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Home > Judgments > 2015 archive

Re B (Children) [2015] EWCA Civ 1302

Appeal against an order permitting the permanent removal of two children to the United Arab Emirates. Consideration of the use of wardship and provision of financial security to ensure and enforce compliance.

The case concerned two girls, aged 13 and 11.  The parents had never married and, post separation, had conducted acrimonious litigation about the arrangements for the children, since which time (despite continued 'sniping') the girls had spent approximately 45% of their time with their father, with whom they had a strong relationship.

In 2008, the mother formed a relationship with Mr B (whom she married in 2014). He obtained employment in the UAE in 2010 and (without objection from the father) she and the girls had visited him there on over 20 occasions. The mother applied for permission to relocate permanently to the UAE with the girls.

In reaching his original decision (to permit the mother's application) HHJ Glenn Brasse heard from a jointly instructed expert, Ian Edge, that, in so far as was possible, the father's parental rights set out on any English order would be enforceable in the UAE even though he and the mother had never been married.

Subsequent information (latterly accepted by Mr Edge) provided by the lawyer instructed to draft a formal agreement, intended for approval and transformation into an order by the relevant court in Abu Dhabi, revealed that in fact: the rights of an unmarried father were neither recognisable nor enforceable through the Abu Dhabi courts.

The matter was referred back to HHJ Brasse who, having reconsidered the matter at a further full hearing with fresh oral evidence, once again granted permission for the removal. On this occasion though, he underpinned the order by a different structure from that originally directed, including requiring detailed undertakings, making the children Wards of Court and requiring Mr B to execute a second charge of £250,000 over his London property that would stand forfeit to the father in the event of a breach of the arrangements for the child set out in the order.

The father appealed.

Lord Justice McFarlane, in considering the two judgments of HHJ Glen Brasse, commented that each were examples of 'composition and judgecraft of the highest order'.
In his first judgment (at which point the evidence of Mr Edge had not been displaced) the judge had set out his approach to the law and had conducted a thorough analysis based on all the relevant case law and the welfare checklist. As part of this exercise, although he found that the mother's plan to move were entirely reasonable and not part of a campaign against the father, he did make findings against the mother in terms of her honesty and behaviour towards the father as well as finding deficits in the father's approach. By contrast, he had formed favourable impressions of both Mr B and the father's new partner, Ms S. He had also considered the strength of the girls' relationship to their father (described as the 'first pillar') and the ability to place the arrangements within an order enforceable in Abu Dhabi (described as the 'second pillar') to be adequate remedies against the potential for the mother to 'slip'.

His overall conclusion was that the move was in the children's interests and that the father would be protected by the 'two powerful pillars' of the girls' 'indomitable' love for their father and the 'availability of a process by which an agreement…could become an enforceable order of the Abu Dhabi court'.

In February 2015, some two months after the judgment, the judge refused an application by the mother for a short trip to the UAE on the basis that, by then, the expert evidence was in dispute, the father had therefore refused to sign the proposed agreement and the implementation of his judgment was in a state of hiatus.

The case then came back for reconsideration, by which time it was common ground that the order of the English court could not be enforced in the UAE. HHJ Glen Brasse's second judgment was also a model of good practice. It included full analysis of all the relevant factors, demonstrated a clear grasp of the issues and dealt with updating evidence as to some positive changes made by the mother (less by the father) and the 'emotionally wearing' impact on the girls of being in limbo when their strong wish (to which he attached very considerable weight) was to live with their mother and Mr B in Abu Dhabi.

The judge concluded that the 'strength of the first pillar' remained intact to the extent that it was 'made of granite'. His view remained that the mother's plans were well thought out and borne out of genuine motivation. The combination of the imposition of wardship and of the charge against the property formed a sufficient 'alternative pillar' to provide protection to the father and, accordingly, the application should be granted.

The father then appealed, citing the following grounds: the original decision was  wrong on the basis of adverse findings made against the mother; undue weight had been given to the children's wishes and feelings; there had been a failure to consider the impact of the removal of the 'second pillar' and the legal consequences of the non-existence of the father's parental rights under UAE law (and consequent breach of his Article 6 and 8 rights); the property charge was no substitute for an enforceable order in the UAE and the use of wardship was impermissible and wrong in law.

In essence, the father argued that once the 'second pillar' of the 'enforceable order' had 'crumbled', the basis of the original decision was shown to have been wrong and that it was then inconsistent and irrational for the second decision not to reverse the first.  Wardship was said to be an 'empty vessel' that would provide no protection, as once they had left, the English court would, in reality, cease to have jurisdiction over the children. Criticism was also raised as to the legality of the imposition of the charge.

Against the background of the thoroughness of the judgments, the respect to be afforded the 'privileged position' of the trial judge had to be treated at its highest. In that context, the ground of appeal based of the judge having got the original welfare balance wrong was unsustainable.

As to the assertion that, once the 'pillar' of the enforceable order had gone, the application should have been refused; the judge could not be criticised for having embarked on a full re hearing and for having re appraised the case in the light of the changed circumstances. Moreover, given the strength of the girls' feelings (which had formed an important strand in the judge's evaluation, upon which he had placed great, but not, in the view of the Court of Appeal, excessive weight) the judge was entirely right to look to see if there was another way to allow them to go to the UAE whilst protecting their relationship to their father.

The criticism that the judge had failed to give sufficient weight to the legal consequences of the move was also 'hard to accept' in circumstances where he had gone to great lengths to set up a structure, the intention of which was precisely to maximise the ability of the father to enforce the arrangements envisaged. Once the original error came to light, much of the judge's focus had been on providing a suitable alternative.

There was no undue interference with the father's Article 6 and 8 rights. The issue of relocation engaged the rights of all four family members and those of Mr B, within which context, any interference was proportionate and necessary. The legal position in the UAE was but one factor and not a 'trump card'.

The judge was, moreover, alive to the risk posed by the mother. Central to his evaluation of the management of this had been his reliance on the girls' wishes combined with the imposition of the charge and orders in wardship driving against any non-compliance by her.
In terms of the charge, this had eventually been executed in a form acceptable to all parties which included provision for it to be 'immediately realisable by the father' on any breach of the order or undertakings. Concern was raised (and dealt with by an analysis of Henderson LJ, adopted by McFarlane LJ) as to the nature of the charge: fears that it was unenforceable, though understandable, were misplaced. The only aspect of the scheme that was questionable was that the initial decision as to whether or not a breach had occurred lay with the father. Given that the trigger to realising the charge was a breach of the court's order, this was undesirable. The matter should instead come back before the court for it to decide on whether or not the charge should be realisable. As the charge had already been executed, provision for this variation would be dealt with by modification of the existing Order.

With regard to the use of wardship, the father argued that it added nothing and that the judge had erred in placing reliance upon it. The mother asserted that, whilst it did not enhance the court's powers of enforcement beyond those available in respect of a s.8 order, it did 'no harm' and its greater formality might further incline the mother to abide by the orders made.

McFarlane LJ conducted a lengthy survey of relevant case law pertaining to the use of wardship for children who were physically outside the jurisdiction, concluding that the circumstances of the instant case fell short of establishing the need for its use. Wardship did not add anything to the force of, nor the ability to enforce the judge's order if made under CA 1989. The wardship order should be replaced by a child arrangements order under s.8 CA 1989.

The overarching basis of the appeal was that the 'pillars' supporting the regime were wholly inadequate in the overall context of the law in the UAE and the judges' findings about the mother and that, accordingly, the judge had been wrong to grant permission for the move.
The highly experienced trial judge had 'steeped himself' in the case.  He was not in error in considering the charge to be an enforceable security and, despite the Court of Appeal's decision in respect of wardship, he was correct to rely on the ability of the English court to take all legally viable steps to enforce its order. The consequences to the mother of breaching a s.8 order would be the same as for breaching an order within wardship. She would face contempt proceedings, forfeiture of the charge and, in effect, exile from being able to return to the UK; these were powerful incentives for compliance. Moreover, whilst the original scheme was predicated on the unknown element of whether or not the UAE court would take appropriate action, it was, if anything, now more robust, resting as it now did on the predictable outcome that breach would be followed by immediate financial loss and an inability to return to the UK without facing contempt proceedings.

