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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> I and L (Children), Re (Rev1) [2020] EWHC 893 (Fam) (15 April 2020) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2020/893.html Cite as: [2020] EWHC 893 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MW |
Applicant |
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- and – |
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LD |
Respondent |
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The respondent appeared in person
Hearing date: 7 April 2020
The hearing was conducted remotely by Zoom
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Crown Copyright ©
Mr Justice Mostyn:
"They are spending time with the Applicant until 3 January 2020 when they are due to be handed over to the Respondent. The children and the Respondent are due to fly back to South Africa on 8 January 2020."
In the box about the relief that he sought he stated:
"I seek that my children be made wards of court until such time as their welfare can be considered by the Family Court. I also seek a passport order and order prohibiting the mother from taking the children from my care until further order."
In essence, the father was applying substantively for a prohibited steps order preventing the mother from returning to South Africa with the children.
"I admit that I have been ill and I am not proud of my behaviour during this time I fought a long battle with alcohol and this did affect her for which I am very sorry."
In her report Allison Baker records the father making a comparable admission in the following terms:
"The father has suffered from severe anxiety and stress and described himself to be "guilty of self-medication" but feels his mental wellbeing has improved since he returned to the UK. He accepts he abused alcohol and experienced problems with his mental health in South Africa."
"The parties shall continue to be co-holders of parental responsibilities and rights of care and contact in respect of the minor children"
Paragraph 3 provides:
"The children shall reside primarily with [redacted] ("their mother") but shall have reasonable contact with [redacted] ("their father") as set out in paragraph 4."
Paragraph 4 provides:
"(i) The children will visit the United Kingdom once a year to alternate each year between Christmas and the summer June/July holiday;
(ii) [father] will pay the costs of the flights for both girls and [mother] this year at Christmas;
(iii) [mother] will pay for the flights of the children to visit the United Kingdom in summer June /July 2020 which will include her own flight;
(iv) Each visit will be for no less than twenty-one days, of which a minimum of twenty days the children will spend with [father]and his family;
(v) The first visit to the United Kingdom will be during this Christmas 2019 holiday which will include Christmas day;
(vi) [father] will pay for this visit and [mother] the following visit in June/July 2020;
(vii) it is agreed that [father] will have unsupervised and unlimited visits to the children in South Africa;
(viii) [mother] will accompany the children to their first meeting with [father] in South Africa only if this visit takes place before Christmas 2019. Thereafter the children will spend time with [father] unsupervised which will also include [father] taking the children on a holiday in South Africa for a period but not exceeding twenty days.
(ix)The parties agree that an hour a day will be set aside for the children to speak to [father] and or his family;
(x) [mother] agrees to provide internet and ensure that their phones are charged and that they have a quiet and private space to conduct these calls and that they will not be disturbed for this period;
(xi) [mother] will provide a cellular phone;
(xii) [father] will provide a tablet;
(xiii) [mother] undertakes to provide [father] with the children's school reports well as keep him updated as to their school activities and progress;
(xiv) [mother] will advise [father] of any health or educational related issues the children may have from time to time;
(xv) [mother] will on signature of this settlement place the following documents: Birth certificates; copies of the children's full passports; their past school reports; their present residential address; a criminal record check for [redacted], proof of medical aid for the children with her lawyer for safe keeping. Her attorneys will forthwith give a written confirmation to Hemingway Law that the above documents are in their possession. They will also list which documents they have (and which they do not have). It is noted that the police check may not be available immediately but [mother] undertakes to apply for this and to submit it in due course to her attorney. On this parenting plan becoming an order of court her attorney will make these documents available to [father] which will include the police check.
(xvi) [mother] agrees not to leave the RSA without the girls at any time."
Paragraph 7 provides
"The Parenting Plan shall be made an Order of Court and both parties agree and consent hereto."
"(i) The plan was drawn up on the basis that the children would be in the province of KwaZulu-Natal. The children are familiar with this province. [Mother] has moved jurisdiction from where she was interviewed. The Central Authority do not know where [mother] is living. [Mother] told them that she was on holiday in Cape Town. On two occasions the Central Authority has prepared papers for submission in Durban, not the Western Cape. In fact in the past couple of weeks they have drafted papers for submission which state that [mother]is living in Durban, which I understand to be incorrect.
(ii) It has transpired that I and L do not have study visas to enable them to access the education system in South Africa. I advised [mother] before she abducted the children in September 2017 that these would need to be obtained. [Mother] has requested outside of the parental agreement that I send her my passport and has asked me to sign papers to submit to South African authorities. I have not done so because I am concerned about the children's welfare in South Africa
(iii) The children have moved home three times since my contact started a few months ago, with a fourth move planned in February 2020. Prior to my contact commencing my understanding is that there have been at least four moves in the last two years whilst I have been looking for the children.
(iv) The girl's passports bear the wrong surname and I do not understand how.
(v) This was a clear attempt to conceal their whereabouts and alienate me from their life. I believe [mother] unlawfully changed the girls names in England by deed poll in around May 2017 at the same time that she changed [redacted] surname and has obtained new passports using these documents. In both the UK and South Africa my signature is needed for this change to occur. I can only assume that [mother] has forged my signature.
(vi) I and L are currently living in a studio cottage in N's parents garden. They do not have a bedroom. They sleep in a bunk in [mother] and N studio room. The room has a sofa, a table, a clothes rail and has no bath. Power cuts are frequent due to load shedding. They also share the space with 2 pit bull dogs. I understand that they have stayed here three or more times for lengths of time in the past 2 years. A few weeks ago, they were in another property but then moved back to the cottage. There is then the further proposed move in February 2020. I do not know the nature of that accommodation or whether it is a short or long-term arrangement.
