THE HONOURABLE MR JUSTICE
COBB
:
Introduction
- The applications
before
the
Court
concern
two
children,
B
(a
boy,
aged 13) and
C
(a girl, aged 8). They live with their mother in England. Their father is
currently
believed
to
be
living in Iran. They are
both
wards of the English
Court
and have
been
so since November 2016.
- The issues on which my ruling is sought are as follows:
Substantive
i) To permit the mother to arrange for the
children
to
be
known
by
new forenames and surnames;
ii) To grant a prohibited steps order restricting the extent to which the father is able to exercise his parental responsibility for the
children.
Procedural
iii) To proceed to final determination of the mother's applications (at (i) and (ii) above) in the absence of, or participation
by,
the father;
iv) To direct that the final witness statement of the mother
containing
details of the
children's
whereabouts shall not
be
served on the father.
- The mother attended the final hearing, represented
by
solicitors and
counsel.
The
children's
Guardian, Ms Toni Jolly was also present and represented. The father neither attended nor was he represented. I read the extensive documentation filed in the
current
proceedings, and in previous proceedings; among the statements filed in previous proceedings was one which was signed
by
the father (signed 2 October 2014). He has filed nothing in these proceedings. I received oral and written submissions from the represented parties. Neither represented party required oral evidence, and nor did I.
Before
addressing these issues, and to provide a
context
for my decisions, it is important that I should set out the relevant
background
history.
Background
history
- The parents were
both
born
and raised in the Islamic Republic of Iran. They married there in 2002; they lived in the
city
of Shiraz, and the mother describes the father as
being
from an influential tribe (Ghash Ghahaei) in that region of southern Iran. The family moved to England in or about 2003, and sought asylum here. They were granted asylum in 2009. The two
children
of the family, the subjects of these proceedings, were
born
to the marriage in England.
- The mother describes the marriage as abusive from an early point,
certainly
from the moment the parties arrived in this
country.
She asserts that the father was
constantly
intimidating and
bullying
towards her, and in due
course
the
children;
she describes at length in her statements her own distress, and the upset and fear of the
children,
caused
by
his
behaviour.
On the written evidence of
both
parents (i.e. also taking account the October 2014 statement of the father) it appears to me that the marriage was volatile; on multiple occasions the police were
called
out to deal with incidents of alleged domestic abuse within the home. I have seen extensive police
CRIS
(
Crime
Reporting Information System) records which generally tend to support the mother's account in her written evidence. At times the mother sought sanctuary with the
children
in a refuge, though invariably they returned to the father. The mother says that she developed symptoms of depression, which she felt only seemed to aggravate the father's taunts and abuse. In 2013, the mother issued divorce proceedings,
but
discontinued the same, she maintains, on the father's promise to modify his
behaviour.
The proceedings were revived in 2014. At or about that time, the parties travelled to Iran. There is a dispute as to the purpose and details of that trip. According to the mother, the father promised not to defend the divorce proceedings if she agreed to accompany him to Iran with the
children;
the father maintains that it was a routine holiday although separately (and inconsistently with this) states that in Iran his life was in danger as he had 'illegally'
converted
to
Christianity
- Once in Iran in 2014, the mother
claims
that the father removed the
children
from her
care,
and he attempted to prevent her from leaving the
country.
She asserts that she did in fact manage to leave
covertly,
with the
children
in tow. She said that she partly disguised herself in, and hid the
children
under, a
chador
to do so. The father followed the mother
back
to the UK; an inevitable
confrontation
ensued, and with the assistance of police and local authority the mother was once again relocated to a hostel. When interviewed
by
the police at that time (25 August 2014), the father is recorded as having asserted that: "in Iran it is easy for a man to get
custody.
All is needed is for them to go to a
court
and then
confirm
it with the police". This is a point which he emphasised in his later witness statement in the Family
Court;
he denied, however, that he intended to do this.
- The mother obtained injunctive relief against the father in the family
court
under the Family Law Act 1996, and on the return date the father gave undertakings as to his
behaviour.
The mother had also applied for, and obtained, a prohibited steps order to restrain the father from removing the
children
from her
care
and
control
and from the jurisdiction; the father gave undertakings in this regard too. The father issued proceedings under the
Children
Act 1989 for
contact.
In October 2014, the father filed a statement in which, materially, he said this:
"The
children
are not at risk of abduction
I had no plans to remain in Iran [in 2014], I have a home,
car,
family and
better
life in the UK and I had no plans of moving to a third world
country.