The strength of these provisions were to be set alongside the judge's evaluation of the girls' strength of character to which the father had not been able to mount a successful challenge.
It was not sufficient to establish that another judge might have taken a different view. For the father to succeed he would have to show that the judge had been 'wrong'. Quoting from Lord Neuberger PSC in Re B [2013] UKSC33 , McFarlane LJ referred to the 'face to face, bench to witness box acquaintanceship' afforded to trial judges and of the difficulty of mounting an appeal in the absence of an error of law.

In this case, the judge's welfare evaluation could not be said to be 'wrong'. He was entitled to hold that the two pillars would 'hold the mother and Mr B to the mark' and that the move was in the best interests of the children.

Accordingly, subject to the changes to the order in respect of implementation of the charge and the substitution of a s.8 order for the wardship, the appeal would be dismissed.

Summary by Katy Rensten, barrister, Coram Chambers

_________________

Case No: B4/2015/2039
Neutral Citation Number: [2015] EWCA Civ 1302

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
HHJ Glenn Brasse
ZC14P00103

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2015

Before :

LORD JUSTICE LONGMORE
LORD JUSTICE MCFARLANE

and
MR JUSTICE HENDERSON
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Re: B
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Mr Charles Hale QC (instructed by Kingsley Napley Llp) for the Appellant
Mr Alex Verdan QC
(instructed by Levison Meltzer Pigott) for the Respondent

Hearing date: 27th October 2015
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Judgment
Lord Justice McFarlane:

1. In this appeal a father seeks to challenge the order of HHJ Glenn Brasse permitting the mother of his two children to re-locate from England and Wales in order to take up permanent residence with her new husband in Abu Dhabi in the United Arab Emirates ['UAE']. In addition to consideration of the all important welfare evaluation undertaken by the judge, the appeal raises two further matters of wider interest. Firstly, the use of continuing wardship proceedings as a means of supporting the court's orders for contact in a case where the two children are soon to become habitually resident in a foreign, non-convention state as a result of the judge's order. Secondly, the legality of the established practice in the Family Court of seeking to ensure compliance with the terms of the re-location order by requiring the provision of financial security enforceable in this jurisdiction in the event of non compliance.


Background

2. The two children at the centre of these proceedings are both girls, H, born 28th August 2002, and therefore aged 13 years, and S, born 1st June 2004 and therefore now aged 11 years. The parents lived together from 2002 until February 2007, but never married. It is a feature of the case that the early period following separation was pre-occupied by acrimonious dispute in the family court as to the arrangements for the children. Although that dispute was eventually settled by the making of shared residence orders, the parents have continued to snipe at and criticise each other throughout the ensuing period of eight years.

3. Happily, and surprisingly, despite the very poor state of the inter-parental relationship, the girls have apparently thrived under the shared care arrangements. The parents do not live far apart and, as the judge found, it appears that the children have, in all, spent over 45% of the time since separation in the care of their father.

4. In 2008 the mother met a gentleman, Mr B, who is now her husband. In 2010 Mr B obtained a post with the National Bank of Abu Dhabi and, since that time, he has been based there and now holds a senior position in the bank. Over the years the children and their mother have visited Abu Dhabi on holiday on at least 20 occasions. On each such occasion the father has made no objection to the visits and on each occasion the mother and children have returned in accordance with the pre-departure plans.

5. Over the years the mother and Mr B's relationship has become more established and they were married on 31st December 2014. Prior to the marriage the mother applied to the Family Court for a child arrangements order permitting her to remove the two girls permanently from England and Wales to take up residence with her and her new husband in Abu Dhabi. The application is opposed by the children's father. The matter came on for final hearing before HHJ Glen Brasse over a year ago with final judgment being delivered on 12th December 2014. I will, in due course, explain the judge's reasoning in more detail, however for present purposes it is important to record that during that first final hearing the court received evidence from a jointly instructed expert, Mr Ian Edge, to the effect that, notwithstanding the fact that the father has never been married to the mother, his parental rights would be respected by the courts in the UAE to the extent that any rights reflected in an English court order could be enforced by him in that State.

6. The outcome of the December 2014 hearing was that the judge gave permission to the mother to relocate with the children to live in Abu Dhabi, subject to a requirement that the parties must enter into a formal agreement as to the childcare arrangements consequent upon that move and that that agreement was to be approved by the relevant sharia authorities, endorsed by the relevant court in Abu Dhabi and made into a lawful order in that court in a manner that would be amenable to any future application for enforcement.

7. Following the first final judgment the father's legal team contacted Miss Mary Barton, a lawyer and expert in UAE family law, in order to advise upon the drafting of the terms of the proposed agreement. Miss Barton apparently advised that the whole concept of such an agreement being made and rendered enforceable in the Abu Dhabi court was misconceived in the light of the fact that the parents had never married. Her advice was that the Abu Dhabi court would not recognise any parental rights as being held by an unmarried father. In the light of Miss Barton's advice the matter was returned to court and HHJ Brasse directed a further hearing.

8. Prior to the further hearing Mr Edge apparently maintained his original position to the effect that the father's rights would be recognised in Abu Dhabi and that the structure underpinning the judge's order was therefore sound. However, shortly before the resumed hearing, and as a result of making direct contact with the authorities in the UAE, Mr Edge accepted that Miss Barton's advice was correct and that therefore there was no mechanism that the English court could look to, to ensure that arrangements made to facilitate contact between the father and his daughters would be recognised and/or enforced by the local court in the UAE.


9. HHJ Brasse was therefore required to reconsider his earlier decision at a full hearing, in which he, once again, heard oral evidence from the parties.  At the conclusion of that process he handed down a further substantial judgment on 4th June 2015. The outcome of that hearing was, once again, an order giving the mother permission to remove the two girls from England and Wales to live in Abu Dhabi, but the structure underpinning the order was altogether different and comprised the following elements:

i) Some 20 or so detailed undertakings given by the mother (and to a lesser extent Mr B);

ii) Recitals affirming that the current habitual residence of the children is in England and Wales, that currently the English court has exclusive jurisdiction in matters of parental responsibility and recording the basis upon which future care of the children was to continue to be shared between the parents, notwithstanding the move to Abu Dhabi;

iii) The children were made Wards of Court during their minority or until further order;

iv) Mr B was to execute a second charge on a property in London owned by him in the sum of £250,000, which sum would be forfeited to the father in the event of a breach of the arrangements for the children set down in the English court order. The charge was to be countersigned by the father and registered with the Land Registry.

v) Further provision was made with respect to the children's schooling and other matters.

10. The father promptly issued his notice of appeal against the judge's final determination of 4th June. I granted permission to appeal and a stay of the order on paper on 16th July 2015.

11. Before leaving this account of the background, it is necessary to record that in between the two main hearings the mother sought permission to take the girls on a short holiday to Abu Dhabi. That application was contested and, in the event, on 16th January 2015 HHJ Brasse refused her application on the basis that, at that stage, the legal structure underpinning his original order had become uncertain in the light of Miss Barton's opinion and, secondly, he considered that, at that time, there was a real risk that the mother might not return the children at the end of this particular holiday.


Father's appeal

12. The father's appeal has been presented with force, clarity and charm by Mr Charles Hale QC, who has acted for the father throughout. He raises the following grounds of appeal:

i) The judge's original decision in December 2014 was "wrong" on the basis of the evidence then before the court and, in particular, on the basis of the adverse findings that the judge made at that time against the mother;

ii) In making the first order the judge had relied significantly on two factors, which he referred to as "pillars". Firstly, the very strong attachment that the girls had towards their father. Secondly, the judge's understanding, as it then was, that it was possible, as a matter of law, to achieve an agreement encapsulating the father's right to have a continuing relationship with his daughters within an order that would be enforceable in the UAE courts. Once that second "pillar" was demolished by the evidence of Miss Barton, the judge should have refused the mother's application;

iii) The charge on Mr B's property in the sum of £250,000 was in no manner a replacement for the second pillar;

iv) In both judgments the judge afforded undue weight to the children's wishes and feelings which were firmly in favour of the move to the UAE and, as the judge found, very firmly in favour of maintaining a relationship with their father;

v) The judge accorded inadequate weight to the legal consequence to the father of the move to the UAE which was that, as a matter of the law of the children's new habitual residence, he would have no parental rights at all, a circumstance which amounted to a breach of the father's rights under ECHR, Arts. 6 and 8;

vi) The use of Wardship in this context, upon which the judge relied, in fact added nothing to the case and was both impermissible and wrong in law.


