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K (A Child) [2017] EWHC 2017 (Fam)

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Mother's application for a specific issue order or something similar enabling her to proceed with an application on behalf of the child for British citizenship. Father's application for permission to temporarily remove the child to India. Application by both parents to vary the current contact arrangements.

  • 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 her 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 Number: [2017] EWHC 2017 (Fam)

    Case No: LS16P00316

    IN THE FAMILY COURT

    SITTING AT [TOWN STATED]

    IN THE MATTER OF THE CHILDREN ACT 1989

    AND IN THE MATTER OF: RE: A (A CHILD)

    Date: Friday, 9th June 2017

    Before:

    THE HONOURABLE MR JUSTICE BODEY

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    Re: K(a Child)

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    Transcribed from the Official Tape Recording by

    Apple Transcription Limited

    Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES

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    The Mother appeared In Person

    The Father appeared In Person

    Counsel for the Child: Mr Fox

    Hearing dates: 7th - 9th June 2017

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    ANNONYMISED JUDGMENT APPROVED

    MR JUSTICE BODEY:

    A: INTRODUCTORY

    1. These are cross-applications by a mother and father in respect of their one child, K, who is aged 6 having been born on [redacted] 2011. The respective applications are as follows:

    (i) By the mother for a specific issue order or something similar enabling her to proceed with an application on behalf of K for British citizenship for her (K). This application is strongly opposed by the father. Two years ago in April 2015, she did say to the then CAFCASS officer that she did not propose to try to change K’s nationality but that was before she (the mother) herself obtained British nationality.

    (ii) By the father for an order permitting him temporarily to remove K from the jurisdiction for a holiday in India. This application is strongly opposed by the mother.

    (iii) By each parent to vary the current contact arrangements whereby the father sees K. The father wishes to increase the current arrangements (which are from Friday evenings to Monday mornings every alternate weekend) to a situation of 50:50 child care. The mother wishes to reduce the current arrangements such that such contact would become from Friday evening to Sunday evening alternate weekends.

    2. K’s mother, who I will call “the mother”, was born on [redacted] 1980 and is therefore aged 37. She is Indian, having been born there of Indian parents, and having lived there until September 2003 when she came to this country nearly 14 years ago. She now has British citizenship which she obtained in December 2015. She is a Christian and lives in [town stated]. She works for a well-known bank as a quality assurance analyst, earning about £20,000 per annum gross plus she receives about £3,000 per annum child or similar benefits. K’s father, whom I will call “the father” is 38, born [redacted] 1978. He too was born in India to Indian parents and lived there until September 2005 when he came to the UK nearly 12 years ago. He is a Buddhist who lives in [town stated]. He remains an Indian citizen. In June 2014 he was given Indefinite Leave to Remain in the UK as a dependant of the mother’s. He works as a regulatory compliance audit consultant, earning about £25,000 per annum gross. He says he pays £2,500 per annum for K to the child maintenance service. This is a point which appears to be contentious, but this is not the occasion to seek to resolve that particular issue.

    3. K was born as I say on [redacted] 2011 in India. The mother, who had by then been living in England for over seven years, went back to India when she was about six months pregnant for the benefit of the wider family support which she had there. Following K’s birth, a visa had to be obtained for her, which took a little while. In the result, K was brought to England on or about 3rd June 2011 aged 5 months. She has lived here ever since. In the early years the father cared for her a good deal to fit round the mother’s work. As a consequence the child has a very good relationship with both parents. K has never been to India apart from those first five months of her life. She is however an Indian citizen by virtue of her birth in that county. She did have an Indian passport obtained for her by her parents but it expired on 6th April 2016. At the moment therefore she has no passport, but clearly remains an Indian citizen. Her current status in this county is that she has Indefinite Leave to Remain as the mother’s dependant. In spite of the word “indefinite”, this requires to be renewed in 2019 (in order that a child’s changing features can be seen from an up to date photograph).

    4. At this hearing, both parties have been litigants in person, representing themselves. They have done themselves credit in this respect. They are both, if I may say so, intelligent individuals and they have behaved in a polite way towards one another and towards the court, despite the high underlying conflict and emotions between them. Each party has put over his/her case clearly and persuasively. K herself has been represented by a Children’s Guardian, Steven Anderson, who was appointed on 21st November 2016. Her solicitor is Miss Banerjee and she (K) was represented by Mr Fox of Counsel. I am grateful to him for his balanced contribution. I have read the entire court bundle and heard the following witnesses in this order: Rajiv Sharma, a well-qualified expert in Indian law, whose curriculum vitae is at A92 and speaks for itself; the mother; the father; and Mr Anderson.

    B: THE BACKGROUND

    5. The case has a long, acrimonious background which is not directly relevant to the discrete issues set out above. Its only real relevance is in explaining how the parties have become so conflicted and mistrustful in their parental relationship. I will seek to summarise some of the headline points relatively briefly. In so doing I hope I do no injustice to either party and I certainly do not intend to do so. I recognise and bear in mind that some, if not much of what I am about to say, has not been litigated before me and rightly so. It is abundantly clear that each party loves K hugely and unconditionally. Of course she loves them both and enjoys her time with each of them.

    6. As I have said, the mother came to this country in 2003 and the father in 2005. It was in that year when they were both students that they met in this country. They were married here on 18th August 2009. It was not an arranged marriage. For reasons which are heavily in dispute and where each party blames the other, the marriage broke down in about March 2014. At that time the mother moved out with K. Since that time, the parties have lived separately. Initially the father had contact on an informally agreed basis between about nine am and three pm daily. However, a scene occurred between the parties in or about July 2014 when the mother says that the father told her he was going to keep K overnight. The father accepts that he did say this (this is taken from the then CAFCASS officer’s report in previous proceedings) but maintains that he was advised to do so by the police. The mother went to collect K that evening with a friend, whereupon a tussle occurred over the child. The father told the then CAFCASS officer (Catherine Hanlon) that he accepted having tried to lift K out of the mother’s arms, although he denied pulling her. The next day the father attended at the mother’s house, and according to the mother threatened to take K off her. The father agreed in discussion with Catherine Hanlon that he had indeed attended at the mother’s house, but he maintained that this was only to check that K was safe and well, he being a concerned father. All this is taken from CAFCASS reports in the previous proceedings already mentioned and as I say has not been ventilated at this hearing. The outcome in any event was as I understand it that the mother stopped contact in or after the summer of 2014. She issued a notice of application for a child arrangements order seeking residence (“the previous proceedings”).