My
children
are settled in the UK and it would have
been
detrimental to my
children's
education to take them
back
[to live in Iran] as they would have had to
begin
learning the language from scratch.
I deny that I pose a threat to the
children
and I have never made threats to remove them from the jurisdiction. My
children
are settled in the UK and this is their home. They attend school here and have friends here and I would not wish to destroy that."
- A final
child
arrangements order was made in 2015 providing for the
children
to spend two nights per week with their father; the prohibited steps order, forbidding the removal of the
children
from the
care
of the mother and from the jurisdiction of England and Wales, was
continued.
Divorce proceedings were finalised.
- The mother's
case
is that abuse and harassment from the father persisted. She says that the father used the
contact
hand-overs to
berate
and maltreat her. When the non-molestation order expired in 2015, the mother
complains
that the father stepped up his
campaign
against her. The mother was referred to her local MARAC (Multi Agency Risk Assessment
Conference),
and was assessed as
being
at high risk.
- In February 2016,
B
reported to his mother that on a
contact
visit he had overheard his father talking on the phone about a passport. The mother, fearful that this represented a further plan to remove the
children
from her
care,
reported her
concern
to the Hammersmith police. The police took no action. A few days later the mother received a telephone
call
from the
children's
school to inform her that the father had not
brought
the
children
into school that day, nor on the previous day.
- It transpired that in
breach
of the earlier prohibited steps order, the father had left London with the
children,
and travelled to southern Iran, taking a
convoluted
route almost
certainly
to avoid detection in transit via Liverpool, Dublin, Dubai, and Tehran (not initially at least to his home
city
of Shiraz). The mother reported the
children
as missing to the Hammersmith police, and promptly made an application (albeit without the
benefit
of legal aid, while the Legal Aid Agency equivocated over the merits of her
case)
to the
court
for a location order. Moylan J (as he then was) granted this order, though regrettably it was, of
course,
too late; the
children
were already in Iran
by
the time the
case
was heard, and they remained there, without
contact
with their mother, for the next seven months. The
children's
British
passports were still in the
custody
of the mother's previous solicitors following the earlier
court
process; the mother made the reasonable assumption
based
in part on what
B
had reported (
confirmed
later
by
the Iranian Embassy) that the father had obtained Iranian substitutes without her knowledge or
consent.
- The mother was enabled, with assistance, to locate the
children
in Iran, and in early November 2016, the mother travelled there herself, surreptitiously
collected
the
children
from school, and over the
course
of several days she returned with them
back
to this
country,
clandestinely,
making at least part of this arduous journey on foot. In this endeavour, she was assisted
by
the abduction team of the Foreign and
Commonwealth
office, and
by
the
British
Embassy in Turkey.
- Immediately following their return, the mother states that she received increasingly frightening telephone
calls
and messages from the father, in which he threatened to trace her, to kill her, to have acid thrown into her face, and to snatch the
children
(
by
himself or through agents) and take them
back
to Iran. He appears determined, according to the mother, that she
be
punished for removing the
children
from his
care
and from Iran. The father has
contacted
the school which the
children
used to attend in London seeking information about their whereabouts.
- The father instigated proceedings in
both
the family
court
and the
criminal
court
in Iran; he has alleged in
both
sets of proceedings that the mother has kidnapped the
children.
Documentation served on the mother's family in Iran and forwarded to the mother, so available to me, shows that in December 2016 the 27th
Branch
of the Family
Court
of the
City
of Shiraz made a
custody
order in the father's favour, awarding him '
care
and
control'.
The mother has
been
summoned to attend
court;
she has
been
threatened with arrest for failing to do so.
- The mother is extremely fearful that the father will now travel to England and remove the
children
again, in purported enforcement of an order or orders which he has obtained in Iran.
- Since returning to this
country
a little over a year ago, the relevant local authority has assisted the mother to safeguard the
children,
and keep their whereabouts secret. The
children
have
been
interviewed
by
the police using the Achieving
Best
Evidence Guidelines. I extract a summary of part of those interviews from the relevant
CRIS
report:
"[B] stated that over the last 8 months he has
been
through a lot and said that it was the worst time of his life
he said it was awful in Iran
his father used to hit them and tried to make them lie to the police
[
C]
said that her dad had hit her
because
when they went to the police station to see their nan (mother's mum) she was supposed to tell them horrible things about her mum
but
she didn't and
because
of that her father
beat
her."