The judge's first judgment
13. Before turning to the content of the judge's first judgment it is right to record that both of the two main judgments in this case are examples of composition and judgecraft of the highest order prepared by a most experienced family judge. Both judgments are very substantial and contain a wealth of detail. I propose, however, to do little more than summarise the key topics covered in a manner sufficient to make sense of the various points which remain live before this court.

14. After summarising the background facts the judge highlighted the following aspects:

a) The children had, by all accounts, enjoyed each of their previous trips to Abu Dhabi;

b) The mother and Mr B had meticulously planned the proposed relocation of the children;

c) The mother's stepbrother and his wife and daughter live in Dubai and the mother's sister and niece intend to return to Abu Dhabi, where they previously lived, in the Spring. The mother also has a number of friends who live in Dubai;

d) The mother's proposals for contact to the father were, in the judge's view, "generous" and included two three-week periods each summer, two thirds of the Easter holidays and two weeks over Christmas. All of the children's flights would be paid for by Mr B. In addition, the father would be invited to visit the children in Abu Dhabi at half term for an extended weekend. Finally, the children could contact the father via Skype or telephone as often as they pleased.

15. After that summary of certain of the key factors the judge described his approach to the law. In doing so he stressed that the paramount consideration was the welfare of each of the two children. He relied upon earlier case law in that regard particularly K v K (Relocation: Shared Care Arrangements) [2001] EWCA Civ 793 and Re F (Child) [2012] EWCA Civ 1364. He held that in assessing where the children's best interests lie, the court must rigorously and carefully consider all of the relevant circumstances and, in particular, the factors set out in the welfare checklist in CA l989, s 1(3). The judge, in the light of that self-direction, immediately set about an extensive analysis using the headings of the welfare checklist. Again, I do not propose to do more than summarise those features of the welfare checklist that appear to be particularly relevant to this appeal:

a) Abu Dhabi is well known to the children and they wish to move there. They have confidence in their mother's ability to keep them in contact with their father. The CAFCASS officer considered that the children had already "emotionally moved" to Abu Dhabi. The children have expressed their firm preference for Abu Dhabi in a conversation with the father and his established partner, Miss S. The children have a good and close relationship with each of their parents and are seen to be both caring of their parents and very knowing of their parents' various strengths and weaknesses. Plain though the children's wishes and feelings may be, the judge accepted that their level of understanding must have limitations and, it followed, it was for the court itself to take into account those matters which the children are unable to understand or properly to contemplate.

b) No particular issue arises in this case with respect to the children's characteristics, age, sex and background, nor the ability of either parent to meet their basic needs;

c) The judge gave extensive consideration to the effect of the radical change of circumstances upon the children. The change would be huge and would impact upon children who currently have an "emotionally equal attachment" with each of their parents. The shared care arrangements that have been in place since separation have been achieved and maintained as a result of recourse to the Family Court for enforcement. Neither the mother nor Mr B considered that the shared care arrangements had been the right regime for the children either at the time that they were imposed by the court or since. The judge identified a potential for the mother to slip from any arrangements made as a result of a court order in these proceedings, but he considered that the remedy for this problem would be to stipulate those arrangements precisely in an agreement and for that to be turned into a court order that could be enforced in Abu Dhabi by the father (the "second pillar");

d) The judge did not accept that the children had been manipulated into their favourable view of Abu Dhabi by the mother;

e) The children have in the past suffered emotional harm as a result of the fallout from the parents' adverse relationship. However, the judge concluded that the children would not suffer harm either as a result of the application being granted or if it were to be refused;

f) In assessing the capacity of each of the two parents, the judge set out his impression of each of them and of their current partners.

g) With respect to the mother the judge made a number of negative findings both as to her behaviour towards the father and the provision of contact and as to her honesty. He held that she was prepared to lie to the family court adviser, the court and to the children's schools at times in order to achieve her own ends. The judge gave full details. The mother had a highly negative view of the father's partner, Miss S. Conversely the judge formed a very favourable view of Miss S and described her as being a breath of fresh air in the case and in the children's lives. The judge found that the mother had always wanted a sole care arrangement for the children and had never accepted the shared care regime;

h) So far as Mr B is concerned, the judge formed a favourable view of him as a likeable individual who had worked hard in his chosen career to achieve the obvious success that he has attained. He was however partisan on behalf of the mother's cause and shared her disapproval of the shared care regime. There had been times when his interventions had been unhelpful and he too had been "very economical with the truth". The judge considered that Mr B was a man who prioritised pleasing the mother over the needs of the children whose priority was for Mr B to "lay off" their father. In that respect the judge considered that Mr B seriously lacked insight or forbearance and showed a degree of impulsivity and aggression which mirrored some of the mother's own behaviours;

i) So far as the father is concerned, the judge concluded that he was devoted to the children and he, too, has a good relationship with them. The father is, however, unable to accept that the children genuinely wish to live in Abu Dhabi and he believed that the eldest girl, H, would actually be relieved if the application to move to Abu Dhabi were refused. This was, as the judge found, a "delusion" and demonstrated that the father cannot separate the children's independent interests from his own feelings. Throughout his evidence the father sought to  cast the mother as the guilty party. Tellingly the judge stated "if ever there has been a case of each parent being able to spot the speck in the other party's eyes but not being able to see the beam in their own, this has been it";

j) I have already indicated that the judge formed a very favourable view of Miss S. The judge felt strongly that if Miss S and the mother were prepared to meet relationships within the family as a whole could only improve.

16. After that extensive consideration of the factors relevant to the welfare checklist, the judge went on to evaluate the children's welfare from the different perspective provided by the earlier Court of Appeal decision in Payne v Payne [2001] EWCA Civ 166. In short his conclusions were, firstly, that the mother's motives in moving to Abu Dhabi to be with her new husband were entirely reasonable. The judge rejected the father's assertion that the mother's plan to emigrate was simply a part of an overall campaign by her to do all that she could to undermine his role as a father to these two girls. The judge then listed some eleven factors which, to a greater or lesser extent, indicated to the contrary. Of particular note is the fifth factor at paragraph 190 of the judgment which is in these terms:

"More seriously if the children's right to contact with the father was enshrined in an Abu Dhabi court order, as I have mentioned, there is a risk that if she failed to honour the stipulations in the order, and the father sought to enforce his right, she could deny the breach, allege the father had been at fault, and litigation would ensue. Repeating the point that I have just made in a slightly different way, I consider that it is a low risk, not just because of the uncertainty of outcome for her and Mr B in Abu Dhabi, but because of her willingness to obey the court orders up until now."

And later in paragraph 191 as follows:

"What I find much more likely as a good indicator of the future is that she learned, as I mentioned earlier in this case, what it is like to be in courts back in 2008 and 2009, and how her life is pored over in minutiae, and how stern judges can be in their judgments, and, no doubt from the advice she has been given, how courts enforce orders. That is the case here. If she were unsuccessful in Abu Dhabi, and found to be in breach of the agreement, an order of that court the consequences for her could be serious."

In the following paragraph the judge states "I am going to assume, therefore, that the Abu Dhabi courts would enforce their orders".

Amongst the other factors, the judge gave prominence to the children's strong relationship with their father and the priority that they have for protecting their contact with him; he regarded this as "a powerful factor".

17. Following his Payne v Payne analysis, the judge then summarised the expert evidence, as it then was, of Mr Edge. As I have indicated, at that time Mr Edge advised that it was possible to achieve an enforceable order in the Abu Dhabi court to protect the father's right to a continuing relationship with his children.

18. Previously the judge had identified the two "pillars" upon which an order might be based. Firstly the strength of the children's relationship with their father and secondly the ability of the English court to achieve an enforceable order protecting the detailed terms of an inter-parental agreement in the Abu Dhabi court. As he moved towards his conclusion the judge stated the following at paragraph 221:

"If the court were to rely simply on the strength of the children's feelings and the mother's concern to maintain her relationship with them, there would be a distinct risk that once the dust had settled the mother and Mr B might revert to their default mode of hostility to the father and undermine the contact that the children should have with him. Therefore, inevitably, the agreement proposed by Mr Edge is crucial. If that can be made into an order then there is a likelihood, in my judgment, that the mother would obey it as she has done in court orders in the past. "

19. Having summarised the principal submissions made by counsel on behalf of both parties the judge moved towards his final conclusion with the following key paragraphs:

"231. Although they may not themselves have considered all the practicalities in maintaining the degree of contact they would like to have with their father, I am confident that it could be set out with careful thought and in an agreement which could be incorporated into the order of the Abu Dhabi court.

