Family Law Hub

RVH v TF (Non Hague Convention: Refusal of Summary Return) [2018] EWHC 1680 (Fam)

The applicant father was seeking the summary return to Ivory Coast of the parties' 2 children. The application was made pursuant to the Inherent Jurisdiction following the mother's removal of the children from Ivory Coast. The court concluded that it was not in the best interests of the children to be returned to Ivory Coast.

  • Neutral Citation Number: [2018] EWHC 1680 (Fam)

    Case No: FD18P00207

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand

    London

    Date: 14 June 2018

    Before :

    MR DARREN HOWE QC

    SITTING AS A JUDGE OF THE HIGH COURT

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    Between :

    RVH (Applicant)

    -and-

    TF (Respondent)

    (Non Hague Convention: Refusal of Summary Return)

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    Ms Jacqueline Renton (instructed by the International Family Law Group LLP) for the Applicant

    Ms Kelly Webb (instructed by Nockholds Solicitors) for the Respondent

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    Hearing dates: 12, 13 and 14 June 2018

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    Judgment Approved

    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 their 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.

    MR DARREN HOWE QC:

    Introduction

    1. This is an application made by the applicant father seeking the summary return to Ivory Coast of the parties’ 2 children, C a girl now 3 years old and D, a boy now 21 months old. The application is made pursuant to the Inherent Jurisdiction following the mother’s removal of the children from Ivory Coast on 27 March 2018. The mother opposes the application.

    2. Both parties have filed detailed written evidence, which I have read together with skeleton arguments from Ms Renton on behalf of the father and Ms Webb on behalf of the mother.

    3. Prior to the commencement of the hearing, it had been anticipated that I would hear some limited oral evidence from the parties. It was then agreed, rightly in my judgment, that this application should be determined by the hearing of submissions only.

    4. In addition to the statements of the parties, I have received written expert evidence, concerning the immigration status of the parties and children within Ivory Coast, pursuant to the order of Cohen J dated 15 May 2018. This includes the expert’s opinion regarding steps that can be taken to regulate the immigration position of the family should I grant the father’s application.

    5. I have also received expert evidence from an Ivory Coast lawyer concerning the ability of the parties to resolve their disputes within the Courts of Ivory Coast. Preliminary advice from this lawyer was appended to the father’s statement. No permission had been provided by the court, pursuant to section 13 of the Children and Families Act 2014, for this expert evidence to be produced. The document provided was therefore, by reason of section 13(2) Children and Families Act, inadmissible unless the court ruled otherwise. On the first day of the hearing, I raised a number of matters upon which I considered it necessary for legal advice from an Ivory Coast lawyer to be provided. On behalf of the mother, Ms Webb agreed for the expert evidence I considered necessary to be given by the lawyer identified by the father. Ms Webb did not seek to argue that the lawyer could not be treated as an independent expert, despite having first been approached by the father. Given this agreement and my own view that additional expert evidence was necessary, I granted permission, under part 25 FPR 2010 and section 13 Children and Families Act 2014, for questions to be raised of the expert on the matters I identified as necessary for the court to reach a determination on the application.

    Background

    6. The background facts relevant to this application can be summarised in short form, as there is much common ground between the parties concerning the history. The father is 40 years old and was born in the Netherlands. He works as a regional director for a Dutch NGO. The mother is also 40 years old and was born in England. She works as a freelance journalist.

    7. The parties commenced a relationship in 2012, when they were both working in Liberia. They moved to Ivory Coast in 2013, as a result of the mother securing a job opportunity with a well-known broadcasting company. In 2014, C was born followed by D’s birth in 2016. During the later stages of her pregnancy with both children, the mother returned to England, as it was the mother’s wish for the children to be born in England and to have the support of her family following the births. The father travelled with the mother and was present at the births. He is named on the children’s birth certificates and has parental responsibility. The parents have never married.

    8. Save for periods when the children travelled for holidays to England, the Netherlands and other locations, they have lived with the parents in Ivory Coast since birth.

    9. The father has managed his immigration status within Ivory Coast by way of rolling renewals of 3-month tourist visas. The mother secured residency cards for herself and the children but these expired in December 2017 due to a change in the law within Ivory Coast.

    10. During 2016, the parties’ relationship deteriorated and by September 2016 they had started relationship counselling. That counselling was not successful and during September 2017, the parties decided to separate. Within these proceedings, the mother has alleged that the father was controlling and, on one occasion at least, violent towards her. I will return to these allegations later in this judgment.

    11. Despite the decision to separate, the parties remained living under the same roof and negotiations began as to what the arrangements should be, both for the children and financially, when their cohabitation was to come to an end. It is the mother’s case that the father was uncompromising and bullying during these negotiations. He does not accept that allegation and I have been provided with a number of emails that passed between the parents during this period. It is clear from the parties’ statements, and these emails, that there were discussions for a move from Ivory Coast to a European Country at some time in the future. Indeed, in his statement dated 9 May 2018, the father describes:

    “..I had reiterated, in writing, my proposal that we physically separate but stay in Ivory Coast to minimise disruption to the children (and our incomes), all the while negotiating and taking concrete steps towards a new arrangement whereby both parents can provide love and support to their children in a location to be determined.”

    12. In the documents that I have seen, there is no indication from the mother that she was seeking the children’s immediate relocation from the Ivory Coast as part of her proposals for the arrangements following the end of the parties’ cohabitation, although there is evidence, to which I shall return, that both parties were actively considering a relocation to another country.