    7. On 14th July 2014, according to Miss Hanlon’s report, police records show that the police attended a verbal row between the parties. In those records, the mother was described as “the victim”. This may or may not be the occasion when the father attended at the mother’s house. In any event, on 12th August 2014 a prohibited steps order was made within the previous proceedings directing that: “Until further order and in respect of K, the father is prohibited from removing the child from England and Wales. The father is in the interim prohibited from applying for passports and travel documents for the child.” That order has been repeated by subsequent orders within these proceedings.

    8. On 8th September 2014, the father reported to the NSPCC that K was being left with a friend of the mother’s. The mother reported the father to the police for alleged harassment, following which on 2nd September 2014, the father was given a harassment warning notice. The NSPCC are recorded by Miss Hanlon as having found no concerns in respect of the mother’s care of K and the NSPCC took no action. At about this time the father saw the mother’s friend take K into the nursery. He told me in this evidence that he was anxious about this because he did not know who this man was. In the event he followed them in and a scene ensued, during which K was observed by nursery staff looking upset and confused. The nursery is described by the CAFCASS officer as regarding the father’s conduct as “confrontational”, although it was accepted that he was genuinely concerned about K. Whether this happened before or after the father’s abovementioned report to the NSPCC is not obvious from the documents.

    9. On 26th November 2014, Indian solicitors on behalf of the father’s father (“the paternal grandfather”) wrote to the mother and the mother’s father (“the maternal grandfather”) asserting that the mother had removed K from the custody of the father without his (the father’s) consent. The letter stated that he (the paternal grandfather) wanted to take custody of K as he (the paternal grandfather) had learnt that she, the mother, was “in the bad habit of drinking and not looking after the minor child”. The paternal grandfather’s solicitor’s letter continued:

    “… My client [the paternal grandfather] has filed criminal complaints against you after he learned that you had obtained visa and passport on false fabricated documents and have made false representations to the authorities in London. My client has informed the High Commissioner of India in London about the fraudulent and fabricated submissions you made in the passport documents regarding educational, financial, income tax returns, work experience, etc in 2005 and obtaining the visa. Even the Home Secretary in London has been informed about your illegal procuring of false and fabricated documents.”

    The letter went on: “… My client by this notice calls on you that you hand over the custody of the minor to him [the paternal grandfather] within one month as you are into criminal action.” The letter went on to state that the paternal grandfather was ready to take over custody of K as “… you are not able to look after her”.

    10. On 12th January 2015 at a directions hearing in the previous proceedings regarding the mother’s residence application, the father agreed to undergo a course or counselling on anger management. However, on 5th February 2015, Catherine Hanlon wrote to the court as follows:

    “… Following a lengthy discussion with two of the anger management project leaders, I spoke to the father in an attempt to help him reflect on what he might wish to do differently in relation to this communications with the mother. Unfortunately he remained adamant that he does not require anger management counselling nor would do anything differently.”

    In her report of 10th April 2015 in the previous proceedings, Miss Hanlon spoke of having had lengthy discussions with the father about how anger management counselling can be used to explore other issues, for example: not using controlling and undermining behaviour; considering how to communicate more effectively; managing separation issues; and being able to co-parent more effectively. Her report continues at A23:

    “… It is of concern that the father sees no merit in addressing any of these issues and that he stated there is nothing he would wish to do differently. In my view he displays characteristics of hostile-aggressive behaviour, some examples of which are evident within his statement. He lacks insight into how his behaviour has impacted on K. I have seen little change in this respect. It is of concern that he continues to ask for access to K’s passport. He shows no agreement to the mother’s holding the document and I remain unclear as to why. He has persistently stated that K should be in his care and not the mother’s, but from my enquiries I have found no evidence which supports his concerns about her standard of parenting.”

    Miss Hanlon expressed sympathy with the father’s wish to take K to India to visit paternal relatives but stated: “… I remain concerned that he will not return to the United Kingdom.” In the result, counselling for the father as regards anger management (which the court had felt in January 2015 would be beneficial and which might have helped to assuage the mother’s anxieties) never took place as had been agreed and intended.

    11. A further order which the court made on 12th January 2015 was for contact to take place on an interim basis at a contact centre. This contact occurred between January 2015 and April 2015. I have read all the records about it. In summary, the contact between K and the father was excellent. She was very happy to be with him. There was much emotional warmth shown both ways. She was seen to be laughing and smiling. She was very relaxed with her father. He handled her in an age appropriate way and was sensitive to her needs. They engaged fully with each other. The mother was seen to be supportive, for example smiling at K when she sent her into the contact centre and telling her to ‘have fun’; then smiling at her again when she came out, asking her if she had had fun with her farther. This led to K telling the mother all the things she had done with the father. So the interim contact seems to have gone well and things seemed perhaps to be looking up.

    12. On 17th April 2015, a solicitor on behalf of the mother wrote to the father recording that the mother and her family had been receiving “… threatening and harassment calls from your [the father’s] immediate family in India, specifically your father [the paternal grandfather]. The nature of these calls is aggressive and your father has demanded to our client’s parents that K be handed over to him and that these proceedings be halted.” The email went on to ask the father to request his family not to make such harassing phone calls.

    13. On 18th May 2015 the final hearing of the previous proceedings took place. An order was made by the district judge that the child was to live with the mother. The father was to have contact on an increasing basis until it became overnight every fortnight from Friday afternoon until Monday morning. Again therefore all seemed to be well.