232. I find that the mother has demonstrated the capacity to provide well for these children materially, educationally and socially in Abu Dhabi. That is also a weighty factor. I acknowledge that there is a limitation in her parental capacity in that she has not been hitherto fully able to meet the children's emotional needs by promoting and safeguarding their relationship with their father and has exposed them to the risk of harm by continuing an unnecessary conflict with him.

233. However, I find as a fact that these children are, as [the CAFCASS officer] described, resilient, healthy, strong and independent children and, despite their mother, will retain a strong relationship with their father. There is a danger that unless the mother accepts the importance to them of their father's role in their lives, she might find herself losing their respect and eventually ignored and marginalised by them. The contact arrangements she proposes in my judgment are likely to be implemented, as were the arrangements in England, provided that there is a well-drafted and enforceable order in the Abu Dhabi court.

234. The changes in the girls' circumstances are substantial. Many of those changes would remove what currently supports the shared care arrangement. However, I am satisfied that the environmental changes are ones which they would take in their stride and would not be detrimental to their welfare. I consider that their emotional wellbeing would be promoted by the move to Abu Dhabi, which is what they want, provided, and here the provision needs to be underlined, they are not let down by their mother and Mr B, who must keep their promise to allow them regular contact with their father. This should be embossed in gold letters on the wall of their home. They should remind themselves of it when they wake up in the morning and when they go to bed at night – it is that important."

20. The judge then stated his conclusion as follows:

"236. Overall, therefore, I find the move to Abu Dhabi would be in the girls' best interests. They want to go to live there with the mother and Mr B. It is a perfectly natural thing for them to want to do. They are looking forward to seeing their mother happily married to him. They would be happy and well looked after there and receive a good education. I find that the father's fears of the harm to his relationship would be adequately protected by the two powerful factors, or pillars, as I have described them: the children's love for him, which is indomitable, and the availability of a process by which an agreement between the parties could become an enforceable order of the Abu Dhabi court."

21. The outcome of the December hearing, therefore, was a decision in principle in favour of a move, but subject to the establishment of an agreement that would, in turn, become enforceable in the Abu Dhabi court in the manner described by Mr Edge.


Refusal of interim temporary leave to remove
22. On the 9th February 2015 HHJ Brasse refused an application by the mother for permission to take the girls for a short trip to Abu Dhabi. The mother and Mr B had married on 31st December and the girls had not been to the UAE since August 2014. Despite concluding that the girls would enjoy the trip, the judge refused the application on the basis that there was currently a hiatus in the implementation of the court's judgment, the father was refusing to sign the agreement required by the judge and the experts were now in disagreement as to the fundamental basis upon which the earlier judgment had been based. In those circumstances, the judge considered that the potential for harm to the children, by not being returned to the UK at the end of the visit, was the most relevant of the CA 1989, s 1(3) welfare factors. He said:

'The Court of Appeal have held that if there is a real risk of non-return, however small, where the consequences of non-return would be very significant, then the court ought to err on the side of caution. Sadly, I am driven to the conclusion that there is a real risk, it is not fanciful and if that risk occurred then the consequences to the children would be very significant indeed.'

Later the judge described the risk of non-return as a 'real but relatively small risk', but one that, if it came to pass, could have 'very serious consequences' and 'would do [the children] very considerable harm.'


The judge's final judgment

23. The final judgment, and the target of this appeal, was given on 4th June 2015. Again it contains a full analysis of all of the factors that are relevant to the children's welfare and it demonstrates that this judge had a very clear and full grasp of all of the issues in this case. The judgment proceeded on the basis that it was, by then, common ground that it would not be possible to obtain an enforceable order in Abu Dhabi to mirror the order of the English court.

24. Having reminded himself, correctly, of the need to afford paramount consideration to the welfare of each of the children, the judge reviewed the developments that had taken place since his first judgment. In summary the key changes were:

i) The children had expected to leave school at the end of December 2014 prior to a move to Abu Dhabi, but the move had, obviously, not yet taken place;

ii) The mother and Mr B had married, but remained separated as a result of Mr B's need to be in Abu Dhabi for his job;

iii) The mother's house was under offer and all non-essential possessions had already been packed for removal;

iv) The shared care arrangements had continued;

v) There had been further examples of the lack of any effective communication between the parents having an adverse impact upon the girls.

25. When reviewing the elements of the welfare checklist the judge particularly noted that the girls were 'as keen as ever' to move to Abu Dhabi and that S was showing signs of being upset by the continued uncertainty around the move. He concluded that the state of limbo was highly likely to be emotionally wearing on the girls and progressively harder for them to bear.

26. The judge found that there had been some positive changes with respect to the mother, who had taken some of the criticisms in the first judgment on board and had attended a 'separated parents' information programme' and a course of counselling, which she had found helpful. Her emails and text messages to the father had been, to a degree, less damaging. In like manner, the judge found that Mr B had also accepted criticism made of him in the judgment and that he expressed genuine regret for some of his past actions.

27. A significant development in the case was the offer made by Mr B to allow his London flat to be charged to the sum of £250,000. The judge investigated this matter and concluded that the charge could be readily realised if vacant possession were required to enforce it. He also held that it represented a substantial portion of Mr B's financial security for the future.

28. So far as the father was concerned, the judge found less evidence of positive change. The father's court statement listed all of the negatives found against the mother in the earlier judgment, but did not mention any of the positives. In oral evidence, however, the father apparently presented a more balanced view. It was plain that the proceedings had put a great strain on the father and that he was still unable to concede that the children deeply and seriously wished to go to live in Abu Dhabi with their mother and Mr B. The judge continued to regard Ms S, who had by that hearing moved in to live with the father, as 'a most impressive witness' who was 'thoughtful, balanced, intelligent, perceptive, tactful and honest'.

29. Under a heading of 'what has not changed – the fundamentals', the judge listed the following factors:

a) The children's wishes and feelings, their attachment to their parents and their basic needs;

b) The factual history and the nature and personalities of the adults; and

c) The parents' conflicted relationship.

30. Under a companion heading of 'what has changed since 12 December 2014?', the judge lists some 9 factors. I have made reference to each of these already save for factor 8 which is in the following terms:

"8. Both girls are 6 months older than at the time of the decision in December 2014; H is now an adolescent, shortly to be a teenager, going through what is often a difficult and rapid stage of development. Her need for certainty in the basic structure of her life, school, home, care arrangements, a settled pattern of contact with both parents and wider family, is even greater now than then."

31. Following a résumé of the submissions made by each counsel the judge prefaced his "conclusion" by making findings as to "the strength of the first pillar" in the following terms:

"123. I find as a fact that these children's attachment to their father is as strong as ever and that they would resist any attempt by the mother to undermine it. … I am convinced that the personalities and characters of these children are such that they would not be deterred from maintaining their relationship with their father and would be very angry if their mother sought to thwart them and become extremely difficult to mange. Nothing I have heard since the December hearing would justify modifying that conclusion.

124. They have, despite the mother's attitude towards the father since separation in 2007, maintained a strong relationship with him. This was facilitated by enforceable court orders but their attachment exists independently of those orders. In my judgment, it will not evaporate or weaken in their absence, that is in the absence of those orders. I predict that the mother would not be able to persuade them to forego contact; on the contrary, if she tried, they would insist on it. If she persisted, they might well ask their father to take them back to England. They have the means to do that, by mobile, email and Skype. These children are not pawns in the contest between the parents; they are individuals whose autonomy is growing. I predict that they would exercise that autonomy if the mother tried to thwart them. That is, in my judgment, the strength of the first pillar. I therefore accept Mr Verdan's suggestion that that pillar is indeed made of granite".

32. In drawing together his conclusions, the judge recognised the stark choice that faced the court. On the one hand, whilst refusal of leave to go to the UAE would continue the children's close relationship with their father, that would be conducted against the background of the likely continuance of the poor inter-parental relationship. Although counselling may continue to be of benefit for the mother, the judge found that the father was "stuck emotionally" as a product of his fear of the consequences to him of recognising the children's welfare needs and as a consequence of the polarisation produced by litigation.

33. It was still clear to the judge that the mother had a well thought through and prepared plan for the children's welfare in Abu Dhabi. He remained convinced that her motivation was genuine. He considered that the mother, and possibly the girls too, would consider it very unfair if the newly married Mr and Mrs B were not to be able to live together and there was, in the judge's view, a risk that the children may feel responsible for this state of affairs or, worse still, blame their father.

