This judgment was handed down
remotely
at 10.30am on Wednesday 8 February 2023 by circulation to the
parties
or their
representatives
by e-mail and by
release
to the National Archives.
.............................
Mrs Justice Knowles:
Introduction
- On 4 July 2022 I handed down a judgment following a fact-finding hearing conducted within
inherent
jurisdiction
proceedings
for the
return
to Nigeria of a little girl,
P,
now aged nearly 7 years (
Re
P
(
Inherent
Jurisdiction
Return:
Allegations of Female Genital Mutilation and Domestic abuse: Fact Finding) [2022] EWHC 1722 (Fam)). That judgment should be
read
alongside what follows herein.
- Following my judgment, the father continued to
pursue
his application for
P's
return
which was
resisted
by the mother. An important feature of this case is that, in August 2020, the mother made an application for asylum for herself and
P
which was eventually
refused
by the Secretary of State for the Home Department. That
refusal
is now the subject of an appellate
process
before the First-tier Tribunal of the Immigration and Asylum Chamber. A final hearing of the mother's appeal against the decision of the Secretary of State is listed for 6 March 2023. Until that appellate
process
is complete, this court cannot implement any
order
it might make
requiring
P
to
return
to Nigeria.
- I have
read
the written material in the updated bundle and the documents
provided
by the advocates. I heard evidence from the mother, the father, Mr Oba Nsugbe KC who is an expert in Nigerian law, and the children's guardian. I
reserved
judgment to
reflect
on the evidence. This judgment does not contain a
recital
of all the evidence and submissions I heard but I have taken these into account in coming to my decision in this difficult and finely balanced case.
Findings of Fact
- As I observed in my earlier judgement, this case stemmed from a fundamental dispute between
P's
parents
about the nature of their
relationship
and the circumstances in which
P
both travelled to this
jurisdiction
with her mother in December 2019 and came to
remain
here. On the father's case, this was a flagrant,
pre-planned
and clandestine abduction by the mother in an attempt to excise him from
P's
life. On the mother's case, this was a holiday which the father knew about and endorsed. Following a conversation with the father on 4 January 2020, the mother stated that she decided not to
return
to Nigeria because of threats the father
purportedly
made to have female genital mutilation ("FGM")
performed
on
P
immediately after she
returned
to Nigeria.
- My findings about how
P
travelled to this
jurisdiction
were stark. I found that the mother
removed
P
from Nigeria to the UK without telling the father and without seeking his consent. Moreover, I found that the mother applied covertly for a travel visa for
P
from the British High Commission in Lagos, submitting a letter of consent from the father and having forged his signature to that document.
- Likewise, my findings about the threats to
P
of FGM were clear. I found that, on 4 January 2020, the mother had not established on the balance of
probabilities
that the father threatened to have FGM
performed
on
P.
Equally,
prior
to 4 January 2020 and when living in Nigeria, the mother had not established on the balance of
probabilities
that the father threatened to have FGM
performed
on
P.
- A major feature of the fact-finding hearing was whether the
parents'
relationship
was characterised by domestic abuse as defined by
PD12J
of the Family
Procedure
Rules 2010. My findings established a degree of controlling behaviour on the
part
of the father though these fell short of the wide-ranging case advanced by the mother. For the avoidance of doubt, I was satisfied that the father's controlling behaviour was abusive as defined in
PD12J.
My findings in that
respect
were as follows:
a)
Prior
to
P's
birth and when she was
pregnant,
the father
required
the mother to either ask his
permission
to go out or to tell him where she was going;
b) Following
P's
birth, the mother had to seek the father's
permission
to visit her family;
c) On one occasion, following an urgent visit to her grandmother when she had not obtained the father's
prior
permission,
the mother
returned
home to find the kitchen extremely messy. The father told her he had done this to teach her to do her duty as a wife;
d) In January 2017, the mother and father rowed in their car on the way home from the
paternal
grandparents' home.
Reaching
between the seats whilst driving, the father
punched
the mother's left thigh. In so doing, he was careless of
P
who was being breastfed. She was jolted but was otherwise unhurt. The mother was hurt and upset by the father's behaviour. This was the only occasion on which the father hit the mother; and
e) Following the above incident, the couple
returned
to the
paternal
grandparents' home where the
paternal
grandparents made
plain
to the mother that she should be obedient to her husband. The following morning, the mother was
required
to kneel and apologise to the father in front of the
paternal
family. This episode demonstrated controlling behaviour by the father which the
paternal
grandparents supported or acquiesced in.
- I made additional findings about the
parental
relationship
which were
relevant
to
P's
welfare
as follows:
a) The father left his job, causing serious financial strain for the family. This caused loud arguments between the couple in which both raised their voices. These, on occasion, were witnessed by
P
who became withdrawn and needed additional
physical
affection as
reassurance;
and
b) Throughout the marriage, the father conducted affairs with other women which caused loud arguments between the couple, in which both raised their voices. From time to time,
P
witnessed those arguments and became withdrawn and needed additional
physical
affection as a
result.
Overall, I found that, in consequence of the above behaviour (including the behaviour I found to be controlling), the mother was unhappy in the marriage and felt isolated and unsupported.
- In conclusion, I described the
relationship
between the mother and the father in this way:
"In her closing submissions, Miss Munroe QC questioned why the mother would have left a comfortable life in Nigeria to become an asylum seeker here, living
precariously
on a meagre income and unable to work. My
analysis
of the marital
relationship
may indicate why she took that step. In my view, the mother was a deeply unhappy woman whose marriage fell far short of her expectations. The father was a selfish adulterer, used to getting his own way and
requiring
obedience from her as was expected in his family and Yoruban culture. Feeling isolated and unsupported, I infer that the mother sought an escape route, especially when money became tight and, in her eyes, the father failed as a good
provider.
Highly
regrettably,
the mother acted dishonestly in achieving her goal of a new life in the UK where she could be closer to her immediate family. That
analysis
does not account for some evidence such as the effusive loving text the mother sent the father in the summer of 2019 but, in the absence of a truthful account by the mother about why she took the course she did, it is an
analysis
which
plausibly
answers Miss Munroe QC's rhetorical question."
Events Since the Fact-Finding Hearing
- At the conclusion of the fact-finding hearing, I acceded to submissions on behalf of the children's Guardian to list this matter for a
welfare
hearing. I did so because there was a lack of clarity about the father's
practical
proposals
for
P's
return
to Nigeria and because it was hoped that, by early October 2022, there might be a decision of the First-tier Tribunal on the mother and
P's
appeal against the Secretary of State's
refusal
of asylum. Unfortunately, the hearing before the First-tier Tribunal at the end of September 2022 did not
proceed
as envisaged and, despite this court's encouragement to the First-tier Tribunal to
resolve
the mother's appeal as soon as
possible,
a hearing before the First-tier Tribunal was not
practicable
until 6 March 2023. I
record
that there has been disclosure of documentation from these
proceedings
to the First-tier Tribunal and vice versa so that each tribunal is informed about each other's business as envisaged by the Supreme Court in G v G [2021] UKSC 9 (see, for example,
paragraphs
167 and 170).
- At a case management hearing on 21 October 2022, I agreed the instruction of Mr Nsugbe KC to
report
on Nigerian law in the event that
P
and the mother
returned
to Nigeria. I also agreed the instruction of an adult
psychiatrist,
Dr Van Velsen, to
report
on the mother's mental health given what I was told about a decline in her mental well-being following
receipt
of the fact-finding judgment. I decided that this expert should also
provide
an opinion on the impact of a
return
to Nigeria on the mother's mental health and
parenting
capacity.
- P continued to live with her mother and to attend school. She also continued to have indirect FaceTime calls with her father each week.
