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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AM v DF [2017] EWHC 2034 (Fam) (01 August 2017) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2017/2034.html Cite as: [2017] 4 WLR 149, [2017] WLR(D) 576, [2017] EWHC 2034 (Fam), [2018] 1 FLR 481 |
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version
of the 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. 2017] EWHC 2034 ( Fam) | ||
2017/0098 |
FAMILY
DIVISION
On appeal from the Central
Family
Court
HH Judge Tolson QC
BT15P00090
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MM AND RM (TEMPORARY RELOCATION)
Strand, London, WC2A 2LL |
||
2017 |
B e f o r e :
____________________
| AM |
Appellant |
|
| - and - |
||
DF | Respondent |
____________________
Helen Nettleship (instructed by MW Solicitors) for the Respondent mother
Hearing dates: 26th and 27th July
2017
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR JUSTICE BAKER :
2017,
I gave permission to appeal and allowed the appeal by a father against the decision of HH Judge Tolson QC dated 9th May
2017
by which he
varied
a prohibited steps order so as to permit the respondent mother to take the parties' two children to Iraq for four weeks this summer. This judgment sets out the reasons for my decision.
Background
violent
and
verbally
abusive throughout the relationship. In 2014, the parties
visited
the mother's
family
in Iraq. In 2015, their relationship broke down, and in July the mother left the
family
home with the children. The father alleges that she then attempted to leave the country until prevented by the police. She then made allegations about his behaviour towards her and as a result he was arrested and then bailed on condition that he did not contact her directly or indirectly. The father in turn alleged that he had been harassed and threatened by members of her
family.
various
case management directions and ordered that the prohibited steps order should remain in force. Contact then resumed in accordance with the agreement, but there were cross-allegations of
violent
and threatening behaviour. The father obtained a non-molestation order against the mother, and she in turn told the father that she would not make the children available for contact, leading him to file another application for a child arrangements order. At a FHDRA, Judge Tolson gave directions leading to a final hearing listed for August 2016. Hair strand tests suggested that the father had a chronic drink problem. A Cafcass report recommended that contact should be supervised in the interim.
2017
to deal with the issue of child arrangements.
2017.
By a further order dated 28th October, District Judge Gibbons
vacated
the hearing in November but stated in her order that the court would still require the information set out above at the hearing listed on 6th January. Meanwhile there were further difficulties around contact, and a Cafcass report recommended that there should be no further contact until the father had completed a domestic
violence
programme.
violence
perpetrators programme. The order recited that the mother had asked the court to make a child arrangements order in her favour and to discharge the prohibited steps order at the hearing, but further recited that the court considered that it would not do so but that the decision should be made at a later hearing. In the interim, the court ordered that the children should live with the mother and that, for avoidance of doubt, the prohibited steps order dated 17th December 2015 should remain in place. The order added, however, that the mother had permission "to email HHJ Tolson QC directly if she has any travel plans in the interim and seeks to
vary
the PSO". The order provided that the parties should "file and serve any final evidence on which they seek to rely in relation to child arrangements
and the prohibitive [sic] steps order
by 4pm on 3rd July
2017".
2017,
the mother's solicitor emailed the judge (not copying in the father's solicitor), stating:
"I write further to your order dated 6 January2017
(attached) to outline the mother's proposed travel plans to Iraq. The mother wishes to take the children to Iraq over the school summer holidays so that the children can spend time with their maternal grandparents. The children have not seen their maternal grandparents for some three years now. The maternal grandmother is
very
ill and has recently suffered a heart attack."
The email proceeded to give the dates on which the mother wished to travel, and the address where she and the children would be staying. The solicitor added that, although the final hearing was listed on 10 July
2017,
this would not give sufficient time for the mother to purchase flight tickets for the proposed dates on which she wished to travel.
"I am not quite sure what has gone wrong. Nor do I understand why I need to know details of the proposed trip. I am afraid I will have to ask you to explain."
A few minutes later, the mother's solicitor replied, addressing the confusion over the draft order (which is not relevant to this appeal), and explaining:
"my client gave an indication at the hearing on 6 January2017
that she planned to take the children to Iraq during the school summer holidays but did not have the relevant travel information at court on 6 January
2017.
My client was consequently given permission to email you directly with the travel plans so you could consider whether to grant leave for the proposed removal."
The judge then replied:
"thank you. Can you please obtain the father's position on the proposed application by forwarding this email and the chain to him?"