    14. However, in July 2015 the mother stopped contact. The father applied for the order of 18th May 2015 to be enforced. This led to a further CAFCASS report by Miss Hanlon dated 2nd November 2015. She recorded the mother’s expressed concerns which had led to her (the mother) stopping the contact after the third overnight stay. Those concerns were that she, the mother, believed that the father was emotionally harming the child. Miss Hanlon recorded the mother’s telling her that K was needing reassurance (when she, K, returned from her father’s) that the father was not going to die; that she, the mother, would not be taken away from her (K) and placed in prison; that she, the mother, was not going to marry her boyfriend; and that K would not be placed in a girls’ school. The mother made various other complaints including that the father was refusing to use the communication diary to exchange information about K which professionals had recommended. Miss Hanlon records in her report that the father denied those allegations. He explained to her that he had told K about his grandmother being very ill in India and he felt that the child might have misunderstood this comment as being a reference to himself.

    15. At that time (November 2015) the former nursery was expressing no concern about K, who they said was happy with each parent. The school to which K had now gone also described K as well-presented and well-equipped for school, a very happy little girl who was bright with good vocabulary skills and who engaged well; a little girl who expressed no concerns about either parent. Her punctuality and attendance were described as excellent. It is right to say that the father feels aggrieved that when the mother put K into this school (which the mother says is a very good one) she did not consult with him. The mother accepts that she did not do so, making the point that the parties were not talking at that time. Clearly she should have done so, it was unnecessary and provocative that she went ahead with this big step on her own.

    16. Miss Hanlon’s judgment at that time (November 2015) was that the mother had stopped contact prematurely and that this had not been proportionate. Miss Hanlon felt that the mother should have made further efforts to communicate her concerns to the father, although she recognised that the mother was feeling very anxious and low in mood as a result of the father’s behaviour. She, Miss Hanlon, equally felt that some of the father’s comments to K had shown poor judgment and she criticised him for not using the communication diary. She considered that the father’s persistent requests to keep K for longer, on the basis that she was tired, were unnecessary and provocative because they reignited the mother’s suspicions that he would find an opportunity not to return K to her care. She, Miss Hanlon, found no evidence to support the mother’s concerns about K’s welfare when with the father and she stated expressly that the parties could not expect the court to adjudicate every disagreement between them concerning the child.

    17. Based on this report, at a hearing on 13th November 2015 an order was made which effectively replicated the order of 18th May 2015 (above). Since that time the father’s contact, alternate weekends from Friday afternoons until Monday mornings, has taken place consistently and relatively successfully.

    18. On 29th March 2016 the father made a complaint to the Social Services about the man with whom the mother shares her home (‘B’). He did so following Mr Anderson’s making the point to him that if he was concerned, then that was his appropriate remedy. In the event the Social Services found no evidence for concern. In March 2016 the parties were divorced. On 26th April 2016 K’s Indian passport expired.

    C: PEN PICTURE OF THE PARTIES ETC

    19. As was plain from her demeanour at one point, the mother has clearly been under considerable strain. She is facing criminal proceedings in India at the instance of the paternal grandfather with the express intention of seeking that she be “punished with imprisonment and fined to the maximum extent”. She is facing a potential Home Office investigation into the paternal family’s allegations that she used forged and false documents to obtain her British citizenship. She is dealing with these Children Act proceedings over K and with ongoing financial proceedings as between herself and the father. In addition to this, she is working full-time and caring as the primary carer for K. She told me that she has been on anti-depressants but has stopped using them, inferentially on the basis of feeling that she needs to manage life on her own. She told me at one point that she feels she is putting a brave face on things.

    20. Notwithstanding this, the mother came over as child-focused and entirely concerned for K’s welfare above all else. She dealt calmly and sensibly with the father’s case put to her in cross-examination. One question was to the effect that she cannot have been prioritising K’s interests in the early part of 2011 [sic] (when K was just a few months old), when she left her with her (the mother’s) sister in India in order to come back to this country for a day [sic] to take some essential step in respect of her visa. Although there have been occasions when the mother has felt it to be in K’s best interests to stop contact, for which she was criticised by Miss Hanlon (and it is right to say that she has stopped contact twice and possibly three times), there is no doubt in my mind that she did so as a concerned mother in what she genuinely saw at the time as the best interests of the child; not with any intention to hurt or get at the father. I am fortified in this view by the evidence of Mr Anderson, which I accept, who told me that he has never been of the view that the mother is a hostile parent seeking to deny the child contact. As I have mentioned, it is clear from the chronology that immediately on the break-up the mother proposed sensible contact as between the father and K, which only stopped after some unfortunate row of the type which often occurs following the breakdown of adult relationships in emotional circumstances. When contact took place at the contact centre in early 2015 (above) it is clear too from the contact notes that the mother was supportive of it and handled it well. She has complied with the order of November 2015 (above), encouraging K to go for contact when (as I find on her evidence) K has sometimes shown reluctance. For all that on occasion she may have been over-concerned and have overreacted, it has to be remembered that this has occurred in the context of an absence of communication between the parties where, as I find, she has found it very difficult to get the father to respond to her concerns. Overall she came over as a mother with a good insight into K’s needs, who is caring for the child well, as borne out by the nursery and the school reports which mention the child’s excellent progress.

    21. As for the father, I repeat that there is no doubt of his great love for K. However, this did not appear to be backed up by an equivalent level of insight into her emotional needs, nor as to what is likely to serve her interests best. The main reason for this, as to which I completely agree with Mr Anderson, is the apparent determination which he has had and which he retains to visit on the mother the penal and/or other consequences which he says should flow from her alleged reliance on false and forged documents in respect of her status in this country. There is a striking and significant similarity between his approach to this and that of the paternal grandfather, each of them seeking to act in ways which, under the guise of correcting alleged wrongs and preserving the integrity of the British immigration system, actually have the potential for putting the mother into very real jeopardy and causing her much trouble and aggravation. The language in the paternal grandfather’s Indian proceedings is (as I have said) of seeking the mother’s imprisonment and a maximum fine (see B67 and B70). Those proceedings in India are clearly continuing to date as is shown by recent orders of the Indian Court directed at obtaining documentation from the British Consul in Mumbai.