P
also had some limited direct contact with her father at a contact centre whilst the father was in this
jurisdiction
to attend the fact-finding hearing. In August 2022, the mother
referred
herself to a therapy
provider
for
psychological
support and attended a telephone assessment where she
presented
with severe symptoms of depression and anxiety. In October 2022, the mother told the therapy
provider
that she continued to struggle with her mental health, and she
reported
escalating suicidal feelings. A
referral
was made to mental health services for a risk assessment, but this was not accepted and instead it was
recommended
that the mother should continue to be supported by
primary
care services. During her interview with the therapy
provider,
the mother said that
P
had
picked
up on her emotions and had begun to fear going back to Nigeria and being away from her maternal family and from her friends. The mother herself viewed a
return
to Nigeria as a "death sentence" and feared being imprisoned in Nigeria or harmed by the father. The mother said she had experienced suicidal thoughts and felt certain she would act on them if a
return
order
were made.
- In late October 2022, the therapy
provider
referred
the mother to the local authority for Family Early Help. At about the same time,
P
started to have counselling sessions at school because of concerns that she was struggling emotionally to understand what the dispute between her
parents
might mean for her. In November 2022,
P
told her counsellor that her
parents
were fighting for custody of her, and the court was going to decide whether she lived with her mother or her father.
P
said that she hated her father; did not want to live with him; and did not want to leave the UK. At a meeting of the Team Around the Family on 18 November 2022, all were concerned about
P's
emotional well-being
particularly
because, during a lesson,
P
wrote on the whiteboard with
reference
to her father "hate hate hate, I want him to die". The
professionals
were concerned about the impact of an adverse ruling
requiring
P
to
return
to Nigeria on the mother's mental health. These concerns were communicated to the children's Guardian who alerted the court and, accordingly on 5 December 2022, I directed that
P's
school should
provide
a short
report
about her
welfare
and that the local authority should disclose its
records
relating
to
P.
- On 15 December 2022, a letter from
P's
school
reported
that
P
had said her
parents
were fighting over custody of her and the court would decide if she lived with her mother or father. The letter confirmed that
P
said she hated her father; did not wish to live with him; and did not wish to leave the UK.
P
was nevertheless said to be doing well at school and to be otherwise settled.
- Local authority
records
were
received
shortly before the hearing and confirmed involvement with the mother and
P.
At a home visit on 21 November 2022,
P
was
reported
to say, "I don't have a safe family" and that her father wished her to
return
to Nigeria, but she did not want to do so and felt sad.
P
went on to say, "my dad is naughty" and then begged the worker not to include this in her notes because she thought it might lead to her having to
return
to Nigeria. The worker observed that
P
constantly checked with her mother by making eye contact before speaking and appeared to be trying not to say anything that would upset her mother.
P
was heard to ask if her mother was sad when she saw her mother looking at her
phone.
The worker advised the mother to avoid discussing the court case or anything
relating
to this in
P's
presence.
At a
professionals
meeting on 23 November 2022, those involved with the family concluded that there were significant concerns for both the mother and
P
in the event they
returned
to Nigeria.
The Legal Framework
- All the
parties
accept that this is not a summary exercise akin to that undertaken by Baroness Hale in
Re
J (A Child) (Custody Rights:
Jurisdiction)
[2006] 1 AC 80 with a view to the Nigerian Courts taking over upon
P's
return.
This is a substantive
welfare
exercise which both
parents
intend will mark the end of all the litigation between them, this court having conducted an extensive investigation into
P's
welfare
in accordance with the suggestions made by Lord Wilson in In the Matter of NY (A Child) [2019] UKSC 49. In these circumstances, the legal framework is as follows:
a) When exercising its
powers
under the
inherent
jurisdiction,
P's
welfare
is the court's
paramount
consideration when determining any questions with
respect
to her upbringing. The court will have
regard
to the matters set out in section 1(3) of the Children Act 1989 (the "
welfare
checklist") and to the statutory
presumption
of
parental
involvement in a child's life as set out in s.1(2A) of the Children Act 1989;
b) The court will undertake a global, holistic and multifaceted evaluation of the child's
welfare,
taking into account all of the
positives
and negatives,
pros
and cons of each option, before determining what best meets the child's
welfare
needs. The sophistication of the
analysis
will depend on the facts of the case. Each
realistic
option for the
welfare
of the child should be validly considered on its own internal merits because such an
analysis
prevents
one option - often in a
relocation
case the
proposals
from the absent or left behind
parent
- from being side-lined in a linear
analysis
(see
paragraphs
29-30 of
Re
F (A Child) (International
Relocation
Cases) [2015] EWCA Civ 882);
c) Given the findings made about the father's behaviour, the court must apply
paragraphs
35-37 of
PD12J.
In summary, the court should apply the matters in the
welfare
checklist by
reference
to its findings, and in
particular
consider any harm suffered and any harm the child or
parent
is at risk of suffering if an
order
is made. The court must ensure that the safety - both
physical
and emotional - of the child and
parent
is secured before, during and after contact and that the
relevant
parent
is not subjected to further domestic abuse. Further, the court must consider the conduct of both
parents
towards each other and the child, and the impact of the same, together with (a) the effect of the abuse on the child, and on their
relationship
with the
parents,
(b) the motivation of the abusive
parent,
(c) their likely behaviour during contact, and (d) the capacity of the
parents
to appreciate the effect of
past
domestic abuse, and the
potential
for further abusive behaviour;
d) Finally, the court must have
regard
to the
parties'
rights
pursuant
to Article 8 and Article 6 of the European Convention for the
Protection
of Human Rights and Fundamental Freedoms 1950 ("the ECHR").
P's
rights as a child
prevail
in any balancing exercise. It is likely that an application for the international
relocation
of a child may
require
a
proportionality
evaluation because of the likelihood of the severance of the
relationship
between the child and one of her
parents.
That evaluation will inevitably focus on the
welfare
analysis
of each of the
realistic
options and, in the words of Ryder LJ in
paragraph
32 of
Re
F (see above), "may amount to no more than an acknowledgement that one option is better than the other and that the
preferred
option
represents
a
proportionate
interference in the article 8 ECHR rights of those involved".
The
Parties'
Positions
at the Conclusion of the Evidence
- What follows is necessarily a summary of the careful and thorough submissions made by each
party.
- On behalf of the father, Mr Hames KC accepted that, whatever my decision, there would be risks to
P's
welfare.
However, he submitted that the balance came down decisively in favour of
P's
return
to Nigeria. The only way for
P
to maintain
realistic,
practical
contact with her father was for her to
return
to Nigeria and live there. That was the magnetic factor in this case. Otherwise, all she would have would be indirect contact with her father via a screen and the
possibility
of a visit every couple of years, depending on the father's ability to fund the same and to obtain a visa to visit this
jurisdiction.
P
also needed to be immersed in the culture, heritage and language of her home country. The only way in which
P
could stay in this
jurisdiction
was if her asylum appeal was allowed. That would mean she could not travel to Nigeria unless she was
prepared
to lose her status in this
jurisdiction.
The mother did not have a fallback
position
to advance to the court. If
P's
appeal was
refused,
she would be
returning
to Nigeria in any event. Mr Hames KC
pointed
to the advantages for the mother of living in Nigeria where she could work and maintain financial independence as well as care for
P.
Return
to Nigeria would mean a more normal existence for both
P
and her mother.
- Mr Hames KC accepted that the father's wholesale
rejection
of the findings of domestic abuse showed a complete lack of insight into the harm which this behaviour had caused
P.
The father was telling the truth as he saw it but his denial and disrespect for the court's findings did not mean that he was not telling the truth about what he
planned
not to do should the mother and
P
return
to Nigeria. The father knew that, if he
punished
the mother or sought to control her, it would harm
P.
He was horrified that his oral evidence, namely that he would only
pay
half of what he intended towards the mother's expenses were she to live in
Port
Harcourt rather than Lagos, might be interpreted as him seeking to financially control the mother. Mr Hames KC submitted that there was little evidence the father would use court
proceedings
in Nigeria or his contact with
P
as
part
of a controlling strategy of the mother. Though the father had
reported
matters to the Nigerian
police
in January 2020, he had taken no further steps in that
regard
and neither had the
police.