    13. On 21 March 2018, the father sent the mother an email setting out a broad description of the arrangements he proposed. In my judgment there is nothing aggressive or unreasonable about that communication. The mother sent a reply asking questions about the father’s proposal. The father responded to these questions but received no further reply from the mother.

    14. On 26 March 2018, the mother told the father that she was taking the children to the beach. It is the father’s case that before she left the mother told the father that she might stay away with the children overnight. The father has, in his statement, reproduced the exchange of text messages between the parents, about the children’s enjoyment of their day on the beach. The father sent a further text message the following morning. The mother replied telling the father that the children were tired but well.

    15. Unbeknown to the father, the mother had not taken the children to the beach. She had taken them to the airport and they had flown to England. At 13.06 on 27 March the mother emailed the father in the following terms:

    “I never thought that I would have to write this email and I am deeply sorry that I am having to.

    We have come to the UK, where I am writing from now. I cannot tell you how trapped, afraid and unsafe I felt for our children and I in Abidjan - being forced to agree custody terms you dictate with no negotiation, coupled with your threat of taking us through the Ivorian court system if I don’t sign up to these terms. It is not fair to put our lives in a state of limbo and gamble with the welfare of our children in a notoriously unpredictable legal system where justice is based in who knows who and who’s the highest bidder.

    Ivory Coast was never a place we were going to base out family. From the outset we had always planned to go back to Europe.

    I know you are going to be feeling so many emotions right now and I am so incredibly sorry. You are a wonderful father and I know how much you love C and D. I would never get in the way of that. I want our children, as you do, to have both of their parents in their lives but we need to arrange how to do this in a place where we have support networks and legal systems we can rely on. Ivory Coast is not that place.

    We both want the best outcomes for our children and you and I agree that involves both parents. We can achieve this if we work together and start communicating about our family’s future.

    You are, of course, free to see the children whenever you want. They are here and they love you.”

    16. During the course of the hearing, it became clear that the mother’s concern about the judicial system in Ivory Coast had come from her reading of material found on the Internet that had been published in 2005, and from having taken advice from English lawyers. The mother accepts that she did not take advice from lawyers in Ivory Coast.

    17. The father instructed solicitors and, on 10 April 2018, they wrote to the mother seeking confirmation of the whereabouts of the children and asking for the mother’s assurance that she would voluntarily return with the children within 7 days. The letter puts the mother in notice that an application would be made to the court if the she did not agree to return.

    18. The following day, 11 April 2018, the father’s solicitors received an application issued by the mother for a Children Act order. The application form contained a slightly different address to that which had been initially provided to the father’s solicitors, but I am not satisfied that this was a deliberate act and there has been no difficulty in communicating with the mother and her solicitors since the issue of these proceedings.

    19. The father issued this application on 12 April 2018. Initial directions were given by Roberts J on 16 April and a final hearing of the summary return application was listed for 15 May 2018. On 3 May 2018, the mother issued an application seeking the appointment of an officer of CAFCASS to provide a welfare report and, at the hearing before Cohen J on 4 May 2018, sought permission to instruct an immigration expert to advise on the immigration issues that might arise upon the children’s return to Ivory Coast. Cohen J refused the application for a welfare report on 4 May 2018. The application for the appointment of an immigration expert was adjourned and granted on 15 May 2018. The final hearing was relisted to commence on 12 June with a time estimate of 2 days.

    20. Despite the mother having, in her email dated 27 March 2017, expressly given her concern about the fairness of the Ivorian court system as her reason for removing the children, no application was made for the appointment of an expert in Ivory Coast law.

    21. Roberts J’s order of 16 April 2018 provides that “the respondent agrees that if the applicant travels to this jurisdiction prior to the conclusion of the final hearing to spend time with the children, she shall make the children available to spend time with the applicant on an unsupervised basis for as long as he wishes in the day (just not overnight)”. The order also provides that the mother shall make the children available for What’s app video contact with the applicant every day at 6pm”.

    22. The father complains that the mother has not promoted his relationship with the children in line with the terms of the order made by Roberts J. When he arrived in England to attend this hearing, he requested that he be able to spend time with the children on each of the 3 days when he was here prior to the commencement of the hearing. All that the mother would allow was a period of 3 hours on the Saturday as, she says, she had made arrangements to take the children on a camping trip. The father did have 3 hours contact on the Sunday and had the whole day on the Monday. The mother now accepts that she was wrong in proceeding with that camping trip rather than prioritising the father’s time with the children. When I expressed my dissatisfaction with the mother’s failure to prioritise the children’s relationship with the father, and indicated that I expected the mother to ensure that the father spent time with the children in the late afternoon following the first day of this hearing, the mother offered to stay out of her accommodation overnight to enable the father to spend an extended period of time with the children. The father did not take up that offer. I was told that he felt that it would not be fair to the children to see them for just a couple of hours before their bedtime. I was also informed that the mother had offered telephone contact that the father had not taken up, which the mother says is part of a regular pattern of the father not taking advantage of the time she offered for him to speak with the children.

    23. Through Ms Webb, the mother now says that she values the father’s role in the children’s lives and has no wish to restrict the father’s time with the children, although that desire does not extend so far as to her agreeing to return the children to Ivory Coast.

