Case No:  FD12P02486
Neutral Citation Number: [2012] EWHC 4299 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION 

Court No: 32

The Royal Courts of Justice
Strand
London
WC2A 2LL

Wednesday, 21st December 2012

Before:

THE HONOURABLE MRS JUSTICE THEIS
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B E T W E E N:

L

and

M

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Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
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MISS Ramsahoye appeared on behalf of the Claimant
MISS Cooper appeared on behalf of the Respondent

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JUDGMENT
MRS JUSTICE THEIS:

1.	This matter concerns two young children. The parents are the applicant father, and the respondent mother whom I shall call the father and the mother in this judgment.  This matter was listed before me pursuant to my order made in November to consider a number of issues: habitual residence and jurisdiction; summary return; and any relevant issues of contact between the children and their mother.  

2.	On the eve of this hearing, the father conceded that the children’s habitual residence was here and that he should have sought the mother’s permission to move to Country A with the children in Spring 2012.  However, he maintained a forum conveniens argument, namely that it was more convenient for the matter to be determined in Country A. The mother’s position was that she wanted determination of the welfare issues here.  

3.	Following both parents giving oral evidence, I invited Miss Ramsahoye, who represents the father, to consider with the father whether the better course should be that he should apply for permission for leave to remove the children from the jurisdiction permanently, which is what he should have done in the first place.  He agreed that this was the most sensible way forward and effectively withdrew his application for the proceedings to be stayed here on the basis that it was more convenient for them to be dealt with in Country A.  However, having heard the parents give evidence about the background and having reflected on the matter overnight, I decided that it would be appropriate to give a judgment, which neither party resisted. This would give a basis upon which this case could move forward and give a context for the professionals who are assessing the parents.

4.	The father is a British national of descent from Country A. He comes from a family all based in the same area.  The mother is a national of Country A, having been born there.  She has various siblings all of whom live in Country A with her parents. The children are British nationals by birth.  The parents are relatives and had an arranged marriage in Country A.  Although the papers are not entirely clear, either the arrangement was made in Autumn 2002 or there was some form of marriage ceremony then, but there was then a further marriage ceremony in Summer 2003. Following that ceremony the mother came here on a spousal visa.  They lived together with the paternal family in the paternal grandparents’ home.  The children were born in 2005 and 2006.  

5.	In early 2007, the parents visited Country A using a return flight ticket.  The mother says that she was given little notice of this trip – I think barely a day – and was told by the father that her mother was ill.  She said that she wanted to take the children, but was dissuaded from doing so by the father.  The father said the mother came on the trip because she was very homesick and wanted to see her family.  He said one of the children was not very well, plus it was cold in Country A and so in effect it was a joint decision that the children would not accompany them.  They flew out in early 2007 and their return ticket was booked for 10 days later.   The mother, in her oral evidence, made it clear that she would not have gone on this trip if there was any prospect of her not returning to this jurisdiction to care for her children.

6.	On arrival, they were met by an uncle they went to stay with him, where they were joined by the maternal grandmother, the mother’s mother.  The mother said that the father retained her passport at the airport on their arrival in Country A.  She was going to spend some time with her family and the father was going off on business for a few days.  The she said that when she tried to contact him a few days later he had in fact returned to England without her knowledge and he had her passport and travel documents.  She said that in effect she was stranded in Country A.  The father’s account is that once the mother joined her family she did not want to return to England and despite his efforts he could not persuade her to return with him.  However, it is accepted that he returned to England earlier than planned, not 10 days later but 6 days later..  Following the father’s return the mother says that she was not allowed to speak to the children when she tried to ring the family home to contact them.  The father says that she made little effort to contact them.  Therefore, in effect, the mother has not had any communication with her children for over five years, other than what has happened very recently.

