strictly preserved. All persons, including representatives of
the
media, must ensure
that
this
condition is strictly complied with. Failure
to
do so will be a contempt of court.
Neutral Citation Number: [2023]
EWFC
243
(Fam)
Case No: BS23P70946
IN THE
FAMILY COURT
SITTING AT BRISTOL
Date of judgment: 12 December 2023
Before :
MR JUSTICE PEEL
- - - - - - - - - - - - - - - - - - - - -
Between :
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Nadia Zaman for the
style='letter-spacing:-.15pt'> Applicant
The
Respondent in person
Hearing date: 11 December 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
.............................
MR JUSTICE PEEL
Mr Justice Peel :
The application
1. I am concerned with Z, who is 5 years old. I shall refer to
her parents as M (her mother) and F (her father).
2. M applied on 19 September 2023
for permission
to
take
Z
to
Pakistan for a holiday over
the
Christmas period. F opposes
the
application. Pakistan is a signatory
to
the
1980 Hague Convention, but
the
United Kingdom has not yet accepted its accession, so
that
the
provisions contained
therein
are not applicable as between
the
two
states.
The law
3. The
court's paramount consideration is
the
welfare of Z.
The
leading authority on applications such as
these,
where permission is sought
to
remove a child for a short
time
to
a country where
the
Hague Convention is not operative as between
the
UK and
that
country, is Re R (A Child) [2013 EWCA Civ 1115.
4. At para 23, Patten LJ said this,
having reviewed
the
jurisprudence:
"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
childīs 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."
5. He continued at para 25:
"As the
quotation from
Thorpe
LJīs 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:
i) the
magnitude of
the
risk of breach of
the
order if permission is given;
ii) the
magnitude of
the
consequence of breach if it occurs; and
iii) 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".
6. As noted, the
Court of Appeal suggested
that
"in most cases" expert evidence as
to
appropriate safeguards will be needed.
The
court did not say
that
"in every case" expert evidence will be required. In K
v
K [2020] EWDC 96 Mostyn J permitted
the
mother
to
take
the
child on a
trip
to
Nigeria, having concluded
that
the
risk of wrongful retention
there
was
vanishingly
small. In
that
case, no expert evidence had been obtained.
That
said, in
the
reported cases it is more customary
to
obtain expert evidence, and
to
put in place mirror orders, or written agreements,
to
underpin
the
proposed
visit;
see, for example, M (Children) (non-Hague Convention state) [2020] EWCA Civ 277, AY
v
AS [2019] EWHC 3043 (Fam), SR
v
MA [2019] EWHC 435 (Fam).
QLR
7. In these
proceedings, M is represented and F acts in person. Because of previous findings against F of coercive and controlling behaviour, on 5 October
2023
an order was made for a qualified legal representative ("QLR")
to
be appointed on F's behalf for
the
purpose of cross-examining M.
That
order was repeated on 30 October
2023.
The
latter order further provided
that
in
the
event a QLR had not been appointed by 4 December
2023,
ahead of
this
final hearing on 11 December
2023,
"
the
respondent father shall file a list of questions
that
he intends
to
ask
the
applicant mother at
the
final hearing which shall be sent
to
the
court and not
the
[applicant mother] by 16.00 on December 8".
8. In his View
from
the
President's Chambers dated July
2023,
the
President said
this:
"16. On a less positive note, all who have experienced cases where the
circumstances either require, or cause,
the
court
to
appoint a Qualified Legal Representative (QLR) under Matrimonial and Family Proceedings Act (MFPA) 1984, s 31W(6)
to
cross examine a
vulnerable
witness in
the
interests of one of
the
parties, will know
that
frequent and widespread difficulties are being encountered in finding advocates
to
act as a QLR.
The
provision of a statutory alternative
to
the
unsatisfactory remedy of
the
judge, magistrate or legal adviser questioning
the
witness in such cases is something
that
has long been called for.
The
inclusion of a new Part 4B in
the
1984 Act, by
the
Domestic Abuse Act 2021, s 65, was widely welcomed. It is
therefore
both dispiriting and
very
concerning
that
the
QLR scheme established by
the
Ministry of Justice (MoJ)
to
implement Part 4B seems unable
to
attract anything like sufficient numbers of advocates
to
act as a QLR in individual cases.