The father was willing to attend and
pay
for a
resource
that might assist him to communicate better and to see things from the
perspective
of others even if he did not accept the court's findings of domestic abuse.
- The father had always maintained that he did not seek shared care of
P,
but he sought a meaningful involvement in her life. He no longer advocated that
P
and the mother should live in Lagos and had accepted the view of the children's Guardian that the mother and
P
should be allowed to live wherever she wanted in Nigeria. Mr Hames KC made clear that the father would not challenge the essential architecture of
P's
life and would cede to the mother day-to-day decision-making in
respect
of health and education. Further, the
package
of financial support which was offered by the father
reflected
the
reality
when the
parties
lived together in Nigeria. The father had been squeezed financially and was dependent upon his
parents
to assist in funding the support available to
P
if the court were to
order
her
return
to Nigeria. The mother would have a lump sum upfront to allow her to find accommodation, furnish it and settle in with
P.
The father accepted
responsibility
for
P's
school fees, for her healthcare, as well as for her day-to-day maintenance. All of these financial matters together with the way in which the father's
parental
responsibility
would be limited would be contained in a Terms of Settlement document approved by the Nigerian court.
- On behalf of the mother, Miss Munroe KC submitted that the mother had suffered domestic abuse and controlling behaviour by the father. If she
returned
to Nigeria, she would be forced to facilitate contact in a country where she would be totally
reliant
on her abuser and his family. The father
rejected
the court's findings and his stance suggested that the work he might undertake with the counselling organisation based in Lagos would be meaningless. The father's oral evidence implied that he might well use financial
provision
to control the mother. The expert legal evidence indicated that there was little
protection
for the mother because no undertakings given by the father would be enforced by the court in Nigeria. Even if the mother were to live in another
part
of Nigeria, she would be effectively isolated as her Lagos-based uncle was her only close
relative
in Nigeria. The mother and
P
would be alone with no network of family or friends upon whom they could
rely
on save for the
paternal
family who would be in a
position
of economic
power
over the mother. Incidentally Miss Munroe KC observed that the court had heard nothing from the
paternal
family to confirm that they were willing to finance the
package
advanced by the father. She submitted that the court should take seriously the mother's fear that she would be
punished
by the father and his family for having taken
P
from Nigeria and for having lied and deceived in
order
to do so. The father had used the word "betrayed" to describe how his family felt which gave some substance to the mother's fears. Above all, the mother was a mentally vulnerable woman whose difficulties were likely to be exacerbated by a forced
return
to Nigeria.
- The mother accepted that the father's contact would only be indirect if
P
remained
in the UK though Miss Munroe KC suggested that the father could travel to this
jurisdiction
for contact more
readily
than was suggested on his behalf. The financial burden on the mother in Nigeria if the father withdrew his support would be enormous and Miss Munroe KC noted that the father had yet to commence employment himself. The mother was likely to struggle to find a job commensurate with her qualifications and her uncertain financial circumstances would be
psychologically
stressful. Miss Munroe KC submitted that the sums described in the father's financial
package
were insufficient to meet the mother's and
P's
needs. Finally, Miss Munroe KC submitted that
P
was a child who was aware of and
proud
of her heritage and culture. She and her mother were integrated into a large Nigerian community in this
jurisdiction
and there was no question of
P's
identity being compromised if she
remained
in this
jurisdiction.
- On behalf of the children's Guardian, Mr Edwards accepted that this was a finely balanced and difficult case. In
reaching
her final decision to
recommend
P's
return
to Nigeria, the children's Guardian had considered six key issues. First, the allegation of FGM made by the mother had driven these
proceedings
together with the claim for asylum. The
welfare
consequences for
P
were enormous in that her
welfare
has been adversely impacted by delay in the legal
proceedings,
both in the family court and in the First-tier Tribunal. The mother did not accept the court's finding that the father had not threatened FGM to
P
and maintained that he and his family still constituted a risk in that
respect.
The mother's stance - if it continued - would be corrosive of
P's
relationship
with her father
particularly
if she
remained
in this
jurisdiction
with extremely limited contact. Were
P
to
return
to Nigeria,
P's
direct contact with her father and his family would allow her to make up her own mind about whether her father was a threat to her. Second, the
report
of Dr Van Velsen described the mother as suffering from mild-to-moderate depression and noted that she had no current
plans
in
relation
to suicide. Though the mother's oral evidence suggested that she was at the end of what she could cope with, there were other matters which ought to lessen the court's concerns about what the mother might do. The mother was
resourceful
and would always
put
P
first and, despite very difficult circumstances in this
jurisdiction,
the mother continued to function on a daily basis. Nigeria was her country of origin where she had lived for most of her life and where she was able to function well in that society. The mother had thought about her
plans
in the event of a
return
to Nigeria which was
positive.
Dr Van Velsen had identified three main concerns impacting upon the mother's mental health, namely isolation; separation from
P
and
potential
prosecution.
Accepting that the mother would be more isolated if she
returned
to Nigeria, the two other concerns were not made out on the evidence available.
- Third,
P's
life in this
jurisdiction
was fraught with uncertainty. Though there were
positives
in that
P
had a family network here; was doing well at school; and had some links to the wider community, there were significant negatives in that she had no legal status in this
jurisdiction.
There was significant financial hardship because the mother was not entitled to benefits and the mother was unable to work which had affected her. Though her family were close by, the mother was
relatively
isolated within the community. The impact on
P
was negative given the emotional stress she was now experiencing, a stress born of her sense of
responsibility
for her mother. Unless there was a
positive
decision with
respect
to
P's
asylum status, it was hard to see how the situation would improve. Fourth, the father was likely to continue exhibiting controlling behaviour, but there were
positives
in his willingness to attend a course, motivated by his genuine desire to have a
positive
relationship
with
P.
The ability of the father to control the mother would be limited if the mother was in charge of
P's
day-to-day care and contact between the
parents
was
restricted.
Fifth, the children's Guardian maintained that the change of circumstances could be managed because
P
was a
resilient
child who had adapted well to the move to London. The mother would rise to the challenge of a
return
because of the overwhelming focus and
priority
she
put
on
P's
welfare.
The benefits to
P
of a full
relationship
with her father were significant and were demonstrated by the good quality contact, both direct and indirect, which the father enjoyed with
P
and to which he had shown commitment.
- Finally, the children's Guardian supported the mother living where she wished to live and having
responsibility
for the day-to-day decisions with
respect
to
P's
health, education and
welfare.
Given the distance between Lagos and
Port
Harcourt where the mother wished to live, contact was unlikely to be frequent and could be managed by using a third
party
for handovers. Additionally, there should be a non-molestation
order
and an upfront financial
payment
to the mother to allow her to
return
and settle into a new life with
P
in Nigeria.
The Expert Evidence
- Dr Van Velsen's
report
was dated 25 November 2022. No
party
required
her to attend court for cross-examination. In the
preparation
of her
report,
she had access to the mother's mental health and GP
records
and was able to interview the mother on 8 November 2022. At the time she met with the mother, Dr Van Velsen noted that the mother described some thoughts of not wanting to be around but there were no active suicidal
plans.
The mother described low mood and symptoms of anxiety but, during the interview, her mood appeared to improve and she was able to engage with Dr Van Velsen and be open about her history. This suggested to Dr Van Velsen that the mother's symptoms were
reactive
to her situation. Dr Van Velsen concluded that the mother demonstrated symptoms of a mild/moderate depressive disorder with features of anxiety, including of a
post-traumatic
kind, in the context of a complicated and stressful situation. She did not meet the criteria for
post-traumatic
stress disorder and there was no evidence for a
personality
disorder. Her mental disorder impacted on the mother's ability to engage with her environment, for example, by developing a support network so that she was less isolated.