7.	There was limited or no direct contact between the parents in 2007, although the statements detail some contact via the wider family and friends who were trying to act as mediators.  The mother’s position is that she was trying to get back to England from early 2007 because she wanted to be reunited with her children.  As, on her account, she did not have her passport or travel documentation, she sought advice from a number of people.  Firstly, in 2007, she sought advice from somebody called Mr B who I understand is a solicitor who operates in Country A and England.  That that was on the recommendation of her brother‑in‑law in Country A.  The documents suggest he advised that until she got her basic travel documentation sorted out there was little that he could do.  The mother also gives details in relation to the involvement in 2007 of a Mr Z, who was a community leader.  There is a letter in the bundle which details the discussion that he had with the mother and, I think, some of her family and what he proposed to do.  As I understand it, although it is not altogether clear, he put her in touch with a social worker whom she sent some documents to.  That appears to have been a social worker who, I think, was based in the local community.  Unfortunately, that did not bear fruit.

8.	Following on from seeing Mr B, the mother applied for a new passport in Country A, which it is agreed between the parties she obtained in Autumn 2007. Either just after or just before that she was able to get her new identity card from Country A as well.  Her original passport, which she says the father retained, did not in fact expire until early 2008.  At some point in early 2008, it appears that there was some direct contact between the parents and some discussion about a possible reconciliation and the father taking steps to get the mother a visa.  She said that at his request she sent a copy of her passport to the father in about Spring 2008. In her written statement the mother says that she in fact saw the paternal grandmother in Summer 2008 to (summarising that part of her statement) ask the paternal grandmother for her forgiveness, to which she records the grandmother saying ‘Okay’.  The mother therefore thought that seemed to be permission for her to pursue the position with the father.

9.	The father states that he was assisted in relation to the mother’s immigration position in 2008 by a family friend called Mr C, who according to a statement that was filed during the course of these proceedings is an immigration solicitor.  According to that statement, he assisted with the completion of the visa application in about Autumn 2008, although there seems to be some vagueness as to whether it was then.  However, it was certainly in 2008.  Both the father and Mr C state they spoke to the mother, whereby she gave details over the telephone to complete the form.  The mother denies speaking to Mr C about this and says that the only the person that she spoke to was the father.  As I have said, a statement from Mr C was produced during the hearing stating that he recalls such a conversation which took place I think some four years ago now.  However, he produces no corroborating record or file note of that conversation.  

10.	The father’s written evidence is somewhat silent as to what happened to that application.  In his oral evidence, he suggested that it was sent to an intermediary known by the mother.  The mother denied any knowledge of receiving any completed visa application form.  In her written and oral evidence, she said the father’s position was that he was not going to call her anymore and then when she asked for her visa application he said that the mother’s parents had to pay for it first.  The mother says her parents refused to pay for it until they actually saw the form, because of what they say had been a deception by the father in the past. The father said that unless he was paid she could not have one.  In any event, at some point in late 2008 communication between parties broke down and I understand that they had no further contact.

11.	According to the mother, she continued after that to make efforts to get back to England with the obvious intention of being reunited with her children.  However, she had great difficulty doing so, due to lack of funding and relevant documentation.  She issued divorce and dowry proceedings in Country A.  It is unclear whether the dowry proceedings were started, but the divorce proceedings were started in Spring 2009.  However, she did not take any proceedings concerning the children. In her she statement she records that her solicitors in Country A advised her that the court did not have jurisdiction to deal with the children, who were out of the jurisdiction and living in the United Kingdom.  The divorce pleadings are in somewhat florid terms and I doubt whether the words that are in those proceedings are the actual words of the mother.  Those proceedings concluded in mid 2010, although the mother states the enforcement of the dowry proceedings are continuing as they have been unsuccessful.  She said that she was assisted in financing these proceedings by her family.  In addition, she said that she was undertaking various sewing jobs and teaching sewing to try to save money to finance a visa application, but that it was not until her father was able to sell some land in late 2011 that she was in a position to finance her application, trip and support because it is not just the cost of the visa application and air ticket; she needed to demonstrate that she would be able to have financial support if she came over here.