"my client's position is and always has been that he remains entirely opposed to the children travelling to Iraq. He does not consider it safe for the children and has continued fears that the mother would fail to return to the UK with the children. It may be that the court will consider the matter ought to be listed before the court and evidence filed addressing the following matters."
She then set out
verbatim
the eight matters identified in District Judge Gibbons' order of 22 August 2016. Fifteen minutes later, the mother's solicitor emailed the judge, copying in the father's solicitor, pointing out that her email of the previous afternoon had set out the mother's travel plans, repeating that the court had been informed on 6 January
2017
that the mother wanted take the children to Iraq in the school summer holidays and that the father had objected to this request, and continuing:
"my note from counsel states that you would consider any email sent directly to you by the mother through me once my client had concrete proposals for the proposed holiday to Iraq. My counsel's note further states that you commented that it was in the children's interest to see their maternal grandmother and wider maternalfamily."
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She submitted that a further hearing was unnecessary, pointing out that legal aid would not be available for the mother at any hearing.
"We confirm that our client remains entirely opposed to the mother removing the children to Iraq. He does not consider that it is safe for the children to travel there when there remains a high degree of conflict in the region. He has ongoing concerns that the mother intends to permanently remove the children from the jurisdiction.
The court should be aware that the Foreign and Commonwealth Office advice is currently against all travel in Erbil province, south of Road 80, and within 10 km of the border with Ninewah province between Road 80 and Road 2 and against all but essential travel to Iraq more generally .
We do not consider that the mother has provided details of her proposed travel plans when she has provided no address where she and the children will be staying, no proposed flight itinerary or tickets and no detailed itinerary for the proposed activities of the children while in Iraq.
We note that when the mother last made a concrete proposal to travel to Iraq prior to the hearing in this matter which took place in October 2016, the court ordered that evidence should be filed by both parties and that the mother should address the concerns the father has about the safety of the children in Iraq and about the risk that they would not be returned. She has not yet addressed these concerns.
While our client has sympathy for the mother in her wish to see her own mother who is reported to be in ill health, he is also aware that she remains free to travel to Iraq on her own, which would avoid any risk to the children .
Our client remainsvery
deeply concerned about this proposal on the part of the mother and the court should be aware that we will be
very
likely to be instructed to seek permission to appeal an order of the court made granting the mother permission to remove the children to Iraq as proposed made without a fully contested hearing."
violence
perpetrators programme did not proceed smoothly. No interpreter was present and, it is alleged, the father behaved in an aggressive way and appeared to be under the influence of alcohol. Following that meeting, the Cafcass officer wrote to the court asking for the matter to be listed for further directions. As a result, the court directed that the matter be re-listed for a further direction hearings on 9 May
2017,
time estimate one hour.
violence
perpetrators programme, the judge then asked the father's counsel (Mr Davis): "where is father on travel to Iraq?" Mr Davis replied that he was "against that in the strongest terms" and referred to the Foreign and Commonwealth Office guidance. The judge asked whether it was common ground that the mother had travelled to Iraq frequently in the past with the children. Having taken instructions, the father's counsel replied that the last
visit
had been in 2013/14. He reminded the court that, when the matter had been raised before, the court had ordered that evidence be filed by both parties and that the mother should address the father's concerns. He then alluded to the email exchange, and reminded the judge that his
view
had been that there needed to be a formal application. The judge replied: "I think I needed to see people in court. I am not too bothered about the formal application."
visit
in 2013/14, stated that the mother had travelled there with the children three or four times, and outlined the problems with the grandmother's health. The judge then asked the father's counsel whether it was in dispute that the children have been a total of 3 to 4 times to Iraq. The hearing concluded with this exchange between the judge and counsel:
"Mr Davis: My instructions, your Honour, is 2010 and 2013, but in fact it was to Kurdistan, which the father says is safe and that it was with hisfamily,
not with mother's
family.
So that they travelled in 2010
Judge: Not to Kurdistan.
Mr Davis: That is what I have been told, Sulaymaniyah, Kurdistan.
Ms Youngs: My instructions are that Erbil is in Kurdistan.
Judge: I was aware the Kurdish area of Iraq was in the North, I did not know it was actually called Kurdistan, but that is my ignorance. Thank you."
