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W (A Child - Temporary Removal From the Jurisdiction) [2016] EWFC 4

Judgment on a father’s application to take his child on holiday to a country that is not a signatory to the Hague Convention.

The case concerned private law proceedings between the parents of a child, W, 5. The outstanding issues were the father's application to take W to his home country from time to time (that country being one that is not a signatory to the Hague Convention) and the mother's cross-application for a prohibited steps order.

W's mother is European; his father Asian. His mother is Catholic; his father Muslim and W is their only child. Subject to a court order, W was, in broad terms, having contact with his father on a fortnightly basis.

The children's guardian, having originally supported the father's application, now took the view that: as W was under medical investigation, the court might wish to adjourn its decision; and, to grant the application, the court would have to be satisfied that W's safety would not be compromised, his father could appropriately safeguard him and that W would be returned at the end of the trip.

The father's case was that he had firm roots in this country, including his career, his marriage and his child. He gave sworn undertakings that he would return W and offered a bond of money that the mother could use as a "fighting fund" were he not to do so.

His family home in the non-Hague Convention country is "highly abnormal", at [18], to the extent that it requires a serious security presence. The mother's opposition centred primarily on three issues: a fear that W would not be returned; the high security presence and the fear that W's paternal grandparents (and by extension W) could be subject to or caught up in an attack; and, a worry generally that she would not be close to W were W to need her.

Law and decision

Peter Jackson J reminded himself of the leading authority of Re A (Prohibited Steps Order) [2013] EWCA Civ 1115 and his own judgment in AB & TB (Specific Issue Order) [2014] EWHC 4663 (Fam). As well as considering W's welfare, the court has to be positively satisfied that, where there is a risk of abduction, the disadvantages of that risk are outweighed by the advantages.

The court found that risk that the father would fail to return W was non-existent. Additionally, whilst the risk to W's security was a "background factor", at [30], it was – in Peter Jackson J's judgment – hugely outweighed by the short, medium and long-term advantages of his relationship with and understanding of his paternal family.

It was held, therefore, that, during the course of 2016, W would be permitted to travel for one week to the country in question, in 2017 for ten days, and from 2018 onwards, for a maximum of two weeks, unless otherwise agreed between the parents.

Allocation of case

Peter Jackson J emphasised that the father's application should never have been allocated to a district judge, let alone a deputy district judge. It should instead have been referred to the DFJ, who would have directed that it be heard at High Court level, perhaps by a circuit judge sitting as a deputy. An earlier order – described as "illogical" by Peter Jackson J, at [10] – had, with little analysis, permitted the father to take W abroad during holidays to any country, except for his home country. An appeal in relation to that order had eventually been upheld by agreement.

Summary by Alex Laing, barrister, Coram Chambers

_____________________________

IMPORTANT NOTICE
This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

NEUTRAL CITATION NO: [2016] EWFC 45
Case No:  MA14P00677  

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF:  W (A CHILD)


20th April 2016


Before:

THE HONOURABLE MR JUSTICE PETER JACKSON

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Re:  W (A Child: Temporary Removal from the Jurisdiction)
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Transcribed from the Official Tape Recording by
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Counsel for the Applicant Father:  Miss Watts
Counsel for the Respondent Mother:  Miss Wilson
Counsel for the Child:  Miss Standing

Hearing date: 20th April 2016
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JUDGMENT APPROVED FOR PUBLICATION

THE HONOURABLE MR JUSTICE PETER JACKSON:

1. This is an edited version of the judgment given in proceedings concerning the temporary removal of a child to a country that is not a signatory to the Hague Convention on child abduction.  Significant editing is necessary to prevent identification of the family.   

2. The outcome is that the father has permission to take the child for holidays to his home country on an ongoing basis.  The judgment also comments on the original allocation of the case, which was inappropriate for an application of this kind.

3. These are proceedings between the parents of W, aged 5.  He is a very modern child with an unusually rich heritage.  His parents both come from abroad but are now resident in England.  His mother is European, his father Asian.  She is Catholic, he Muslim.  Both have made their way in the world with an education in their home countries and further education and professional training in Britain, and have managed by their own efforts to establish themselves as independent earners in this country. 