    22. The latest example is a document signed by the paternal grandfather, being an application to the Indian court dated 4th May 2017 seeking execution of an order that the Indian police collect evidence from the British High Commission. This is based on the grandfather’s expressed assertion of the accused’s (which includes the mother and members of her family) “cheating the government of India and the British government intentionally”.

    23. On 19th May 2017 within the proceedings before this court, the father supported his own notice of application (seeking orders against the Home Office for a Status Review Unit Report regarding the mother) with a statement (a) alleging that she used fabricated documents to secure her status in this country and (b) asking for the immigration processes to be strictly scrutinised. His statement ended with the words: “Shall [i.e. Should] the citizenship be found to be obtained fraudulently, she [the mother] ought to be prosecuted for dishonouring Her Majesty.” In his evidence he told me that he did not want anybody to be imprisoned, but he did want the whole picture to be before the court. That answer is virtually irreconcilable with his expressed wish that the mother should be prosecuted. He added that he did not want anyone to be “dishonouring Her Majesty”. In answer to Mr Fox, the father accepted that it would not be good for K if his persistence with his case in these respects led to the mother and K suffering difficulties; but he said that the information should be before the court and that for her to stay here dishonestly would not be a good thing either. Asked what he felt the impact on K would be if the mother were to be imprisoned, he said that it would not be good; but he added that if he did any crime he would not avoid prosecution just because he is a good father. He expressed the view that provided K saw both her parents she would be happy anywhere. The father was asked three times whether he would ask his father to do what he could to drop the proceedings in India, but he effectively evaded the question by saying that his father had told him that there was nothing he could do to control the process as it was being run by a government agency.

    24. This case which the father is pursuing about the child’s mother’s alleged use of false documentation is a remarkable one. Whether he is right or wrong on the merits, it shows that he does not have at the forefront of his mind K’s best interests, which must surely be to continue to be brought up by her mother, her primary carer, in this country where both are well settled, where K is doing well at school and has many friends, and where she, K, has lived throughout her sentient life.

    25. Other more minor areas in which the father has demonstrated a lack of insight are these. First, he continues to press for 50:50 sharing of K’s time, notwithstanding the evidence of Mr Anderson, the experienced children’s guardian, to the effect that K already struggles with three days away from her mother and that quality of time is of more benefit to children than quantity of time. I fear the father tends to see these things in terms of ‘rights’ rather than of the child’s best interests. Second, there is his case already mentioned that the mother’s day trip from India to England to sort out her visa in the months following K’s birth showed poor prioritisation on her part. In fact it was many years ago and was just one of those practicalities of life which parents have to get on and deal with. His remark that “I would never have left my child” showed a lack of practicality and realism. Third, is the fact that in cross-examination he took Mr Anderson back to the CAFCASS safeguarding letter of 6th August 2014, with its reference to the possible desirability of clarifying the mother’s mental health status. It clearly seemed important to him to bring this out, whereas I agree with Mr Anderson’s response, namely that everyone should now be looking forward and trying to find solutions, rather than looking backwards. Fourth, I repeat the point set out in the chronology that in January 2015 the father agreed at court to undergo anger management counselling but then refused to do so, without apparent regard for the impact which this would have on the mother’s confidence in his word and on her anxieties about him (which his undergoing such a course could have done much to assuage).

    26. There have also been several occasions when the father has raised concern about the mother’s care of K, none of which have led to any safeguarding concerns. Two in particular are these: In her report of 10th August 2015, Miss Hanlon reports the father raising concerns about K being looked after by the maternal grandfather. However, when she, Miss Hanlon, observed K with the maternal grandfather, she saw what she described as “a close and loving relationship with him” giving her no concerns about the maternal grandfather’s care of the child. Then during his evidence the father raised for the first time something not raised in any statement in these proceedings, namely concern about B who shares the mother’s house, although it is right to say that the father did tell Mr Anderson in February 2017 that K had told him (the father) that she had been hit by B. That was looked into by the Local Authority when he (the father) reported the matter to them and they found no concern. The school was not worried, nor did K express any anxieties about B when she was seen. The Local Authority told Mr Anderson that he, the father, had made previous safeguarding reports involving the same allegation.

    27. In cross-examination of the mother, the father asked a question to suggest that it would be bad for K to know that she, the mother, was having a sexual relationship with her, the mother’s, brother. The mother was visibly upset at this allegation, telling me that B is not her brother but is an old friend who is also K’s godfather; also that her brother died several years ago. When I asked Mr Anderson whether he has observed B with K, he told me that he has, albeit fairly briefly, at the end of April 2017. It was when he went to the house primarily to get B’s consent for safeguarding checks which came back clear (i.e. no concerns expressed). Mr Anderson described to me a “lovely relationship” between K and B. He said it was very clear from the interactions between them that K was comfortable in B’s care. The mother told me that B is an old friend who shares her house. She said he helps her because she has no car and also if she struggles financially. I do not assess her to be the sort of mother who would subject her child to someone who she knew was a violent or risky individual.

    28. All these various considerations taken cumulatively give rise to doubts about the depth of the father’s insight into the real issues in this case. In respect of the alleged forgery matters, he came over as almost obsessional. Mr Fox referred to ‘mutually assured destruction’ based on Mr Sharma’s expert evidence that it would be possible for all three of them (the mother, the father and K) to be deported if the mother’s documentations were forged. On any view, I find that the father’s insight as regards K’s best interests is less than that of the mother. He does not appear to realise the grave risk that his tenacious forgery case causes to the mother, a fact shown by his question to Mr Sharma when he (the father) made the point that ‘the Indian proceedings are not even in respect of K’, as if that meant that they are irrelevant to the decisions that need to be reached about K’s welfare.

    29. As regards the parties’ credibility, there are not many factual issues that need to be determined. I found nothing to suggest that the mother was not telling me the truth in her evidence. However, I have already pointed out the inconsistency in the father’s evidence about not wanting to cause the mother to be imprisoned, whilst pressing at the same time for her to be “prosecuted for dishonouring Her Majesty” (which could clearly lead to her imprisonment). There was a curious moment in the evidence when the father denied having “seconded” a Tory MP at the general election which took place yesterday (8th June 2017). When Mr Fox produced the relevant official paper stating that the MP had in fact been seconded by the father, the father’s response was unsatisfactory. He appeared to be saying that he did not know what “seconding” was, or else that he had not realised what the document was which he signed. I do not accept that his evidence was frank in this respect, although what he sought to gain by his denial is difficult if not impossible to determine.