    The Law

    24. The parties are agreed that the relevant legal principles to be applied are found in Re J (A Child)(Custody Rights: Jurisdiction) [2005] UKHL 40. At paragraphs 25 to 28, Baroness Hale of Richmond said:

    “[25] Hence, in all non-Hague Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration. This was so, even in those cases decided around the time that the Hague Convention was being implemented here, where it was held that the courts should take account of its philosophy (see, for example, G v G (minors) [1991] FCR 12). The Court of Appeal, in Re P (a minor) (child abduction: non-convention country) [1996] 3 FCR 233, [1997] Fam 45 has held that the Hague Convention concepts are not to be applied in a non-Hague Convention case. Hence, the first two propositions set out by Hughes J in this case were entirely correct: the child's welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Hague Convention case.

    [26] Thirdly, however, the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960s, these came to be known as 'kidnapping' cases. The principles were summed up by Buckley LJ in Re L (minors) (wardship: jurisdiction) [1974] 1 All ER 913 at 925–926, [1974] 1 WLR 250 at 264, rightly described by Ward LJ in Re P and Re JA [1998] 2 FCR 159 as the locus classicus:

    'To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country …'

    [27] He went on to emphasise that in doing so, the court was not punishing the parent for her conduct, but applying the cardinal rule. The same point was made by Ormrod LJ in Re R (minors) (wardship: jurisdiction) (1981) 2 FLR 416 at 425: the 'so-called kidnapping' of the child, or the order of a foreign court, were relevant considerations—

    'but the weight to be given to either of them must be measured in terms of the interests of the child, not in terms of penalising the 'kidnapper', or of comity, or any other abstraction. 'Kidnapping', like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law.' (First emphasis mine)

    [28] It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child.”

    25. In S v S [2014] EWHC 575, Theis J distilled the legal principles to be applied to the following:

    (1) Any court which is determining any question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration. In non convention cases the court must act in accordance with the welfare needs of the particular child.

    (2) There is no basis for the principles of the Hague Convention being extended to countries which are not parties to that convention.

    (3) A power did remain in accordance with the welfare principle to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.

    (4) A trial judge had to make a choice, having regard to the welfare principle, between a summary return or a more detailed consideration of the merits of the parties' dispute.

    (5) In making that choice the focus must be on the individual child and the particular circumstances of the case.

    (6) It was wrong to say that there should be a 'strong presumption' that it is 'highly likely' to be in the best interests of a child subject to an unauthorised removal or retention to be returned to his country of habitual residence so that any issues which remain can be decided there. The most one could say was 'that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed…that allowing a child to remain here while his future is decided inevitably means he will remain here for ever'.

    (7) A number of factors were relevant, amongst all the circumstances of the case, in deciding whether to order a summary return or not

    (a) The degree of connection of the child with each country – what is his home country?

    (b) The length of time he has spent in each country

    (c) Depending on the facts of the case, any differences in the legal system of this country and the other country, including whether the other country had an absence of a relocation jurisdiction

    (d) Impact of any decision on the child's primary carer

    (8) Any decision about whether to order a summary return or not should be taken swiftly.

    26. On behalf of the father, Ms Renton relies on the decision of Baroness Hale In Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772. In that case, the child was summarily returned by the UK Supreme Court to Texas despite the child being habitually resident in England and Wales at the relevant time. The Supreme Court considered the 'crucial factor' in that case was that the child concerned was a Texan child who was being denied a proper opportunity to develop a relationship with his father and with his country of birth. This was against a background where the mother had been unenthusiastic about contact between the child and his father. The court concluded that the best chance the child had of developing a proper relationship with both his parents, and with the country whose nationality he held, was for the Texas court to consider where his best interests lay in the long term. There were no issues on the facts of that case that the child would suffer any significant harm by returning to Texas on the basis proposed by the father.

    Habitual Residence

    27. It is the mother’s case that the children were not habitually resident in Ivory Coast at the time of their removal. In her first statement, she says that she was only resident in Africa by reason of her employment and that it was always her intention to return to the United Kingdom. She asserts that the children “have no rights to remain in Ivory Coast”. She goes on to say that neither her nor the father had ever applied for Ivorian citizenship, as they had no intention to remain in Ivory Coast in the long term. At paragraph 8 of her statement, the mother says:

    “I found it very worrying that both of us have no connections with Ivory Coast. We have no family from Ivory Coast. Whilst we may have integrated into the work and expat community both are transitory. We have not integrated into Ivorian culture. The Applicant appears happy therefore to leave the fate of English children, who have been raised by an English mother and a Dutch father, to Ivory Coast law. The Applicant has never been a resident of Ivory Coast and in five years if living there on and off has always used three-month tourist visas that he has to renew every time he leaves the county. My visa has expired and also the children’s visas have expired (these were residential visas). Mine and the children’s residencies (carte de residence) expired on 31 December 2017 due to a change in Ivorian residency rules. The Applicant has never applied for a residential visa. I therefore believe that I do not have a right to remain there and nor do the children. I do not believe the Applicant can leave the country and then return to work unless he arranged a valid visa.”

    28. Attached to her statement, the mother provides a schedule of the number of days that both children have spent away from Ivory Coast. Since C was born in March 2015, she has spent around a 3rd of her life away from Ivory Coast. Since D’s birth, he has spent around half of his life in countries other than Ivory Coast.