Psychological
counselling would be helpful for her and the mother was on a waiting list to access this. Antidepressant medication might also be of some assistance. Dr Van Velsen suggested that the mother should develop other ties in the community and it was important that this intelligent and well-educated woman looked after herself.
- Were the mother to
return
to Nigeria, the impact on her mental health would depend on what happened. Dr Van Velsen would be concerned at her isolation as her close family would not be there. If the mother were alone and anxious about what her husband and his family were going to do, then her depressive disorder could become more severe. Were the mother to be arrested and subject to criminal
proceedings,
this could also have a significant adverse impact. Without the support of her family, the mother's ability to
prioritise
P's
needs in Nigeria might be limited because of the need to facilitate contact between
P
and her father. It was difficult to identify
protective
measures as these would be social rather than
psychiatric.
- Dr Van Velsen noted that the mother accepted some of the court's findings and was open about the way in which she had withheld information from the court at the time of the fact-finding hearing. She maintained however that her marital
relationship
was a turbulent and difficult one and that bringing
P
to the UK was the only solution she could see. Dr Van Velsen noted that the mother's symptoms - though based on self-
report
- seemed to have been corroborated to some extent by the mental health service which assessed her. In her opinion, it was significant that the mother did not
present
as much in crisis she had done
previously.
- Mr Nsugbe KC
provided
two
reports,
the first dated 10 November 2022 and the second dated 21 December 2022. He confirmed that
orders
of the English court could not be
reflected
in a mirror
order
obtained from the Nigerian court. Where the English court had determined the arrangements for the child and the
parties
agreed that these ought to be the subject of a consent
order
in Nigeria, the
parties
would need to enter what is known as "Terms of Settlement". This would be a formal document signed by the
parties
reflecting
whatever it was that they had agreed upon with
respect
to the arrangements for the child. This document would then be filed in the family court together with any suitable background material and accompanied by a
request
for the court to make a consent
order
reflecting
or incorporating the Terms of Settlement. Whilst the Nigerian court would conduct its own
review
of the child's best interests, a child arrangements
order
made by an English court on the basis of a full judgment was likely to have significant weight. The best court in which to make the application was the Magistrates Court of the Family Court Division in Lagos state. Mr Nsugbe KC confirmed that it would subsequently be an uphill task for either
party
to overturn a consent
order
reflecting
the Terms of Settlement.
- Mr Nsugbe KC confirmed that no state in Nigeria had the equivalent of the Domestic Abuse Act 2021. However, when considering an application in
respect
of the child, the Family Court would take into account the conduct of the
parents
to each other.
- Mr Nsugbe KC gave brief oral evidence to the court. He confirmed that an application to the family court to convert Terms of Settlement into a court
order
would take 6-12 months because of court backlogs caused in
part
by the covid
pandemic.
If the
parties
were
proactive
and urged expedition on the court, it might take less than 12 months. The court was likely to
require
P
to be seen (though this could be done
remotely)
and for a
welfare
report
to be
produced.
At least one of the
parties
should be legally
represented
and, if the mother could not attend by
reason
of her as yet unresolved asylum appeal in this
jurisdiction,
the court would be anxious to ensure that the mother consented. Finally, Mr Nsugbe KC confirmed that he was unaware of any cases in the Nigerian court involving coercion and controlling behaviour. He also confirmed that the Nigerian court had a wide discretion to make injunctive
orders
for the
protection
of the child and
parent,
including
orders
made without notice to the other
party.
He did not think the mother would be liable to arrest or
prosecution
for having taken
P
out of the
jurisdiction.
The Lay Oral Evidence
- The Mother. The mother gave her evidence to me with the benefit of
participation
directions as had been the case during the fact-finding hearing. In contrast to her somewhat guarded demeanour during the fact-finding hearing, the mother
presented
as more open and willing to engage with the difficult questions she was asked. Though somewhat hesitant at first, the mother became more animated in giving an account of herself and her fears for the future, just as she had warmed up during her interview with Dr Van Velsen. When assessing her evidence, I
reminded
myself of the adverse findings I had made against her which impacted negatively on her credibility as a witness. As the mother herself acknowledged, I consider that she would not have been honest with the court if she had not been found out and my findings had not been made. However, the mother was at
pains
to stress her
regret
and shame for what she had done and the lies she had told. She struck me as more willing to give an unvarnished account of her circumstances to the court. At the very end of her evidence, the mother apologised to the court for her behaviour and I observed her to be close to tears when doing so.
- The mother acknowledged that she had forged the father's signature as a "desperate act" and bitterly
regretted
not only the lies she had told but also her failure to give an honest account of the difficulties in her marriage. She accepted that her lies and deceit to this court and to the immigration authorities had greatly extended these
proceedings
though this was not
part
of a conscious stratagem on her
part.
Nevertheless, the mother maintained that the father had threatened to have FGM
performed
on
P
both before she came to England and shortly after her arrival. She also confirmed that, contrary to my findings, she was asking the First-tier Tribunal to find that the father had threatened FGM to
P
as
previously
alleged.
- The mother said she was not surprised to hear the father's
rejection
of the findings of domestic abuse, saying that this was his nature and he simply could not change. She
professed
herself to be fearful about what father would do in the future if
P
returned
to Nigeria and was worried about
prosecution
and other legal
proceedings
to transfer the care of
P
to the father. Likewise, she was scared of what the
paternal
family would do because she had said things which had impugned the family's honour and might be
punished
for her behaviour. Despite those fears, the mother tentatively agreed that the father's sister and her husband might be able to assist with contact handovers in Nigeria. The mother's overwhelming feeling was a fear of isolation in Nigeria where she would be cut off from the direct support of her own family and of the father using either
P
or the ongoing financial support as a means of continuing his control. In that context, she said, "It's just me against whatever he happens to do" and said she did not know how she would deal with it. The mother was clear she wanted her divorce from the father finalised before her
return
to Nigeria. She expressed doubt about the father's ongoing commitment to
provide
financially and about the levels of financial support
presently
on offer from the father.
- The mother
reported
that she was awaiting counselling for her mental health difficulties and was taking medication to help her sleep. She noted that no health insurance
policy
would cover the cost of any
psychiatric
care or treatment she might need on her
return
to Nigeria and that she would have to fund this herself were it to be necessary. If she was
required
to
return
to Nigeria with
P,
the mother told me that "I feel like I would be at the stage where I would not be able to help myself". She made that comment in the context of being asked about her suicidal thoughts and told me that she felt "stretched to her limits".
- The mother denied discussing the
return
to Nigeria with
P
yet eventually conceded that
P
had
picked
up on her low mood and was consequently worried about both the court
proceedings
and her father. She accepted that
P
was worried about being separated from her but she had
reassured
her that they would be living together in Nigeria if they
returned
there. The mother was unable to
recognise
any negative impact on
P
arising from her abrupt
removal
from Nigeria in December 2019. She said that
P
would adapt in time to a move but it would be very hard for her. The mother had little confidence that schools in Nigeria were adept at addressing and supporting a child who may have emotional difficulties.
- The mother said that she wished to move to
Port
Harcourt, having studied there as an undergraduate. She had a friend who had lived there in the
recent
past
who might be a source of useful information. She committed to keeping the father informed of
P's
progress
at school and general well-being. The mother was also clear that
P
should have a
relationship
with her father if this could be facilitated safely and accepted that
P
loved her father. She did not want to be involved in handovers for direct contact but was supportive of ongoing,
regular
indirect contact. There had been no contact between
P
and the wider
paternal
family since
P
had been in the UK. If
P
remained
here, the mother was willing to facilitate direct contact between
P
and her father during the holidays as the father could use his brother's home as a base to stay and have contact.
- The mother was clear that
P
understood the Yoruba language but was not yet a fluent speaker.
P
attended a Nigerian church and ate Nigerian food. She had a Nigerian school friend and the mother described her as being
proud
of where she was from.
- The father. As at the fact-finding hearing, the father's evidence demonstrated a lack of insight into his behaviour together with a degree of complacency about what was
required
from him should
P
return
to Nigeria. It was, however, clear to me that he was very anxious to have a
positive
and ongoing
relationship
with his daughter.