17. Changes to
the
operation of
the
QLR scheme are a matter for
the
MoJ, but
the
current unwelcome situation requires courts
to
determine how
to
proceed where
the
circumstances are such
that,
by s 31W(6), '
the
court must appoint a qualified legal representative (chosen by
the
court)', yet none can be found. Where
that
situation is reached it will be a matter for
the
individual judge or magistrates
to
decide how
to
proceed in each case, but I would suggest
that
if no QLR is found within 28 days,
the
court should list
the
case for directions and direct
that
some summary information is provided by HMCTS about
the
difficulties
that
have been encountered.
18. Although there
is no provision in MFPA 1984, Part 4B for
the
termination
of a QLR appointment, PD3AB, para 8.1(b) permits
termination
'when
the
court so orders'. No guidance is given in PD3AB as
to
the
test
to
be applied. When a QLR is appointed by
the
court
the
focus is on whether it is 'in
the
interests of justice'
to
do so. A similar focus may
therefore
be appropriate when considering discharge. In addition, courts should apply
the
over-riding objective in FPR 2010, r 1.1 of 'dealing with a case justly, having regard
to
the
welfare issues involved'.
The
need
to
do so 'expeditiously and fairly' and
to
ensure 'parties are on an equal footing' will be of particular importance.
19. Consideration of terminating
the
appointment of a QLR provides a further opportunity
to
canvas with
the
parties any other options, for example directly instructing an advocate. If a QLR is discharged, short reasons for doing so should be recorded in
the
court order.
20. Although courts will be mindful that
PD3AB, para 5.3 provides
that
'a satisfactory alternative means
to
cross-examination in person does not include
the
court itself conducting
the
cross-examination on behalf of a party,
that
guidance does not
trump
the
over-riding objective and, where
there
is no alternative, courts may have
to
revert
to
asking
the
questions where
that
is
the
only way
to
deal with
the
case justly, expeditiously and fairly in
the
absence of a QLR."
9. This
passage from
the
President, although not formal guidance, clearly sets out
the
problems with
the
QLR process and
the
need for
the
court, where appropriate,
to
take
steps
to
ensure so far as possible, and notwithstanding
the
absence of a QLR,
that
the
case can be dealt with justly. Otherwise, multiple adjournments would be required in
the
(possibly forlorn) hope of securing
the
services of a QLR, and such delay would in itself usually be contrary
to
the
interests of justice, contrary
to
the
interests of
the
child, and potentially would renew, perpetuate and/or exacerbate
the
impact of domestic abuse on
the
vulnerable
party.
10. In the
event, no QLR had been appointed for
this
hearing before me. F was not aware of
this
until
the
morning of
the
hearing, and
thus
had not filed his questions. It seemed unlikely
that
he would be able
to
draw
them
up on
the
spot, and I am not sure it would have been fair
to
him
to
require him
to
do so. However, it seemed
to
me
that
the
evidence on factual matters was largely agreed and
there
was a degree of urgency because
the
application was
to
take
Z
to
Pakistan in
the
next few days. Both parties agreed
that
neither would ask questions of
the
other, but
that
I would ask such questions of each of
them
as I
thought
fit. I accept
that
this
process meant
that
neither party was cross examined, but I was able
to
probe each party in
the
witness box and by
the
end I am confident
that
I had a sufficiently clear picture
to
make an informed decision. At no stage did either party raise any concerns about
the
process which I adopted, or
the
questions which I asked.
The background
11. M is 29 years old, and F is 42 years old. F moved to
the
UK from Pakistan in 2004, and is a British citizen.
The
parties married in 2017 in Pakistan. M moved
to
the
UK
to
live with F in
the
West of England. Z was born in 2018.
The
parties separated in 2021, when M and Z left
the
family home.
They
now live in
the
Home Counties. F continues
to
live in
the
West of England.
12. After separation, there
was no contact between F and Z. F accordingly made an application for a Child Arrangements Order, and interim orders were made for supervised contact. It was determined
that
a fact-finding hearing should
take
place
to
determine allegations of domestic abuse made by M against F.
13. The
fact-finding hearing
took
place on 23 and 24 August 2022 before Recorder Leong. Both parties were represented.
The
judge made seven findings against F which constituted controlling and coercive behaviour, and which, he concluded, caused M
to
leave
the
family home with Z. F has never accepted
these
findings of domestic abuse, as
they
must be categorised pursuant
to
para 2A of PD12J and s1(3) of
the
Domestic Abuse Act 2021.
14. The
proceedings
then
progressed
to
a final disposal/welfare hearing before HHJ Wildblood KC on 4 and 5 May
2023.