    29. It is the father’s case that both children were habitually resident in Ivory Coast. He accepts that his own presence in Ivory Coast was managed by a series of 3-month tourist visas, although he has since the issue of these proceedings now received a temporary residence card. The father’s case is that the family had an established home in Ivory Coast and, despite the apparent insecurity of his own immigration status, the family entered into rental agreements for properties that exceeded the 3-month permissions that he had to remain in the country. The father says that the children were fully integrated into the ex pat community in Ivory Coast. He says the children had friends that they played with and C had started formal education. The family employed a nanny, with whom the children had a close relationship. The father accepts that the children spent periods of time away from Ivory Coast but says that these trips were made as holidays or for visiting family and friends. He does not accept the mother’s assertion that the children were habitually resident in England. Simply put, he says the children had their lives with their parents in Ivory Coast, this had been the arrangement since birth and they were not integrated into any community in England.

    30. In her written submissions, Ms Webb relies upon the discussions that took place between the parents concerning possible moves to various locations within Europe, including the consideration of a move to Devon, as evidence that the children were not habitually resident in Ivory Coast. She also relies on the short-term nature of the visas obtained by the father as evidence that the family had not intended to settle permanently in Ivory Coast.

    31. Ms Renton has referred to a number of leading authorities concerning habitual residence. The considerations as set out by Baroness Hale, at paragraph 54 of A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre Intervening)[2014] AC 1, are well known:

    (a) habitual residence is a question of fact;

    (b) the habitual residence is the place which reflects some degree of integration by the child in a social and family environment in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question;

    (c) The focus should be on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors;

    (d) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

    32. I must also have regard to the words of Lord Wilson who, at paragraph 39 of Re B (A Child)(Reunite International Child Abduction Centre and others intervening) [2016] UKSC 4, said:

    “It is worthwhile to note that the new criterion requires not the child’s full integration in the environment of the new state but only a degree of it”.

    33. When focusing on the situation of these children, it is clear that they have resided with their parents in Ivory Coast for the whole of their lives other than for periods of holidays. It may be that the mother did not intend to remain in Ivory Coast for the whole of the children’s minorities but there was, in my finding, no identified end date to their residence in Ivory Coast, such as when the children were to attend school or reached a specific age. The family made its life in Ivory Coast and integrated into the ex pat community there; rented homes and made friends. C received some Dutch lessons and both parents engaged in work that brought in sufficient funds to maintain their chosen lifestyles.

    34. When contrasting the circumstances of the children’s integration into the social and family environment in Ivory Coast with that of England, the children’s trips to England were limited to visits to see family and friends, except for a longer period when the family was in England before and following D’s birth. I have been provided with no information as to how it is said that the children were more integrated into the social and family environment in England than that in Ivory Coast. Given the limited exposure that these children had to life in England, they were far more integrated into life in Ivory Coast. The mother had lived in Ivory Coast since 2013. The parents made a home together prior to the birth of the children and made their lives in Ivory Coast despite the uncertainties of their immigration status. The immigration requirements had been managed by the parents, in their different ways, for a lengthy period of time and this had not, in my finding, prevented them from establishing or maintaining integration within that part of the Ivory Coast community that they chose to occupy.

    35. By reason of the children’s integration in the ex pat community in Ivory Coast, I find as a matter of fact that the children were habitually resident in Ivory Coast at the time of their removal by the mother on 26 March 2018. I have had regard to the decision of Lord Wilson on Re B, where at paragraph 45, he states that only in the most exceptional circumstances will a child have no place of habitual residence. If the choice for these children is Ivory Coast or England, I find that their greater connection is with Ivory Coast.

    36. However, whilst being integrated into the ex pat community rather than more generally with the local population does not, in my judgment, prevent the child acquiring a habitual residence, the significance of the children being separated from their more limited exposure to the culture and way of life in the country of their habitual residence is a lesser consideration in the overall welfare evaluation, particularly given their ages and their experience of life in both Ivory Coast and Europe, as demonstrated by the mother’s account of the time they have spent away from Ivory Coast; an account that has not been challenged by the father.

    37. Ms Renton relies on the case of Re L as authority for the court retaining jurisdiction to order a summary return even if the country to which the child is being returned is not their place of habitual residence. In my judgment, that case is specific on its facts and is not of assistance on the facts of this case, other than to demonstrate that habitual residence is not an overriding consideration in these cases. The child concerned was a Texan child, being returned to Texas, to ensure that the child had the best opportunity to retain a relationship with the non-abducting parent. C and D are not Ivorian children but they were, in my finding habitually resident in Ivory Coast, a fact that has significance for my welfare determination as their father resides in that jurisdiction and their return would ensure a continuing relationship with him during the period of further negotiations between the parties or a court determination of the dispute.

    Welfare Determination

    38. In this application, I treat the welfare of C and D as my paramount consideration. I have to decide if it is in their best interests to order a summary return to Ivory Coast or for there to be a more detailed examination of the disputes between the parties. The mother has produced a great deal of material in an attempt to persuade the court that Ivory Coast is an undesirable place to raise children. I remind myself that I am simply deciding whether it is in the children’s best interests to return following this summary hearing or whether a more detailed investigation is required. I am not deciding an application for a permanent relocation, so most of the material produced has limited relevance, particularly given the information now received from the expert in Ivory Coast law.