    30. There is one particular dispute of fact which I should determine. The mother says that whilst the parties were still a couple, they discussed getting British nationality for all three of them. The father denies this and says that he had always intended to retain his and the family’s Indian nationality even though they were living in this country. I find the mother’s evidence more likely to be right in this respect. It seems counter-intuitive that the parties never discussed their citizenship, having lived for so long in this country and I note that in a statement dated 24th January 2014, B35, when the parties were still living together, the father supported an immigration appeal by the mother in respect of indefinite leave to remain by saying: “… We feel we have established ourselves in the UK and that the UK is our country.” In the result I find as a fact that the couple did discuss obtaining British citizenship and had intended to do so prior to their separation. For completeness, I add that wheresoever there is any divergence of a factual nature between the evidence of the father and of the mother, I prefer that of the mother.

    D: THE APPROACH OF THE COURT

    31. The welfare of K is of course paramount and I have to be guided by the welfare checklist in section 1(3) of the Children Act 1989. I shall not read it into this judgment, nor the various criteria there set out, as I am very familiar with them and I have reflected on them when reaching my decision as to K’s welfare. Obviously the factor of the cultural issue is very relevant here, as is the risk of harm which she may suffer and the effect of any change in her circumstances. No question arises here as to the ability of the parties to provide adequate care for her, as I am satisfied they both can. In addition to the Children Act factors to be considered, I need also to keep in mind the Article 8 rights of each relevant individual: if and insofar as they are interfered with, it must be for good reason in respect of the best interests of the child and to the least extent possible.

    E: THE FATHER’S APPLICATIONS

    32. The father has made a number of applications, one of them on paper and others orally as the case has proceeded.

    (i) The paper application is for an order against the Home Office for a Status Review Unit Report into the mother’s application for British citizenship and/or (this being added orally) for the court to direct that Form EX660 be sent to the Home Office to obtain information on the mother’s immigration history and her immigration status in the UK. By virtue of a previous directions order, this application for an order directed to the Home Office was to be made at the outset of the hearing but I said I would review it as the case proceeded. I can now state that I refuse the application. I do so for this reason. The father’s objective is to get information from the Home Office in the hope of strengthening his case against the mother in respect of her allegedly fraudulent application for British citizenship. Judging by the fourth question of certain questions which he wishes to ask of Mr Sharma in writing (“How easy is it for the Indian government to access information from the UK about any individual?”) it seems he particularly has in mind obtaining such information for use in the Indian criminal proceedings initiated by his own father. I am not persuaded that it would be in K’s best interests that such information should be brought into these proceedings, nor that it is relevant to this court’s role on the question of nationality. The court obviously cannot grant nationality. That is a matter for the Home Office. All seem to accept following Mr Sharma’s expert evidence (referred to below) that the role of this court is to express a view, having heard all the evidence and submissions, as to whether it is in K’s best interests for her to continue to have her Indian nationality, or whether it would be better for her to have British nationality: India does not permit dual nationality. Then it would be for the Home Office, on receipt of any application which the mother may make for British citizenship for K (without the father’s support) to consider all the facts known to it, including why the father was not agreeing with and supporting the application and including the judgment of this court. The Home Office is already aware of the paternal family’s allegations of forgery etc because the paternal grandfather says that he has notified them (see the paternal grandfather’s Indian lawyer’s letter of 26th November 2014 referred to at paragraph 9 above). The father tells me that the paternal grandfather is an honest man, who one can assume therefore would not be making this up. For this reason it is not necessary for the court to conduct an investigation into the father’s allegations of the mother’s claimed forgery etc, which would incidentally have meant that this case would need to be adjourned (at least as regards the nationality aspect).

    (ii) When the father started to give his evidence, he asked me to order statements from the Home Office and from the mother’s friend B. I declined such an order as regards the Home Office for the reasons just discussed. I declined it as regards B because there was and is no evidence that B presents a risk to K; nor is there anything which he could say in any way obviously relevant to the discrete issues before me. In any event, it is not for the court to order statements from third parties. If this was an important point, the father should have raised it at one of the directions hearings and would have been told by the judge about how to get evidence from a third party witness. To have acceded to the father’s application partway through this hearing would have meant an adjournment, which is certainly to be avoided if at all possible in not only the child’s but also both parents’ interests.

    (iii) The father further applied for permission to administer further questions to Mr Sharma. Mr Fox tells me that the father raised this with him, Mr Fox, yesterday morning, and that he, Mr Fox, replied that the father would have to put the questions in writing. The father apparently sent the questions by email to the children’s guardian’s solicitor at 12.15am this morning. Mr Sharma has been contacted and has said that he could not deal with the questions until four pm today and that it may be later. The questions are:

    “(1) Cultural conflict – please advise in Indian families/societies where child/mother living with and her friend in same house and they are not married. Is this very common scenario in Indian society? Is the way Indian culture brought up children?

    (2) You mentioned in your statement in court about deception, prosecution, may lead to deportation. Looking current scenario, child, mother and me, do you believe that this surely lead to deportation?

    (3) Please send me the evidence of communication you have made with Indian court in relation to sourcing information.

    (4) Last one, how easy for Indian government to access information from UK for any individual?”

    It does not seem to me that these questions are relevant to the issues which I have to decide. Indeed, and in the first place, question (1) adds force to the perception referred to above that the father is looking at this case from the point of view of his own adult concerns and not always realistically either. The fact is that K is not being brought up in India but is being brought up in the UK. So the attitudes and habits of Indian families are only relevant in a lesser way than they would be if she was being brought up in India, and they certainly do not impugn directly on her current welfare. In the second place, the questions could all have been asked of Mr Sharma when he was in the witness box (subject to the fact that regarding question (1), he is a lawyer and not an expert in cultural matters). In the third place, the questions could have been prepared sooner after the father realised that he wanted to ask them. In the fourth place, to permit the questions today and to give time for them to be answered would mean that the case would have to be adjourned, which no one wants to see happen. I therefore refuse the father’s application to ask further questions of Mr Sharma.