"8. One reason why this hearing was convened was in response to a letter from [the Cafcass officer] indicating the developing difficulties in respect of contact. The other aspect of the case was the mother's desire to travel to Iraq with the children. Specifically, to Erbil, in the North for a month between the 30th July and the 28th August. Father objected strenuously to this. His argument is based on two concerns, the first that Iraq is not a safe occasion for the children at the present time. The second is said to be a flight risk.
9. Mr Davis points to the fact that the Foreign and Commonwealth Office recommends against any but essential travel to Iraq. In my judgment, the position in that respect stands differently when, as here, the mother isvisiting
close
family
members. The position of these children is not to be compared with a foreigner entering the country. The mother and her
family
are well placed to make necessary judgements concerning the children's safety.
10. On the same issue but more especially as to the flight risk, it is of importance to note that on at least two previous occasions, probably more, the children have travelled to Iraq to the same area. They have returned, and returned safely, and, as I understand it, on time. There is no reason or evidence, in my judgment, to believe that there will be anything different this time round.
11. Moreover, there are particular reasons to make the trip at the moment as, unfortunately, the maternal grandmother has suffered ill health recently. She is anxious to see the children, and the mother is anxious that she should see the children.
12. Accordingly, I will today give permission for the removal of the children from the jurisdiction between the dates stated for the purposes of travel to Erbil in Iraq. That completes this short judgment."
family
was in a better position to determine the risk of children travelling to and residing in Iraq than the most recent FCO guidance; (2) relied on the mother's reason for wanting to take the children to Iraq without proper scrutiny or detailed arguments; (3) failed to explain why the children's past travel to Iraq was relevant, or more relevant when compared with the up-to-date guidance; (4) failed to explain why travel to Iraq was "essential"; (5) failed to consider the alternatives to the children's travel for example whether the mother could travel without the children, and (6) failed to give any or any adequate reasons why, with a final hearing approaching in July
2017,
the prohibited steps order issue could not be considered then when detailed submissions could be presented to the court. On 14th June, I directed that the question of permission to appeal be referred to me once the transcript of the judgment of 9th May was available. On 10th July, the transcript was filed with the
Family
Division Appeals Office. On the following day I listed the application for permission to appeal for an oral hearing, with the appeal to follow immediately if permission was granted. I directed that, pending the hearing, the paragraph of the order of 9th May which
varied
the prohibited steps order should be stayed.
family
court continued and the hearing listed on 10th July duly took place before Judge Tolson. Having heard further evidence and argument concerning the issues surrounding contact, which included further alcohol testing showing no evidence that the father had consumed excessive alcohol, the judge on 13th July made an order for interim supervised contact with a review hearing in the autumn. He also discharged the prohibited steps order preventing the mother from removing the children from the jurisdiction. It seems that there was relatively little evidence and argument about this latter issue. The judge noted that his earlier order giving the mother permission to take the children to Iraq was the subject of an application for permission to appeal to be heard by this court a few weeks later. I have only seen two draft notes of the judgment delivered following this hearing. Those notes are neither approved nor, indeed, agreed by counsel, although they are substantially the same. Although a transcript of the judgment was ordered, it has not yet been approved or produced. Ideally, I would wish to see that transcript but, in
view
of the mother's imminent departure to Iraq if permitted to do so, no further adjournment of this appeal is possible. I understand from the unapproved notes of judgment that the judge referred briefly to the evidence he had heard from the mother about her past travel to Iraq with the
family,
which he stated he accepted in its entirety.
Submissions
very
little opportunity for Ms Nettleship, who had not appeared before Judge C, to prepare her argument. I am satisfied, however, that she was able to put forward all relevant arguments and commend her for the admirable way in which she prepared and presented the case. She contended that, in all respects, the appeal was devoid of merit and should be dismissed
variation
of an order which no longer exists was plainly perverse.
family.
The two welfare issues put before the judge the children's safety and flight risk were considered by the judge after hearing submissions. Mr Nettleship further pointed out that the children had had a similar holiday with the mother to Iraq as recently as 2014 which had been sanctioned by the father. She submitted that the mother had good reason to want to take the children to Iraq, namely for them to see their grandmother, and that the judge had been persuaded that this was a pressing reason for the
visit.
She further submitted that there was no compelling evidence of flight risk as the children are well settled in this country where they are attending schools. The judge had been aware of the guidance concerning safe travel to Iraq when reaching his decision. Ms Nettleship stated that the holiday had been arranged at great expense to the mother and that the children were looking forward to seeing their extended
family.