    Different Legal Systems and Differing Concepts of Welfare

    39. As described above, in her initial email to the father following her removal of the children, the mother described her fear of unfair treatment in the court of Ivory Coast as her reason for relocating to England. During the course of the 2nd day of this hearing, expert evidence was obtained from an Ivorian lawyer, a Mr Kone, to explain whether the court in Ivory Coast would entertain an application by an unmarried mother, what would be the timescales for a relocation application in the Ivory Coast court and what would be the criteria that the mother would have to meet for an application to have some chance of success. It was most unfortunate that the need for this expert evidence had not been identified prior to the commencement of this hearing. The evidence was received in 2 stages over the course of the day. Firstly, in a report answering agreed questions. The content of the report led to additional questions being raised to clarify the meaning of some of the information provided. Final answers were not received until 3.30pm on the 2nd day of the hearing. This late receipt delayed the delivery of this judgment into a 3rd day.

    40. The evidence received from Mr Kone provides the following:

    (a) The mother is able to make an application to the court to relocate the children from Ivory Coast to England;

    (b) As the mother and father are not married, the court will be exercising a guardianship jurisdiction;

    (c) The relevant statute requires the court to make a decision within 1 month of the application being issued, unless the court needs to extend that time period to receive witness evidence or secure reports;

    (d) The Judge will make a decision taking into account the children’s interests;

    (e) Any appeal has to be issued within 15 days of the decision that is to be the subject of the appeal but there is no prescribed time limit for the determination an appeal, save that the “case is to be tried as a matter of urgency”;

    41. In Mr Kone’s first response, he described that the mother would need to show good reasons for her application to relocate and she would need to prove “compelling necessity of establishing herself in England”. This answer raised concern as to its meaning and further questions were asked of Mr Kone. In his next response, Mr Kone said “Compelling necessity is not a specific judicial term. It is up to the mother to prove that it is necessary for her to establish herself in England. The reasons may be professional, health related, family reasons or other reasons. Credible grounds must be given”.

    42. Mr Kone further explained the decision-making process of the court in the following terms:

    “The judicial criterion that applies to the relocation of the children is based on the fact that the mother is legally associated with the management of the children and their upbringing. She also shares in choosing where they will live. Clause 60 of the marriage law applicable to couples that are not legally married lays down that “the family home is chosen jointly by the partners.

    In case of disagreement, the family home is laid down by the judge, taking the interests of the family into account.”

    Also by citing good reasons, the mother may obtain authorisation to relocate the children. The judge will then allow the father visiting rights and the right of accommodation.”

    43. Following the receipt of this expert evidence, Ms Renton submits:

    (a) the court in Ivory Coast has a relocation jurisdiction;

    (b) opposition by the father is not a deciding factor;

    (c) the court will make a decision based on the best interests of the children and of the family;

    44. It was also Ms Renton’s submission that it is not for this court to examine the process that may take place in the court of Ivory Coast in an attempt to evaluate whether a decision taken in that jurisdiction would treat the welfare of the children in a way comparable to how welfare is treated by this court. Ms Renton argued that the issue of comity and respect for foreign jurisdictions is important and should be factored into the court’s overall consideration. I was referred to the case of Al Habtoor v Fotheringham [2001] EWCA Civ 186 where, at paragraph 44, it was stated:

    “[44] …..United Arab Emirates constitute a foreign jurisdiction with which this country has particularly close historical connection. Orders issued by courts of the Emirates are entitled to the regard, which we would expect the courts of the Emirates to have for our orders. In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less. Particularly is this so where the order, as in this case, is unenforceable and thus empty. The temptation to make conflicting orders arises from a contemplation of the gulf between legal systems based on a Judaeo-Christian model and legal systems applying the Sharia law. But if there is to be progress in the development of understanding and collaboration in international family law it is vital that we should attempt to build bridges over the divide rather than to issue empty challenges. Of course no court in this jurisdiction would have ordered a transfer of residence from the mother to the father on the application of the paramount welfare test. The fact that that was the outcome in Dubai, even the fact that that would have probably been the outcome in Dubai without compromise, does not mean that the welfare of the child is not the first consideration for the judge of the Sharia court. Both systems are child centred. It is the interpretation of child welfare, governed as it is by different religions, cultures and traditions, that produces such starkly different outcomes. In the years ahead it is to be hoped that there will be more frequent and profounder exchanges between diplomats, policy makers and judges to ensure that these differences of interpretation are not magnified by ignorance and misunderstanding.”

    45. Ms Renton also relies on the decision in Re S (Children)(abduction: asylum appeal); (orse S v K) - [2002] EWHC 816 (Fam). At p 651B Pill LJ said:

    “I have no difficulty in accepting the judge's conclusion that the application of Muslim law to this Muslim family is appropriate and acceptable. It is submitted on behalf of the mother that the welfare of the children, paramount in English law, must take priority over notions of international comity and respect for foreign courts in non-Convention states. In my judgment, the two are not inevitably in conflict. These are Sudanese children. Their welfare may well be served by a decision in accordance with Sudanese law which may be taken to reflect the norms and values of Sudanese society in which they live. That is a principle which the judge was entitled to take into account upon the facts of the case, thereby giving paramountcy to the welfare of the children. The solution in accordance with local law is capable of being in the best interests of the children.”

    46. The relevance of differing interpretations of a welfare test was considered in Re J. At paragraph 37, Baroness Hale said:

    “[37] Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. Once upon a time it was assumed that all very young children should be cared for by their mothers, but that older boys might well be better off with their fathers. Nowadays we know that some fathers are very well able to provide everyday care for even their very young children and are quite prepared to prioritise their children's needs over the demands of their own careers. Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery were only fit to care for their children if the father agreed to this. Nowadays we recognise that a mother's misconduct is no more relevant than a father's: the question is always the impact it will have on the child's upbringing and well-being. Once upon a time, it may have been assumed that there was only one way of bringing up children. Nowadays we know that there are many routes to a healthy and well-adjusted adulthood. We are not so arrogant as to think that we know best.