12.	The mother appears to have had the assistance of a number of intermediaries who have acted as her agents and helped fill out forms, as well as, as I have said, the solicitor called Mr B.  As I understand it, she applied for a visitor’s visa in early 2012 and she was assisted in that application process by one of these agents or intermediaries.  That application was unsuccessful.  She appealed with the assistance of Mr B and a six‑month visa was granted in about Summer 2012.  She said that she waited until Autumn 2012 to come here so that she could travel with Mr B, who would put her in touch with solicitors immediately on her arrival here.  That was something that she appears to have made clear in the documentation that she filed in the immigration proceedings because looking at the judgment and determination of the appeal it deals with the fact that she was seeking to restore her contact and relationship with her children in the circumstances where she said that she had been stranded.  She arrived here in Autumn 2012. It appears the night before she flew she found out through a member of the family that even though she had thought the father and the children were living in the UK (that was obviously why she was coming here) she had in fact been told by an aunt the father was living in Country B but was coming to England for a wedding in Autumn 2012.

13.	Her solicitors were instructed and applied for a without notice prohibitive steps order in the County Court, which was granted in Autumn 2012.  The father was served, following which he issued proceedings under the inherent jurisdiction in the High Court to remit all further proceedings to Country A and allow the children to return to Country A forthwith.  In late 2012, Mrs Justice King ordered the proceedings in the County Court be transferred to the High Court and listed the matter for hearing the following week.  The matter came before me on that day. I listed this hearing to determine the matters set out at the beginning of this judgment.  As well as having the further statements filed by the parties, the court has had the benefit of the report from the Cafcass High Court team on the children’s wishes and views, which I shall refer to in a moment.  

14.	Whilst the mother has been trying to get back to this jurisdiction things moved on in the father’s life.  The father met his second wife some time in 2011.  They married in Spring 2012 and, as I understand it, she moved into the paternal family home She, like the father, had been born in this country and, like the father, her parents and siblings all lived in this country and still do so.  According to the father, they had talked about living abroad in general terms prior to their marriage but between 5 to 10 days prior to their departure in Spring  2012, according to his oral evidence, they decided to move permanently to Country A with the girls to live.  By all accounts it sounded, for reasons which at the moment are far from clear, to have been a relatively hasty decision; effectively deciding within a matter of days to leave the jurisdiction in which they had all lived all their lives and which neither his new wife nor the children had ever left before.  

15.	According to the detailed school records, which are in the bundle at C135, the records record the paternal family and the father informing the school on a number of occasions that they were going to Country B.  The record is a notification of a child or young person missing from education because no details were given to the school as why the children did not return after the Easter holidays and, as a result, they notified the Local Authority.  What the records record is that there was a telephone call to the home address where the grandfather says ‘Still in Country B and Dad not made contact with them’.  In Spring 2012, a telephone call was received at the school from Dad saying that he had stayed on in Country B looking for work and the children would be off for at least two more weeks.  The note records that ‘Several attempts were made to contact Dad over the next two weeks for updates but unable to contact’.  In mid 2012, an auntie of the children, attended school to inform that ‘Dad is now working in Country B and the children are staying there with him, but unable to provide address in Country B or further contact details for Dad’.  There was a message left on the father’s mobile phone, but there was no contact with the school.  In mid 2012, a letter was hand delivered to the family home, with a covering letter forthe aunt requesting that she forward the letter to the father. The letter requested the father to contact the school with address details in Country B.

16.	The father denies any of this and said in his oral evidence that he informed the school in May that they had gone to Country A. According to the father that was only shortly after he had informed his own family that they had gone to Country A, so the position seems to be that they had decided to move permanently to Country A in Spring but, for reasons that are far from clear, did not actually tell any of the paternal family about those plans until some time in mid‑May when the father returned to this country and told his father.  

17.	According to the father, he and his wife and the children travelled to Country A in Spring 2012.  They rented a property there and enrolled the children at a school there.  This was done without the knowledge or consent of the mother, and no attempt was made by the father to contact the mother following his arrival in Country A then.  Since the father, his wife and the children have been back here, they have been living at the paternal family home.  The children have received material sent to them from the school in Country A and I hope that the parties are going to be able to update me, once I have finished this judgment, on the ability of the children to be able to attend their previous UK school in the New Year.

