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S v S [2017] EWHC 3184 (Fam)

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An unsuccessful application by a father (“F”) to return the child to Iran in circumstances where F was found to be controlling and manipulative and not to be trusted to encourage the relationship between the child and mother (“M”). There was no prospect of safeguards being agreed; and no prospect of even the beginnings of those safeguards being implemented; there was no safeguard that anything the English courts imposed carrying weight; but there was a significant and real prospect that F, once he had achieved his objective of the return of the child to Iran, would set about frustrating the safeguards which had been put in place to achieve that end.

  • Neutral Citation Number: [2017] EWHC 3184 (Fam)

    Case No: FD16P00558

    IN THE ROYAL COURTS OF JUSTICE

    FAMILY DIVISION

    The Royal Courts of Justice

    The Strand

    London

    WC2A 2LL

    Date: Wednesday, 12th July 2017

    Before:

    SIR PETER SINGER

    (Sitting as a Judge of the High Court)

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    B E T W E E N:

    S

    and

    S

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    - - - - - - - - - - - - - - - -

    MR SAMUEL (instructed by James Maguire and Co) appeared on behalf of the Mother

    The Father was unrepresented on this occasion

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    JUDGMENT (Approved)

    The judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.

    SIR PETER SINGER:

    1. Earlier today I rejected the father's application to adjourn these proceedings for an indeterminate period of some months, for the reasons I then stated. He had been given advance notice of the fact that if this case was not to be adjourned, I might decide that an appropriate time had been reached to conclude it, having regard to the fact that the mother's application dates from October last year, that his own application for an order for the peremptory return of the now 2.5 year old child A dates from December last year, that I heard five days of evidence in April this year, and that we are now in July.

    2. Those five days of evidence were largely concerned, apart from evidence as to Iranian law from Mr A, were largely concerned with hearing evidence from the parents and, in addition, from the mother's own mother, centred about their relationship, its nature, and to what extent the mother was, if at all, subject to domestic violence. There were a number of specific incidents, as well as some very general allegations, into which enquiry was made.

    3. I then received significant, extensive and helpful submissions, both from Miss Proudman, who then acted for the father, and from Mr Samuel, who has, throughout, acted for the mother, about the conclusions I should draw in relation to the nature of the relationship between the parents. I am not going to do so at this stage but will make some general observations about my conclusions, and I will explain why.

    4. As I said in my 28 May judgment, the only really encouraging thing that has occurred is that, after a relatively short period - I think it may have been two months - when father and child had no relationship because of the mother's anxieties flowing from her unannounced removal of the child from Iran, perhaps surprisingly, the mother has, so far as I am aware, always supported the proposition that the father should maintain contact with their child and, even more importantly, the other way around, that their child should maintain a relationship with the father. To that effect, more or less without problem, as far as I am aware, relatively frequent contact has taken place, I think as often as two or three times a week, between father and child via Skype, on those occasions when he has not been in England. On those occasions when he was in England, subject to suitable safeguards, he and the child were able to spend time together, including, I think on at least one occasion, time overnight together.

    5. That is laudable. It is excellent that the parents have been able to see through their own problems to the need for them to maintain, for their child, her consistent acquaintance, knowledge and love with and for both her parents. I do not think that that frame of mind and facility, which is so important to her welfare, should be jeopardised by me making decisions about who was telling the truth on this occasion or that occasion, about this event or that event, when, as I am only too well aware, a judge can get these things wrong. When a judge does get these things wrong, it angers the party who has been unjustly found to have been responsible, and it may or may not make the other party feel a bit guilty.

    6. In relation to the unhappy breakdown of their marriage, I choose to say only a very few things because there is, to my mind, a much better and sounder basis for deciding whether or not the child should return to Iran, whether to the care of her father or in the company of her mother. Those other reasons, to my mind, determine the outcome.

    7. I am quite satisfied, both from the view I have formed of the father during the hearing, when he gave his evidence, and when I observed him as the mother was giving hers, and having regard to events which are clearly documented and established from their communications since (contained not least in the two last statements provided by the mother) that the father is of a controlling nature. He is moreover manipulative.

    8. I am not going to give examples, except to mention one, and I mention that one largely so that it is in the open in this judgment, in the hope that the fact that it is in the open in this judgment will mean that neither will feel safe in seeking to rely upon it in, for instance, aácourt in Iran. I am referring to the allegation, which the mother accepts, that there were, on her evidence, three occasions when she indulged in lesbian activity with at least two women. She says that the father encouraged her to that. She does not say she particularly disapproved, but if she is right, then she acted under a degree of control and pressure.