34. The judge referred to the children still having a strong wish to live with their mother and Mr B in Abu Dhabi and he held that "very considerable weight indeed, in my judgment, still has to be given to their wishes and feelings". He made similar findings as to the strength of the first pillar, namely the children's attachment to their father and the consequences of that attachment in terms of maintaining a live and continuing relationship with him.

35. The judge regarded evaluation of the sufficiency of the charge offered by Mr B as "the key" to the problem presented by the removal of the second pillar that had been identified in his earlier judgment. The judge's evaluation of the charge, linked with the imposition of wardship, is in the following terms:

"135. The execution of the charge would be of substantial detriment to both the mother and Mr B. It would encourage him to focus her mind on the need for obedience; she has in the past, as I have said, been willing and ready to obey court orders, there have been no incidences of disobedience. The legal structure, it has been argued on her behalf, could be wardship, with the inherent jurisdiction deployed to impose and enforce the charge. It would be akin to a writ of sequestration, which is a process that is used to punish contemnors by acting against their property, and I refer in particular to the discussion in Coles v Coles [1957] Probate 68.

136. However, imposing a charge on a piece of identified property is a far less expensive and more easily executed procedure. Wardship would allow the court to engage the Tipstaff services and would enable the penalties for default to be the most condign available. The alternative would be simply to make a child arrangement order as before on exactly the same terms, accepting Mr B's undertaking to charge his flat as the means of enforcement".

36. The judge held that the use of wardship was justified for the following nine reasons:

"139. In this case, in my judgment, what would justify the use of wardship are the following factors: one, the children were born in England and Wales and have lived here all their lives. Two, both parents have stated that if the court allowed removal to Abu Dhabi, the children should visit their father in England regularly and for substantial periods and he should be able to visit them in Abu Dhabi too. Three, both parents have said that, insofar as it was possible, they would wish to submit to the jurisdiction of this court. Four, there is a risk that the mother may not honour this stated position without compulsion. Five, there are no means of obtaining enforceable orders in Abu Dhabi to secure the mother's compliance. Six, in Abu Dhabi, the father's right to family life with his children would not be recognised.

140. Seven, wardship, amongst the range of orders the court must have regard to under Section 1 (3) (g) of the Children Act l989, provides the most potent and comprehensive means of enforcement available to the court in the circumstances of this case. Eight, the risk which concerned Thorpe J of 'undermining understanding and cooperation between nations' would not arise here, as the courts of Abu Dhabi would not be involved at all. Nine, I find in these exceptional circumstances that wardship is available and hence I agree that it should be used."

37. In the light of that evaluation the judge concluded that the alternative pillar proffered by the mother was sufficient to replace the one that he had contemplated in December 2014. He was therefore satisfied that "the mother, incentivised by this financial sanction, backed up by the other sanctions available to the court, including imprisonment, would be willing to comply with the order and, furthermore, that the father has the means to provide for his trips to Abu Dhabi." Accordingly the judge granted the mother's application for leave to remove the children to the UAE.


The parties' submissions

38. I have already summarised the father's grounds of appeal (paragraph 12 above) upon which Mr Hale based his oral submissions during which he stressed that, if the children moved to the UAE, their father would have absolutely no parental rights recognised within that jurisdiction and no ability to exercise parental responsibility. The judge, in Mr Hale's submission, failed to afford this factor the substantial weight which was due to it and, had he done so, in terms of proportionality, the judge would have been required to refuse the mother's application. The importance of this factor was underlined by the findings that the judge had made against the mother as to her past lies and as to the present risk of non-return, which was substantiated by the judge's refusal of her request for interim leave to remove in February.

39. The father's case is that, even on the basis of the understanding that the court had at the first hearing, the welfare analysis should have led to the refusal of leave. Once the "second pillar" crumbled the previous decision which it had supported should have been reversed. Mr Hale submits that the second judgment is inconsistent with the first and that it was "irrational" for the judge to do otherwise than refuse leave to remove.

40. Mr Hale submitted that the introduction of wardship added nothing in terms of protection for the father or for the children. The wardship order would have no force in the UAE and any challenge by the mother to the continuing wardship jurisdiction a year or so down the line would, it was submitted, be likely to succeed on the basis that the English court no longer had jurisdiction with respect to these children. The judge had plainly relied upon the use of wardship as a substantial support for the regime of contact; had he understood that it was in reality an empty vessel, Mr Hale submits that the judge would not have been sufficiently confident to grant leave to remove.

41. During Mr Hale's submissions as to the £250,000 charge, my Lords, who are more familiar with the commercial and Chancery jurisdiction, questioned the legal basis upon which such a charge could be imposed. Both counsel described the practice followed by the judge in this case as being relatively common in similar cases within the Family Court. It will, therefore, be necessary to consider the legality of the proposed charge later in this judgment.

42. When evaluating the strength of the first pillar, namely the children's desire to maintain their relationship with their father, Mr Hale points to paragraph 221 of the first judgment (reproduced at paragraph 18 above) where the judge held that that factor could not be relied upon in isolation, because of the "distinct risk" that the mother and Mr B would revert to their default mode of hostility towards the father; in consequence the judge, at that time, regarded the agreement proposed by Mr Edge as "inevitably…crucial". That evaluation is supported by the judge's subsequent determination against the mother of her application for interim leave to remove.

43. Mr Hale therefore submitted that the judge's findings should have inevitably led to a refusal of leave to remove at the conclusion of the first hearing. In any event, once the "second pillar" evaporated, the previous findings made it inevitable that leave should be refused on the basis that the new "second pillar" did not provide any ground for confidence that arrangements to maintain the father's relationship with his daughters would be adhered to given the wealth of adverse findings made against the mother.

44. In response Mr Verdan's overarching submission was that the judge's welfare evaluation is not susceptible to challenge. The judge, having decided that the children's welfare required a move to the UAE, thereafter attempted to put into  place a range of measures designed to protect the father's relationship with his children. This was achieved, in part, by making a very detailed order including no fewer than 22 wide-ranging undertakings by the mother and/or Mr B.


45. Mr Verdan pointed to the huge amount of detail contained in the two judgments, which took a total of some 7 hours to deliver orally. The two judgments were, in his submission, sophisticated, astute and the opposite of naïve. This court should therefore afford full respect for the advantage that this trial judge had in observing the parties, understanding in great detail the factual background and conducting a full welfare analysis.

46. Mr Verdan submitted that the history of the case demonstrated that the mother would always obey court orders. In this context, irrespective of the underlying legal basis, the introduction of wardship was something which the mother accepted and was highly likely to respect in full measure. A consequence of breach would mean that the mother and Mr B could not return to this jurisdiction at any time in the future without facing the consequences and Mr Verdan asked, rhetorically, whether it was likely that this couple would wish to "live in exile" on an indefinite basis. In short, wardship adds for this mother an English order which she understands will bring her trouble if she is in breach of it.

47. Mr Verdan submitted that the provision of the second charge on Mr B's property was made in accordance with the common practice of the Family Division, not as a means of compensation, but as a way of securing compliance with the order. His client understood that the full sum fell to be forfeited if there was "any breach" of the order. The arrangement therefore represents a far more tangible mode of security than the proposed mirror order in the UAE that had been the second pillar of the first judgment. The sum involved is very significant in the context of this couple's finances and is bound to encourage compliance. The combination of potential exile and loss of £250,000 provided a powerful incentive for the mother to comply with the requirements placed upon her by the judge's order. The only caveat was that the father would have to return to the court in England to determine whether the charge should be enforced or not.

48. Mr Verdan finally submitted that, contrary to the father's case, wardship did provide an additional element of security. There was, he submitted, no potential for there to be a conflict of jurisdictions in the future, even if the children become habitually resident in the UAE. At no stage could the UAE have jurisdiction to determine issues with respect to this father and these children given the absence of any recognition of his parental rights under UAE law. In response to the court questioning why wardship, as opposed to an ordinary child arrangements order under CA l989, s 8, Mr Verdan accepted that the element of security provided did not depend upon the use of wardship, but depended upon there being some continuing substantive order made by the English court. The powers of enforcement would remain largely the same, and it is those powers of enforcement that provide added value to the arrangements made by the judge.