- The father was emphatic that he did not accept the findings of domestic abuse and said he could not do so because he was speaking the truth as he saw it. At times during his evidence, the father used the
phrase
"total fabrication" to describe some of the findings I had made about his controlling behaviour. Though he expressed
regret
for his infidelities, the father denied any negative impact on
P
arising from his behaviour. He told me he would attend a counselling
resource
in Nigeria because he wanted to be a better father and to allay any fears about his behaviour. When
pressed,
he eventually conceded a need to address his communication skills with others but little more than that. He assessed that he would only need to be involved with the counselling organisation for about a month. The father confirmed that the
paternal
family knew about the court's findings, including the one made against them. He described that all his family felt "betrayed", though he sought to
resile
from the use of that word when cross-examined by Mr Edwards. The father denied that, were she to
return
to Nigeria, the mother would be
punished
by his family for what had happened.
- The father told me that he had an offer of employment which had been due to commence on 3 January 2023. He had told his
putative
employers that he could not start then because of the need to attend these
proceedings.
It was unclear from his evidence whether that job offer
remained
open to him. The father accepted that he was wholly
reliant
on his
parents
for money at the moment. In his cross-examination, the father accepted that the financial support he
proposed
for
P
and the mother was less than the minimum wage in Nigeria and it was
plain
he had an expectation that the mother would take on financial
responsibility
for her situation from the day she
returned
to Nigeria. In addition to
paying
maintenance for
P,
the father confirmed that he would
pay
for the
return
flights,
P's
education and for health insurance.
- The father was very insistent that
P
should live in Lagos as this would make contact more convenient for him. He
proposed
monthly visiting contact, using his
parents'
home as a base. The father was also very clear that he would not cover all the mother's
rent
for 12 months if the mother lived elsewhere than Lagos. He told me that, in those circumstances, he would only meet half the cost. When challenged about this by Mr Edwards, the father denied that this
represented
any form of controlling behaviour towards the mother.
- The father accepted that
P
was doing well at school and thought there would be no negative impact on
P
of a
return
to Nigeria. Though he acknowledged
P
would miss her family and friends in the UK, she would have support from him and his family which would mitigate any such losses. Finally, the father accepted that the care
provided
by the mother was excellent and that she was a good
parent
to
P.
- The children's Guardian. The children's Guardian accepted that this was an extremely difficult case with
positives
and negatives in either scenario, complicated by the concerns about the mother's mental health and
P's
emotional well-being. She confirmed that she did not
recommend
the mother should
return
to live in Lagos and stated that the mother should live where she wished because the children's Guardian saw value in the mother feeling secure about her
place
of
residence.
The mother's
proposals
about moving to
Port
Harcourt appeared sensible as it was a
place
she had some connection with and knowledge of. The children's Guardian maintained the conclusion in her final
report
that
P
should
return
to Nigeria. She accepted being troubled by aspects of the father's evidence such as his insistence that the mother should live in Lagos and his
plans
to alter the level of financial support if the mother lived elsewhere. Her worries in the long term about the father's financial control
reinforced
(a) the need for a court
order
made by the Nigerian court which contained
protective
measures and (b) the need for a substantial upfront financial
payment
to the mother so that she could set up a home in Nigeria and settle herself and
P
into their new life. She thought 6-12 months' money would be necessary and should be available to the mother before she left this
jurisdiction.
The children's Guardian was also clear that the mother should make the
primary
decisions about school and health though she should keep the father informed of important matters.
- In cross-examination, the children's Guardian acknowledged that the father's wholesale
rejection
of the findings of domestic abuse was a worry. She was clear that he should engage with a counselling organisation and thought that a month was simply insufficient to address even those aspects of the father's behaviour he accepted needed some work. She
recognised
the risk that the father may not change his behaviour but thought he may do so as his main motivation was to have a good
relationship
with
P.
She confirmed that the father had not sought to use his contact with
P
to control the mother in any way. Finally, she acknowledged that the
paternal
family and their
response
was something of an unknown quantity.
- The children's Guardian found the mother to be more
positive
in her
presentation
in oral evidence which made her a little more optimistic about the mother's mental health. She accepted that, if the mother were to
return
to Nigeria, she would lose the support of her immediate family and would feel isolated. However, she noted that the
parents
were in the
process
of divorcing and the mother would be
returning
to a different
place
away from where the father or his family lived. That
represented
a
return
to a
place
that the mother felt was sufficient to begin
rebuilding
her life in Nigeria. A firm structure of
protective
measures set out in the Terms of Settlement and eventually in a court
order
by the Nigerian court would also act as a
protective
feature for the mother and for
P.
- The children's Guardian thought
P
may need some
pastoral
support from her school if this was available. She stressed that
P
was a happy and healthy little girl but the dispute between her
parents
was causing her confusion, upset and sadness. When
reflecting
on the mother's failure to accept the findings in
relation
to FGM, the children's Guardian observed that any negatives the mother might communicate about that to
P
would be balanced by
P's
own experience of loving and good quality contact with her father.
Discussion and
Analysis
The
Welfare
Checklist
- The ascertainable wishes and feelings of the child concerned. I must assess
P's
wishes and feelings in the light of her age and understanding. In that
regard,
I have been greatly assisted by the involvement of the children's Guardian with
P
set out in the three
reports
she
provided
to the court.
- In summary, I am satisfied that
P
has an established and
positive
relationship
with her father.
P
is, however, hostile towards Nigeria as a country but struggles to give
reasons
for this hostility. Her
principal
anxiety about Nigeria seems to be that she would be separated from her mother if she were to
return
there. I accept this anxiety stems from the mother's belief that
P
would be taken from her should they
return
to Nigeria.
- In the first
report
of the children's Guardian dated 6 May 2021,
P
was clear that she wished to stay with her mother because she was "the best".
P
referred
to Nigeria as being her dad's country not her mother's country because "my mum not like my dad's country and my mum like me to stay here forever".
P
said she would be sad if she went back to Nigeria even if that was to live with her mother and, when asked why,
P
said she did not want to stay "at her daddy's
place".
When asked about video contact with her father,
P
said she did not enjoy the calls but was unable to explain why.
- In her second
report
dated 24 February 2022, I note that the children's Guardian had had the benefit of observing a video call between
P
and her father which informed her meeting with
P.
In conversation,
P
was clear that she liked both her
parents
and enjoyed the calls with her father but could not explain why this was. She told the children's Guardian that she wanted her father to come to London so that they could
play
together.
P
expressed the same hostility towards a
return
to Nigeria she had in 2021 but was unable to articulate in detail why this was. Interestingly,
P
said she would be happy to
return
to Nigeria for a holiday with her mother but would not want to go to Nigeria for a holiday with her father because she wanted to stay in London with her family and friends.
- In the Guardian's final
report
dated 13 January 2023,
P
was
positive
about contact with her father but she did not want
return
to Nigeria, not even for holidays with her mother.
P
was anxious and fearful about being separated from her mother. The children's Guardian noted a deterioration in
P's
expressed views of her father between her second and final
reports.
In her opinion,
P
had internalised her mother's view that their future lay in England and that the father was a threat to that future. Though the local authority
records
indicated that
P's
knowledge and understanding of the
proceedings
had increased, this
remained
limited because
P
continued to equate a
return
to Nigeria with separation from her mother.
- I have also had the benefit of scrutinising the local authority
records
which detailed
P's
involvement with a school counsellor. Those
records
indicated that
P
equated a
return
to Nigeria with separation from her mother and that
P's
behaviour in school gave rise to some concern, an example being the episode in which she wrote "hate hate hate, I want him to die" with
reference
to her father. I note that, when the children's Guardian explored this incident with
P
in December 2022,
P
could not
remember
why she did this. The local authority expressed understandable concern for
P
given the information they
received,
but its
records
needed to be treated with a degree of caution because the local authority did not carry out a full assessment; did not have access to the court
papers
(including the fact-finding judgment); and did not speak to the father.
