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Leicester City Council v Chhatbar & Another [2014] EWHC 830 (Fam)

Judgment as to whether a child was habitually resident in England and Wales on a date on which he was made a ward of court. Held, applying Re A (Jurisdiction Return of Child) [2013] UKSC 60, that he was so habitually resident.

At the start of the hearing, Mostyn J had acceded to an application on behalf of Associated Newspapers for permission to report the case with the names of the parents and child because their names were already in the public domain due to being on the Interpol website.

The subject child in the case, Abdul, was born in May 2013 and had been subject to a child protection plan since shortly after his birth.  On 12th October 2013, Abdul had been taken by his parents to the Turkish Republic of Northern Cyprus, this being a territory that is outside the reach of the Hague Convention.  This judgment concerns the question of whether the child was habitually resident in England and Wales on 17th October 2013 when he had been made a ward of court.  The local authority sought this determination so that, in the event that Abdul is ever taken to a Hague Convention country, the local authority can argue that Abdul was unlawfully retained by his parents in Northern Cyprus since 17th October 2013.

The parents were not represented but appeared at this hearing via a video link.  It was their case that when they left England in October 2013 it was with the intention of living permanently in Northern Cyprus.

In this judgment, Mostyn J reminds himself of the legal test in relation to habitual residence as clarified by the Supreme Court in Re A (Jurisdiction Return of Child) [2013] UKSC 60, focusing on the social and family environment of the child.

Given Abdul's age when he was removed, the first consideration was to look at the social and family environment of his parents as of October 2013.   At that time, both parents and the father's extended family were clearly living in Leicester.

Secondly, the parents had no significant connections to Northern Cyprus.  They did not speak Turkish or Greek and they were not ethnically Cypriot.  At the time they arrived they did not have established accommodation in Cyprus and they had hardly any social connections there.  Since their arrival they had not acquired a property, a car or a bank account.  Neither was entitled to work or to vote in Northern Cyprus.  They are living there on a periodically renewed tourist visa.  They had participated in discussions with the local authority about returning to England.

The judge therefore concludes that on 17th October 2013 both parents and the child were habitually resident in England and Wales.  Permission to appeal was refused.

Summary by Sally Gore, barrister, Fourteen
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IN THE HIGH COURT OF JUSTICE No. LE13PO1167
FAMILY DIVISION
[2014] EWHC 830 (Fam)

Royal Courts of Justice
Friday, 28th February 2014


Before:

MR. JUSTICE MOSTYN
(In Private)


B E T W E E N :

LEICESTER CITY COUNCIL Claimant

-  and  -

(1)CHHATBAR 
(2)CHHATBAR
  Respondents
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Transcribed by BEVERLEY F. NUNNERY & CO.
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
Tel:  020 7831 5627     Fax:  020 7831 7737
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__________

MR. M. DOWNS  (instructed by Leicester City Council)  appeared on behalf of the Applicant.
THE RESPONDENTS were not legally represented and appeared by video link from Northern Cyprus. 
__________

J U D G M E N T
(As approved by the Judge)

MR JUSTICE MOSTYN:
1 At the commencement of this hearing I acceded to an application made by Mr Wolanksi, counsel on behalf of Associated Newspapers (which publishes the Daily Mail and the Mail on Sunday), for permission to report this case with the names of the parents and the child. It was argued that it would be unreal to prevent such publication where those names were on the Interpol website. I readily agreed, and in the circumstances it was an unexceptional order. However I prohibited the naming of Mr. Chhatbar's former partner and children.

2 The family courts are not "secret courts". Since 27 April 2009, almost five years ago, the press has had full access to all family proceedings (apart from adoption and placement proceedings, proceedings under s54 of the Human Fertilisation and Embryology Act 2008, and judicial mediations in financial proceedings). Further, there is now a drive to report on the Bailii website all judgments concerning the state protection of children and vulnerable adults (see Practice Guidance (Transparency in the Family Courts) [2014] EWHC B3 (Fam)1 ). These measures are designed to ensure that by virtue of a combination of fair and accurate press reporting, and public access to the Bailii website, the public can learn about the arguments which are advanced and what is being done by the judges in their name.
 