The
children
have further spoken to their General Practitioner of
being
physically abused in Iran, and placed in school to learn in a language which they did not fully understand,
being
punished when they fell
behind
in their studies.
- Late in November 2016, the
children
were warded
by
Order of the High
Court,
and the
contact
order in favour of the father was suspended. On 26 May 2017, the mother issued the applications
before
me: (i) for an order permitting her to
change
the
children's
names, and (ii) for a specific issue order for the
court
to limit the ways in which the father
can
exercise parental responsibility for the
children.
- At a hearing in June 2017, Roberts J joined the
children
as parties to the litigation, and reinforced the protective
cordon
around the mother and
children
with a range of orders designed to ensure that the father would not
be
able to locate them. The mother moved from
city
in England to another. Having
been
there for some weeks,
B
was approached
by
a man in the street whom
B
recognised and associated with the father.
B
was said to
be
deeply traumatised
by
this. The mother and
children
moved again.
- Underlying
both
applications
before
the
court
is the mother's very
considerable
fear, shared in significant measure
by
the
children,
that the father is making efforts to trace them, and if successful in locating them, will try to seize the
children
and transport them
back
once again to Iran. If this happens, it is a near-
certainty
that the mother's relationship with the
children
would
cease,
and she would never
be
able to retrieve them again.
By
her actions in rescuing the
children
in the way she did in 2016, the mother has essentially forfeited her right ever to try to enter Iran again. As earlier indicated (see [15] above), the father is
believed
to have obtained a
custody
order in Iran, he is actively pursuing
criminal
proceedings against the mother for the offence of kidnap, and there is an outstanding warrant for her arrest there.
- The mother describes
both
children
as
being
"severely traumatised"
by
their experiences in the
care
of their father in 2016. Neither
child
will talk in Farsi for fear that they are identified as Iranian; the mother and
children
have
been
placed into self-imposed purdah for fear of revealing to any third party any features of their history or, more particularly, their Iranian heritage.
Both
children
have
been
referred
by
their GP to relevant local adolescent mental health services. I have read evidence from a
Clinical
Psychologist, who has described the family as having "significant mental health needs requiring support". The psychologist describes
B
as experiencing nightmares of his father hurting him, and is unable to sleep alone; he is further described as "hyper-vigilant", is
constantly
on the look-out for someone abducting him, and presents with "a number of trauma symptoms".
B
separately (
but
consistently)
told his Guardian that he had had "a
big
part of his life ripped out
because
of what his father did".
C
also is reported to have nightmares, and presents with
challenging
behaviour,
acting out aggressively at home. The mother is not in a strong emotional state to support the
children;
she herself is diagnosed as suffering from post-traumatic stress disorder, anxiety and depression, for which she is prescribed a range of antidepressant and associated medications.
- The Guardian has described the
consequences
of any further abduction to Iran as "
catastrophic"
for the
children.
She rightly describes how abduction would lead to "the loss of their relationship with their mother, and the stability she is striving to re-establish for them." Ms Jolly speaks with understandable
concern
of the long-term adverse
consequences
for the
children
arising from their
current
state of anxiety and
confusion.
Procedural (i): Proceeding in the absence of the father
- As I indicated above ([1]) it is
believed
that the father is living in Iran. He has not attended for any hearing in the
case
since November 2016. He has not participated in the proceedings in any other way.
- On 15 May 2017, Parker J directed that the father
could
be
served with the
court
process
by
airmail, e-mail and
by
WhatsApp. That order was
confirmed
by
Roberts J on 16 June 2017.
- The e-mail address to which
court
documentation has
been
sent is, I am satisfied, that which the father used in April 2017 to
communicate
with
C,
and the address which he more recently (25 May 2017: N.
B.
since the order made
by
Parker J: see above) gave to a school in England,
believing
the
children
to
be
attending there; I am therefore satisfied that it is sufficiently
current.
Dr. George tells me that all the relevant information and documentation has
been
sent to the father
by
e-mail, and that an automatic delivery memo has
been
returned; none of the e-mails have
bounced
back
as they would, had they
been
delivered to a defunct address. The mother's solicitors have used all identified forms of
communication
for service. I have seen the relevant
correspondence,
including the
clip
of materials sent
by
e-mail on the day
before
the hearing. I am satisfied that the father has
been
served with all the relevant material, and that he has
been
given proper notice of this hearing in accordance with rule 6.19 FPR 2010.