- Drawing the threads together, my assessment of
P's
wishes and feelings is as follows. First, she wishes to
remain
in the care of her mother wherever that might be. Second, she enjoys contact with her father. Third, she does not want to go back to Nigeria because she has become aware of the mother's anxiety about a
return
to that country and knows that her mother sees their future as being in England. I consider it likely
P
is burdened by both her limited understanding of the
proceedings
and her awareness of her mother's sadness and wish to
remain
in this
jurisdiction.
I do not think that the mother has discussed these
proceedings
at length with
P,
but I suspect that
P
has overheard conversations between her mother and members of the maternal family about a
possible
return
to Nigeria. It is wholly unsurprising that a child of
P's
age would align herself with her mother's view about that
prospect.
- The child's
physical,
emotional and educational needs.
P
is a healthy,
physically
active and friendly child. She has a need for a loving, stable and secure home environment. Her
relationship
with her mother is loving and secure and her mother meets
P's
physical
needs notwithstanding their difficult financial circumstances.
P
also has a need for a loving
relationship
with her father and enjoyed the
regular
indirect contact as well as the very limited direct contact with her father, made
possible
during his trips to this
jurisdiction
to attend substantive court hearings.
- P is
reported
to be happy and confident at school and making academic
progress.
She has good
relationships
and school and is settled there. Her school have
reported
some concerns about
P's
emotional well-being in autumn 2022, when
P
became upset and expressed worries about these
proceedings.
I am clear that
P
needs decisions about her future to be
resolved
as soon as
possible.
- The likely effect of any change in the child's circumstances.
P
has already experienced significant change by moving - without
preparation
or warning - to this
jurisdiction
in December 2019. That move meant she lost contact initially with her father and the
paternal
family and, though there has been a
restoration
of some limited contact with her father,
P
has had no contact with her
paternal
family for over three years.
P
also lost contact with her friends at nursery and was taken from the country of her birth and its rich culture. She had no time to
prepare
for that move and to say her goodbyes. Though
P
is settled here, a
return
to Nigeria would mean further significant losses for her. She would lose her close
relationship
with her maternal grandmother, aunt and young cousin as well as her friendships and
relationships
at school and in the church community which she attends with her mother. A further move would be disruptive and stressful for
P
though I
recognise
it would be
planned
rather than sudden.
- There are advantages to a
return
to Nigeria which is the country of
P's
birth and origin.
P
would have her father and wider
paternal
family and, to a very limited extent, her wider maternal family available to her. She would be able to enjoy a fuller
relationship
with her father whilst
remaining
in the care of her mother who is her
primary
carer. Nevertheless, there are considerable uncertainties about the
return
to Nigeria, a country in which
P
has not lived for a substantial
part
of her life. She is likely to
return
to a different
part
of the country where she has never lived and the arrangements for her accommodation and her schooling are unclear. She will be
required
to travel lengthy distances for contact with her father and the
paternal
family, most likely during the holidays. Emotionally,
P
will be aware of the strain on her mother as she
re-establishes
herself in Nigeria and may also become aware of difficulties, at the very least, in how the father and the
paternal
family
regard
her mother. Contact with her father and his family is likely itself to take some getting used to and may also expose
P
to adult conflict if handovers are not handled well. Though many of these uncertainties are likely to be confined to the short term, I cannot exclude the risk that
P's
medium and long-term emotional well-being and security will be undermined by a
return
to Nigeria.
- Though
P
is apparently settled here, there are disadvantages to her current situation. Neither she nor her mother have legal status in this
jurisdiction
and they await the
resolution
of their appeals to the First-tier Tribunal.
P
and her mother have no access to financial support or gainful employment and
rely
on financial assistance from the maternal grandmother and on occasional assistance from a food bank. They are living in cramped accommodation and are
reliant
on goodwill of the couple whose home they share.
- Though the children's Guardian and, to a lesser extent,
P's
mother told me that
P
would adjust if she were to
return
to Nigeria, I
record
some
reservations
about the effect of a
return
on this child's emotional well-being. Merely because
P
was
resilient
enough to cope with the unplanned move to the United Kingdom in 2019 does not mean that she would cope as well with a
return
to Nigeria as an older child, more acutely aware of what she is leaving behind.
- The child's age, sex, background and any characteristics of the child which the court considers
relevant.
P
is a six-year-old girl of Black Nigerian heritage who adheres to the Christian faith. She has no disability or special needs which may impact her development. It is
particularly
important that, wherever she lives, she has legal status in that
jurisdiction.
It is also important that her Nigerian heritage is fostered and
promoted.
I have no
reason
on the evidence before me to doubt that
P
is
proud
of her Nigerian heritage and is able to express that heritage at her church, with her mother, her maternal family and with her school friend. Nevertheless, were
P
to
return
to Nigeria, she would be immersed in Nigerian culture in a way which is simply impossible in this
jurisdiction.
- Any harm which the child has suffered or is at risk of suffering.
P
has suffered harm in the care of her
parents
when she was exposed to their conflicts and became withdrawn and needy of
physical
affection.
P
is also a victim of domestic abuse because she was exposed to the domestic abuse experienced by her mother which impacted her mother's well-being, emotionally and also, to a lesser extent,
physically.
- P was also harmed by her
removal
without warning from Nigeria in December 2019 which undermined her attachment to her father and severed her
relationship
with her extended
paternal
family. Despite the mother's anxiety, I am satisfied that
P
is not at risk of suffering harm from FGM if she
returns
to Nigeria and has contact with her father and the
paternal
family.
- P is now an older child and increasingly aware of her circumstances. The impact upon her of any ongoing dispute between her
parents
is likely to be adverse and to compromise her emotional and
psychological
well-being. Anything which undermines her mother's
parenting
role is likely to be harmful to
P
as is the continuing attenuation of her
relationship
with her father.
- How capable each of the child's
parents
and any other
person
in
relation
to whom the court considers the question to be
relevant
is of meeting the child's needs.
P's
primary
carer is her mother and the two enjoy a close and loving
relationship.
The mother is capable of
providing
P
with a loving and secure home and of meeting many of her emotional and
psychological
needs. However, the mother's ability to do so has latterly been compromised by her
poor
mental health, consequential upon the outcome of the fact-finding hearing in July 2022. The mother has been
preoccupied
with anxiety about the outcome of both these
proceedings
and those before First-tier Tribunal and has been diagnosed with mild/moderate depression.
P
has been affected by her mother's low mood and anxiety as is evident both from her behaviour in school and from the negative feelings she has expressed about a
return
to Nigeria and, to a limited extent, about her father. Were
P
to
remain
in this
jurisdiction
with her mother having been granted asylum, I have little doubt that the mother's mental health difficulties would soon
resolve
given Dr Van Velsen's opinion that the mother's
presentation
is
reactive
to her life situation.
- However, were
P
and her mother to
return
to Nigeria, the impact on the mother's mental health – and by extension,
P's
emotional security - would be more uncertain. The mother would undoubtedly be isolated, at least initially, and bereft of the
practical
and emotional support given by the maternal grandmother and maternal aunt. If the mother was to fear arrest and further legal
proceedings
in Nigeria, this would have a significant adverse impact on her mental well-being, as would anxiety about and conflict with the father and the
paternal
family. Though the mother told me that, if she had to
return
to Nigeria, she would be stretched to her limit and hinted at suicide as a solution, I am
persuaded
- on the
psychiatric
evidence and my own assessment of the mother - that she would do nothing to harm
P
and that there is likely to be an element of exaggeration in her
response.
- Much will be demanded of the mother if
P
returns
to Nigeria. She will need to establish herself in another city, to create a home for herself and
P,
to settle
P
into a new school and community, and ultimately to obtain
paid
employment commensurate with her education and skills. The mother is an educated, talented and
resourceful
woman who has the ability to undertake all of those tasks and who is motivated by a
profound
love for her daughter. If a firm structure can be created to allow the mother to undertake these tasks, I consider it likely the mother will rise to the challenges despite her
present
frailty.