    9. The father agrees that there were, indeed, such occasions, and he agrees, without suggesting it was his initiative that they should take place, that he physically participated on more than one occasion. Photographs or video were taken. They were taken, it would seem, by the father. He himself said that his participation in whatever was happening was apparent from the face of the photographs or the video. Therefore, on the one hand, we have him accepting he participated in such activity and, on the other hand, we have her accepting that she engaged in it. Honours, if that is the right word, are therefore even on each side.

    10. The father says that he has been affronted by the fact that these matters have been aired in these proceedings because they damage his dignity. I pass no comment on that way of expressing it. What is clear to me is that these facts and these acts, and this participation and these photos or that video, if they still exist, could be used by either party against theáother, if they continue their battle, as they might, in other courts and in other proceedings and in particular in Iran.

    11. I shall, therefore, give leave to each of them to produce a copy of this judgment to any court elsewhere, in relation to which it may be relevant, and I make it clear that my intention in so doing is to leave them both with a level playing field, so that each knows that reliance on any of this activity is likely to expose the person revealing these matters to jeopardy because of his or her own involvement. I hope I have made my purpose clear.

    12. I described the father in a number of phrases, before lunch, as manipulative, as I find him to be. I should just explain why, in particular. Having regard to those photographs or video, he says that she very well knows that he deleted them. She says, "How do I know he deleted them?" He says "You saw me delete them". However, later he told her "Ah, I have found them again, by the grace of God". Clearly, that was to put pressure on her. He more or less agreed that that was so; why else would he have said it? Whether or not they remain available to him, his intention clearly was to leave her in doubt whether it might be true that he had found them again or, indeed, that he had never deleted them, and thereby, to maintain some sort of hold over her, for instance with the threat that it would be revealed to her parents. I call that manipulative.

    13. He wrote an email addressed to his daughter, their daughter, on her second birthday I think, in highly emotional terms, totally inappropriate for any child, let alone one aged two. He sent it to the email account that he had opened for the child when she was days old. He is, if anything, obsessively over-concerned about this child. I described him earlier as a hypochondriac; that may have relevance to his present and recent protestations of inability, supposedly for medical reasons, to deal with the issues so urgently needing to be dealt with in these proceedings, but it is also apparent in relation to his behaviour with his daughter.

    14. However, before I come to that, I should just finish about that email. He agreed, in his evidence, that when he thought about it, which clearly he had not, what he wrote in that email was entirely inappropriate and he agreed, in effect, that he had sent it to the mother so that she might know what he was minded to tell their daughter. Again, evidence of control, manipulation, pressure, in short a form of domestic violence, whether or not it was accompanied by threats of, or actual, physical violence on one or more occasions.

    15. Before I come to the question of his hypochondria, it is clear from passages in electronic messages passing between the parties in recent weeks and months, on any view of their translation, as checked today by our interpreters in court, that he may not have given up the prospect of a reconciliation, does not accept that the mother should be entitled to have her own life, and is prepared to use threats, centred upon his ability to divorce her or not, as a means to try to induce her to return their daughter to Iran.

    16. Back to the hypochondria. A caught a cold, or she caught a virus; it may, indeed, have been one followed by the other. The father's attitude, he in Iran, the child and the mother in England, was extraordinary. It got to the point that he insisted that the mother every half hour send him photographs of the thermometer to show the child's temperature. I regard it as an absurd suggestion that his anxieties about the child's welfare could possibly justify ringing the family doctor in Iran, although it was then midnight. I do not doubt that he has affection for the child and, as I have said, that it is returned, but his over-absorption in her, as expressed so often and to such strong effect, is, in my judgment, unhealthy, as a situation to which the child should be subjected full time, as would be the case were she to return to Iran and the mother to remain in England.

    17. The reason why detailed findings in relation to their relationship are unnecessary, in essence, lies in the following. I take it, on the expert evidence, to be more likely, as Dr A suggests, that if the mother were to return to Iran with the child and remain married, both she and the child would be subject to significant influence, coercion and control by the father, which would be entirely in accordance with their traditions and beliefs, and which would be supported by the Iranian courts in case of conflict. It is, to my mind, inherently, virtually impossible to imagine that the Iranian court would allow the mother to take the child abroad against the father's wishes, if he objected, even if he had previously agreed that she should be able to do so.

    18. It is inherently likely that she, herself, would not be permitted to travel abroad if he did not consent, and there is, at least, the risk to which, apparently, he adverted when in discussion with her Iranian lawyer, that at the age of seven (or it may be nine but more likely, on the evidence, seven) he could insist that their daughter go to live with him and leave her mother's care. Further consequences impacting directly upon the welfare of the child could ensue, were the mother to remarry, always assuming he had agreed to divorce her.