- The father has
been
given the opportunity to
communicate
with the
court
by
sending his views in writing to the dedicated family High
Court
e-mail address (all of the details are
contained
in the order of 16 June which I am satisfied was served on him
by
no later than 21 June 2017). There is no record of him having
communicated
with the High
Court
office.
- Rule 27.4(2) empowers me to proceed in the absence of the father, provided that I am satisfied that he has had reasonable notice of the application, and specifically of this hearing, and that the
circumstances
of the
case
justify proceeding in his absence (rule 27.4(3)(a) and (
b)).
I am under an obligation to try this
case
justly and proportionately, and while this includes a duty to ensure that the parties are on an equal footing (rule 1.1(2)(
c)
FPR 2010), I am equally obliged to save expense and to deal with the
case
expeditiously and fairly (rule 1.1(2)(d)/(a) ibid.).
- In the
circumstances,
I indicated to the parties that I would
conduct
this final hearing in his absence.
Procedural (ii): Withholding the fourth witness statement of the mother
- The mother wishes to withhold her fourth and final statement of evidence, signed shortly
before
the hearing, from the father. This
contains
more detailed information about the
current
situation of herself and the
children.
- The limited
circumstances
in which relevant evidence may
be
withheld from a party to proceedings has
been
considered
in a number of
cases.
Most notable is Re D (Minors) (Adoption Reports:
Confidentiality)
[1996] AC 593 at 615D, sub nom Re D (Adoption Reports:
Confidentiality)
[1995] 2 FLR 687), in which it was said that:
"The
court
should
be
rigorous in its examination of the risk and gravity of the feared harm to the
child,
and should order non-disclosure only when the
case
for doing so is
compelling".
This view was amplified
by
Munby J (as he then was) in
circumstances
not dissimilar to this, in Re
B
(Disclosure to the Other Parties) [2001] 2 FLR 1017 in which he said at [67]:
"
the decision-making process, although it must
be
fair to R [i.e. the party to whom it was said the documents should not
be
disclosed] (and to all the other parties), must also, so far as is
compatible
with that overriding requirement,
be
such as to afford due respect to the interests of the
children,
the other parties and the witnesses safeguarded
by
Art 8. So, a limited qualification of R's right to see the documents may
be
acceptable if it is reasonably directed towards a
clear
and proper objective in other words, if directed to the pursuit of the legitimate aim of respecting some other person's rights under Art 8 and if it represents no greater a qualification of R's rights than the situation
calls
for. There may accordingly
be
circumstances
in which,
balancing
a party's prima facie Art 6 right to see all the relevant documents and the Art 8 rights of others, the
balance
can
compatibly
with the
Convention
be
struck in such a way as to permit the withholding from a party of some at least of the documents. The
balance
is to
be
struck in a way which is fair, and which achieves a reasonable relationship of proportionality
between
the means employed and the aim sought to
be
achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved". (emphasis
by
underlining added).
- In my judgment, the father has no immediate and obvious need to have the information
contained
in the fourth statement in order for him to participate fully in the proceedings (should he
choose
to do so), and to respond to the essential allegations against him. There is a "
compelling"
case
to protect the
children
from a repeat of the abduction, and it is in the
circumstances
in my view 'fair and proportionate' that this document is not served on him at least at this stage. I am satisfied that the mother and
children
are extremely fearful of the father, and would
be
likely to experience significant emotional trauma if they
believed
he had access to the information about where they
currently
are living. Should the father at any point engage with
court
process here, and apply for access to the statement, this decision
could
of
course
be
reviewed in the light of prevailing
circumstances.
Change
of forename and surname: the law
- A surname defines, and is defined
by,
familial heritage and genealogy. A person's forename invariably identifies gender, and often personifies
culture,
religion, ethnicity,
class,
social or political ideology. A forename and surname together represent a person's essential identity. From very earliest
childhood,
one's name is an intrinsic part of who you are, and who you
become.
Thus, the naming of a
child
"is not a trivial matter
but
an important matter", and any
change
in the name "is not a question to
be
resolved without regard to the
child's
welfare" (Dawson v Wearmouth [1999] UKHL 18; [1999] 2 AC 309; [1999] 2 All ER 353; [1999] 2 WLR 960; [1999] 1 FCR 625; [1999] 1 FLR 1167) per Lord MacKay). Where two or more people have parental responsibility for a
child
then one of those people
can
only lawfully
cause
a
change
of surname if all other people having parental responsibility
consent
or agree, or the
court
otherwise orders.