    [38] Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known 'check-list' in s 1(3) of the 1989 Act; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child's point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.

    [39] In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Hughes J put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight”.

    47. I have found that C and D were habitually resident in Ivory Coast at the time of their removal. They are not Ivorian children but children of an English mother and a Dutch father. The courts in this jurisdiction may well operate a welfare principle that is different to that of the Ivorian Court but it is now clear, from the late received advice of Mr Kone, that the welfare of the child and the whole family will be considered by the court in Ivory Coast. The Ivorian court does have a relocation jurisdiction and the wishes of the father are not decisive.

    48. In her closing submissions, Ms Webb accepted that the expert evidence of Mr Kone somewhat undermined her previous submissions that there was an elevated test for the mother to meet. That submission was justified on the basis of Mr Kone’s initial description of the mother needing to justify a “compelling necessity” for relocation to be permitted but, following Mr Kone’s responses to supplemental questions, Ms Webb accepted that a mother having to show good reason why a relocation should be permitted was a test similar to the burden on a relocating parent in this jurisdiction.

    49. It is clear from the evidence filed by the mother that her fears of unfair treatment arose from her reading of material published by Reunite in 2005. In his initial report, Mr Kone explained that there was a significant change in the law of Ivory Coast in 2013 that was a major step forward for women’s rights in the country. The mother relies upon a Human Rights Watch World Report from 2016 that describes “on-going efforts to strengthen the judicial system continued throughout 2015, including the rehabilitation of court buildings and detention facilities, and training of judicial personnel. However, more fundamental problems, such as political interference in the judicial and corruption, persisted”. The mother has produced a document, dated June 2014, from the U.S Department of State that describes “the judicial system is generally seen as dysfunctional but the government is working to restore its credibility and improve efficacy”. The document goes onto describe that companies investing in projects within Ivory Coast will require a contract to stipulate that disputes must be settled through international commercial arbitration to avoid the risks of a corrupt decision by an Ivorian Judge. All the material provided by the mother that criticises the Ivorian Court system refers to the civil or criminal jurisdiction and no evidence has been provided concerning its family law jurisdiction.

    50. As described by the mother in her email dated 27 March 2018, her fear is that the Ivorian family court decision would be dictated by “who knows who” or “who’s the highest bidder”. While expressing this fear, the mother has not in her statement in these proceedings accused the father of being a man who has any personal connections with Ivorian judges or a man who would be likely to attempt to bribe a Judge.

    51. I remind myself that it was the mother who behaved in an unacceptable manner when she lied to the father and removed the children from Ivory Coast. The father has had to respond to her actions. He has, in my judgment, made the application necessary to attempt to protect his relationship with the children. The mother has made some allegations of domestic violence against the father. In the Children Act application that the mother issued, she made no allegations of violence. In her statement in these proceedings she accuses the father of pushing her on one occasion. However, she also accepts in that statement that the first use of violence came from her when she hit the father. In her email of 27 March 2018, the mother described the father as “wonderful”. It may well be that during the breakdown of their relationship arguments were more frequent, their positions became polarised and the mother viewed the father as uncompromising in maintaining his own views concerning what should be the arrangements for the children post separation. What the mother describes in her statement is the type of discord that, unfortunately, occurs between couples when relationships break down and I do not accept a description of this behaviour as domestic abuse or controlling behaviour that poses a risk to the children.

    52. Having carefully considered the expert evidence of Mr Kone, I have reached the conclusion that the difference in approach between the English Court and the Ivorian Court, whilst a relevant matter to consider, is not a decisive factor as:

    (a) a relocation jurisdiction is available that takes into account the welfare of the children, and

    (b) the absence of any evidence that the father would seek to manipulate the Ivorian court in the manner that the mother suggests is possible.

    Immigration Restrictions and the Ability of the mother and children to return to Ivory Coast

    53. Given the mother’s concerns regarding the ability of the children to remain in Ivory Coast, expert evidence has been received from Mr Sacré Guébaé concerning what arrangements can be made to secure the admission of the mother and children to Ivory Coast and for them to remain there until agreement is reached between the parties for a relocation, or until the court in Ivory Coast has determined the dispute. Again, it has been necessary for the advocates to ask supplementary questions upon receipt of the first responses from Mr Guébaé but the immigration position now appears to be reasonably simple:

    (a) The mother and children can enter Ivory Coast on tourist visas;

    (b) The mother is able to make her own application for a residency card if she can demonstrate that she has employment, a business or if the father will provide for her financially;

    (c) The parents not being married, having separated and not cohabiting does not prevent the mother obtaining a residency card with the financial support of the father;

    (d) The father cannot add the mother to his residency card thus she will need to obtain her own;

    (e) The children will need residency cards of their own but either parent can apply for these;

    (f) The father and mother cannot work legally if they entered Ivory Coast on a tourist visa and have not yet obtained a residency card.

    54. I have described the history of the family living and working in Ivory Coast on a number of different immigration arrangements. It is positive that the father now has a residency card, is able to work legally and provide financially for the mother and children should I order a summary return. The immigration advice received demonstrates that there is no bar to the children returning to Ivory Coast with the mother. The father has given an assurance to the court that he will provide the financial support necessary for the mother and children to obtain residency cards and there is no evidence before me from which I could conclude that the father’s assurance should not be accepted.