Discussion

49. Within the field of family justice, it is well understood that contested applications for permission to remove children permanently to a foreign jurisdiction are amongst the most taxing for all concerned in the light of the impact that a grant or refusal may have on the long-term relationship between the child and the 'left behind' parent and, separately, upon the freedom of movement that the applicant would otherwise enjoy. Even against that background, the present application stands out as generating particular difficulties which arise from the very substantial amount of time that the children have spent in their father's care, the adverse findings made about the mother's honesty (and her negative mind-set regarding the father's role in the life of these girls) and the additional complications raised by the fact that the rights of an unmarried father will not be recognised under the law of the state to which the children are to be taken. Despite those difficulties, it is impossible to read the judgments given in this case by HHJ Glenn Brasse without understanding that he was, as a judge, entirely seized of the relative importance of, and full detail of, every relevant factor in this case. As his judgments demonstrate, he conducted a most thorough welfare analysis with the result that the respect that is always afforded by this court to the privileged position of a trial judge must be at its highest in this case.

50. Against that background, it is, in my view, simply not open to this court to accept the father's first ground of appeal to the effect that the original welfare balance was 'wrong' and unsustainable in the light of the adverse findings that the judge had made against the mother and, to a lesser extent, Mr B. Mr Verdan is on solid ground in submitting that the two judgments are sophisticated in terms of the intricate balancing of detail undertaken and are the opposite of naïve when it comes to evaluating the risk of non-return. The judge had his eyes wide open to the negative aspects of the mother's past behaviour and negative mind-set, indeed he had described them in full detail. Despite those features, he was persuaded that it was safe for the children to move to the UAE and that their relationship with the father would be maintained, albeit at a different level in the light of the geographical distance, because of the first pillar, arising from the strength of that relationship, supported by the second pillar. That was a decision that was entirely open to the judge on the evidence and on the basis of the findings that he had made.

51. The father's second ground of appeal is to assert that, once the second pillar disappeared with the (ultimately) agreed expert evidence that it would not be possible to achieve any enforceable order in favour of the father in the UAE, the judge should have refused the application. To succeed on this ground the father would need to establish that the judge was in some manner in error in re-opening the case and conducting a full re-appraisal of the children's welfare in the light of the changed circumstances. In terms of case management, there can, in reality, be no criticism of the judge in taking the course that he did. As with any case management decisions, he had a wide discretion over the choice of course to be followed. If he had decided, as Mr Hale submits that he should, that the mother's application fell to be rejected summarily once the second pillar had gone then he may not have been open to challenge on appeal, but equally he is not open to challenge for embarking on a full re-hearing at that stage. Going further than is needed to deal with this as an appeal point, I consider that, in view of the very strong views of the girls in favour of a move to the UAE, the judge was entirely right to look to see if there was another way by which that could be achieved whilst, at the same time, protecting their relationship with the father by means of some method of security and/or enforcement.

52. In that context it is convenient to deal with the ground relating to the weight attached to the girls' wishes at this point. This was plainly a most important aspect of the case in the judge's evaluation and it was a feature that played in a number of directions. First and foremost it was a firm vote in favour of the move. The girls know the UAE, having been there on over 20 previous occasions. They have relatives there. They want to live with their mother and Mr B as a family and that can only be achieved in the UAE where he is based. Their views have been consistently stated over a substantial period of time and they have even stated them firmly and clearly to their father and Ms S, despite knowing that he is not in favour of the move. More recently the judge was justified in his concern that the girls will have begun preparing for the move, for example by being told that they would be leaving school at Christmas 2014, only for the plan then to be stalled; he rightly took note that S, in particular, was showing signs of being upset by the continued uncertainty.

53. In this case the children's opinions were of additional importance because of the very strong attachment they have with their father and their clear desire to maintain a full relationship with him, notwithstanding the move to the UAE. In his second judgment the judge found that this attachment was as strong as ever and that the girls would resist any attempt by the mother to undermine it. It was this firm attachment and clear resolve to maintain it that the judge cast as the 'first pillar'. His evaluation of its strength was such that he agreed with the mother's counsel's suggestion that it was, metaphorically, made of granite.

54. In terms of the attribution of weight to the wishes and feelings of these two young people it is plain that the judge has indeed placed substantial weight, in more than one way, on this factor. Did he go, as Mr Hale submits that he did, beyond the extent permissible in the context of the evidence in this case? In my view the judge did not exceed the degree to which 'wishes and feelings' should be afforded weight in this case. The attribution of weight to any aspect of a child's welfare is always a matter for judicial discretion. An appeal will only succeed if the judge can be seen to have gone beyond the limitations of the evidence in the case, or to have afforded such weight to one factor that other factors have been devalued to an extent not justified by the evidence. Appeals based solely upon the attribution of weight in the welfare evaluation seldom get past the permission to appeal stage because it will rarely be justified for the Court of Appeal to second-guess the judge's evaluation in the absence of an error of principle or a clear departure from the boundaries of the evidence.

55. In the present case the judge was alive to the need to temper his approach to the children's wishes and feelings. In the first judgment he accepted that there was a limit to their level of understanding as to what may lie ahead and that it was for the court to take account of those matters which may be outside the girls' understanding at this stage. It is therefore clear that the judge did not allow the 'wishes and feelings' simply to determine the outcome of the case; to suggest that that is so is to ignore the painstaking evaluation that the judge undertook of all of the other factors.

56. The remaining grounds of appeal are, to some degree at least, tied up with each other. They concern (a) the judge's approach to the legal context in the UAE which would not recognise the father's rights, (b) the £250,000 charge and (c) wardship. In this regard a number of general points can be made about the judge's approach. Firstly, the assertion that the judge failed to afford adequate weight to the legal consequence to the father of the move to the UAE is hard to accept where in both judgments the judge was at pains to put in place a structure that would maximise the father's prospects for enforcing the entitlement to time with the children afforded to him under the judge's order. Initially both parties and the judge were operating on the, in the event erroneous, understanding that this could be achieved through a legally enforceable structure in the UAE. Once that understanding had fallen away, the judge was intent on achieving a replacement arrangement that would have a similar outcome. To submit that the judge failed to give adequate regard to this issue, is to ignore much of the focus of the second hearing.

57. In his grounds of appeal the father asserts that to send the children to a jurisdiction which would not, as a matter of law, attribute any rights to the father amounted to a breach of his rights under ECHR, Arts 6 and 8. During his oral submissions Mr Hale argued that in terms of proportionality the judge should have placed great weight upon this aspect and refused the mother's application on that basis in the light of the lies she had told and the judge's finding as to the risk of non-return. Contrary to this submission, in my view, the father's assertions with respect to the ECHR do not add anything to the force of his other arguments on the question of the enforcement of his rights. The relocation order is plainly an interference with the father's Art 8 right to family life. The rights of all four family members, and for that matter to a lesser extent Mr B, are engaged, the needs of each could not be met to the full and the court was required to achieve an outcome that respected the rights of each, with any interference being limited to that which was proportionate and necessary. In this context the dimension attributable to the legal position of the father under the law of UAE is a relevant factor and must be taken into account, but it is but one factor and not a trump card under the ECHR as might be suggested by the pleaded grounds of appeal.

58. The second general point to make is that the judge was entirely alive to the risk of the mother failing to adhere to the court's requirements for the girls to spend a substantial amount of time with their father in England after the move to the UAE. Once the judge had come to the comparatively straight-forward conclusion that it was otherwise in the children's best interests to move to the UAE, the risk of the mother failing to honour the shared care regime was what the case was all about. The judge was critical of the mother's past approach to the shared care arrangement, he found that she had lied about important matters and he found that there was a risk that she would indeed not abide by what was required of her. It was because of those findings that the judge was keen to be satisfied that the support provided by each of the two 'pillars' was to be relied upon to achieve confidence that the girls' relationship with the father would be maintained after the move.

59. Central to the judge's evaluation was the reliance that he felt able to place on the charge that he required from Mr B ("the Charge") and the imposition of orders in wardship. I therefore now turn to these two important matters.

Imposition of a charge as security against breach of the court's order
60. During the hearing on 4 June 2015, and the discussion between the judge and counsel which followed the delivery of his judgment, no point was taken on either side about the potential enforceability of the Charge.  Consistently with this, paragraph 8 of the judge's order, as originally drawn, provided that no relocation of the children should take place until the Woolwich Building Society had confirmed in writing that they had no objection to Mr B arranging a second charge in the sum of £250,000 in favour of the father on his London property, and such document had been approved by the Court. The order further directed the father to sign the Charge by 18 June 2015, without prejudice to his contention that it was inappropriate protection and any position he might take if he decided to seek permission to appeal.