For that reason, it would be a great shame if for any reason the holiday could not go ahead.
Discussion and conclusion
"25. 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 hervisiting
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 chart'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.
.
25. .[A]pplications 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 consequences 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."
"When dealing with the risk element in cases such as this, it is important to take into account not just the facts as they appear from the evidence of the parties but also the opinions of those agencies that provide assistance to courts and to individuals when asked to do so."
He cited in particular the FCO guidance available in that case. At paragraph 14, he reiterated the need for "rigorous scrutiny" of the three factors identified in paragraph 25 of Patten LJ's judgment in Re R.
family
law issues such as this application as expeditiously as possible. It was plainly desirable to determine the mother's application promptly so that, if permission was granted to take the children to Iraq, there was sufficient time for planning and preparation. But I regret to say that, in pursuing that laudable aim, the judge's decision on this occasion to deal with this issue in a summary fashion was inappropriate and irregular in several respects.
visiting
close
family
members so that the position of the children in this case was "not to be compared with a foreigner entering the country". His assessment was that the mother and her
family
were well placed to make necessary judgements concerning the children's safety. But he had no evidence on which to base that assessment. On the issue of flight risk, the judge noted that the children had been taken to Iraq on at least two previous occasions and returned safely and on time. He stated that there was no reason or evidence to believe that anything would be different this time round. But again, he had no evidence on which to reach that conclusion.
2017,
Judge Tolson had given a more general direction for the filing of evidence in preparation for the hearing in July
2017
at which it was anticipated the court would determine the application for the discharge of the prohibited steps order. Again, no evidence was filed in compliance with this direction. In March 2016, as summarised above, the mother informed the judge by email that she wished to pursue her application to take the children to Iraq in the summer. After the exchange of emails as set out above, Judge Tolson indicated that this should be pursued by way of a formal application. By that, he plainly meant a notice of application, accompanied by written evidence. No such application, nor any evidence, was filed before the hearing on 9th May.
2017,
in his email at the conclusion of the exchange of emails quoted above, that the mother should file a formal application, the father was entitled to assume that the matter would not be pursued or determined without a notice of application and evidence filed by the mother, to which he will be given a reasonable opportunity to respond. Instead, he and his legal representatives were taken almost completely by surprise. On the morning of the hearing on 9th May - which it will be recalled had been listed as a directions hearing - the mother's counsel raised the question of the proposed trip in her position statement. I do not criticise her for doing so, although the mother had failed to comply with the judge's informal but clear direction to file a formal notice of application. Of greater concern, however, is the judge's decision to go against his earlier direction and determine the issue summarily at the directions hearing. The father and his representatives had no adequate notice that the judge would take this course, nor did they have any opportunity to file any evidence. Indeed, as demonstrated by the quotation from the transcript of the hearing set out above, the father and his representatives had no real opportunity to put forward any arguments at all.
visiting
Iraq outweighed the risks to their welfare which the
visit
would entail. There was no investigation of the safeguards which could be put in place to minimise the risk of retention and secure the children's return if that transpired. There was no consideration of whether expert evidence was required, and consequently no exposition of the reasons for proceeding without such evidence.
various
irregularities, I reached the clear conclusion that the judge's decision to
vary
the prohibited steps order to allow the mother and children to travel to Iraq in the summer
2017
was unjust.
virtue
of s.13(2) of the Children Act. As Ms Nettleship acknowledged, however, the merits of the Iraq trip were not really considered at all during the recent hearing in July. It was recognised that this had been decided at the hearing on 9th May and that the decision was the subject of this imminent appeal. Although I do not have a transcript of the judgment delivered on 13th July, it is plain to me from counsels' respective notes of the judgment that nothing occurred at that hearing to remedy the injustices of the hearing and decision of 9th May.
(1) the father is granted permission to appeal against the order dated 9 May2017
![]()
varying
the prohibited steps order dated 17 December 2015 allowing the mother to travel to Erbil, Iraq with the children between 30 July
2017
to 28 August
2017
inclusive;
(2) the father's appeal against the order dated 9th May2017
is allowed;
(3) upon the father's undertaking through his legal representatives to file a notice of appeal against the order dated 30 July2017
discharging the prohibited steps order by 4 pm on 28 July
2017,
the order discharging the prohibited steps order is stayed pending determination of the application for permission to appeal against that order.
2017 allowed to stand.