    The Advantages and Disadvantages of a Summary Return to Ivory Coast

    55. Turning the advantages and disadvantages of a summary return to Ivory Coast, the main advantages of a summary return to Ivory Coast are the following:

    (a) The children would return to the jurisdiction where their father is living and where they will be able to spend regular and worthwhile periods of time with him. Save for the short period described above, the children have not seen the father since they were removed by their mother on 26 March 2018 and a continued loss of this relationship, pending a determination of the mother’s application for permanent relocation away from Ivory Coast is not in their best interests. Despite having been at court this week, I am told that the mother has failed to make any proposals to the father to establish a program of contact with the children, should his application for the summary return of the children be unsuccessful. In my judgment, Ms Renton is right to submit that this omission has to call into question the mother’s commitment to facilitating an on-going relationship between the children and the father should the children remain in this jurisdiction.

    (b) The children would, if the father’s proposal is adopted, be returning to the home where they had lived prior to their removal that includes the provision of care by the nanny with whom they are very familiar. The children have been in England for just 3 months and the mother has not suggested that they would not readjust to their lives in Ivory Coast were a return to be ordered.

    (c) This is not a case in which the court is faced with a refusal by the mother to return with the children, should I order that they return to Ivory Coast. They would be returning with the parent who has been their primary carer since they were removed on 26 March 2018.

    56. The relevant disadvantages of summary return to Ivory Coast are:

    (a) The father would need to find alternative accommodation and this would stretch the family finances. The mother believes that the father would not be able to afford to finance 2 homes, particularly as the mother is not now able to return to the employment that she left. It is the father’s case that he will be able to manage financially and I find no reason to doubt the assurance that he has given.

    (b) The mother will feel aggrieved by being forced to return to the Ivory Coast where she feels she will be unfairly treated by the Court system. It may be that mother’s upset at being returned will then have a negative impact on her care of the children but this has not be actively argued by Ms Webb. The mother is a professional women who has lived in Ivory Coast for some 5 years and there is no evidence before me from which I could conclude that the children’s care would deteriorate to such a degree that they would be harmed by a return to their former home.

    (c) If the parents are unable to agree arrangements for the children going forward, it will be necessary for the Court in Ivory Coast to determine the dispute between them. As I have already described, the Court will have regard to the interests of the children, and of the family, but how the final decision will be made is, perhaps, less predictable than equivalent proceedings in England, although the timescale provided for the resolution of proceedings is arguably more favourable than similar proceedings in this jurisdiction.

    (d) The mother would, unless she obtained employment, be reliant on the father for financial support. The mother has indicated that she would find such reliance uncomfortable and would feel vulnerable to the risk that the father would withdraw support. For reasons I have already given, there is not evidence before me that leads me to conclude that the father’s assurances should not be accepted.

    (e) The mother would not be in close proximity to her family for support. This disadvantage is mitigated by the presence of the children’s nanny in Ivory Coast who remains employed and able to provide support for the mother and children.

    Discussion and Decision

    57. I have found reaching a decision in this case difficult and finely balanced. There are persuasive welfare issues raised by each parent. It is not at all clear to me what the father will be seeking in terms of final arrangements for the children. I accept that the father wants the children back in Ivory Coast as soon as possible so he can resume his relationship with them but his position on final arrangements for the children has not been explained. As I have described, he had discussions with the mother, prior to her wrongfully removing the children from Ivory Coast, which included consideration of the children leaving Ivory Coast and relocating to a European Country. It is the mother’s very clear position that the children should relocate to England.

    58. In my judgment, whether the court in Ivory Coast or the court in England is best placed to make a decision for these children is a powerful welfare consideration. There is no presumption that an abducted child will be returned to a non-convention country. I have to consider the degree of connection of the children with Ivory Coast, the length of time they have spent in each county, the differences between the legal systems of each country, including which jurisdiction is best placed to make a final welfare decision for these children. The overall question to be answered is whether it is in the children’s best interests to remain in this country so that the dispute between the parents can be considered or to return to Ivory Coast so the dispute can be decided there.

    59. For the purpose of determining the mother’s application for relocation, evidence concerning the children’s lives here, or in another European Country, is more readily available in this jurisdiction. If it is to be the father’s application that the children should reside permanently in Ivory Coast, evidence concerning their life there, and what future arrangements can be made for them in that jurisdiction, would be more available to the Ivory Coast court.

    60. A matter that has weighed heavily in my balancing exercise is the adverse impact that not ordering a return to Ivory Coast will have on the children’s relationship with the father, given that his home and work is in Ivory Coast. I recognise that his work is not limited to Ivory Coast, as he also has work in Liberia and has recently travelled to Greece and Turkey, but I accept that if he is to maintain the success of his business, and provide financially for his children, he needs to be based in Ivory Coast at least until he has sufficient time to make alternative arrangements, time he has not had given his understandable focus on these proceedings.

