Bold v Khew [2014] EWHC 4755 (Fam)

[2014] EWHC 4755 (Fam)Case No FD14P00124/FD14P00601
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 29 th September 2014
Before
MR JUSTICE HOLMAN__________B E T W E E N:
Between
MUNKHSARGAL BOLDApplicantGLENDEN KHEWRespondent__________Transcrption Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio TranscribersOne Quality Court, Chancery Lane, London WC2A 1HRTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com__________MR M. JARMAN appeared for applicant mother.MR G. ARMSTRONG appeared for respondent father.__________J U D G M E N T
[1]These are somewhat complex and apparently strongly contested proceedings in relation to a child, Max, who was born on 5 July 2012 and is now therefore about 14 months old.[2]As I understand it, the mother is a citizen of Mongolia. The father is a citizen of Singapore. Despite those facts, at the time of the birth of the child, and subsequently, the parents were living in England. In about July 2013 they travelled to Singapore. As things have turned out, the child Max has never since returned to England but has indeed been living seamlessly with the father's parents (that is, the paternal grandparents) in Singapore. The mother says that the father and/or his parents have cruelly breached the agreement or understanding between them that the child would return to England around November 2013. So early in 2014 she commenced the present proceedings, FD14P00124, in which the child has been a ward of this court.[3]A judge has already determined, several months ago, that at all material times the child was habitually resident in England and Wales so that this court had, and has, jurisdiction in relation to him.[4]A series of orders had been made, designed to promote the return of the child to England and Wales. These include orders directed to the father and, separately, his parents for the return of the child; the impounding and retaining of the father's passport by the Tipstaff here in England; and at one stage the committal of the father to prison. His committal to prison was set aside by the Court of Appeal on appeal and he was released after about 8 weeks' detention. To that extent, therefore, he is now again free but he remains unable to leave England and Wales because of the continuing retention of his passport.[5]Meantime there have been some frankly dramatic developments in Singapore. It appears that the mother travelled to Singapore and may (I emphasise the word 'may') indeed have entered that country clandestinely. It appears that for a short period of time the child, Max, was removed from the grandparents but was later found with the mother in an hotel in Singapore. She was then prosecuted in Singapore. I am not entirely clear at this short hearing today of the exact offences of which she was convicted, but at all events there came a time when she was sentenced to a determinate term in prison in Singapore. She is today currently in prison there.[6]There are obviously a number of issues in this situation which need urgent resolution. They include whether the English court should continue to exert jurisdiction in relation to a child who has now, as a matter of fact, been living in Singapore and in the care of his grandparents for over half his life. They include also whether the father's passport should continue to be retained. All these issues were due to be heard on 28 August 2014. Unfortunately on that day this case was not effectively reached and, in any event, the mother was not personally present since she was at that time in detention in Singapore, although she had not been sentenced by that date.[7]As a result an order was made by Mrs. Justice Roberts on 28 August 2014. That includes, at paragraph 1, that the matter was listed for further hearing before a judge sitting here today, 29 September 2014, with a time estimate of one day. Paragraph 1 continues:
"The purpose of the hearing is to consider the further conduct of the wardship proceedings and any application by the father for the return of the passport."
Paragraph 2 of the order then, importantly, provides as follows:
"The parties shall attend at the hearing on 29 September 2014, together with solicitors and counsel if so instructed."