61. A draft deed of charge was then prepared, and at some point (we do not know exactly when) it was objected on the father's behalf that the provision for payment to him by Mr B of £250,000, upon any breach of the order by either the mother or Mr B, might be unenforceable as a penalty. This objection was then resolved when Mr B, having taken legal advice on the terms of the Charge, agreed to acknowledge that it formed an integral part of the order, and undertook not to raise any challenge or defence to its enforcement on the grounds that it was a penalty, unenforceable at law or otherwise.  Mr B's acknowledgement and agreement to this effect were set out in clause 17 of the revised draft of the deed annexed to the final and amended version of the judge's order ("the Order"). 

62. In the body of the Order, the father's time for signing the Charge was extended until 26 June 2015, and a new paragraph 11(c) was inserted into the Order which provided as follows:

"(c) The charge set out in 8(b) above given by Mr [B] in favour of the father in the sum of £250,000 shall be held to ensure strict compliance by the mother and Mr [B] with the terms (including the Schedule) of this order and the undertakings that they have given.  In the event that either of them breaches any of the terms of this order (including the Schedule) or any of the undertakings they have given:

i) the charge shall be immediately exercisable and realisable by the father; and

ii) the full amount of the charge shall become immediately realisable, not any part thereof; and

(iii)  any dispute about whether the charge is exercisable shall be heard by HHJ Glenn Brasse (sitting as a Deputy High Court Judge) or a Judge of the Family Division by an application on notice".

63. The provisions which I have quoted in paragraph 11(c) of the Order mirrored the provisions of clause 9.1 of the draft deed itself. It is not in dispute that the Charge was then executed in the terms of the draft deed, following approval of them by the Court and the consent of the Woolwich Building Society.

64. During oral submissions before this court, my lords raised concern as to the nature of the Charge. The point is plainly of importance for, as we were told, this method of securing adherence to the terms of an order is not uncommon in international children cases in the Family Division. In preparing this section of my judgment I have been greatly assisted by my lord, Mr Justice Henderson, whose analysis I readily accept and now repeat.

65. The fear that the Charge might be unenforceable as a penalty was understandable, but misplaced. There would only have been scope for the law on penalties to operate if the £250,000 became payable upon breach of a contractual duty owed by the person liable to make the payment, Mr B, to the father.  But the event which would trigger payment of this sum was not breach of a contractual obligation, but rather any breach of the Order by either the mother or Mr B.  It has been clear since the unanimous decision of the House of Lords in Export Credits Guarantee Department v Universal Oil Products Co [1983] 1 WLR 399 that the law on penalties does not apply to stipulations for payment of money upon the happening of a specified event other than a breach of a contractual duty owed by the contemplated payor to the contemplated payee: see the speech of Lord Roskill at 402H, and the reasons which he then gave for declining an invitation to extend the scope of the doctrine at 403D-H. See too Chitty on Contracts, 31st edition, vol I, at paragraph 26-183.  We would add that the law on this point  does not appear to us to have been affected by the comprehensive review of the common law relating to penalty clauses recently performed by the Supreme Court in Cavendish Square Holding BV v Makdessi [2015] UKSC 67, [2015] 3 WLR 1373, in which judgment was given on 4 November 2015, a week after the conclusion of the hearing before us:  see, in particular, the judgments at paragraphs [12] to [18], [129] to [130], [239] to [241], [291] and [293].

66. The purpose of the Charge, properly understood, was to secure compliance by the mother and Mr B with the terms of the Order, on pain of forfeiting the sum of £250,000.  As such, it was in some respects akin to a performance bond given by a third party, although it must be recognised that the obligations that it secured included those of Mr B himself under the order. Since Mr B has agreed to the terms of the Charge, after taking independent legal advice, we can see no good reason why a court of equity should relieve him from his bargain, even assuming that the principles of relief from forfeiture might potentially be engaged. 

67. There is, however, one aspect of the scheme carefully put in place by the Judge which we would respectfully question.  Since the event which triggers realisation of the Charge is a breach of the Court's order, it seems to us undesirable in principle that the initial decision whether such a breach has occurred should be left to the father, and that the matter should come before the Court only if there were a dispute about whether the Charge was exercisable.  We consider it inappropriate that the Charge should be capable of realisation before the Court has ruled on the question whether a breach has occurred, particularly given the long and unfortunate history of mistrust and litigation between the mother and the father.  We therefore propose to replace sub-paragraphs (i) to (iii) of paragraph 11(c) of the Order with a provision that "the father may immediately apply on notice to HHJ Glenn Brasse (sitting as a Deputy High Court Judge) or a Judge of the Family Division for permission to realise the Charge". Since the Charge itself has already been executed, we cannot alter the corresponding provisions in clause 9.1, but we propose to direct that those provisions should henceforth take effect subject to the modified paragraph 11(c) of the Order.

The use of Wardship
68. I have already rehearsed the arguments in relation to the judge's decision to make the girls wards of court in order, as he presumed, to increase the range of powers in the event of the need to enforce the order. Mr Hale submits that wardship, in reality, added nothing and that the judge was in error in relying upon it as part of the structure supporting his order. Although Mr Verdan was unable to point to any powers that would be withdrawn from the court's armoury in the event of a breach of an ordinary child arrangements order under CA 1989, s 8, as opposed to wardship, his submission was that there is nothing to prevent the use of wardship here and that it will be helpful in this case given the previous track record of this mother who has always obeyed orders and who is likely to respect the fact that her girls are wards of the High Court.

69. It is common ground that, on the basis that these two girls are plainly habitually resident in England and Wales at this point, the High Court had jurisdiction to make them wards of court. The first question is whether such a step added anything of value in terms of holding the mother to the terms of the court's order and/or enforcing that order in the event of a breach. The second question is whether, in the modern world, the High Court should make a child a ward of court where, as a result of the court's order, that child is almost immediately going to emigrate to another state and is likely to establish habitual residence there.

70. As Mr Verdan accepts, the use of wardship does not, as a matter of law, enhance any of the court's powers of enforcement over and above those that would be available in the event of there being a breach of an ordinary s 8 order. Wardship may appear more formal and it may be seen by his client to have some form of enhanced status, but in reality it does not. Notwithstanding that position, the arguments to the effect that 'it does no harm' and may on some level increase the mother's inclination to abide by the court's order might justify the use of wardship were it not for the issue raised by the second question.

71. In recent times, this court and, more particularly, the Supreme Court in Re A (Children) [2013] UKSC 60 have considered the use of wardship in the context of children who have UK nationality, but who are habitually resident in another non-EC and non-Hague Convention jurisdiction. Although the central point in those cases was concerned with the use of wardship based solely upon a child's nationality, where there has never been habitual residence in England and Wales, I consider that the cautious approach described by Baroness Hale SCJ, at paragraphs 62 to 65 of the lead judgment, with which the majority of the court agreed, must inform the approach to be taken in the present case.

'62. However, in Al Habtoor v Fotheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be "extremely circumspect" and "must refrain from exhorbitant jurisdictional claims founded on nationality" over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations. But in Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half- brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances "sufficiently dire and exceptional": para 10. In Re N (Abduction: Appeal) [2013] 1 FLR 457, McFarlane LJ commented that "If the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum" (para 29). The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question.

63. In my view, there is no doubt that the jurisdiction exists, insofar as it has not been taken away by the provisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case. Mr Turner accepts that Parker J did not address herself to this basis of jurisdiction and to whether, if Haroon were not habitually resident here, it would be appropriate to exercise it. He accepts that the case will have to return to her in order for her to do so.

64. Mr Setright, with the able assistance of Mr Manjit Gill QC, has raised a number of important general considerations which may militate against its exercise. It is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the child's future to be decided in a country other than that where he or she is habitually resident. In a completely different context, there are also rules of public international law for determining which is the effective nationality where a person holds dual nationality.

65. All of these are reasons for, as Thorpe LJ put it in Al Habtoor, "extreme circumspection" in deciding to exercise the jurisdiction. But all must depend upon the circumstances of the particular case.'