3 In this case I am concerned with Abdul Rahman Chhatbar who was born in Leicester on 31st May 2013.  Following his birth a child protection plan was drawn up in relation to him by Leicester City Council.  In this judgment I am not going to go into the merits of the actions taken by Leicester City Council. 

4 I am being asked to decide one narrow issue only which is this:  was Abdul Rahman habitually resident in England and Wales on 17th October 2013 when this court made him a ward of court? 

5 The only background I need to mention is this.  On 12th October 2013 at a time when Mr. Chhatbar and Miss Rahman frankly concede they knew that Abdul Rahman was the subject of protective measures, they left England and Wales and travelled to the Turkish Republic of Northern Cyprus.  As is well known, the Turkish Republic of Northern Cyprus is recognised as an independent state only by Turkey.  The rest of the world, and specifically the European Union, regard the Turkish Republic of Northern Cyprus as being a military occupation by Turkey of part of the Cypriot Republic.  The Turkish Republic of Northern Cyprus is not a signatory to the 1980 Hague Convention on the Civil Effects of Child Abduction, nor does it subscribe to or apply the child abduction provisions of the Brussels II regulation.

6 The court can easily conclude that a motive for these parents taking this child to the Turkish Republic of Northern Cyprus is that, uniquely within Europe, it represents a safe haven from the provisions of the 1980 Hague Convention.

7 The reason I am being asked to determine that on 17th October 2013 when Abdul Rahman was made a ward of court he was habitually resident in England and Wales is not in order to demonstrate that on 12th October 2014 he was unlawfully removed from England and Wales within the terms of Art.3 of the Hague Convention.  The reason I am being asked to determine this issue is in order that the local authority would be equipped to argue, should Abdul Rahman ever be taken to a Hague Convention country, that from 17th October 2013 he was being unlawfully retained by the parents in Northern Cyprus.  In order for an unlawful retention for the purposes of Art.3 to be proved, it has to be shown that on the relevant date Abdul Rahman was habitually resident here and that at that time rights of custody had been vested in this court.  Plainly the latter criterion was satisfied because this court had made him a ward of court on that day.  The question is whether on that day he was habitually resident here.

8 Mr. Downs frankly concedes that this exercise only becomes relevant if Abdul Rahman is taken by his parents to a Hague Convention country of which, of course, Turkey is one, the Republic of Cyprus is another, and Greece is yet another.  He argues, as does the Council which he represents, that this is a reasonably foreseeable prospect.  First, they say that the parents were, in fact, in Turkey as recently as December 2013.  They say they went there in 2013 for a holiday.  Secondly, they say that in order to be able lawfully to stay in the Turkish Republic of Northern Cyprus they need to leave the country every 90 days in order to re-enter and receive a new 90 day tourist visa.

9 The evidence of the parents, which I have heard over a video link from Northern Cyprus, is that when they left with Abdul Rahman on 12th October they intended to leave this country permanently and to settle in Northern Cyprus permanently.  They say they bought a one-way ticket.  They sold most of their belongings here.  They ended the tenancy of their accommodation in Leicester here and they did not intend to return.  They say that contrary to what would seem to be plausible and logical, they do not need in fact need to leave Northern Cyprus at the expiration of a tourist visa; they simply need to go to the border and, without leaving the territory of Northern Cyprus, they can obtain a fresh tourist visa.

10 The law in relation to habitual residence in child abduction and, indeed, in all family proceedings concerning children, has recently been clarified in the well-known decision of the Supreme Court of Re A (Jurisdiction Return of Child) [2013] UKSC 60.  I need only quote from three sub-paragraphs of para.54 in the judgment of Lady Hale.   

"(iii) The test adopted by the European Court is 'the place which reflects some degree of integration by the child in a social and family environment' in the country concerned.  This depends upon numerous factors including the reason for the family's stay in question. 


(v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.  The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual resident of a child. 

(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.  Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned."

11 Given that Abdul Rahman was not even five months old when the journey to Northern Cyprus was made it is, first, as Lady Hale rightly says, important that I look at the social and family environment of his parents at 12th October 2013. 