4. W is their only child.  His welfare, in the broadest sense, is my paramount consideration and I will touch upon some of the aspects of the welfare checklist in the course of this judgment.  I have already spoken about his age and his background, which are both significant.

5. As to his needs, he has all the needs of a growing boy.  There are some signs that he may fall somewhere on the autistic spectrum, but this is uncertain at the moment while further testing takes place.  W nevertheless clearly has a need for a good routine in his life.  He is at a mainstream primary school, where he is coping with some gentle help.

6. Among W's needs are the need, if it can be met, for a good understanding of his background and an experience of his wider family on both sides.  He lives with his mother and his maternal grandmother.  The mother herself works but it is clear that nothing in W's day-to-day life escapes her.  On that side of the family there is also a maternal grandfather who is mainly resident in the home country but sees W from time to time, and a sister in the United States who is in touch regularly by phone and Skype.  So there is no doubt that this side of W's background is being well looked after.  His speech is somewhat delayed and English is very much his first language, but he understands his mother's language as well.

7. On his father's side his relationships are much more numerous because the father is a member of a large family, with several siblings who have numerous children of their own.  Six of these cousins live in the home country and two in England. One of those is W's little half-brother from the father's remarriage.

8. W's contact with his father, which is underpinned by a court order, takes place every fortnight, broadly speaking.  By that means he keeps in touch with his father, is getting to know his little brother and is also exposed to the father's other family members who live in the United Kingdom.

9. One need that is obviously not being met is W's emotional need for his parents' relationship to be a reasonably good one.  Any serious relationship break-up leaves scars and it was apparent from listening to the parents that this case is no exception.  Particularly in the evidence of the mother it appears that there are some unresolved issues which cause her pain.  Those issues led to these proceedings that have continued really uninterrupted for two years.  During the course of the hearing I tried to explore with each parent why they had found it so difficult to establish some way of communicating because, although their relationship as a couple was very short-lived, their relationship as parents will be a lifelong one.  My suggestion is that they need to consider consulting a mediator in order to get some advice as to methods of communication that are effective for W.  Otherwise he will suffer as he grows up.

10. For some reason, the proceedings, which began in April 2014, took until March 2015 to reach a final hearing.  At that hearing there were some four or five issues, which included W's name, the school that he should go to and the contact that he should be having with his father.  Those were all resolved in a way that is no longer open to discussion.  What remains, and has remained unresolved for another year until this hearing, is the request that the father made to be allowed to take W to his home country from time to time and the mother's response in seeking a prohibited steps order.  That led to an order made by a deputy district judge which allowed the father to take W abroad during his holiday periods to any destination except the home country.  That was an illogical order. 

11. This was an application for permission to take a small child to a country that is not a member of the Hague Convention.  It was opposed by the child's main carer.  It should never have been allocated to a district judge let alone a deputy district judge.  It should have been referred to the Designated Family Judge who would have made a direction, I am sure, that it be dealt at High Court level, perhaps by a Circuit Judge sitting as a deputy.  These applications are sensitive and often difficult and this application was not allocated properly.

12. I need not, given what has taken place since, say very much about the original hearing.  The father put forward his case, the mother opposed it and a Children's Guardian, who had perhaps surprisingly, although I thank her and her advocate for their contribution, been appointed on W's behalf, was in favour of the father's application, regarding it as reasonable and child-centred and not outweighed by any other difficulties.  Nonetheless, the deputy district judge in a single paragraph made the order that I have indicated.  I am afraid the analysis did not begin to grapple with the issues, and the outcome was that the father was put to appealing, which he did, and the matter came before His Honour Judge Jordan in February 2016, again after another unsatisfactory delay.  The learned judge immediately granted permission to appeal and, having discussed the matter with the advocates, went on to allow the appeal by agreement, it being accepted that the court had not performed the necessary task on the first occasion.  That has meant that a rehearing was fixed, and this has come before me today. 