Again, both parties were represented, and
the
court had
the
benefit of a s7 report. F, M and
the
s7 reporter all gave oral evidence.
15. In his judgment, HHJ Wildblood KC reiterated the
previous finding
that
F is dominating and controlling
towards
M. He referred
to
F making unfounded allegations
that
M has undiagnosed psychiatric issues. He said
that
F is devoted
to
his daughter, hard-working and intelligent, but does not acknowledge
the
dynamics of
the
relationship between himself and M.
i) Z should live with M.
ii) Contact between Z and F should build up reasonably swiftly, such that
by September
2023
it would be, on a 4-week cycle, alternate weekends and 1 day spent by Z with F.
iii) There
should be holiday contact as
to
1 week in
the
Christmas holidays, 1 week in
the
Easter holidays, and
two
separate weeks in
the
summer holidays. Further arrangements were made for half
terms,
Christmas Day and Eid.
iv) The
order provided for
the
Prohibited Steps Order made on 10 November 2021
to
remain in place.
That
prevents either party from
taking
Z abroad without
the
permission of
the
other.
v)
style='font:7.0pt "
Times
New Roman"'> Z's passport is
to
be held by M.
17. Pursuant to
a direction made by
the
court after M's application
to
take
Z
to
Pakistan over Christmas, a UK based lawyer who is also qualified in Pakistan has given a written report as
to
the
applicable law in Pakistan, and protective arrangements
to
ensure
the
return of Z should M seek
to
remain
there.
The
expert says
that:
i) F would be able to
make an application in
the
Pakistan courts for a return order.
ii) Further, or alternatively, he could apply for an order under the
Guardian and Wards Act 1890 for an order which reflects
the
terms
of
the
English order.
iii) By the
Code of Civil Procedure (Act
V
of 1908), a certified copy of a foreign judgment is ordinarily regarded as conclusive between
the
parties. In particular, by s44A, a certified copy of a decree of a superior court of
the
United Kingdom "may be executed in [Pakistan] as if it had been passed by
the
District Court".
iv) Mirror orders can be pursued in Pakistan.
v)
style='font:7.0pt "
Times
New Roman"'>
The
2003 UK-Pakistan Judicial Protocol on Children Matters can be referred
to,
although it is not
treated
as law in either jurisdiction.
18. It seems to
me
that
there
are, or would be, legal routes potentially available
to
F
to
pursue in Pakistan a return
to
this
jurisdiction, but
the
expert does not say in
terms
that
any of
these
provisions is likely
to
result in a swift return under Pakistani law. Further, he is silent as
to
how long it might
take
to
pursue legal avenues, and at what legal cost. Experience of other cases suggests
that
it could, if resisted by M,
take
some
time
with no certainty of outcome. I accept F's submission
that
none of
these
legal routes deprive
the
Pakistani court of
the
ability
to
reach further, or other, decisions. In other words,
the
expert does not identify a swift means of enforceability.
Analysis
19. Although there
is some lingering mistrust between
the
parties, I
thought
they
were both essentially focussed, in
this
application, on Z's needs. Both were helpful and straightforward in answering questions from me, acknowledging, as I do,
that
neither were subjected
to
the
rigours of cross examination.
20. As always, this
is a delicate balancing exercise, and a number of factors interact with each other
to
form a composite picture. F and Z have had a settled regime of contact since September. Both parents
told
me
that
it is working
very
well, and I commend
them
both for
that.
It is a
testament
to
their
mutual wish
to
ensure, as far as possible,
that
their
personal differences do not impact negatively on
the
advantages
to
Z of a healthy relationship with F. I have no doubt
that
Z enjoys her
time
with F and benefits enormously from it.
To
be deprived of
that
relationship would, I am satisfied, be devastating for her, and contrary
to
her wishes and needs.
The
gravity for
this
child of being retained in Pakistan is high indeed. Not only would she be deprived of her loving relationship with her father, but she would also be uprooted from
the
country where she has lived all her life, where she attends school, where she has some extended family, and where, by all accounts, she is
thriving
and happy. Should she not be returned
voluntarily,
as Pakistan and
the
UK do not have reciprocal Hague Convention arrangements,
the
process of ensuring her return
through
the
Pakistani courts might well be lengthy and uncertain.
21. I also take
into account
that
if Z is
taken
to
Pakistan
this
Christmas, even if she were
to
be returned as promised, she would miss
the
week of contact over Christmas with F which is provided for under
the
order of May
2023.
Further, because of
the
delay in
this
application reaching court,
there
is little
time
to
prepare Z for
the
proposed
trip,
and
the
lost
time
with F.