Pausing there, paragraphs 1 and 2, when read together, clearly anticipate and contemplate and, indeed, effectively require, that the mother is at liberty on the identified hearing date of 29 September 2014 so as to be able personally to attend, together with lawyers if so instructed. Since that hearing the mother has been sentenced by a court in Singapore to a determinate term of imprisonment and is still serving that term. As I understand it, it is the expectation of both sides before me here today that she will be released on or about 7 October 2014 under early release procedures in Singapore.[8]It seems to me that it would be most unjust to the mother finally to resolve all these issues here today when she herself is incarcerated in Singapore and unable personally to be present as the order of 28 August 2014 clearly contemplated. Obviously if she had been sentenced for a period measurable in years, then she, and the court, would have to face up to the reality that these English proceedings had become completely futile. If she had been required to serve a long period of imprisonment in Singapore there could be no possible justification for proceedings continuing here in England in relation to a child who necessarily could not be living in England, as his mother was in prison in Singapore and his father wishes him to remain in Singapore. But she was not sentenced for a period of that order. Rather, she was sentenced for a number of weeks and is, as I have said, due to be released one week tomorrow.[9]In those circumstances, there being no day-to-day urgency about this matter, it seems to me that I must, and so I will, adjourn all the issues that were due for hearing today to a fresh date which gives to the mother a fair opportunity personally to attend after release from custody in Singapore. Unfortunately the earliest date which is now available, with one day allowed, is 31 October 2014. What is regrettable, of course, is that if it had been known on 28 August 2014 that the mother would be imprisoned but would be released around 7 October, then at that stage a one day fixture after 7 October but earlier than 31 October could probably have been found. I have to operate, however, within the realities and practicalities of the system. Of course this case has a degree of urgency about it, since it concerns a vulnerable child aged 14 months. It concerns an international legal conflict, and it currently entails that the father is kept here in England against his wish due to the retention of his passport. But I have to say that, relative to many of the really urgent situations that arise in family law and in the Court of Protection with regard, for instance, to urgent medical treatment or finding children who have completely disappeared, this case has a lesser degree of urgency. I am quite unable, therefore, to intervene with the Clerk of the Rules to use such powers of persuasion as I might have to seek or require an earlier date. It follows, therefore, that all these issues will have to be decided on the date that is available, namely 31 October 2014.[10]Mr Grant Armstrong, who appears on behalf of the father, has in those circumstances renewed an application that I should at any rate order today the return to the father of his passport. He says, rightly, that an order for the retention of a person's passport is a powerful order. It is strongly restrictive of a person's right and liberty of free movement, and should not persist for a moment longer than is absolutely necessary. He adds to that that the father is particularly desirous of returning to Singapore in order to see and support his parents, who, it is said, suffered physical and maybe psychological harm in the circumstances in which the child was removed from them.[11]I wish to stress with absolute clarity that I personally deeply appreciate how powerful an order for the retention of a passport is and how restrictive it is of ordinary human rights and liberty. Passports should never, ever be retained for a moment longer than is strictly necessary and proportionate in the circumstances of the case concerned. I have no doubt at all that the time may soon come when a robust decision will have to be taken that, even if these proceedings were justifiable at their commencement at the beginning of this year, the point has come when jurisdiction and decision making in relation to this child will have to be ceded to an appropriate court in Singapore. As I have said, the plain fact of the matter is that this child has now lived in Singapore and with his grandparents for over half his life. I have personally no possible reason or basis to question or doubt the reliability of the Singapore legal system fairly to resolve issues in relation to this child, making the welfare of the child concerned the paramount consideration. The time may fast be approaching when it is to the courts of Singapore that the mother must take any application for the return of her child to England and Wales.[12]All that said, these proceedings have now been in being here for about 9 months. There has already been an appeal to the Court of Appeal, when a number of issues in relation to the proceedings and jurisdiction were ventilated. Whilst the Court of Appeal ordered the immediate release of the father from prison, they did not disturb any other of the orders then in place. A judge of co-equal jurisdiction to myself has decided, several months ago, that during the currency of these proceedings the father's passport should be retained. Mr Armstrong says that I can trust the father to return here for the next hearing on 31 October if meantime I permit his passport to be returned so that he can travel for, say, a fortnight to Singapore. He offers to bolster any undertaking by the father to return by some charge over the equity in a property here, which is said to be worth about £1million.[13]The difficulty with all of that is, first, that there has been no adjudication yet on the true facts surrounding the non-return of this child to England and Wales late last year. The father says that he is a man who can be trusted but the case of the mother is that she first travelled with the child to Singapore last year on the basis of clear agreements and understandings that the child would in due course be returned here. He has not been returned here. It is therefore the case of the mother that the father is not a man who can be trusted.[14]Second, although Mr Armstrong says that security could be provided by resort to the equity in the property here, that would require very detailed and careful consideration (which I am not able to give today) as to the exact circumstances in which that property is owned and held, and as to existing charges upon it, and a very carefully drafted document indeed. Further, what the mother seeks is the return of her child. No price can be put upon a child, not even £1million. So although the suggested charge might offer some security it is not, frankly, a complete answer to the safeguards that are required here.[15]I stress that I do have considerable understanding of the position of the father, who has been unable now to leave England and Wales for many months, but in all the circumstances, as I have described them, I am not willing to permit the return of his passport to him today. In my view, he will have to wait here one month longer, until the hearing fixed for 31 October 2014.[16]I mention in this judgment, as paragraph 1 of my formal order recites, that the mother must personally attend that hearing. I make clear today that if the mother is at liberty on the date of that hearing but does not attend the hearing personally, it is likely, subject of course entirely to the discretion of the judge at that hearing in the circumstances then prevailing, that these proceedings will be entirely discontinued. If they are, then, of course, the father's passport will be immediately returned to him. __________