- The issue of
change
of surname was debated
by
the House of Lords in the leading
case
on this topic, Dawson v Wearmouth (above), where Lord Jauncey stated:
"A surname which is given to a
child
at
birth
is not simply a name plucked out of the air. Where the parents are married the
child
will normally
be
given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is thus a
biological
label which tells the world at large that the
blood
of the name flows in its veins. To suggest that a surname is unimportant
because
it may
be
changed
at any time
by
deed poll when the
child
has obtained more mature years ignores the importance of initially applying an appropriate label to that
child".
Adding:
"
the
changing
of a
child's
surname is a matter of importance and that in determining whether or not a
change
should take place the
court
must first and foremost have regard to the welfare of the
child.
There are many factors which must
be
taken into account, not only those pertaining to the present situation
but
also those which are likely to affect the
child
in the future."
- Re W, Re A, Re
B
(
Change
of Name) [1999] 3 FCR 337, [1999] 2 FLR 930 followed Dawson v Wearmouth and at [9]
Butler
Sloss LJ set out a list of factors which would
be
relevant to any determination of
change
of surname, including:
i) on any application the welfare of the
child
is paramount, and the judge must have regard to the section 1(3)
criteria;
ii) among the factors to which the
court
should have regard is the registered surname of the
child
and the reasons for the registration, for instance recognition of the
biological
link with the
child's
father. Registration is always a relevant and an important
consideration,
but
it is not in itself decisive;
iii) the relevant
considerations
should include factors which may arise in the future as well as the present situation;
iv) reasons given for
changing
or seeking to
change
a
child's
name
based
on the fact that the
child's
name is or is not the same as the parent making the application do not generally
carry
much weight;
v) the reasons for an earlier unilateral decision to
change
a
child's
name may
be
relevant;
vi) any
changes
of
circumstances
of the
child
since the original registration may
be
relevant;
vii) in the
case
of a
child
whose parents were married to each other, the fact of the marriage is important; there would have to
be
strong reasons to
change
the name from the father's surname if the
child
was so registered;
viii) where the
child's
parents were not married to each other, the mother has
control
over registration.
Consequently,
on an application to
change
the surname of the
child,
the degree of
commitment
of the father to the
child,
the quality of
contact,
if it occurs,
between
father and
child,
the existence or absence of parental responsibility
- There is a growing recognition that a forename or given name is no less significant. In Re
C
[2016] EWCA 374 at [40],
contrasting
the position taken
by
Thorpe LJ in Re H (
Child's
Name: First Name) [2002] EWCA
Civ
190, [2002] 1 FLR 973 (
CA).
King LJ described it thus:
"The forename finally
chosen
forms a
critical
part of his or her evolving identity. The sharing of a forename with a parent or grandparent or
bearing
a forename which readily identifies a
child
as
belonging
to his or her particular religious or
cultural
background,
can
be
a source of great pride to a
child
and give him or her an important sense of '
belonging'
which will
be
invaluable throughout his or her life."
Plainly the longer the
child
has
carried,
and
been
associated with, that forename the stronger the
connection
with it, and the more powerful the reasons required to
change
it. As King LJ went on to say in Re
C
at [51]:
"
given the fact that in the 21st
century
a
child
will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every
bit
as important to that
child,
and his or her identity, as is his or her surname".
- In Re D, L and LA (
Care:
Change
of Forename) [2003] 1 FLR 339
Butler
Sloss LJ said (at 346) that:
"To
change
a
child's
name is to take a significant step in a
child's
life. Forename or surname, it seems to me, the principles are the same, in general. A
child
has roots. A
child
has names given to him or her
by
parents. The
child
has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the
child
which they
chose.
Those rights should not
be
set to one side, other than for good reasons
Having said that, one has to recognise, in reality, that names do
change.
Children
acquire nicknames and even nicknames sometimes take over from the name that they were given as their
chosen
name.
Children
do have diminutives and they may themselves, as they get older, prefer their third name to their first name and
choose
to
be
called
by
it."
Restrictions on the exercise of Parental Responsibility
- The father was married to the mother at the time of the
children's
births,
thus he has parental responsibility for
B
and
C
as a matter of law.