    F: THE VIENNA CONVENTION

    33. On the reading day before the case started, I noted the father’s reference to wanting the Indian High Commission to be involved in this case. This put in my mind the case of Re E [2014] EWHC 6 (Fam), a decision of the President, Sir James Munby. I therefore raised this with Mr Fox at the outset of the hearing and there has been some discussion between us about it. Article 37 reads, under the heading “Information in Cases of Deaths, Guardianship or Trusteeship, Wrecks and Air Accidents”:

    “If the relevant information is available to the competent authorities of the receiving State [here England], such authorities shall have the duty … (b) to inform the competent consular post [India] without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State [India]. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.”

    34. In Re E [2014] EWHC 6 (Fam) the President discussed good practice in situations of the court dealing with children who are foreign nationals, but his remarks were expressly referable to care in public law proceedings (see especially paragraphs 46 and 47). To avoid delay, I asked the children’s guardian’s solicitor to contact the Indian Consulate which was done on the first day of this hearing, but the Consulate understandably wished it to be placed in writing. That was done, but to date there has been no response from the Indian Consulate. Subsequent to that being done, I asked Mr Fox to be kind enough to obtain and we looked together at the Consular Relations Act 1968. Section 1 of that Act sets out certain Articles of the Vienna Convention which appear in Schedule 1 and states that those Articles shall have the force of law in the United Kingdom. Schedule 1 contains a number of the Articles in the Vienna Convention but it does not contain Article 37. I note that the short title of the Act starts with the words: “An Act to give effect to the Vienna convention on consular relations…” It appears to me therefore that since certain designated articles of the Vienna Convention have specifically been given by statue the force of law in the United Kingdom, the remaining articles of the Vienna Convention do not have the force of law in the United Kingdom and remain (as one sometimes finds) Convention articles which are not actually part of United Kingdom law.

    35. So the word “duty” in article 37 has to be seen in that light. I have not heard any argument on this, still less argument from both sides. It does seem to me however, at least provisionally, that the court is not obliged in private law proceedings to notify the national consular offices of a child who is a foreign national (although in the circumstances of the particular issues raised in the particular proceedings, it may be desirable or even perhaps necessary to do so). It is a matter of discretion. The majority of private law proceedings involving a child of foreign nationality where a Children’s Guardian is in place would not require notification of consular authorities, as this would generally be disproportionate and cause unnecessary work and clutter all round: for example, a difficulty inter-family contact or residence dispute over a child who happened to be of foreign nationality, where there happened to be a children’s guardian appointed. In cases like that, foreign consular staff would have no interest or role. Here however the nationality issue means that it is appropriate for the Indian consular authorities to have been notified of the fact of the proceedings, which indeed they have now been, albeit with very little time to respond.

    36. So what is to be done in respect of the Indian Consulate authorities? The Children’s Guardian opposes any adjournment in the interests of K’s welfare, and both parties come over as having litigation fatigue. I cannot therefore let the case just go off. That is not only because of the child’s and the parties’ best interests, but also because I have no time to resume it, whether on this circuit in [town stated] or prior to my own imminent retirement. So I am driven to conclude the case; but I shall do so with the caveat as regards the nationality issue that the Indian authorities have had very little time to respond to the notice received from the court via the Children’s Guardian’s solicitor. I shall therefore regard what I say in that particular respect (only) as provisional, such that if upon receipt of the order and this Judgment, the Indian consular officials want to have any input on the nationality issue, then they shall have liberty to apply within ten days of receipt of the order and Judgment. I shall reserve any such application to myself. Contact should be made with my Clerk Peter Cook via the President’s office. If the Indian authorities were to do this, I would review what say in part I below in the light of any submissions they wished to make. I would do so with an open mind and a clean sheet of paper in front of me, unaffected by what I am going to say on nationality later in this judgment.

    G: THE CONTACT REGIME

    37. I have set out the issue above. Mr Anderson supports the mother’s case that it would be better to reduce the three day alternate weekends to two days. He told me that K told him both in February 2017 and in May 2017 that she “feels homesick” at the father’s. Mr Anderson says in his report of 31st May 2017:

    “It is evident that K enjoys spending time with both of her parents … She was animated during the discussion. She enjoys activities within both homes. What is noteworthy is that her first two choices of emotion stickers when we discussed her father’s home were ‘upset’ and ‘homesick’. Her first thoughts appeared to be about missing her mother and her home. She told me she sometimes cries when she is at her father’s as she misses her mother and wants to return home … She stated that she would have [i.e. has] three nights there. She felt this was too long away from home. I asked how many sleeps she thought she ought to have and she stated two. I am aware this directly correlates with the mother’s views in her statement. However, I was not left with any impression that K had been influenced or had rehearsed a response. This is for two reasons. Firstly, K is a young child who I suspect would not readily relay a rehearsed response, and secondly I had not given prior notice of what issues I wished to discuss when we met. I am not of the view that K views her father as any less important than her mother. I believe it is a matter of K’s primary attachment and familiarity. Her home is with her mother which is how it has always been following the parents separating.”

    38. Mr Anderson stressed this latter point in his oral evidence when he said: “I do not see that as a negative as regards the father at all, it is just a little girl telling me she misses her mum.” Mr Anderson is an experienced CAFCASS officer. He became a social worker in 2000 and worked for the Local Authority until 2007. He then joined CAFCASS and has done children’s guardianship work ever since. I was very impressed with his work and thoughtful approach, just as I was in reading Miss Hanlon’s work in the previous proceedings.

    39. I find that Mr Anderson’s view does represent K’s best interests. It seems clear that an adjustment to the weekends is likely to be beneficial for her and that she will find it easier to manage. The mother says that she hears her crying over the telephone on Sunday evenings and I accept the mother’s evidence. Crying is obviously best avoided. It implies that K would enjoy the experience of the weekends with her father more if they were of two nights than of three. It could be Friday and Saturday, or Saturday and Sunday, just as the parties would find more convenient, and we shall discuss that in a few minutes.