(vi) I have asked for confirmation that the children are in receipt of Medical Aid but I have not received any such confirmation. I am extremely concerned as to how they would be treated for any illness or what would happen in a medical emergency.
(vii) I have repeatedly asked for details of how the girls would be safeguarded should something happen to [mother] but I have not received any response.
(vii) It is unclear to me what income [mother] and her husband [N] have. I have found posts on the Internet where [mother] is advertising as an online counsellor and N as a virtual personal assistant. The information that I have been passed by [redacted] regarding about financial difficulties tallies with the itinerant lifestyle that L and the children are living.
(ix) [Mother] has requested that in my consent letter to leave South Africa and re-enter I align any reference to my daughter's surnames to that which is in their passports, is that I refer to them as [redacted]. On the South African document for the study visas [mother] has completed them with the surname [redacted]. This causes me great concern as it is not clear what then immigration status and how they can be traced when they are entering and exiting in different names to a possible study visa. I believe she is placing them in a precarious position.
i) First and foremost, every misgiving would have been apparent to the father well before he booked and paid for the flights to England on 4 November 2019. Every misgiving would have been apparent to him before they boarded the flight on 14 December. Every misgiving could and should have been raised by him with the court in South Africa.ii) In relation to the immigration status in South Africa of the mother and the children, the mother has produced a letter dated 3 April 2020 from Mr Hein Stroebel, an Immigration Law Practitioner, which states:
"I have been retained and instructed by [mother] to assist and represent her in obtaining the relevant visas for South Africa.I have represented [mother] for almost 2 years now. She is married to a South African citizen. She also has a valid spousal visa that allows her to reside with her SA husband in SA.[Mother's] current Visa will expire whilst abroad, but her renewal visa can be submitted in South Africa when she re-enters South Africa again …And can also apply the new study visas for her children in South Africa together with her renewal visa application."I accept this evidence. It was not challenged.iii) I cannot accept that the father was unaware that the children were living in Sedgfield following the signing of the parenting agreement on 5 August 2019. Skype contact immediately started following the execution of that agreement and the children obviously would have made their father aware of where they were living and going to school. The mother has produced an email from Mandy Hemingway dated 25 November 2019 written to both the mother and the father which states:
"Dear [mother] and [father]I am emailing you both to ensure we are all on the same page regarding the above.Firstly congrats on getting the Christmas arrangements sorted. As I understand it [mother] you and the girl will fly to Heathrow and [father] will meet you there and the girls will return home with him.I do not have much detail as to how long and where the girls will be or you [mother]. Please can you both let me have full details for my records.I need to mention that I have emailed [the court] for an update as well. I have heard nothing further from her and am not sure if [mother] has eitherfiPlease let me know. We do need to get the ball rolling and have this order made. There is no chance of that this year now unfortunately but we need to ensure it is done first thing next year.I have arranged for neutral office to assist us. It is Jordaan van Wyk Attorneys. Their office is at 65 Main Road, Sedgfield. I hope this is convenient for you [mother]. I will send him the tickets"This email clearly shows that the father was well aware that the children were living in Sedgfield. It also clearly shows his acceptance of the necessity of obtaining an order regulating the child arrangements in the court in South Africa.iv) The father's concerns about the movements of the mother and the children between 2017 and 5 August 2019 were laid to rest by the agreement signed on that day. The agreement did not stipulate that the mother had to live in any particular part of South Africa. In the mother's position statement, which she adopted in her oral evidence, she stated:
"We have lived at my husband's 3-bedroom parents' home in Sedgefield since September 2017. We have spent 8 months approximately in the cottage over one period (January 2019 - August 2019) when my in-laws come back from the UK as they spend time between the UK and South Africa. We have rented short-term and moved into two 4-bedroom properties for a period of 6 months in total however we have returned back to the house/cottage because we are saving for our own home. Prior to coming to the UK in December 2019, we stayed in the cottage for a few weeks and over this time was when we secured our 2-bedroom property in Barracuda Street. It means for 2.5 years we've lived at this address in Sedgefield. More recently, we have been living in the cottage, whilst it's small we do have open access to the 3-bedroom thatched house next door. We have a large garden and grass field area which we use …"I accept this evidence. The property in Barracuda Street will be a rental from a friend and in my judgment would represent perfectly satisfactory accommodation for the family. The mother and her husband are saving up funds in order eventually to purchase a home for the family.v) The mother is a qualified psychotherapist earning approximately £2,500 a month in that field. A husband works in the field of IT but is at the moment presently studying in order to enhance his skills. They have accumulated savings thus far of a little under £12,000. I have no concerns about the functioning of the mother's economy.
vi) So far as private health insurance is concerned the mother explained to me that this has not yet been taken out notwithstanding that the parenting agreement plainly contemplated that it would be. The mother explained to me that they have a private GP who they paid directly. In Sedgefield there are two public hospitals which the mother is satisfied would very adequately meet any emergency situation that may arise. In my judgment the mother must in due course obtain private health insurance in accordance with the terms of the agreement, although I will not make an order to that effect. If there is any future dispute in relation to this issue, then that must be raised with the court in South Africa.
vii) I dismiss the father's concerns about the arrangements the mother has made should an accident befall her. It is obvious that the mother has made the necessary arrangements. After all she is living with her husband in her parents-in-law's property. I also dismiss his concerns about the family's dogs. These are obvious makeweights.
Note 1 After this judgment was distributed in draft, I was told that the South African law in question was changed in November 2019 to remove this requirement. However, it is clear that the father signed this agreement on the basis that it still applied. [Back]