- Section 3(1) of the
Children
Act 1989 defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which
by
law a parent of a
child
has in relation to the
child
and his property". Under section 2(8)
CA
1989, "the fact that a person has parental responsibility for a
child
shall not entitle him to act in any way which would
be
incompatible with any order made in respect to the
child
under this Act". The
court
has power to restrict the exercise of parental responsibility
by
making a prohibited steps order, defined in section 8(1)
CA
1989 as "an order that no step which
could
be
taken
by
a parent in meeting his parental responsibility for a
child,
and which is of a kind specified in the order, shall
be
taken
by
any person without the
consent
of the
court".
Even if revocation or withdrawal of his parental responsibility were justified on the facts, it is not permissible to revoke or withdraw a father's parental responsibility in these
circumstances,
save in the vanishingly rare
circumstances
where a mother may apply for a sole adoption order in respect of her own
children
(a
course
which is not advocated in the instant
case;
see Re
B
(Adoption: Natural Parent) [2001] UKHL 70). In P v D & others [2014]
EWHC
2355,
Baker
J
contemplated
that the power to limit the exercise of parental responsibility:
"
extends, in very exceptional
cases,
to making an order prohibiting a parent from taking any steps in the exercise of parental responsibility" [109] (emphasis
by
underlining added).
- In the
case
of Re D (Withdrawal of Parental Responsibility) [2014] EWCA
Civ
315, [2015] 1 FLR 166, the
Court
of Appeal
considered
the
circumstances
in which parental responsibility would
be
circumscribed.
The following principles
can
usefully
be
drawn from the judgment:
i) Parental responsibility "is an important status which is an incident of the family and private lives of the adults and
child
concerned
and which is reflected in the way in which parents should exercise their responsibilities for their
child.
It should
be
rare for a father not to
be
afforded this status" (
citing
Re M (Parental Responsibility Order) [2013] EWCA
Civ
969, [2014] 1 FLR, at para [14]);
ii) Parental responsibility describes an adult's responsibility to secure the welfare of their
child
which is to
be
exercised for the
benefit
of the
child
not the adult (at [2015] 1 FLR 166 [11]);
iii) When
considering
whether to limit or restrict parental responsibility, the
court
is
considering
a question with respect to the upbringing of a
child,
and the paramountcy principle in section 1
CA
1989 applies (see [12]);
iv)
By
section 1(4), there is no requirement upon the
court
to
consider
the factors set out in section 1(3) (the 'welfare
checklist')
but
the
court
is not prevented from doing so and may find it helpful to use an analytical framework not least
because
welfare has to
be
considered
and reasoned (see [12]); (note [41]
below:
in this
case
the mother applies for a prohibited steps order, so the section 1(3)
checklist
will apply);
v) The 'no order' principle in section 1(5) of the
CA
1989 applies;
vi) The factors relevant to the
court's
consideration
of the grant of parental responsibility (the degree of
commitment
which the father has shown to the
child,
the degree of attachment which exists
between
the father and the
child
and the reasons of the father for applying for the order) may
be
relevant at the point of
considering
whether to revoke or limit the exercise of parental responsibility (see [13]);
vii) A
child
will ordinarily
benefit
from a relationship with
both
parents; the significance of parenthood of a married or an unmarried father should not
be
under estimated (see [14]);
viii) The parental responsibility which attaches to parenthood may
bring
added
commitment
to the
child
which would
be
likely to
be
to the
child's
benefit
(adapting the point made in Re G (
Children)
(Residence: Same-sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305, [2006] 2 FLR 629, at paras [30] and [31], and discussed at [15] of Re D);
ix) "[A] significant matter of status as
between
parent and
child
and, just as important, as
between
each of the parents.
By
stressing the "responsibility" which is so
clearly
given prominence in the
Children
Act 1989, section 3 and the likely
circumstance
that that responsibility is shared with the other parent, it is hoped that some parents may
be
encouraged more readily to engage with the difficulties that undoubtedly arise when
contemplating
post separation
contact
than may hitherto
been
the
case"
(McFarlane LJ in Re W (Direct
Contact)
[2012] EWCA
Civ
999, [2013] 1 FLR 49).
x) Article 8 of the European
Convention
is engaged here in respect of all of the family members, and interference with these rights needs to
be
justified (see [21])
xi) The order is draconian (see [30]);
xii) It is vitally important to encourage the exercise of parental responsibility
by
fathers.