18.	Both parties gave oral evidence.  The mother came across as someone who was quiet and softly spoken.  She was at times overwhelmed by the position that she finds herself in.  She had some understanding of English, but it was quite clear that she needed the assistance of the interpreter to be able to deal with any questions.  She did not come across, even though it was being done through an interpreter, as somebody who was highly educated or sophisticated and, in my judgment, she clearly had to rely on others for practical and financial support.  She accepted that some of the matters in her application form for her visa were not correct, but she said that she was reliant on others for much of her advice and guidance, which I accept.  An example of some of the matters that were incorrect in her application was that in her visa application in early 2012 she ticked the married box.  She said that she did that because her passport had in it that she was the wife of Mr L.  She said ‘I needed a visa to see my children’.  She said that her mistakes were in the context of her situation at the time, whereby she had been left in Country A, and her overwhelming desire to be reunited with her children.  She accepted that some of the things were not correct, but she said ‘I wanted to see my children’.

19.	The suggestion at the start of this hearing was that she had sought to open bank accounts using the father’s name and the direct allegation (no doubt made on instructions by the father at the start of this hearing) that she could not actually see his current passport due to his fear that she would misuse the information. This was based on the fact that his name appeared on a bank account that is in the papers.  It was only as the evidence unfolded on further enquiry during the hearing that it transpired this fear to be completely without foundation, as the father accepted in his oral evidence that having his name on the bank account was not unusual in these circumstances in Country A as the word on the top of the bank statement, ‘w/o’, means ‘wife of’ and it did not mean it was a joint account.  I found this instance one of the many revealing examples of the father’s attitude to the mother.  Therefore, whilst I accept that the mother did put some inaccurate information in her visa application and whilst there are some matters in the divorce pleadings that may not accurately reflect the position (which as I said, is not language that the mother would have used); I do not consider that these matters undermine her credibility. In accordance with R v Lucas (1981) QB 720 one has to look at the context in which these sorts of actions are taken, and the context in this case, in my judgment, was this mother’s actions were done in the context where she was very anxious, and understandably anxious, to be reunited with her children and it does not undermine necessarily the credibility of the rest of her evidence.

20.	The father’s oral evidence was very different from the mother’s.  He is well educated.  He has gone through to secondary education and has a BSc and started an accountancy course, although he did not proceed with that.  He is somebody who appears to have considerable business acumen that has enabled him to travel extensively.  He has held down a number of different jobs with third‑party employers and has also run his own business.  His business interests have taken him to New York, Hong Kong and Pakistan on a fairly regular basis.  He described in his oral evidence attending IT conferences in New York and described his foreign trips as being a mixture of business and pleasure.  He did not take the mother or the children on any of these trips.  

21.	However, despite this level of education and sophistication, when it came to answering various relevant questions he became very vague and unhelpful in his answers.  For example, his description of his knowledge of the mother’s spousal visa was, in my judgment, wholly unconvincing.  Despite being her sponsor in 2003 and taking steps to transfer the family home into his name for the purposes of that application, he professed to have absolutely no idea how long her visa was for or whether it was valid when they went to Country A in early 2007.  Despite repeated attempts by Miss Cooper to get him to provide that information, he just said ‘I don’t know.  I didn’t check.’  

22.	He was also asked about his brother’s wife’s position.  They had got married at about the same time and so there would have been a similar visa position.  As I understand it, she came from Country A as well.  However, again he was completely unable to answer simple questions, for example whether his brother’s wife had ever left this jurisdiction, even though, as I understand it, they all live in the same home. Another example of his vagueness and unhelpfulness was that he was unable to give any kind of coherent detail about where the children lived for the first part of 2012.  When pressed about how much time they spent at the property that he had acquired soon after his return from Country A in 2007, which is very close to the family home, he gave conflicting accounts; ranging from the children being there with him and staying up until the early hours of the morning because that was fun to him going there on his own to give him space and peace to work.  He came across on many occasions, in my judgment, as someone who was not being truthful with the court and as a result I have concluded that I have to treat his evidence with great caution.  