    40. I see no reason why there should not be some contact near to the alternate weekend when there is not staying contact. I would suggest Thursdays, that is to say Thursday of the first week of a cycle of two weeks. I agree with the mother that K’s routine should not be disrupted more than necessary. It is a borderline point as to whether such Thursday contact should be for teatime visiting with the father, or overnight. If the father is prepared to agree to ensure that she does her homework, I have come to the view that it would probably be beneficial and manageable if the contact were overnight, with the father to collect K from school and to take her back to school. He would need to ensure that she has a change of school clothes and underwear which would then of course go back with K via the school to the mother’s home the next evening. This is a potential for difficulties, just as is the fact that she would have come to the father in clothes from the mother’s house. Some micromanagement will be necessary using commonsense and with Mr Anderson’s help, under the Family Assistance Order which he has suggested and which I propose to make for six months. This contact should for now be the same regardless of whether it is in school time or school holidays, as Mr Anderson has proposed. It follows from this that I reject the father’s case that a 50:50 sharing arrangement would be beneficial for K. I am satisfied that it would not be. K has never been out of her mother’s care for more than three nights and the idea of moving to a 50:50 regime would not be in her best interests, certainly at this stage.

    H: THE FATHER’S APPLICATION TO BE PERMITTED TO TAKE K TO INDIA FOR A HOLIDAY

    41. The father told me that he felt K had been “abandoned” in this country because she cannot see her paternal relatives. I accept and sympathise with his wish for her to go to India for a visit. As Mr Anderson said, in an ideal world (or even a world where the parents were less conflicted than here) it would be great for a 6 year old Indian girl to travel to India to see her extended family and the land and culture of her parents’ origins. A wonderful experience for any child. But it has to be evaluated in context. Looming over the father’s proposal is the paternal grandfather’s extant criminal process against the mother and against her own father (and others) based on the assertion of false and forged immigration documents (of which falsehood and forgery, incidentally, there is currently no evidence as far as I can see). The paternal grandfather’s mindset and that of others of the paternal extended family is clearly that the mother is not capable of caring for K properly and that she drinks heavily. Again, there is no evidence of this and alcohol abuse is not part of the father’s own case against the mother. He, the paternal grandfather, has very specifically called on the mother to hand K over to him.

    42. The mother told me in her evidence, in answer to a question from Mr Fox as to why she was worried about wrongful retention India: “… There is clear evidence in that the paternal grandfather has sent a letter which has added to my fear, and he has put criminal proceedings on me. They [the paternal grandparents and the father’s sister and the father himself] have said to my family that I am not good enough to care for K and that she should therefore go to them. I am really scared.” I accept her evidence in that respect.

    43. Mr Anderson is opposed to the father’s application for permission to remove K from the jurisdiction. In his first report on 6th February 2017, he described the risk of the child not being returned as being “medium to high” and he told me in his evidence that having heard the parties’ evidence, his concerns have been intensified. The father’s wish to have K with him was certainly in place by the time Miss Hanlon was advising on 10th April 2015, when she referred to his “persistent wish” in that respect, and on the evidence I have just mentioned that wish seems to continue.

    44. Mr Sharma’s evidence, written and oral, dealt with the prospects of safeguards being put in place and being effective. The four key points, summarising his evidence very briefly, are:

    (i) that the Indian courts would attach weight to an English order (i.e. an order of residence to the mother and for the father to return K to the mother at the conclusion of a holiday in India) but that they would still apply the welfare test;

    (ii) that cases can be very slow in India, even as long as three to four years;

    (iii) that the mother would have to attend court in India at least at some point, which she would not be able to do with the criminal proceedings hanging over her; and

    (iv) that the Indian criminal proceedings might have the effect of influencing the Indian court against the mother’s case for the return of K to England.

    Whenever a welfare approach is adopted by a foreign court in circumstances such as this, there is an opening for the parent wishing to keep a child after a holiday abroad to raise points in the foreign court touching on welfare which may have the effect of diverting that court’s attention from the legal effect of the other court’s (here the English court’s) order. The prospects of the mother’s being able to get K back if K went to India and were retained there by the father’s family are not good. Mr Sharma spoke of his own father, who is a barrister in India, saying as much.

    45. The law on temporary removal from the jurisdiction is helpfully set out in Mr Fox’s opening presentation. He rehearses various cases, including one by Mrs Justice Roberts, Re L A & B (Children) (Temporary Leave to Remain) [2016] EWHC 849 (Fam), which I have in mind. Running through the three considerations there mentioned, I find here that the risk of non-return is a very real one and that it is evidence-based. I bear in mind, as well as the matters already mentioned, the fact that the father has broken two financial directions orders, namely dated 25th November 2016 and 9th March 2017. In the first of those orders, it was recorded that he had failed to file or serve financial information pursuant to an order of 1st September 2016 despite reminders from the Applicant’s solicitor to do so, and he was ordered to pay £400 costs. In the order of 9th March 2017 it was recorded that he had failed to comply with that order dated 25th November 2016 to file his Form E. It was directed that he should file his Form E by 17th March 2017 in default of which he was to be imprisoned for seven days. Again he was ordered to pay £400 costs straightaway.

    46. I find that if a breach of a ‘holiday order’ occurred, namely that the father did not cause K to be returned from India to England, then the damage to K would be severe, removing her from the mother and all that she has ever known. I find further that the level of possible effective security arrangements (Mr Sharma puts forward some untested ideas, but I stress untested) is low. For these various reasons I reject the father’s application for permission to take K out of the jurisdiction to India for a holiday.

    47. The father did raise whether, if his parents were to come here, they could see K in England; and the mother seemed willing to go along with this subject to appropriate safeguards. Obviously such an application is not before me and it is something which the parties might like to think about with Mr Anderson.