Children
have a right to that
benefit
(see [33]).
- As the mother applies in this
case
for a prohibited steps order, section 1(3) does in fact apply
Discussion and
Conclusion
- The orders sought
by
the mother in this application are
both
far-reaching, and exceptional, or to use the language of Re D (Withdrawal of Parental Responsibility) (at [40](i)/(ix)) above, "draconian" and "rare". The mother seeks,
by
her applications, to disenfranchise the father in practice as a holder of responsibility for the
children,
and to
create
for the
children
wholly new identities which are deliberately to
be
secret from the father. Orders of this gravity should plainly only
be
made
by
a
court
if there is a solid and secure evidential and factual
basis
for doing so, and where the orders are palpably in the
best
interests of the
children
concerned.
- I set out the mother's account of the
background
history to this application reasonably extensively above (at [5] to [19]) in order to provide the
context
for my decision,
but
I am very
conscious
that the father's non-participation has left me without any
challenge
to, or test of, the mother's narrative. This is all the more troubling as I note that in his October 2014 witness statement, the father took significant issue with the mother's account of the history up to that point, and ascribed responsibility for the marital discord and dysfunction in the family to her. In those
circumstances,
I proceed with
caution.
- Among the indisputable facts which I
collect
from the history are the following:
i) That in 2016 the father removed the
children
from the
care
of the mother and the jurisdiction of the
court;
this was in
breach
of a prohibited steps order of which he was aware; the
circuitous
route he took to Iran ([12] above) strongly reveals his appreciation of his wrongdoing;
ii) He removed the
children
from England, having expressly avowed in 2014 that he had no intention of abducting them, and having expressly indicated that he had a "
better
life" in England; he purportedly viewed removal of the
children
to Iran as
being
"detrimental to [his]
children's
education" ([8] above);
iii) Only through great
courage
and resourcefulness, and at
considerable
risk to herself, was the mother able to retrieve them;
iv) The
children
have described to their mother, the police, their GP and their psychological
counsellor
considerable
and enduring trauma
by
reason of their experiences;
B
recalls it as "the worst time of his life". It is the objective view of the Guardian and of the mental health services working with the
children
that the
children
have
been
traumatised
by
their experiences;
v) The mother's
case
that she herself has
been
traumatised
by
her experiences at the hands of the father is supported
by
medical evidence; she is, and has
been
for some time, depressed and anxious her
condition
caused
by
the abuse which she has suffered;
vi) The
children
and the mother live in obvious and
constant
fear of
being
located
by
the father and his associates;
vii) The father has sought and obtained legal orders in Iran which would have the effect of placing the
children
in his
care,
and achieving the arrest and near-
certain
incarceration of the mother should she enter the
country;
should the
children
be
removed once again to Iran, they would almost
certainly
lose the relationship with their mother.
- I am further satisfied on the evidence which I have read (and to which the mother has sworn as to the accuracy), that she has
been
the victim of domestic abuse over an extended period from the father; this is
borne
out
by
the
contemporaneous
police records, and the reports of the MARAC (see [10] above). The detail of the incidents is less important than the overwhelming impression from the papers that the mother felt overborne
by
the father's abusive
behaviours
towards her. It is not necessary for me to make any findings about precisely what happened in 2014 in Iran, and whether (and if so in what
circumstances)
the father removed the
children
from the mother's
care.
I note that the father made no secret of the fact that he possessed superior familial rights in Iran.
- Since their return to this
country,
I am satisfied that the mother and
children
have lived a life
constantly
watchful for risks of detection
by
the father or his associates. Their lives have
become
itinerant, to avoid
being
traced; the family have had little
chance
to settle. I was struck
by
Ms Jolly's report of a recent visit to the mother and
children's
home:
"
whilst
clean
and
comfortable,
[the home] was noticeably sparse of personal effects. The extra security measures provided also is a grim reflection of the everyday sense of threat they experience. [
C]
told me how many times they have had to move home and
change
schools in order to keep safe. She has had to leave some of her favourite possessions
behind."
- Ms Jolly described
both
children
as presenting:
"
with severe stress of the abduction added to the pre-stressors they had already experienced parental separation and family
breakdown,
concerns
relating to domestic abuse which led to them, and [their mother]
being
accommodated in a refuge, and retention in Iran following a holiday"
Based
on these
core
findings, there is good reason to
conclude
that the
children
are at very real risk of further abduction if their father were to locate them; if taken
back
to Iran, there is equally good reason to
conclude
that there is no realistic prospect of the
children
having any future relationship with their mother, with whom they are
closely
and securely attached; the mother would not
be
able to risk visiting Iran to retrieve them.