23.	There is no doubt that there is a wider family context to the difficulties in this case.  It has been referred to by both parties.  Both parties referred to the dispute between the maternal and paternal families, who are of course related.  Little information has been given as to the root cause of that dispute. I have to factor that wider aspect into my evaluation of the evidence.  Clearly, in considering this matter in relation to any findings that I make I of course have regard to the principles set out in the case of Re B (a child) [2009] UKSC 5.  The standard of proof is the balance of probabilities and the burden, particularly in relation to the stranding matter, rests on the mother and I have to be satisfied that it is more likely than not, when I look at the evidence, if that is my finding, that the evidence justifies that conclusion to the required standard.  

24.	Having considered the written and oral evidence, I have reached the very clear conclusion, on the balance of probabilities, that it is more likely than not that the mother’s account of events in early 2007 is more likely to be correct

25.	I have reached that conclusion for the following reasons.  Firstly, the father accepted that at the time of their marriage the mother had little spoken or written English.  It is quite clear from the documents, and the circumstances at the time, that he took the lead in obtaining the spousal visa that enabled his wife to join him here.  She was in every sense of the word his dependent.  His evidence about his lack of knowledge of how long the visa was, as I have said, wholly unconvincing, particularly when he was the sponsor and had taken the steps to have the paternal family home transferred into his name to further that application.  The evidence remains unclear whether the visa was for one, two or even three years but in fact that is hardly relevant because, in my judgment, the evidence is patently clear that by the time of the trip to Country A in early 2007 it had expired. The failure by the father to extend that visa and not to ensure that it was valid at the time of the trip to Country A , in my judgment, supports the mother’s account of events.

26.	Secondly, there was nothing in the father’s account to suggest that the mother was unhappy here.  There were no particular difficulties in their relationship and certainly no difficulties that he could identify with her relationship with the children.  In early 2007, one child was 22 months old and the other was only eight months old.  His suggestion that she came on the trip without the children because she missed her family is not credible.  She had refused to attend a family wedding in Country A in Summer 2006 as one of the children had eczema and it was felt that the temperature in Country A would exacerbate that.  She chose to stay in this country to care for the children.  Therefore, it is more likely than not that the mother’s account is correct and that what prompted her to go, reluctantly leaving her children here, was the father informing her that her mother was unwell.  I accept her evidence that she was only informed of the trip about a day before they actually went.  I accept her evidence that she wanted to take the children, but was prevented from doing so by the father and the paternal grandmother.

27.	The third matter that supports the conclusion that I have reached is that the mother’s account is supported by the fact the father returned to England four days earlier than had been planned.  This early departure does not support the father’s account of an otherwise good relationship between the parents and the mother with her children.  One would have expected him to stay for at least the full period of the trip to try to secure the mother’s return to England and their children.

28.	Fourthly, the mother’s account of the father taking possession of her travel documents and passports is supported, in my judgment, by the fact that she applied for a new one in Autumn 2007, and that was after consulting Mr B.  If she had retained her old passport, as suggested by the father, there would have been no need for her to apply for a new one in Autumn 2007 and she could have used that earlier one to pursue the position with Mr B.

29.	Fifthly, the long delay in the mother being able to return to this jurisdiction does not, in my judgment, demonstrate any disinterest by her in seeking to be reunited with her children.  What it does demonstrate is the complexity of the relationships and dynamics within the wider family, her dependence on others to assist her, her and her family’s limited financial and other resources and the imbalance of power between the mother as against the father and the paternal family.  I accept her evidence that she tried to make contact with the children in 2007, but was prevented by the paternal grandmother and the paternal family.  The evidence demonstrates that the children were based at the paternal family home and the reality is that their day‑to‑day care was more likely than not provided by the paternal grandmother and the wider family.

30.	Sixthly, the delay in the mother coming here was in part contributed to by the communication between the parents in 2008.  The circumstances surrounding that are far from clear, but it appears that the father said that he was going to assist in his wife getting a visa.  She sent a copy of her passport to him in mid 2008 and whilst there were conversations between the parents after that, I am not satisfied that she spoke to Mr C.  I have seen no corroborative evidence of that call and I find it hard to believe that Mr C can recollect such an incident over four years ago, with no supporting evidence or documentation to assist him.  He clearly had a strong personal relationship with the father and the paternal family.  I accept the mother’s evidence that the discussions with the father broke down in 2008 and that she had to revert back to her own efforts in trying to secure her visa.  In that context, the father’s observation in his first statement at paragraph 3 when he said ‘It is sadly my belief that she wants the girls to remain in England for reasons connected to her immigration status and related benefits rather than contact’ ring very hollow.  There is also his comment on the following page of his statement where he says ‘I did not give up on our marriage the way the respondent suggests and it was only after five years hoping we could reconcile for the sake of the girls that I finally remarried earlier this year’.  