13. So on the one hand the father suggests that he should be allowed to take W to his home country for a week or ten days, or up to a fortnight, and the mother opposes that on a number of grounds to which I will come in a moment.

14. The Guardian's position has somewhat modulated since the original support for the father's case.  She notes that W is now under investigation medically and has suggested that the court might wish to defer a decision until the outcome of that investigation.  That suggestion was not pressed at this hearing, nor supported by either of the parents, who are no doubt exhausted of litigation.  I am quite in agreement with them that the court has all the information that it needs and a precise medical formulation in relation to W is not going to be decisive in any way, though it will be important for the parents and the wider families in understanding how best to help this little boy as he progresses.

15. In the end the Guardian, after raising some pros and cons to the trip, says this: 

"The court will need to be satisfied that W's safety will not be compromised and that Mr J is able to appropriately safeguard him and return W to Miss N at the end of the trip."

16. I now come to the competing considerations.  These all centre on the question of change of circumstances and risk of harm, but they also, of course, spread into questions such as W's emotional needs.  The father explains that he is now firmly rooted in this country, that his career has taken him here, his marriage now takes him here, his child keeps him here, and that he has no intention of going back other than for visits.  His parents both live there in the large family home, where his brothers also live with their families and W's cousins.  Another cousin, his sister's daughter, lives just round the corner. 

17. It is a feature of this case that all the adults are professional people.  Not only that, but the father's parents are both very senior civil servants.

18. The father would like to take W this summer as part of his entitlement to the total of three weeks, and he says that he would accept any length of trip that was more than a week, anything less than a week being overshadowed by the travel.  The travel itself is an international flight followed by under an hour travel at the other end, and the court has had a description of the circumstances that the family lives in.  Those circumstances are, to the average person, highly abnormal.  There is a serious security presence around the family home.  It is in fact a level of security that has been in effect for as long as the father can remember.  So all of that is part of the proposal and inevitably high levels of security can either be seen as being reassuring or alarming.

19. What the father says is that he has no intention whatever of retaining W abroad.  It would be ruinous for him personally and professionally and anyhow, and this seems to me to be of particular importance, he would regard it as being wrong because it would deprive W of his mother's care.  He has given sworn undertakings which would be recorded that he would return W.  He has offered a sum of money as a bond which would be a fighting fund for the mother. 

20. The father's application does not just cover this summer, but is intended to be an application which produces a decision for the future.

21. The mother opposes W travelling to the father's country.  From a reading of the papers she highlights two aspects.  One of these is a fear that he would not be returned at the end of a trip abroad, the other is a concern about the general level of security, with particular focus on the fear that the grandparents might be a target and that W might either be caught up in civil disorder or a targeted attack.

22. During the course of her evidence the mother disclosed another aspect of the matter which she had not documented.  This was prompted by a reaction to the thought of W being away from her for three weeks, being the half of the summer holidays that are coming up.  That allowed the mother to show frank emotion and led to her talking about how worried she is at the feeling that if W got into difficulties she would not be there to help him.  She described it as him being out of her control, but I accept that she by that did not mean that she wanted to control what he does, merely that she wanted to be there in case anything went wrong. 

23. At a later point in her evidence the mother showed some less persuasive aspects of her view.  I was concerned that she ran through a number of perfectly ordinary European cities and suggested that they might not be suitable for W because they are busy and that she would not choose them herself, but I was more reassured and impressed by her evidence that she understands that W's father cares for him and loves him no less than she does and that he would be no less anxious for his son's safety.  What divides them is an analysis of whether his proposals are in fact safe.

24. The trial court in a case of this sort has the assistance of guidance from the Court of Appeal, which is most conveniently set out in the decision Re: A (Prohibited Steps Order) [2013] EWCA Civ 1115.  As this is an extempore judgment at the end of a day of evidence I am not going unnecessarily to recite from the authorities. I have been referred to a decision that I myself gave, AB & TB (Specific Issue Order) [2014] EWHC 4663 (Fam), in which I set out my understanding of the law at paragraph 19.

