Family Law Hub

U (Children) [2014] EWHC 4535 (Fam)

Application by father for return of children to Pakistan under the 2003 protocol following their removal to the UK by the mother in 2010. Application refused because of the delay in making the application and 'fortified exceptionally by the strength of the children's wishes and feelings'.

  • Case No. FD14P00673

    Neutral Citation Number: [2014] EWHC 4535 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    MANCHESTER DISTRICT REGISTRY

    Civil and Family Justice Centre

    1 Bridge Street West

    Manchester

    M60 9DJ

    Tuesday, 11th November 2014

    Before:

    THE HONOURABLE MR JUSTICE MOSTYN

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    In the matter of:

    Re: U (Children)

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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

    DX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838

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    The Applicant Father appeared In Person via telephone

    Counsel for the Respondent Mother: MISS GRUNDY

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    JUDGMENTJUDGMENT

    MR JUSTICE MOSTYN:

    1. This is, in many ways, a sad case. I am concerned with three children:

    Haadiyah Amir U, a girl, who was born on 3rd January 2000, who is therefore nearly 15;

    Noor Fatima, a girl, born on 1st February 2001, who is therefore nearly 14; and

    Mohammed Asad U, a boy, born on 9th October 2006, who is just 8.

    2. The parents of the children are Amir U and Sameena H. The father was born in Pakistan in 1967 and is a Pakistani national. The mother was born in Leeds in 1970 and is a dual Pakistani and British national. The parties were married in 1999 in Pakistan and lived in that country at the home of the mother's uncle. Haadiyah was, in fact, born in the UK, Noor Fatima was born in Pakistan, and Mohammed was born in Pakistan.

    3. On 3rd November 2009, the father moved out of the marital home. The mother says that the context of his departure was a culmination of a systematic campaign of abuse and rejection of her. The father denies this. What cannot be disputed is that since November 2009, the father has had no contact at all with his children; that is for a period of five years. This is a sad state of affairs. Unless there are exceptional circumstances, every child has a birthright to grow up enjoying the society of both parents. It is important, in my judgment, that some small steps are soon taken to begin the process of restoration of the paternal relationship with these children.

    4. In May 2010, the parties were divorced, although the father has told me in his oral evidence, which has been taken over the telephone from Pakistan and translated, excellently, I would say, by a professional interpreter in this court, that the divorce in Pakistan in May 2010 is not valid. At about the same time, in fact on 15th April 2010, the father file an application for custody of all three children with the Guardian Court at Jaranwala, which is near Faisalabad. On 4th June 2010, that court made an order restraining the mother from taking the children out of Pakistan without the permission of the court. In her oral evidence, the mother told me that she was not aware of the existence of that order. It is not necessary for me to judge who is telling the truth about this. I should say that the father strongly disputes that the mother was unaware of the existence of this order but it is not necessary for me to make an adjudication as to who is telling the truth about this.

    5. On 11th August 2010, the mother removed all three children to England, specifically to Manchester, where they have lived ever since. On 9th December 2010, the Guardian Court in Jaranwala in Pakistan made an order that the children be produced in court within 30 days. On 10th January 2011, the mother's right to defend the father's custody suit was struck out by the court on the basis that the children were not produced in court and, on 2nd June 2011, the father was granted custody of the children by the judge of the Guardian Court sitting at Jaranwala.

    6. It is the mother's case that she did not participate personally in those custody proceedings, although it is certainly the case that representation was arranged on her behalf by her uncle, who stands in the position of her father for all purposes. However, whether or not the mother participated in those proceedings is, to my mind, immaterial. What is material is that the custody order in favour of the father was granted as long ago as 2nd June 2011, yet it was not until nearly three years later, on 23rd May 2014, that the father commenced wardship proceedings here seeking, in effect, to enforce the custody order in Pakistan. I will describe the specific relief that he seeks a little later in this judgment.

    7. Following the custody order made on 2nd June 2011, the mother lodged an appeal to the District Court in Jaranwala. Again, she says that she personally did not do this; it was done by her uncle pursuant to a power of attorney. It is plain that she was represented by solicitors and counsel. The appeal failed. She mounted a further appeal on 19th July 2011 to the High Court in Lahore. Again, this was done on her behalf by her uncle and again the mother says that she was ignorant of this step being taken on her behalf. That appeal took nearly two years to be determined and was dismissed on 23rd May 2013. From that, the mother sought to appeal, again through her uncle holding the power of attorney, to the Pakistani Supreme Court. That further appeal was, in fact, withdrawn by her on 28th March 2014.