- The father too loves
P
and his contact with her has shown him to be an enthusiastic and emotionally attuned
parent.
I accept the view of the children's Guardian that his
position
in this litigation is driven by a genuine concern for
P's
welfare.
However, the father has caused harm to
P
and to her mother as set out in my findings yet does not
presently
accept
responsibility
for that behaviour. His attitude is clear and uncompromising, characterising some of my findings as total fabrications. Though the father accepts he needs to undertake some work to address his behaviour, it is
plain
that he
regards
this as being limited in scope and of very limited duration. I was troubled by his attitude to the financial support of the mother were she to live elsewhere than Lagos. Though Mr Hames KC sought to
persuade
me otherwise, the father's instinctive
response
struck me as an attempt to control the mother as he had done in the
past.
In closing submissions, Mr Hames KC rowed back from the father's
position
that
P
and her mother should live in Lagos and offered a variety of significant concessions to soften the impact on the mother and
P
of a
return
to Nigeria. Nevertheless, I am very clear that the father's attitude to the findings of domestic abuse underlined the need for the most careful scrutiny of any
return
to Nigeria.
- Both
parents
are intelligent and capable but,
presently,
I consider that neither appreciates the need (a) to support the other and (b) to
refrain
from damaging criticism and conflict which would inevitably be emotionally harmful for their daughter. Both need support and work in this
regard.
- Range of
powers
available to the court in the
proceedings
in question. This court has a wide flexibility to make
orders
in
P's
best interests. Both
parents
accept the court's
jurisdiction
to do so and court
orders
will
provide
clarity for the
parents
about the arrangements for
P's
care. No
order
made by this court can be implemented until the outcome of the appellate
process
before the First-tier Tribunal is known.
My Assessment
- There are two
realistic
options before the court: first, an
order
requiring
P
to
return
to Nigeria (the mother accepting that she would
return
with
P
if the court were so to
order);
and second, an
order
placing
P
in the care of her mother without
requiring
a
return
to Nigeria. The judicial task in this case is complicated by a number of features: first, an ongoing appellate
process
about the mother's and
P's
status in this
jurisdiction;
second, the absence until closing submissions of a
realistic
package
of
proposals
(financial and otherwise) from the father which would assist in any
relocation;
and third, the limited acceptance by either
parent
of the adverse findings made against them. When I contemplate the options before the court, both strike me as significantly flawed, but I am obliged to make a decision now based on the evidence before the court. No
party
suggested that this court should adjourn its decision until the conclusion of the appellate
process
about the mother's and
P's
status in this
jurisdiction.
In
reality,
this court must choose the least worst option for
P
yet she deserves so much more than that.
- My
analysis
has been informed by the case law and by the application of
paragraphs
35-37 of
PD12J
which lists the factors to be taken into account when determining whether to make child arrangements
orders
in all cases where domestic abuse has occurred. It has also taken into account my
analysis
of the
welfare
checklist.
- Before I consider a comparative
analysis
of the two options before the court, I
record
the belated concession made by Mr Hames KC in closing that, were
P
to
return
to Nigeria, the mother would be free to choose wherever in that country she wished to live. Additionally, the father accepted the evidence of the children's Guardian that the mother should make both the key and the everyday decisions about
P's
care, education and health, though he wished to be informed of her
progress
from time to time and to
perhaps
attend the odd event at her school. Finally, accepting the
recommendation
of the children's Guardian, the father expressed himself willing to
provide
a lump sum to the mother amounting to approximately 2.167 million naira. This comprised
rent
for 12 months (500,000); a generator and furnishings (200,000); maintenance for 6 months (150,000); health insurance for one year (17,000); school fees for a year (300,000); air fares (1 million) and the as yet unknown costs of converting the Terms of Settlement into a Nigerian court
order.
The father also stated his willingness to
pay
ongoing maintenance for the
remainder
of
P's
minority at 25,000 naira a month; health insurance for the mother and
P
at 17,000 naira annually; and school fees annually for the
remainder
of
P's
minority in the sum of 300,000 naira. I also
record
that all the
parties
accepted the need for any
return
order
made by this court to be converted into Terms of Settlement which would eventually be approved by the Nigerian Family Court. I was told that the father would fund this
process
with assistance from his family.
- There are a number of
positive
features about a
return
to Nigeria. First, this will be a
return
to the country of
P's
birth and nationality where her status and that of her mother will be secure. Second,
P's
identity needs as a Nigerian child will be amply met and she will be immersed in Nigerian culture with all the
positives
this has to offer. It is to be hoped that, in due course,
P
will no longer view Nigeria as a
place
to fear. Third,
P
will be able to have
regular
visiting contact with her father and the
paternal
family. This is likely to be during school holidays given the distance between Lagos and
Port
Harcourt, the father seeking no more than a half share of the holidays because he is worried that
P
would miss her mother if she spent longer away from her during that time. Such contact, if well-managed by the adults involved, is likely to strengthen the father-daughter
relationship
and
provide
a more secure emotional foundation for this child. It may also serve as a counterbalance for
P
against the mother's belief that the father and the
paternal
family
pose
a risk of FGM to her. Finally,
P
will
remain
in the care of her mother who will have control over the arrangements for her care.
- However, a
return
to Nigeria is not without disadvantages. It will entail significant losses for
P
once more and for her mother.
P
will be cut off from direct contact with her maternal grandmother, aunt and young cousin and her mother will lose the emotional and
practical
support
provided
by her immediate family. I do not know whether the maternal family will be able to maintain direct contact with
P
and her mother by travelling to Nigeria but, even if they can, such contact will be significantly attenuated. I have concerns about how
P's
emotional well-being will be impacted by a fresh set of losses
relating
to family, school and friendships. Yet the mother will be
returning
to the country of which she is a citizen and where she lived until 2019. She has
personal
characteristics which would help in negotiating the transition and forging a new life in Nigeria. However, her mental health is compromised and
P's
wellbeing depends upon her mother being able to make a go of their new life.
P
has been acutely aware of her mother's fear and unhappiness, and her own emotional security may be compromised if the mother cannot rise above her own difficulties.
- A
return
to Nigeria would allow the mother to seek employment commensurate with her talents and qualifications but this is likely to take some time. I suspect that such employment will help the mother's mental health
problems
and decrease her isolation. The mother will have a fund of money
provided
by the father to help her set up a new home and to settle
P
into her new school. Miss Munroe KC submitted that the sums outlined by Mr Hames KC were simply insufficient given rising inflation, and there may well be force in that submission. However, the
paternal
family
resources
are not limitless and the mother may well have to
return
to work earlier than she might wish in
order
to make good any shortfall. Significantly, the ability of the father to
provide
the financial
package
upfront
remains
uncertain. He has not been in employment for some time whilst studying for accountancy qualifications and his job offer strikes me as uncertain. I have had no
recent
confirmation from his
parents
that they will fund the sums
required
to allow the mother and
P
to
re-settle
in Nigeria without unbearable strain. The father's ability to
provide
financially in the future is also questionable and his family have not
provided
assurances that they will meet any shortfall in
P's
maintenance if the father cannot secure well-
paid
employment. Finally, I note the mother's fear that the father might use money as a means to control her in the future. Though I made no finding that the father financially controlled the mother in the
past,
his behaviour was characterised by a need to exert control over the mother in a number of
respects.
In circumstances where neither are living together and where he does not accept the court's findings, I cannot exclude the
possibility
that the father would use ongoing maintenance as a means of controlling the mother.
- The other disadvantage of a
return
to Nigeria is the father's
rejection
of the court's findings of domestic abuse. His commitment to any intervention to address his abusive behaviour is uncertain though he has at least found a course he can attend. He is however committed to a good
relationship
with
P
and appears to have belatedly
recognised
that bad behaviour to the mother in future will be undermining and destructive of his
relationship
with
P.