Back
in Iran, there is every prospect that the
children
would
be
subjected to physical and emotional abuse which they ostensibly reliably
claim
they experienced in 2016; they would return to an education system which they found to
be
inaccessible
by
reason of language and
culture.
Quite apart from abduction, while the family remain in this
country,
they (particularly the mother) remains in my view highly vulnerable to attack from the father and in a state of hypervigilance and stress.
- As I have alluded to in [42] above, I am
conscious
that the remedies sought
by
the mother represent significant infringements to the father's and the
children's
rights; parental responsibility is an important status of the adults and
child
concerned
(see [40](i) above). The
change
of the
children's
surname and forenames will equally represent a significant and total severance with their past: "the
blood
of the name" will
cease
to flow in their veins (per Lord Jauncey: see [34] above); it will deliberately expunge traces of their father's familial line.
But
in my judgment
both
remedies, while extreme, are necessary and proportionate to achieve the objective of ensuring the mother and
children's
safety and emotional and physical well-
being.
Relying on no more than the indisputable facts set out at [44] above, it is reasonably evident that the father has
brought
about this exceptional situation
by
his own misconduct. Roberts J has already imposed orders which are
binding
on the
current
and former schools, and on the local education authority prohibiting them from disclosing any information about the
children
to the father; my order will enlarge this restriction on the exercise of parental right very
considerably.
- The
children
themselves have indicated that they are
content
with the proposal that their names are
changed
(
both
children
"readily agreed it is important to
change
their name to keep them safe").
C
added, thoughtfully:
"
she would miss her name
because
she has had it her whole life. She also knows that a name is important in helping people know a little
bit
about who you are. However, she would like to have it
changed
for her safety. She does not mind losing her dad's name and reflected that she even dislikes their physical resemblance."
- Even if the
children
were not so
content,
the risk of harm to them, objectively assessed, is so significant in my view that this would have
been
likely to weigh heavier in the overall evaluation. I am acutely
conscious
that this outcome essentially deprives these
children
of the
benefits
of a relationship with
both
of their parents; the significance of this
cannot
be
under-estimated (see [40](vii) above).
But
that is not a relationship which
can
be
safely
conducted
now; and it would
be
contrary
to the emotional interests of the
children
for the possibility of it to remain open. The
children's
Article 8 rights to respect for their private and family life must take precedence over those held
by
their father (per Yousef v The Netherlands [2003] 1 FLR 210).
- In light of the analysis set out above, I propose to make the following orders:
i)
B
and
C
shall live with their mother, and shall have no
contact
with their father;
ii) The father shall
be
prohibited from taking any steps in the exercise of any aspect of his parental responsibility in relation to either
child,
until each
child
reaches the age of 18 or until further order of the
court.
iii) For the avoidance of doubt, the mother may make all decisions and give parental
consent
unilaterally and without reference to the father, in all matters relating to the
children's
upbringing, including (
but
not limited to) such matters as the
children's
education, healthcare, foreign holidays and removal of the
children
from the jurisdiction;
iv) The father must not remove the
children
from the jurisdiction of England and Wales, or from the
care
and
control
of their mother, and must not instruct, encourage or in any way suggest that any other person should do so, until further order of this
court.
v) The father is not to
come
within 100m of any location where he knows or has reasonable
cause
to know that the Applicant may
be,
until further order of this
court;
vi) I shall in due
course
grant permission to the mother to
change
the
children's
given names and surname, and to do so without reference to the father, provided that the mother notifies me (though her solicitors
by
email to the Judge's
Clerk,
marked '
confidential')
in writing within 28 days of this order of what those names will
be;
vii) I shall direct that no person with notice of this order is to reveal to the father or anyone acting on his
behalf
or anyone known to
be
his associate, the new names of the
children;
viii) I shall direct that the Wardship in respect of
B
and
C
shall
be
discharged forthwith;
ix) I shall
continue
the orders made under the Family Law Act 1996
by
Roberts J.
x) I shall make an order
containing
the key provisions set out above, which
bear
the new names of
B
and
C and of the mother herself.
- That is my judgment.