    8. Notwithstanding these elaborate appellate procedures, there was at no time in place a stay of execution in favour of the mother and it was open to the father at all times since the original custody order on 2nd June 2011 to have taken steps here to enforce the order. However, he did not do so, and although I gave him every opportunity to give me an explanation, he was not able to state anything plausibly by way of explanation for the delay, beyond saying that it took him some time to obtain legal aid to make the application that he did.

    9. The application which he made on 28th May 2014 sought merely that the children should be made wards of court and for an order that they be returned to the applicant's care in Pakistan. The applicant father stated in the application form this:

    "The applicant's three children have been removed from the jurisdiction of Pakistan by the respondent without his consent and in breach of a Pakistani court order."

    It is notable that the relief sought by the father did not extend in the alternative to an order for contact. It sought only what might be described as the nuclear solution of a return of the children to his custody and care in Pakistan.

    10. Following the issue of that application, on that same day a location order was made by Mr Justice Newton. It was executed by the Tipstaff and the passports of the mother and the children were seized.

    11. At the inter partes return date on 9th July 2014, Mr Justice Keehan ordered the parties to file their final witness statements and for an officer of the CAFCASS High Court team to make a report about: (a) the wishes and feelings of the children about a return to Pakistan; (b) any recommendation that the officer may reach on the father's application; (c) whether it be in the interests of the children to be joined as parties; and (d) whether there should be contact between the father and the children and, if so, how and in what circumstances. It was also directed that the father's application should be finally determined by me today, 11th November 2014, sitting in Manchester, with a time estimate of two days. The order did not provide for evidence to be filed concerning contact or for there to be an adjudication of the issue of contact.

    12. The parties made their witness statements and, on 29th September 2014, Mr John Power, who is well known to this court and who is an exceptionally wise and experienced CAFCASS officer, made his report. Mr Power interviewed the children alone at some length and ascertained their wishes and feelings, which were unambiguous. They wished to remain in their settled environment, living with their mother and attending school in Manchester, and further they wished to have no contact with their father. In his report Mr Power said this at paragraph 31:

    "The children use strong, intemperate, and forceful language to describe their father and I think that, irrespective of what their experience might have been of him in the past, they are giving a clear and robust indication of where they wish to remain in the future."

    He says in paragraph 33:

    "I believe the father's application is without merit. He has been totally excluded from the children's lives for the last four years or so, through no fault of his own, perhaps, although the children would argue otherwise. He knows next to nothing about their lives in the UK, although the children and their mother claim he spies on them through a parent with a child who attends the same school. Be that as it may, he is wholly unaware of the extent to which their lives are fruitfully and evidentially embedded in Manchester across a range of developmental indices which indicate to me that their needs are being met here with their mother as a lone parent with no financial help from him.

    And at paragraph 34:

    The mother has not enabled the children to have a safe relationship with their father, nor would it seem that she has resolved the feelings or perceptions they hold about him. Given their strength of feeling, I am not sure it would be possible and there is insufficient evidence available to me to take a view on the very different accounts of family life in Pakistan offered by the children and their parents."

    In paragraph 36, he said:

    "The older children describe their father as a 'violent, drunken rascal,' 'a bastard,' and 'ex father,' et cetera. I do not take a view as to whether the children are right about their father and I am aware that he wholly disputes what their mother and, by association, the children say about him. The way things stand at the moment, I do not see how contact can be safely or meaningfully introduced. Even if there were to be a fact-finding about the allegations to provide clarity about future risk, I remain unsure where things would then go, given the ascertainable wishes and feelings of the older children, which are so aligned, virulently and passionately expressed. Logistics and immigration status aside, it is four years too late and I would recommend that the court dismisses the father's application."

    13. He had said a little earlier at paragraph 35, "It would be cataclysmic for these children to be returned to Pakistan." He recommended that the father's application be dismissed and in paragraph 40 he concludes:

    "Even if the mother has formed a cabal with the children, I still take the view that it would be unthinkably injurious and harmful to return these children to Pakistan."

    14. I refer to the judgment I gave earlier today where I refused the father an adjournment. Following that refusal, the case has proceeded satisfactorily. Mr Power gave evidence and was cross-examined by the father, speaking on the telephone from Pakistan and translated from Urdu. The mother gave evidence and was again cross-examined by the father. The father gave evidence and was cross-examined by Miss Grundy on behalf of the mother. The father made his final speech to me, as did Miss Grundy on behalf of the mother. The case was conducted economically and in good temper by all concerned, for which I am grateful.