12 At that time the parents were unquestionably living in Leicester.  The father's own parents lived in Leicester.  His mother has since died, but his father remains alive and the Respondent father here remains close to him.  It is highly noteworthy that when they departed on 12th October 2013 the Respondent father here did not tell his parents that they were intending to leave permanently. 

13 The second point to be made is this.  Neither of the parents is a national of the Turkish Republic of Northern Cyprus.  Neither is ethnically Cypriot; neither is ethnically Turkish.  Neither speaks Turkish.  Neither speaks Greek.  They arrived in Cyprus on a 90 day tourist visa.  At the time they arrived they had not established accommodation in Cyprus.  Since then they have taken a tenancy extending only to six months, although they say it is extendable.  When they came to Northern Cyprus they had no family living in Cyprus and the father had only one friend who ran a restaurant.  He did, however, say a religious Mullah who he followed, he being a Muslim, was living in Northern Cyprus and had done for about 20 years.

14 At the time they arrived, and since, they have not acquired any property in Northern Cyprus.  They have no bank account in Northern Cyprus.  They do not own a car in Northern Cyprus.  They had not registered with a doctor before they arrived in Northern Cyprus.  They are not registered to vote in Northern Cyprus.  Neither parent has the right to work in Northern Cyprus.  In order to work in Northern Cyprus they would have to have a permanent residency or work permit visa.  Neither had that at the relevant time.  At the moment they are living in Northern Cyprus on a periodically renewed tourist visa.

15 Since their arrival in Northern Cyprus they have been in discussions with the local authority about their return.  The father said to me, "I would consider coming back.  My mother has passed away and my father is alone.  We have had discussions about coming back.  I might reconsider returning."

16 In my judgment, on 17th October 2013 both the parents and the child had their habitual residence in England and Wales.  They had not severed their integration in this country. Their social and family environment was in England and Wales.  Of that I have no doubt.  I do not need to speculate further on the motives that drove them to leave to go to Northern Cyprus although pretty easy conclusions can be drawn.

17 I say nothing about the merits of the local authority's case other than to observe that at the relevant time the father was under an order of probation awarded by a criminal court in relation to an offence of domestic violence.  He was obliged under our law to be in this country in order to undergo the period of probation that had been awarded.  Beyond that I say nothing about the merits of the steps taken by the local authority.  Nor do I want to give anybody any indication of the likelihood of success, should these parents go to a Hague Convention country, of an application under the Hague Convention to such a country for the return of Abdul Rahman to this country.  Of that I say nothing at all.  I confine myself strictly to saying only that on 17th October 2013 the child, Abdul Rahman Chhatbar was habitually resident in England and Wales.

MR. DOWNS:  My Lord, the question then is where we proceed and the City Council will pursue a direction for the expert evidence.

MR. JUSTICE MOSTYN:  Yes.  I make an order that expert evidence be obtained as to the prospects of a court in the Turkish Republic of Northern Cyprus implementing an order for return here because this court does not engage in empty gestures.  So I would like that to be obtained within 28 days.  Then I would wish this matter to be returned to this court for this court to consider, in the light of that, whether it makes an order inviting a court in the Turkish Republic of Northern Cyprus to return Abdul Rahman here.  As to the merits of that, I again make no comments whatsoever.

MR. DOWNS:  It is possible that that could be all that is required by way of directions because apparently a direction has already been made which will allow continuing communication with the Foreign & Commonwealth Office.  Of course, negotiations will continue between the local authority and the family with a view to trying to bring about an agreement, possibly with the assistance of third parties.

MR. JUSTICE MOSTYN:  I think it is sort of beating the air for the court to keep on repeating its orders.  It has made its orders.  I am making three further orders: (i) a declaration about habitual residence; (ii) an order that you obtain expert evidence;  (iii) that the matter be returned in the light of that on the first open date after 28 days with an time estimate of one hour, and with the parents to attend by video.

MR. DOWNS:  And any indication as to who should hear it?

MR. JUSTICE MOSTYN:  No.  I mean, you can say before me if available, if you want, on the basis of judicial continuity. 