31.	Therefore, I am satisfied, on the balance of probabilities, that the mother was stranded in Country A due to the actions of the father in taking her there knowing that she did not have a valid visa to enable her to re‑enter this country.  He retained her passports and travel documents and, apart from limited efforts in 2008, has made no attempt to facilitate her return to this jurisdiction, or make any real effort to maintain her relationship with the children.  

32.	In relation to the care of the children since 2007, the evidence appears to demonstrate the following.  Firstly, the children have been living in the care of the paternal grandparents and the paternal family living there.  That was the registered address for the children’s school.  Whilst the father has lived there too, it appears that he has spent some time at the property he purchased.  However, the children, it appears, remained based at the paternal grandparents’ home.  He also appears to have travelled extensively.  Details are going to be provided, but it is clear that whilst he was away the children were being cared for by the paternal family.

33.	Secondly, in his evidence the father seemed unconcerned that within three days of meeting his current wife in 2011 the children were calling her Mummy.  He has not sought to dissuade them from that and seemed puzzled in his evidence.  When asked about it he said ‘I just let them carry on doing it’.  He seemed to regard it as a good thing, without considering the impact on the children’s relationship with their mother, and whilst that may be explicable by a lack of insight by the father, it does give a worrying insight in relation to his attitude to the children’s relationship with their mother.  

34.	Thirdly, the circumstances surrounding the decision by the father to permanently leave this jurisdiction and live in Country A  needs further explanation.  From the children’s point of view, they had limited notice of this move – I think from the father’s evidence maybe only five to 10 days.  There was a lack of clarity with the school about the fact that they were going to Country A and that they were going to be going permanently, because it appears that the school was expecting them to return in Spring.  There also appears, as I have said, to have been some confusion about where they were going.  In his oral evidence, the father said that his father did not know where they were going and in fact he did not tell his father that they were in Country A until mid‑May, some six weeks after they had left for Country A.  He said many of his family had left at the same time in the early part of April to go on the Hajj, but according to the school records, the paternal grandfather, father and paternal aunt all on separate occasions told them that the father, his wife and children were living in Country B.  

35.	Fourthly, despite the fact that the father knew where the mother was, he made no attempt to contact her following their arrival in Country A.  It is perhaps one of the most poignant ironies of this case from the children’s point of view that whilst the mother was making valiant efforts, within her limited resources, to secure a visa to come to this country and fund such a trip here to be reunited with the children, they were in fact in the same jurisdiction as she was unbeknown to her, or them.

36.	Fifthly, following the move to Country A , the father continued to travel extensively, as detailed in his second statement, and the children appear to have remained in the care of his wife in Country A 

37.	The children are now left in a difficult position.  On the face of the report by Cafcass they have been given limited, if any, information about their mother. They appear to have been well cared for physically, but in terms of their emotional development there are serious matters that require further investigation. They are under the impression that they cannot talk about their mother, but do not know why. One of the children is under the impression the mother ran away and she is not their mummy any more.  The consequence of this is that there is now going to have to be some very sensitive work undertaken with the assistance of  an experienced High Court Cafcass guardian, to help them understand who their mother is, why she was not able to care for them and to seek to restore their relationship with her.  On any view, it is going to be a difficult journey for both the children and their mother.  With the assistance of Cafcass the parents have been able to agree there will be an order for reasonable contact to be agreed in consultation with Cafcass and she plans to see the children with their mother in the new year in 

38.	I will now hear Counsel in relation to any further directions leading up to a hearing where the court will consider the father’s application for leave to remove the children from the jurisdiction and applications made by the mother in relation to contact or any other matters that are issued between now and then.