    I: NATIONALITY

    48. Mr Fox has researched this aspect and has not found any authority directly on the point. I imagine that questions of nationality are usually obvious, or else most parents are able to agree the child’s nationality one way or the other. Here, like so much, this is not possible. Mr Sharma’s evidence is that an application for British nationality has to be with the signature of both parents having parental responsibility (as they do here) but that if only one applies for it, the application will still be considered. The Home Office will ask for a lot more information, including why it is not a joint application, and the case officer would then have to look at the welfare of the child as part of the decision-taking process. In doing so, any Judgment of a court touching on the welfare of the child in question would assist the Home Office and would have a bearing on the decision. If any enquiries the Home Office might make on the veracity of the UK status of the parent or parents concerned showed that the parents’ status had been falsely achieved, then Mr Sharma said this would make it unlikely if not very unlikely that that child would be granted British nationality; but not impossible.

    49. It is obvious, as Mr Anderson says, and I accept, that a child’s nationality is not to be changed lightly, especially when it is not by the joint consent of the parents. I shall adopt this approach when I reach such conclusion as may assist the Home Office. I bear in mind the mother’s evidence which I have accepted that the family intended to apply for British citizenship prior to the break-up of the marriage: also, the father’s immigration statement of 24th January 2014 (above): “… We feel we have established ourselves in the UK and that the UK is our country.”

    50. In favour of retention of K’s Indian nationality, there are all the factors strongly relied on by the father; particularly that she is currently an Indian child of essentially Indian parents and that he himself has not changed his nationality. To retain K’s Indian nationality would be to respect her rights as an individual and her cultural and national status. Any decision to change her Indian nationality should be a matter for her, says the father, when she is an adult: otherwise she may resent the removal of her nationality when she was only a child and unable to speak for herself.

    51. In favour of K having British nationality are the following factors. It would bring the child’s legal status into line with what for her is the reality. She would have the nationality of the country where she has lived all her sentient life – six years. There is the fact that although she was born in India and is therefore an Indian national, she was only there because the mother returned there from England (where both parents had made their home for roughly seven years) for family support around the birth and that the parents fetched her back to England as soon as visa arrangements could be made for her. I then need to reflect on the father’s opposition to a change of nationality as being (as I have found) opposition by a father who seems to have become focused on making life difficult for the mother, as per his constant focus on exposing her alleged forgery and falsehood and getting her prosecuted for it.

    52. I take into account Mr Sharma’s evidence that if British nationality were now to be granted to K, then she could change back at the age of 18 to Indian nationality. She would be able to obtain Overseas Citizen of Indian status (OCI status) which enables an individual to have all the rights of an Indian national, except those of owning agricultural land and/or being employed by the Indian government. Neither of these are going to be relevant for many many years. At or after 18, provided K had lived in India by that stage for 12 months (which she would be entitled to do under the OCI) and provided she satisfied some other not difficult conditions, she would be able to regain Indian nationality.

    53. I bear in mind that if K remains an Indian citizen, then the mother would have to get visas for her to go abroad from England probably more often than would be necessary if K had British nationality, although this is a point of less weight since “Brexit”. Nevertheless it is still a valid consideration. The father’s track record is not good on cooperation and it would impose added and unnecessary stress on the mother for her to have to keep chasing the father for his consent to obtain visas, or else have to come back to the court. The factors favouring retention of K’s Indian nationality seem to me to be more abstract and, although important, more theoretical. The factors for her having British nationality tend towards being the more practical.

    54. Last, I am assisted by the opinion of the children’s guardian on nationality. He had been neutral about it but in his evidence, during some “thinking out loud” with myself, he said this or words to this effect: “I am not sure how much K associates herself with India, because she has always lived here. She knows she is Indian, but her entire world is in the United Kingdom. So the argument is potentially stronger for her nationality now to be British.” I did check with Mr Fox and Mr Anderson before retiring to prepare this judgment that I did have this down correctly and that Mr Anderson did not feel that I had pushed him to give that answer, and I was reassured that he stands by what I have just read out.

    55. After careful consideration of all these factors in the overall context of the particular features of this case, I am quite satisfied on a provisional basis (which I add merely because, as per part F above, there has been no contribution from the Indian Consular authorities) that the welfare of K would be better served by her having British nationality than by her retaining her Indian nationality. It would secure her status in the strongest possible way here, namely in the only country which she knows as her home. It need not impinge on her sense of being an Indian girl (her ‘Indian-ness’ is obvious from the lovely photographs of her which I have been shown) and she would still retain an option to take up Indian nationality again when she is older.

    J: SECTION 91(14)

    56. The Children’s Guardian has understandably considered the possible benefits of my making section 91(14) orders against both parties. There has been ongoing litigation for about three years in this case, being half K’s life. It is very wearing for both parents, particularly I feel the mother, and it is not good for children for their parents to be in conflictual litigation. There is much to be said for a ‘threshold’ requirement under S91(14) being put in place before the parties are able to come back to the court. However, this has been quite a substantial hearing, more so than any previous hearing. I am hopeful (and I have done all I can to bring this home to the parties) that they may be able to go away from this hearing with some concept of things having now been ‘sorted’ and rules put in place which are to be complied with; and with some sense of making a fresh start. Rather than lumber them with all the old baggage on the basis that they have in the past been using the court self-indulgently, I am prepared to give them the chance to make this order work, with the help of Mr Anderson for the next six months, and not to impose section 91(14) orders today. However, they should be under no illusion that if the case is brought back and if the court decided that this had been unnecessary or vexatious, then the parent who made the application would be at very serious risk of a section 91(14) order being made against him or her.

    K: POSTSCRIPT

    57. I have warned the parties of the great danger that they are in of damaging K emotionally if they continue with the conflictual relationship which has bedevilled their parenting over the past three years. This would be a tragedy because she is a lovely little girl who is an absolute credit to them both. So they must go away and make a fresh start with Mr Anderson’s help. They must be aware that there are no winners and no losers out of all this. All that has happened is that the court has done its best to make decisions which represent the child’s best interests. It is most important that the mother in particular does not regard this as some sort of a victory just because on most of these points she has been the more successful of the two parents, and I trust her not to adopt that approach in her dealings with the father.



Published: 01/08/2017

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