72. It is important as a matter of private international law and as a matter which may impact on the welfare of these children for there to be clarity at any point during the remainder of their minority as to the state which has jurisdiction over them in matters concerning their wellbeing. In contrast with an ordinary CA 1989, s 8 order, the continued existence of wardship once the girls have established habitual residence in the UAE, in my view, may establish an unwelcome element of ambiguity on the issue of jurisdiction where none should exist. Wardship is a continuing status, whereas a CA 1989, s 8 order is made at a point in time and may or not fall to be enforceable at some later date. Insofar as the use of wardship may indicate that the English court may have some continuing jurisdiction to make orders with respect to the welfare of these girls, when, as a matter of international law, ordinarily it would not risks the potential for a future 'exhorbitant jurisdictional claim' of the type that Thorpe LJ cautioned against in Al Habtoor, with whose approach I agreed in Re N (Abduction: Appeal). Although one should 'never say never' as to the use of wardship, the approach of extreme circumspection endorsed by Baroness Hale in Re A, for the reasons described at paragraph 64 of her judgment, should apply to the present case as it did to the somewhat different circumstances that were in focus in Re A.

73. Do the circumstances of this case justify the use of wardship against that background of the approach described in Re A? Certainly, in an ordinary case of child relocation the court's order will be contained within the compass of orders under CA 1989 and the child will not be made a ward of court. Does the situation here create a material distinction sufficient to justify the use of wardship? In a typical relocation case the child is likely to be going to another EC state or to a state which is a signatory to the Hague child abduction convention. Here the girls are to go to a non-convention state and, moreover, a state which, as a matter of law, will not recognise the father as having any rights with respect to his children. Although relocation to a non-convention state may be less common than to a convention state, it is by no means unusual or extraordinary.

74. In my view the circumstances of this case are, by some margin, short of establishing the need for the use of wardship where, it is accepted, the wardship order, as a matter of law, adds nothing to the court's powers over and above those following from an order under CA 1989, s 8. Where the continuing status of wardship may serve to confuse the issue of jurisdiction in the future, when that issue should be clear, and where the continued status of wardship may be seen to be an exorbitant jurisdictional claim, the use of wardship is not justified.

75. At its core the mother's case, through Mr Verdan, is that, whether or not wardship is used, the judge was right to insist that an English order is in place that makes provision for the arrangements for these children, and that it was the existence of such an order, rather than the status of wardship, which provided the key structure for the 'second pillar'. I agree that that is the case. Wardship does not add anything to the force of, and the ability to enforce, the judge's order if it were made under CA 1989, s 8. It does not detract from the judge's ability to rely upon that order being in place as a powerful incentive for this mother and Mr B to comply with its terms.

76. For my part, I would therefore hold that the wardship order should be replaced by a child arrangements order in like terms under CA 1989, s 8.

The overall integrity of the judge's order
77. Finally, it is necessary to consider the overarching submission that is at the heart of the father's appeal, and to address it in the context that, as I have held, the wardship order relied upon by the judge should be replaced with a s 8 order. The father's case is that, given the judge's finding as to the risk of the mother failing to maintain the relationship between the father and his children, as agreed and endorsed by the judge, and given the lack of recognition of the father's status under the law in the UAE, the safeguards relied upon by the judge as the two pillars supporting the regime were wholly inadequate to ensure compliance and the judge was wrong, in those circumstances, to have given permission for the girls to move abroad.


78. In approaching that submission, once again, the respect due from the appellate court to the trial judge must be prominent. It was the judgment of this highly experienced judge, who had steeped himself in the detail of this case and the characters of the adults and the two young people whose welfare he plainly had as his paramount consideration, that it was safe for them to move to the UAE and that it was in their best interests to do so.

79. For the reasons that I have already given, the judge was not in error, as a matter of law, in considering the Charge as an enforceable security against future compliance by the mother and Mr B with the Order. So too, despite my decision that the use of wardship was not justified, was the judge correct to rely upon the English court's ability to take all legally available steps to enforce its order. The consequence for the mother of a breach of a s 8 order are the same as if she were to breach the wardship order; she would face contempt proceedings (in addition to the forfeiture by her husband of the £250,000 secured by the Charge) and, if 'exile' is the right term, she would be forced to contemplate a state of indefinite exile from the country that hitherto has been her homeland. These are major incentives for the mother and Mr B to comply with what is required of them by the Order.


80. Going further, I accept Mr Verdan's characterisation that the 'second pillar' as it now exists is, in reality, more robust and substantial than the previous construct which, in the end, depended upon the eventual decision of the courts in the UAE and could not be confidently predicted (even on the basis of Mr Edge's evidence). Now the consequence of a proven breach of the Order is all too easy for Mr B and the mother to predict:  it is the immediate loss of £250,000 and a substantial impediment upon their ability to return to this country unless they are prepared to face proceedings for contempt of court.

81. The strength of the provisions that have now been put in place by the judge's final order stands alongside his earlier and continued evaluation of the strength of character of the girls and the premium that they will put upon requiring their mother to maintain their relationship with father. Again, just as with the legal basis of the second pillar, the father has not been able to mount a successful challenge to the judge's evaluation of this key element in the case.

82. It is not sufficient for the father to establish that another judge could have decided the case in his favour; he has to persuade this court that the judge was 'wrong'. In this regard the task for this court was described with clarity in the judgments of Lord Wilson SCJ and Lord Neuberger PSC in Re B [2013] UKSC 33. At paragraph 42 Lord Wilson said:

'The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258, Lord Nicholls said:

"16. ... There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.
...

19...Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision." '

83. Then at paragraphs 93 and 94 Lord Neuberger set out seven possible positions that might be held by an appellate judge and their consequences:

'93. There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).

94. As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.'

84. Although the passages that I have set out are well known to family lawyers, it is important that they are followed and applied in appeals such as the present where the judge has had the 'face to face, bench to witness-box acquaintanceship' with each of the key adults on a number of occasions over a period of time and has then constructed, with painstaking care, a comprehensive analysis of the impact of each relevant factor on the welfare of the two girls at the centre of the case. Where the judge has made his decision without any error of law either as to the welfare exercise itself or as to the constructs that support his order, as I have found is the case, the difficulty in mounting a successful appeal is of a high order.

85. Drawing all matters together, I am clear that the judge's welfare evaluation cannot be said to be 'wrong'. Despite the identified risk of breach that he clearly found, the judge was entitled to hold that the two pillars would hold the mother and Mr B to the mark and that, as a result, it was likely that there would not be a breach and the father's relationship with his daughters would be preserved despite the move to the UAE which the judge, for good reason, had held was otherwise in their best interests. The changes that I would make to the Order (a) replacing the wardship order with a s 8 child arrangements order and (b) making it clear that there must be recourse to the court before a breach can trigger implementation of the Charge are solely designed to clarify rather than reduce the force of those provisions.

86. For those reasons I would dismiss the appeal save as to allow for alteration of the Order as described in (a) and (b) above.

Mr Justice Henderson:

87. I agree.


88. I also agree.

Case No:B4/2015/2039

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION,
HHJ Glenn Brasse (Sitting as a Deputy High Court Judge)
ZC14P00103


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2015

Before:

LORD JUSTICE LONGMORE
LORD JUSTICE McFARLANE

and
MR JUSTICE HENDERSON
- - - - - - - - - - - - - - - - - - - - -

RE: B
- - - - - - - - - - - - - - - - - - - - -

UPON HEARING Leading Counsel, Charles Hale QC for the Appellant and Leading Counsel, Alex Verdan QC for the Respondent.

Definitions:
"the Order", shall mean the final and amended Order of HHJ Glenn Brasse dated the 4 June 2015; and

"the Charge", shall mean the legal Charge annexed to the Order.

IT IS ORDERED THAT :
1. The Appeal is dismissed, save that the Order shall be amended as follows:

a. Replacing the wardship Order with a Section 8, child arrangements order; and

b. Replacing sub-paragraphs (i) to (iii) of paragraph 11(c) of the Order with the following provision,

"the father may immediately apply on notice to HHJ Glenn Brasse (sitting as a Deputy High Court Judge) or a Judge of the Family Division for permission to realise the Charge".

2. The issue of costs be determined on paper with the Respondent lodging a short written Note in support of a costs order by 4pm 8.01.16 and the Appellantreplying by 4pm 15.01.16.

AND IT IS FURTHER DIRECTED THAT:
3. The provisions of clause 9.1 in the Charge shall henceforth take effect subject to the modification of paragraph 11(c) of the Order as set out in 1(b) above. 

 

 
Dated this 17 day of  December 2015.