    15. In the circumstances of this case which I have recounted, the protocol concerning child abduction cases between the UK and Pakistan of January 2003 is engaged. This is a bilateral agreement between the judiciaries of both countries. It does not have the status of a bilateral agreement between governments, let alone the status by analogy of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. In paragraph 2 of the protocol it states this:

    "If a child is removed... from Pakistan to the UK without the consent of the parent with a custody/residence order, or a restraint/interdict order from the court of the child's habitual/ordinary residence, the judge of the court of the country to which the child has been removed shall not ordinarily exercise jurisdiction over the child save in so far as it is necessary for the court to order the return of the child to the country of the child's habitual/ordinary residence."

    At paragraph 6 it states:

    "These applications should be lodged by the applicant, listed by the court and decided expeditiously."

    16. The terms of the protocol therefore presuppose that provided that the application had been made expeditiously, the court here should not ordinarily exercise jurisdiction other than to order the return of these children to Pakistan. Pakistan has not yet signed or ratified the 1996 Hague Convention. It is noteworthy that an Islamic country, namely Morocco, has. Whether Pakistan, in fact, ever signs, ratifies, or accedes to the 1996 Hague Convention remains to be seen. Were Pakistan an acceded member to the 1996 Hague Convention, then the order here would be presumptively enforceable by virtue of Article 23 of the Convention. That provides that the measures taken by authorities of a contracting state shall be recognised by operation of law in all other contracting states. However, recognition can be refused on a number of grounds of which (d) is the only one relevant for my purposes, which is this:

    "[It may be refused] if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child."

    17. That ground of refusal is identical to the ground of refusal in Article 23A of the Brussels II Revised Regulation No.2201/2003. There have been a number of authorities concerning that ground, namely: Re: S (Brussels II: Recognition: Best Interests of the Child) (No 1) [2004] 1FLR 571; LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664; and Re: L [2012] EWCA Civ 1157. In that later case, Munby LJ specifically approved the decision of Wood J in LAB v KB. In that case, at paragraph 36, Wood J said this:

    "There may come a time when an order of a member state is so stale that coupled with a variety of other powerful factors, a court would have to take a view in the light of welfare considerations as to whether or not that order should be recognised and/or enforced, yet such a court would, in my judgment, remain powerfully constrained in so considering such an order by the necessary consideration of those matters set out in Article 23 of the regulation and would not readily or easily depart from the underlying principles of the regulation."

    18. If this were a 1996 Convention case, I take the view that the scale of delay in mounting the proceedings – three years – coupled with the exceptionally strong wishes and feelings expressed by the children would in fact bring this case within the ground of non-recognition at Article 23(2)(d), but this is not a 1996 Convention case. It is a case governed by the protocol which is expressed in much less adamantine, prescriptive language. The protocol merely talks in terms of the court not ordinarily exercising jurisdiction other than to order a return in the circumstances with which I am confronted. Plainly, there are circumstances where the court can extraordinarily exercise jurisdiction and, in my judgment, where there has been a scale of delay that would amount to a ground of non-recognition under the 1996 Hague Convention, then that extraordinary step should be taken.

    19. In my judgment, the extent of the delay since the original custody order before the father mounted his application is, of itself, fatal to an application for a summary return of the children to Pakistan. That position is fortified exceptionally by the strength of the children's wishes and feelings. I do not discount the possibility that those wishes and feelings may be the product of influence by the mother, although, in fact, she struck me as a rather non-didactic person. However, whatever the terrain from which those wishes and feelings spring, I am quite sure that when taken together with the delay, this is a case where the father's application should not be granted and should be dismissed. My formal order will therefore record no more than that the father's application is dismissed. The location order will similarly be dismissed and the passports of the mother and the children will be returned to them.

    20. I indicated at the beginning of this judgment my disquiet at the disturbing state of affairs where these children are growing up without any paternal contribution or influence whatsoever. I am expecting to hear from Miss Grundy as to what small initial steps the mother would support to begin the process of reconciliation between these children and their father.

    21. Miss Grundy has asked in her document that the mother be permitted to disclose the report of Mr Power to the children's school. That has not been discussed with me and I will now hear from her as to the reason for that request.

    [Discussions follow regarding Mr Power's report]

    22. The mother has signified that she will provide the father with her email address, that he may use that to communicate with his children not more than once a month and, specifically in relation to the girls, can do so on their birthdays on, respectively, 3rd January and 1st February. She will agree to use her best endeavours to encourage the children to reply to the father and by this means, these small first steps, I would like to think that the beginnings of a rapprochement between this father and these children can be achieved. I emphasise the importance in the psychological development of these children of having paternal influence. My order will also record that a copy of my judgment should be obtained by the mother, certifying my opinion that it is a reasonable disbursement or charge on her legal aid certificate.

    [Judgment ends]

Judgment, published: 20/01/2015

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Published: 20/01/2015

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