25. I have to consider W's welfare and, where there is a risk of abduction, to be positively satisfied the disadvantages of that risk are outweighed by the advantages. So we come to the risk of harm that the mother alleges.

26. Having had a good opportunity to consider the history and the parents' perspectives these are my conclusions.  I find the risk that the father would fail to return W at the end of the trip to be non-existent.  He has had W in his care regularly since he was a baby.  He has had the opportunity to travel abroad and indeed in August 2015 he spent some four days with W in Paris.  Of course, he brought him back.  It is not suggested that the father is not able to take W abroad to other places from which he could easily take him to his home country if he was minded to do so.  Indeed, he could take him there on any weekend that he had him.  But it is not so much that history but my assessment of the father that confirms me in my conclusion.  I have heard him giving evidence and I accept what he told me about his intentions.  I can see no reason to doubt his evidence that he is a resident here, his ready acceptance that his son is habitually resident here and should grow up here, his observation to the effect that his professional and personal life would be ruined if he flouted a court order.  If his own father happened to be a person of no particular status it would not affect my assessment, but as it happens, and this gives some comfort to the mother, his father has provided for the court a signed undertaking in knowledge of these proceedings.  I read: 

"I, as his grandfather, undertake that as and when he is allowed to visit it will be my responsibility to ensure implementation of all the conditionalities imposed by any court of law in England in this regard."

In her evidence the mother very fairly said that the risk of retention was not at the forefront of her concerns and I think that she is right about that.

27. The second stated objection relates to security.  Of course the risk that any person, child or adult, might be caught up in terrorism is almost a worldwide phenomenon these days.  The fact that very, very few people in fact suffer physical harm from terrorism does not diminish its power to upset and disturb.  When one adds to that the fact that the paternal family are people of standing, the matter comes closer to home.  The area in which the family lives is, as one might expect, a relatively well-to-do area with the highest available security.  It is not in an area that is regarded as being particularly under threat although there have been terrorist outrages there too.

28. I am not in these cases especially influenced by the Foreign Office guidance which must apply to people regardless of their backgrounds. To say to somebody that they should not take their children on holiday to a country that is experiencing unrest might be a very strong argument if they were going there purely for pleasure, but it has to be looked at in context if you are in fact addressing a family who originate there and who may have entirely different needs.  In this case what is significant, to my mind, is that the father himself and his two brothers and his sister, and all the six children of his siblings and his parents have lived in stable conditions.  There is no report of any attempt, still less a successful one, to threaten their security and the cousins who W knows from their visits to London have grown up safe and well. 

29. I asked the mother what was different for W.  Bearing in mind that he is one of seven children who can come and go from their home country, why should he alone not be able to do so?  She said he is different because he is not a full citizen of that country.  If he got into a situation then he might be spotted as being different.  I do not diminish the mother's concerns about that, but the paternal family are in fact great experts at dealing with situations of this kind.  When the mother visited herself she was understandably conscious of a security issue which means that she would not be able to go out alone without taking sensible precautions.  The paternal family are obviously very well used to doing that and I am quite convinced that if W was to arrive there he would be treated with the best pair of kid gloves that could be imagined. 

30. I think the risk to W's security is a background factor, but I find that it is hugely outweighed by the short, medium and long-term advantages to him of having his own experience of his paternal heritage and his knowledge of his large paternal family.  He can, of course, see some, or all, of them in England as well, but that is not the same thing as seeing them in their own country, which is part of heritage as well.  Spending time with his father there is not the same as spending time with him here.

31. Putting matters another way, if W does not go now, when could he go in future?  A decision that it could not happen now would have to last for a good number of years.  That would be, to my mind, a great and unnecessary loss to this little boy.

32. Weighing all these matters up, the order will therefore provide that during the course of the summer holiday 2016 W will permitted to travel for one week to [the country], that in the following year he should be permitted to travel for ten days and in the year after that, and every subsequent year, for a maximum of two weeks unless otherwise agreed between the parents. It will record the father's undertaking to return W to England on each occasion.
 
[Judgment ends]