- Turning to life in the UK, this has some advantages. Both
P
and her mother will
remain
in an environment which is familiar to both of them and where they have access to
practical
and emotional support from the maternal family. There are some community links via their church but little else and the mother is comparatively isolated. The mother and
P
have access to free mental health support which, in Nigeria, would have to be
privately
funded. Direct contact with the father – if it were to take
place
– could be managed via a third-
party
handover with
relative
ease. Indirect contact between
P
and her father would continue as before.
- However, there are
real
disadvantages to
remaining
in the UK. Neither the mother nor
P
have legal status here. The outcome of the appellate
process
before the Tribunal is uncertain. Their lack of status constitutes, in my view, a serious impediment to their overall security in this
jurisdiction.
The mother cannot work and she and
P
are
reliant
on the charity of others. This is simply not sustainable. In my assessment, it is not difficult to see how this might exacerbate the mother's sense of hopelessness and contribute to her low mood and
relative
social isolation. That is something which
P
has already
picked
up on and which, if sustained, is
potentially
damaging for
P's
own emotional wellbeing.
P
has already, in my view, taken on a degree of
responsibility
for her mother, who she believes is sad and to whom she looks to check what she is saying. Further,
P's
relationship
with her father cannot develop as it should if she
remains
here. Her contact with him, both direct and indirect, is enjoyable but
P
will be denied a full
relationship
with her father if she stays here. The father has shown commitment and sensitivity to
P
and is motivated to sustain and improve his
relationship
with her. There is
real
uncertainty whether the father would gain an entry visa to
permit
him to travel here for contact though I think he would be able to fund at least an annual visit here because he would not be
paying
any monies for
P's
maintenance. Additionally,
P's
identity as a Nigerian child is unlikely to be as fully developed if she
remains
here and
regards
Nigeria as a
place
to fear. Finally, unless there is a
positive
asylum decision, it is hard to see how any of these disadvantages might be overcome.
- Drawing the threads of this comparative
analysis
together, I have, on very fine balance, concluded that
P
should
return
to Nigeria. That
return
will be on the basis of some stringent conditions which I will outline below. In my
analysis,
the advantages of a
return
to Nigeria, though qualified as I have outlined, outweigh the advantages of
remaining
in this
jurisdiction.
The magnetic
welfare
factors are
P's
meaningful
relationship
with both her
parents;
her secure legal status in Nigeria and her identity as a Nigerian child. The disadvantages arising
particularly
from the father's attitude to this court's findings and the mother's anxieties can, in
part,
be sufficiently ameliorated by the conditions which will be attached to any
return.
- Given my findings of domestic abuse, I have given anxious consideration to
paragraphs
35-37 of
PD12J.
I observe that the findings I made would not
preclude
this father having contact in this
jurisdiction,
subject to him engaging with a
programme
orientated on
providing
him with insights into his behaviour and
promoting
behavioural change. This is because I could be satisfied that
P's
emotional and
physical
safety as well as that of her mother would be secured before, during and after contact and that the mother would not be subjected to further domestic abuse. In that
regard,
this is also the
reality
of the mother's
position
before me in that she accepted that, subject to a third-
party
handover and despite the father not yet having engaged with any behavioural change
programme,
P
could see her father unsupervised in this
jurisdiction
without this being a threat either to
P's
welfare
or to her own.
- Can I be satisfied on the balance of
probabilities
that this would also be the case in Nigeria? The opportunity for the father to behave abusively to the mother in Nigeria would be very much
reduced
by
physical
distance given that, on her current
plans,
the mother will be
residing
some 8/9 hours away from Lagos. The Terms of Settlement, endorsed by the Nigerian Court, would
require
direct contact in the holidays to be facilitated via a third-
party
handover which would
prevent
the
parents
from coming into direct contact with each other. Further, the mother would have a "lives with"
order
in
respect
of
P
and would also be in control of the arrangements for
P's
education, healthcare and so on, subject to informing the father. This would significantly limit the father's ability to use these matters as a means of controlling the mother as he did in the
past.
Additionally, the financial arrangements for
P
will be settled by an upfront
payment
of the monies outlined by Mr Hames KC to
permit
the mother to establish a home for herself and
P
in Nigeria without being initially beholden to the father for a monthly
payment.
Thereafter, maintenance
payments
from the father will be secured by a court
order.
The father will be obliged to submit to
orders
about how he conducts himself towards the mother (non-molestation) and must take steps to
rescind
any complaint he has made to the Nigerian
police
about the mother. Finally, the father must undertake a
programme
of behavioural change work before the mother and
P
return
to Nigeria so that this court can be assured he means his commitment to
P
to be a
positive
one. The combined effect of all these measures would
permit
this court to conclude that the conditions set out in
paragraph
36(3) of
PD12J
were met.
- Miss Munroe KC sought to
persuade
me that I could have little confidence that the Nigerian court would enforce any undertakings given by the father
relating
to non-molestation. What I intend should happen is rather different. The father will be bound by injunctive
orders
regulating
his behaviour towards the mother and I note from the evidence of Mr Nsugbe KC that the Nigerian court is well accustomed to making injunctive
orders
to
protect
a
parent
and child. In those circumstances, I see no
reason
why the Nigerian court would not enforce its own
orders
if the father should be in breach of them.
- For the avoidance of doubt, I am quite clear that, grounded in the comparative
analysis
above, my
preferred
option of
returning
P
to Nigeria
represents
a
proportionate
interference in the Article 8 ECHR rights of both
P
and her mother.
The
Order
- The
order
for
return
will be subject to:
a) the outcome of the appellate
process
before the Tribunal;
b) a lives with
order
in the mother's favour;
c) a spends time
order
for
P
to have contact during half the school holidays and term time contact each month if the father notifies the mother he wishes to take this up, any such notification being given at least 28 days before this contact takes
place;
d) contact handovers to be facilitated by a third-
party;
e) indirect contact;
f) an
order
permitting
the mother to take decisions about the arrangements for
P's
care, education and health and for the mother to inform the father about major decisions in this
respect
and to give him information from
P's
school, subject to
redaction
of
P's
home address;
g) the
parents
each to communicate about
P
via a dedicated email address;
h) non-molestation
orders
against the father for the mother's
protection;
i) confirmation that the father has withdrawn all complaints about the mother which he has made to the Nigerian authorities;
j) an upfront
payment
of money to allow the mother to
re-settle
in Nigeria. The amount suggested by Mr Hames KC will be the minimum that is
required;
k) ongoing maintenance to be secured by a court
order;
l) the father shall
pay
for and undertake the
process
of converting this court's
order
into Terms of Settlement acceptable to the Nigerian Family Court, such
process
to be transparent and
respectful
of the mother's rights to
participate
in any legal
proceedings
required
in the Nigerian Family Court;
m) the father should begin work with the counselling organisation he has identified as soon as
possible
on the basis that this organisation
receives
a clear and agreed letter of instruction from the
parties;
and
n) the
parents'
divorce must be finalised.
There may be other ancillary matters which need to be addressed in my
order,
I direct that there should be a hearing listed before me as soon as
possible
after the decision of the Tribunal is known.
- Prior to the next hearing, I direct that the
paternal
grandparents and the father's sister should be given a copy of this judgment and my fact-finding judgment. I ask them to
reflect
on the contents and to consider how best they might commit themselves to ensuring
P's
emotional wellbeing on her
return
to Nigeria. I would be interested in hearing from them how they might do so.
- I have observed that both
parents
need support and work to
promote
good quality contact for
P
and to
refrain
from damaging criticism and conflict which would be harmful for her. The father will soon have access to such work via the counselling organisation in Nigeria, but the mother does not appear to have a
ready
source of assistance in this
respect.
I hope that the children's Guardian can help in identifying a
resource
which might help the mother
prior
to any
return to Nigeria.
- That is my decision.