    19. To the extent that these barriers to a free and independent life for the mother and freedom of movement for the child might be avoided, by prior agreement between the parties, I remain unpersuaded that an Iranian court would necessarily agree, without further investigation, to follow any agreement reached by the parties and, perhaps, even less, any conditions imposed by the English court. It seems to me inherently likely that an Iranian court might be encouraged to reconsider the decisions taken, either by the parents or by the English court, if either party (and, in particular for this purpose, the father) took the view that he no longer wished to abide by that or, that there was some good reason why the agreement should no longer prevail. That is my view on the expert evidence, as it stands, bearing in mind that it has not yet been fully, nor will now need to be fully, investigated.

    20. Therefore, we come to the essence of it, which is the extent to which I, and the mother, can or cannot rely upon the father's protestations that he will abide by what he has said he will, or might do, in the same way as he says he has abided by the relatively minor constraints which the English court has put upon him, or encouraged him to observe thus far in these proceedings: not to search out where the mother is living or, to attempt to remove the child from her immediate care.

    21. This morning, with the assistance of the two interpreters, I was able to confirm that the essence of the mother's own translations of some of the Farsi communications, electronically, between them in recent days and months are accurate and that, to the mother, in Farsi, the father made it absolutely clear that, whatever he had offered by way of undertakings, were only suggestions. That no court could order him or make him comply with them. That, as far as he was concerned, they only stood in the event that the mother, or rather that the child is returned to Iran. That he would not divorce her (as he had clearly agreed he would, in court before me) unless the child is returned to Iran and that, as far as he was concerned, it was only when he signs, as it were, on the dotted line, that he binds himself to anything which, in the course of these proceedings, had been advanced as undertakings to which he was prepared to subscribe.

    22. It is, therefore, wholly to be understood why the mother says that she does not trust him, which, I regret to say, is an opinion which I share. That is sufficient for me to dispose of his application because there is plain expert evidence, quite apart from common knowledge and common sense, to support the proposition that, without sound safeguards, this child should not be returned to Iran, whether with or without her mother. There is no prospect of such safeguards being agreed; there appears to be no prospect of even the beginnings of those safeguards, namely the divorce, being implemented; there is no safeguard that anything this court imposed would, in fact, carry weight; and there is, in my view, a significant and real prospect that the father, once he had achieved his objective of the return of the child to Iran, would set about frustrating the safeguards which had been put in place to achieve that end.

    23. I repeat: I do not doubt the father's affection for the child. I do not doubt the strength of his desire to see her back in the country, if not of her birth, then of her ethnicity and her tradition. I do not doubt his desire to see her physically close to him and to his relatives. I do doubt the extent to which he would be as enthusiastic, as he says he would be, in encouraging and maintaining contact between her and the mother and, in Iran, between the child and her grandparents, for whom he has, over the years, manifested both hostility and distrust.

    24. Therefore, I shall reject and dismiss the father's application for A to be returned to Iran. It follows from that, that she will remain here. There is, as I have said, no immigration problem about that, she was born here, her mother is entitled to live here, she is entitled to live here. I will confirm and, I hope, stabilise that situation by orders designed to make it clear that A's residence is with her mother, but that that should be subject to appropriate contact between father and child, not only by Skype when they are continents apart, but also in person, subject to safeguards, when he is in England. He is not to remove the child from the care of the mother or from the jurisdiction of this court without either the mother's written permission in advance or prior permission from this court, until further order.

    25. A will, in my view, benefit from remaining a ward of court during her minority, or until further order. The devil of this may be in the detail, Mr Samuel will draft an order and submit it to the father for, hopefully, agreement and, if not agreed, I will determine the detail by email on representations from both sides, as to what I should do in case of conflict.

    26. Meanwhile and, it seems to me entirely reasonably, if the mother is able, in current or future circumstances, to obtain a visiting visa to America to enable her to spend time with her parents who do, apparently, have such a visa and her sister, who lives there, then that seems to me to be a reasonable aspiration. It will be permitted upon the mother's express undertaking to return the child to this jurisdiction within 28 days of her departure (the consequences of an undertaking having been explained to her, to include, if necessary, in case of breach, imprisonment).. This, therefore, is for a holiday and not for an emigration.

    27. I shall also make an order, as it seems to me just and fair to do, for the father to pay half costs of instructing Dr A, both in relation to her original report and to her efforts in translation. Whether or not the mother receives that money remains to be seen. It is, however, an order which, it seems to me, reasonable and appropriate to make. That apart and, subject to any observations you may make, Mr Samuel, I would propose to make no order as to costs in this difficult and delicate children's case which has, sadly, taken so long and cost so much to bring to fruition, neither party being legally aided.

    28. Finally, I have received an application - I say finally but I may be reminded that I have forgotten something else - made by the solicitors hitherto instructed by the father, Messrs Nelsons, to come off the record. I have read what they say in support of that application. It is a matter between them and the court, which I do not propose, nor think necessary, to disclose, other than to say that I agree to them being removed from the record. Therefore, the solicitors acting for him, Messrs Nelsons, come off the record.


Published: 12/12/2017

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