    61. On the other side of the balance, is the failure by the father to take up the contact with the children that has been offered to him. I accept that the mother has made the children available for video call contact with the father and he has not taken full advantage of this. It is the father’s case that his work commitments have not enabled him to be available for all the contact offered. He does not accept that he has missed up to 50% of the indirect contact (as is alleged by the mother) but asserts that he has been available for 80% or 90% of the contact available. I also found it curious that the father complained in such strong terms about the mother prioritising the camping trip over the father’s time with the children but when, at my direction, further direct contact time was provided, the father did not take up the contact offered. It may well have been that only 2 hours or so was available but I accept Ms Webb’s submission that the father’s failure to take up the direct and indirect contact offered has to be taken into account when examining the father’s case that the children must be returned to ensure that he has a continuing relationship with them. It was also surprising to be informed that the father visited Europe on business but did not then travel to this jurisdiction to see his children. However, in my judgment participation in an ‘arm’s length’ contact arrangement cannot reliably be compared to how the father might engage with a program of spending time with the children were they to be returned to Ivory Coast.

    62. I have also carefully considered the mother’s concern that a return to Ivory Coast would place her in a precarious financial position due to her having to be reliant on the father. However, I have to assess the mother’s discomfort about such a situation against a background of her wrongful removal of the children and her resignation from her own employment without having first taken legal advice concerning the options available to her from an Ivory Coast lawyer.

    63. I also take into account that the children appear to have settled well into their life in England, although I am sure they would again adjust to life in Ivory Coast if returned.

    64. Drawing together all the competing considerations that I have articulated throughout this judgment, I have come to the conclusion that it is not in the best interests of C and D for there to be a summary return to Ivory Coast. As I have already said, this was a very finely balanced decision. What has, in my judgment, tipped the balance against a summary return is the evidence before me as to the parties respective positions in their negotiations concerning where the children should ultimately reside following their separation. In the mother’s statement, she says “At the end of our relationship, unfortunately we could not agree on where we would live in Europe. We did talk about coming back to Hertfordshire or Cambridgeshire to be near my family and there were also discussions with the Applicant for us perhaps settling in Totnes in Devon close to where my mother was living at the time”.

    65. In his statement, the father says, “shortly before the mother removed the children from Ivory Coast I had reiterated, in writing, my proposal that we physically separate but stay in Ivory Coast to minimize disruption to the children (and our income) all the while negotiating and taking concrete steps towards a new arrangement whereby both parents can provide love and support to their children in a location to be determined”. The father denies that there was an acknowledgement by him that the children would return to England.

    66. Later in his statement, the father emphasises the links that the children have to the Netherlands. He says “In reality our children are dual nationals i.e dual British/Dutch nationals. Whilst the children only have British passports at this stage they are entitled to Dutch passports and the mother and I had every intention of securing Dutch passports for the children as soon as possible. The children would have the right to reside in the Netherlands by virtue of either their British Nationality or Dutch Nationality and I am very surprised that the mother is seeking to assert that they have no right to reside in Holland. I have always supported the children’s British nationality and their links to their maternal family in the UK but their Dutch identity has been just as important as their British nationality. I speak to the children exclusively in Dutch. C’s second language is Dutch. The children have had a number of holidays to visit their paternal family in Holland (with whom I have just as close and loving relationship as the mother has with her family) and C was attending a Dutch school in Ivory Coast, which is a real luxury in a French-speaking county”.

    67. Importantly, in my judgment, at paragraph 41 of this statement, the father says this:

    “We have never had a home as a family in any other country. At various points we have discussed the possibility of living in Myanmar, South Africa, Nigeria, the UK, Netherlands, Madagascar, United States, etc. The mother has also always argued that she had ‘another country left in her’ before returning to Europe. At the time we separated we had not come to a decision about where our future lay but whilst this was discussed we remained fully settled in Ivory Coast. Whilst I do not envisage spending the rest of our life in Ivory Coast it was and is our home.”

    68. Given that the options being considered by the parents for their lives, and the lives of the children, were so diverse and there was, in my judgment, active consideration of arrangements for a return to the United Kingdom, I am not satisfied that the Court in Ivory Coast is best placed to determine a dispute between the parents should they be unable to reach agreement following a further period of negotiation. The children have already experienced disruption by their mother wrongfully removing them from Ivory Coast and her conduct, and deception, is to be deprecated. However, as there was, and is likely to be active consideration of a move to Europe, in my judgment the Court in this jurisdiction is better placed to determine any dispute and it would be contrary to the best interests of the children to now remove them from the United Kingdom for a period of residence in Ivory Coast that may then, on the evidence before me, result in a further move.

    69. Given that the parties have now separated and are living apart, it is in these children’s best interests for a final decision to be made for them as soon as possible. I have balanced the impact of the children’s presence here and the consequent loss of regular contact with the father against my conclusion that the court in this jurisdiction is best placed to consider the many options for the children’s future that the father accepts have been discussed between the parents. This is not a case where the father is saying that ‘I want my children returned to my home country’ with an intention of seeking a permanent placement of the children in that jurisdiction. The father himself acknowledges that he did not envisage spending the rest of his life in Ivory Coast. He accepts that there were discussions concerning relocating the children to Europe, although he denies that any final decisions had been made. That final decision now needs to be made with some urgency, by each party clearly setting out their proposals for the long-term arrangements so a productive negotiation can take place, or in default of agreement, a decision made in this jurisdiction.

    70. I hope that, now this application has been determined, the parties will be able to refocus their efforts on reaching an agreement concerning the future arrangements for the children. They are both represented by experienced lawyers able to assist them in their negotiations. What the children need is for the parents to reach agreement about their future care. The immediate need is for the parties to agree a programme of time for the father to have direct and indirect contact with the children while their negotiations concerning future arrangements take place.

    71. That is my judgment.

Judgment, published: 05/07/2018

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Published: 05/07/2018

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