MR. DOWNS:  I will submit to the Clerk of the Rules a draft minute of the order and email it to Northern Cyprus as well.

MR. JUSTICE MOSTYN:  Fine.  Do either of you want any clarification for what I have done? 

MR. CHHATBAR:  Excuse me.

MR. JUSTICE MOSTYN:  Yes.

MR. CHHATBAR:  Can we appeal your decision?

MR. JUSTICE MOSTYN:  I have given my decision.  I have declared that Abdul Rahman was habitually resident in England and Wales on 17th

MR. CHHATBAR:  Yes, I heard all that.  We heard all that.  We are asking you can we appeal your decision.

MR. JUSTICE MOSTYN:  OK.  So you need to ask me for permission to appeal. 

MR. CHHATBAR:  Yes, that is what we are asking.

MR. JUSTICE MOSTYN:  I can only give permission if I am satisfied that you have got a real prospect of success or there is some other good reason why an appeal should be heard.  Is there anything else you want to say about that?

MR. CHHATBAR:  Yes, it is a joke, isn't it?  It is a fraud.  It is a fraud mate.  It is all a fucking fraud.

MR. JUSTICE MOSTYN:  OK.

MR. CHHATBAR:  Good luck in trying to find us.  Good luck.

MR. JUSTICE MOSTYN:  Thank you very much.

MR. CHHATBAR:  The court has got no jurisdiction.  We are never coming back to England.  Good luck.  See how powerful you are, yes.  You are powerful sitting there in your chair.  It is a fucking fraud.

MR. JUSTICE MOSTYN:  Thank you very much, Mr. Chhatbar.  It is a shame –

MR. CHHATBAR:  See if you are a good parent sitting in that chair when your son takes cocaine.  You are a joker, my friend, you are a joker.

MR. JUSTICE MOSTYN:  All right.  Mr. Chhatbar applies for permission to appeal.  Under the Civil Procedure Rules Part 52 the permission can only be given if I am satisfied that there is a real prospect of success or there is some other compelling reason why the appeal should be heard.  In as much as I can understand Mr. Chhatbar, he says that my decision is wrong because I have no jurisdiction and because it is fraudulent.  

I consider that I have applied the law scrupulously to the facts of this case.  I am completely satisfied that there is no prospect of success of an appeal, let alone a real one, and that there is no other compelling reason why the appeal should be heard.  I therefore refuse permission.  Mr. Chhatbar, of course, is entitled to renew his application for permission with the Court of Appeal. Thank you very much.

MR. DOWNS:  My Lord, can I just say this.  If I were to copy in my draft minute of order and send it, first of all, to the Respondents, if they have not replied, can I lodge it with your Lordship, say, by about 3.30 this afternoon.  Is that satisfactory?

MR. JUSTICE MOSTYN:  That's fine.

MR. DOWNS:  Thank you.

MR. JUSTICE MOSTYN:  I would be very much obliged in any report of this case that I have emphasised repeatedly that this is not a secret court.

LATER
18 On 3 March 2014 a report appeared in the Daily Mail authored by a journalist who had been in court 2. In the report it was stated "Financial adviser Mr Chhatbar and travel agent Miss Reheman, 19, fled after a relative made an allegation to Leicester city council social services that Mr Chhatbar had a violent past. It is a claim the couple vigorously deny, but social workers warned them to split up so Momo could live with Miss Reheman in safety or else they would seize the baby." The report failed to mention what I had said in the first two sentences of para 17 concerning the father's conviction for an offence of domestic violence. Further, to the best of my recollection, what was written was not mentioned in court. The President, Sir James Munby, has recently emphasised in Re P (A Child) [2013] EWHC 4048 (Fam) at paras 26 and 27 that while the court will not exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish there is nonetheless, for obvious reasons, a premium on accurate press reporting of proceedings such as these.
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1
  http://www.bailii.org/ew/cases/EWHC/Fam/2014/B3.html
2 http://www.dailymail.co.uk/news/article-2571671/We-wont-come-say-couple-fled-stop-social-workers-snatching-baby-Judge-lifts-absurd-ban-IDs.html   
http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html