This
is not
the
fault of
the
parties, but it does mean
that
what M now seeks would necessarily be planned and implemented in
very
short order.
The
arrangements would be a little rushed, and must be seen in
the
context of a contact regime which, although working well, is still relatively new and, in my judgment, needs a little more
time
to
bed in.
22. On the
other hand, having heard M (and I repeat
that
I am conscious she was not cross examined), I consider
that
there
is a relatively low (but not negligible) risk of her retaining Z in Pakistan. She
tells
me
that
she
views
Pakistan as a negative place for her (as a single woman) and Z in
terms
of its relative lack of economic development and its attitudes
to
women. In
the
UK, by contrast, she and Z have access
to
healthcare and, in Z's case,
to
schooling which she enjoys.
They
have family here, as
they
do in Pakistan. M now has a full-
time
job here. I bear in mind
that
M has not made any attempt
to
remove Z unlawfully
to
Pakistan, even
though
she holds Z's passport, and she properly applied
through
the
courts for
temporary
removal
to
Pakistan It is, I accept, important for Z
to
stay in
touch
with her origins and culture, and a
visit
would promote
that
core part of her identity. As
time
goes by, she is likely
to
find it confusing and unsettling if she cannot
travel
to
the
country of her parents' birth and in principle, in my judgment, it is in her interests
to
see both sides of her family in Pakistan.
23. In initial communications between the
parents in June
2023
(which started relatively cordially but degenerated somewhat), M asked F if he would agree
to
her
taking
Z
to
Pakistan. F responded by suggesting
that
he
take
Z
to
Pakistan, and
then
a few days after
their
return, M could
take
Z
there,
which indicates
that
he had no particular concerns at
that
point about such a
trip.
M was unenthusiastic about
the
travelling
demands on Z of such an arrangement, and had some reservations given
that
Recorder Leong had made a finding
that
when in Pakistan on one occasion during
the
marriage, F kept Z away from her for 4 days. M counter proposed
that
they
all go
to
Pakistan for 4 weeks, with Z spending 2 weeks in M's care and 2 weeks in F's care;
that
seems
to
me
to
be a sensible potential blueprint going forward. In
the
end
these
various
discussions did not result in agreement.
24. Weighing up the
arguments, I have concluded
that
M's application
to
remove Z
to
Pakistan over Christmas should be refused. Although I assess
the
likelihood of disobedience
to
the
English court order as relatively low,
the
detriment
to
Z of breach would be
very
high.
The
contact arrangements are newish, and need more
time
to
settle down. A period of stability (particularly after so much litigation) might build up a greater degree of
trust
between
the
parents. I also
take
the
view
that
the
benefit of a
trip
to
Pakistan during
this
holiday period is outweighed by
the
benefit
to
Z of spending a week over Christmas with F, which she would miss if she went away. Finally, in my
view
a mirror order should be obtained before any
trip
to
Pakistan
takes
place. I accept
that
this
may not provide certainty, but it would provide a degree of reassurance and set at least an indicative benchmark in Pakistan.
25. Looking ahead, it seems to
me
that
in principle by
the
2024 summer holidays, provided
that
a mirror order is in place, it may well be appropriate for Z
to
be able
to
accompany M
to
Pakistan. Indeed, I consider
that
M's suggestion of both parties going
to
Pakistan, and Z dividing her
time
between
the
two
parties, has much
to
commend it. However, whether a
trip
abroad should be granted, and, if so, in what form, is a matter for
the
court on another day. I am conscious
that
there
is a risk of yet more litigation but in my judgment
that
is unavoidable because of
the
relatively recent arrangements put in place by HHJ Wildblood KC which need
to
time
to
work
though.
26. I shall therefore:
i) Refuse M's application to
take
Z
to
Pakistan for a holiday over Christmas;
ii) Direct M to
obtain a mirror order
to
reflect
the
order of HHJ Wildblood KC;
iii) Record that
Z is habitually resident here,
that
the
courts of England and Wales hold jurisdiction over her welfare in
this
case,
that
both M and F have parental responsibility,
that
any removal of Z from
this
country
to
an overseas jurisdiction would be a breach of orders made by
this
court, and
that
any retention in any overseas jurisdiction after a removal would similarly constitute a breach;
iv) Direct that
any future application by either party
to
take
Z
to
Pakistan for a holiday should be referred
to
the
Family Presiding Judge for
the Western Circuit (currently Judd J) for allocation.