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AA v BB [2021] EWFC 55

On an application for temporary leave to remove two young children to non-Convention countries the court determined that the risks of allowing the father to remove the children for contact could not be mitigated by any protective measures.

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Background

The British mother (M) and Jordanian father (F) met in Jordan and lived for most of their married life in the UAE. Their children, O and Y were born in 2013 and 2015. M formally converted to Islam in 2018. Y had considerable health difficulties and O became increasingly unhappy after a change of school in 2018; later that year the parents agreed that M should move to England with the children. F saw the children on regular visits to England and when M brought them to Dubai in October 2019. Plans for further contact were stymied by Covid. In May 2020 M told F that she would not return to Dubai and the marriage was at an end. She has renounced Islam.

Proceedings

M applied in September 2020 for a prohibited steps order to prevent F from removing the children from the jurisdiction and a live with order. The live with order was agreed. F sought an order for the children to spend time with him, including in Dubai, Jordan (where his parents and wider family lives) and other jurisdictions outside England and Wales.

The findings

The court found F to be lacking in empathy and insight; he was "selfish, moody, insensitive, at times demanding" and "oblivious and insensitive" to M's isolation in Dubai before her move. Although M's contention that F's attitude to his faith had fundamentally altered after they married was not accepted, the judge did find that faith became a more prominent theme after the children's birth and that he was likely to have become more critical of aspects of M's behaviour which he saw has immodest or un-Islamic. Coercive control was not established.

M was genuinely anxious and fearful that F would remove the children permanently and her anxiety had transmitted itself to the children. Her anxiety that he might abduct the children were he to have unsupervised contact in England was understandable but the court found the risk to be low.

Evaluation of risk

In accordance with the principles with regard to temporary removal to a non-Convention country set out in Re K (Removal for Jurisdiction: Practice) [1999] 2 FLR 1084 and Re M (Removal from Jurisdiction: Adjournment) [2010] EWCA Civ 888, [2011] 1 FLR 1943 the court was required to consider:


i) The magnitude of the risk of breach of the order if permission is given;

ii) The magnitude of the consequence of such breach;

iii) The level of security that may be achieved by building in all available safeguards.

F had never threatened to abduct the children and had agreed to them living in England; the court accepted that he had no current intention to abduct or retain them abroad. On the other hand it is very important to him that the children are brought up in the Muslim faith and he may be concerned about M's stance on this and consider that she is not acting in their best interests. He may also be influenced by his wider family to take steps to prevent the children being raised by their "apostate" mother. There is a significant risk that he may in future seek to retain O and Y in Dubai or Jordan.

If the children are retained the consequences would be devastating for them. The effects would be profound and long-lasting.

Unfortunately there are no safeguards available in this case because M would be considered an apostate in both Jordan and UAE so the normal presumption that young children should live with their mother would not apply; the chance of her being granted custodianship in either country is "practically zero". Any written agreement or consensual judgment would almost certainly be rejected by the courts. A bond could theoretically give M a fighting fund but her apostacy renders her ability to litigate in Dubai or Jordan an empty remedy.

Outcome

The court made a detailed order providing for indirect and direct contact in England. Direct contact should be supervised initially but not indefinitely. The low risk of abduction could be managed by the making of a port alert and the father's passport being surrendered during contact.

The parents were urged to attend mediation to discuss future arrangements and exercise of shared PR, in particular the children's religious upbringing.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII