R (Children: Temporary Leave To Remove From Jurisdiction), Re [2014] EWHC 643 (Fam)

[2014] EWHC 643 (Fam)Case No VO11PO0226
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 3 rd March 2014
LEICESTER DISTRICT REGISTRY
Before His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
Re R (Children: temporary leave to remove from jurisdiction)
Mr William Tyler for the Applicant mother
Mr Alex Verdan QC for the First Respondent father
Mr Martin Kingerley for the Children’s Guardian
Judgment-
Between
Applicant motherApplicantRespondent fatherRespondent
[1]The applications before me relate to four children, TR, a boy aged 7, and his three younger sisters LR aged 6, BR aged 4 and JR aged 3. Their parents are CR (‘the mother’) and DR (‘the father’). The mother applies for permission to take all four children on holiday to India for two weeks during the Easter school holidays. The father applies for an increase in his contact with the children.

Background

[2]The mother is aged 26. The father is aged 35. They were married in India in 2005. It was an arranged marriage. The father has lived in England all his life. Until the marriage the mother had spent her life living with her family in India. After the marriage the mother took up residence with her parents-in-law in India whilst the father returned to England. A short while later the mother came to England. She and the father lived at an address in Birmingham which they shared with other members of the father’s family.[3]Over the course of the next five years their four children were born. Sadly, by 2011 the marriage had become unhappy. In May 2011 the mother left the family home taking the children with her. Since their separation the father has continued to live in Birmingham. The mother now lives in Leicester.[4]Almost immediately after their separation the father made an application to the court for contact. Those proceedings have been ongoing for almost three years. It is unnecessary to chart the history of the litigation. It is sufficient to refer to key events.[5]The mother alleged that there had been domestic abuse. A direction was made for a finding of fact hearing. That hearing was conducted by His Honour Judge Brown in May 2012. Whilst all domestic abuse is serious, the findings made fall at the lower end of the spectrum of abuse. The judge’s findings included findings that one of the father’s sisters, G, was controlling, that she had intimidated, belittled and bullied the mother, that she had manhandled the mother, that during her third pregnancy G had pushed her, that LR had been overly chastised by the father, his mother and by G and that the father had also chastised TR.[6]Judge Brown went on to make residence orders in favour of the mother in respect of all four children. He ordered that the father should have contact with the children, initially at a contact centre but quickly moving to unsupervised contact away from the contact centre. He also ordered that neither parent should remove any of the children from the jurisdiction.[7]Since the date of that order the court has kept contact under review. Contact has gradually progressed. Contact currently takes place alternate weekends from 10.00am on Saturday until 4.00pm on Sunday and for half of all school holidays. Handover takes place outside a police station close to the mother’s home. If this gives the impression that there is increasing trust and co-operation between these parents, that is a false impression. There remains a complete lack of trust. The progression of contact has been court led. There have been steps backward as well as steps forward.[8]In May 2013, two years after these proceedings began, Judge Brown made the children parties to the proceedings and pursuant to Family Procedure Rules 2010 rule 16.4 appointed an officer of CAFCASS as children’s guardian. By then, it was not only contact that remained problematic. The mother had also indicated that she wished to be able to take the children to India to visit her family.[9]Initially, the mother wished to take the children to India for four weeks in December 2013. For reasons which will become apparent, it was not possible to determine the mother’s application in time for that proposed trip. She now wishes to take the children to India for two weeks at Easter. Her application is opposed.[10]As for contact, the father wishes this to be extended. In particular, he wishes to be able to collect the children from school alternate Fridays and return them to their mother at 6.30pm on Sundays. The mother agrees to contact beginning on Fridays but says that this should be at 7.15pm, after the children have finished attending their madrassa. She does not agree to the children being returned at 6.30pm on Sundays. She says that they should continue to be returned at 4.00pm.[11]The resolution of the issue relating to contact is straightforward. Resolution of the mother’s application to take the children to India is not. It was that application which led to these proceedings being transferred to the High Court.

Expert evidence

[12]India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction concluded at The Hague on 25th October 1980. In May 2013 the father received a letter from the Child Abduction Section of the Foreign & Commonwealth Office (‘FCO’) in London in these terms, ‘Thank you for your telephone call today. I am writing to confirm the difficulties we have experienced in cases of parental child abduction to India. India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The 1980 Hague Convention exists to allow children who have been abducted or wrongfully retained by a parent to be returned to the country where they normally live so that matters of residence and contact can be decided by the courts in that jurisdiction. In cases where a child has been removed from the UK to a country such as India, without such a mechanism in place, a left behind parent will usually have to go through lengthy and costly legal proceedings in the hope of getting their child/children returned to the UK. The Child Abduction Section also sees many ‘child retention’ cases in countries without an effective mechanism in place to return children. These are cases in which a child is taken out of the jurisdiction of the UK for a temporary period of time, the dates of this period often incorporated in to a UK court order. The courts in India are under no obligation to uphold a UK court order, just as there is no obligation for the UK courts to uphold any court orders from foreign jurisdictions. With this in mind, a left behind parent would have to employ a legal representative in India to initiate legal proceedings, which can be both costly and distressing.’[13]In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:
‘23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’
[14]Efforts have been made to obtain expert evidence in this case. Those efforts have been considerable. They have been thwarted by the Legal Aid Agency. It is appropriate, therefore, to examine the history of this particular issue in a little detail.[15]The applications first came before me on 18th July 2013. I gave the mother permission to obtain a report from an expert in Indian family law, in particular as to the legal remedies available should the children be retained in India at the end of an authorised visit. I ordered that the costs of the report be borne by the mother, limited to £2,500 plus VAT, and deemed those costs to be ‘a reasonable, proportionate and legitimate expense’ on the mother’s public funding certificate.[16]The next hearing was on 2nd September 2013. I was informed that the Legal Aid Agency had refused to grant authority for the instruction of an expert on the basis that the costs of the expert’s report should be shared equally. I was invited to reconsider my order. I reaffirmed my earlier order expressly noting that this is properly a sole instruction by the mother, it being her application for permission to remove the children to India, and that the report is necessary in order for the court to determine the mother’s application. I listed the application for contested hearing on 30th October 2013.[17]By the date of that next hearing the Court of Appeal had handed down its judgment in Re R (A Child) to which I referred earlier. The final paragraph of the judgment makes the point that, ‘28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President's responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ's exhortation for these cases ordinarily to be dealt with by the judges of the Division.’[18]I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:
‘And Upon the Court observing that: a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert; b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality. c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated; d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’
[19]Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.[20]The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

The law

[21]Before I review the evidence it is appropriate to remind myself of the law to be applied in determining these applications. With respect to each of the issues I am asked to determine, the starting point is s.1 of the Children Act 1989. The children’s welfare must be my paramount consideration. In determining what is in the children’s best welfare interests I must have regard to each of the factors set out in the welfare checklist in s.1(3). I must have regard to the general principle set out in s.1(2) that any delay in determining the questions before me is likely to be prejudicial to the children’s welfare. In light of the history set out earlier in this judgment, that is an important issue in this case.[22]I must also have regard to the Article 8 rights of both parents and of each of these four children. Ultimately, the orders I make must be proportionate and in these children’s best welfare interests.[23]So far as concerns the mother’s application for permission to take the children to India, it is also important to have regard to any authorities giving guidance on the approach to determining such applications. I have been referred to four authorities. Two of them, both first instance decisions (Re A (Security for return to jurisdiction) [1999] 2 FLR 1 and Re S (Leave to remove from the jurisdiction: securing return from holiday) [2001] 2 FLR 507) are examples of safeguards put in place in those cases in order to try to ensure that children were returned to the UK at the end of a holiday to a non-Convention country. They do not set out any points of principle. The principles are to be found in two decisions of the Court of Appeal, Re R (A child), to which I referred earlier, and Re K (Removal from jurisdiction: Practice) [1999] 1 FLR 1084. As the guidance given in the latter was expressly approved in the former, it is only necessary for me to refer to Re R (A Child).[24]In Re R (A Child) Patten LJ summarised the correct approach as follows:
‘25. As the quotation from Thorpe LJ's judgment in Re K (see paragraph 19 above) confirms, applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements: a) the magnitude of the risk of breach of the order if permission is given; b) the magnitude of the consequence of breach if it occurs; and c)the level of security that may be achieved by building in to the arrangements all of the available safeguards. It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave.’
[25]In considering those three elements, and in evaluating the evidence generally, the point has been made by Mr Tyler on behalf of the mother that the fact that the court may find the mother to be untruthful on some issues does not mean that the court should find her to be untruthful on the central issue which relates to her assurance that she would return the children to the UK at the end of the holiday. On this issue I have been reminded of the observation made by Mr Justice Charles in A County Council v K, D and L [2005] 1 FLR 851 that ‘[28]…in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.’

The mother’s evidence

[26]Having heard evidence from both parents it is clear that both continue to harbour deep distrust of the other. The mother’s distrust of the father arises out of his past behaviour of which the findings made by Judge Brown are illustrative. The father’s mistrust of the mother arises from what he asserts is her untruthfulness in her evidence to the court in respect of the present applications and also the lack of transparency in her evidence.[27]The mother first set out her desire to take the children to India in her written statement dated 3rd May 2013. In that statement she said, ‘I am also seeking permission from the Honourable court that I be granted permission to take the children to India in December 2013 for a period of approximately three weeks. I propose to take the children during the Christmas period and one additional week. I have already spoken to the children’s school who have said they have no objections to this and in fact have been very supportive and said it would be a good idea for me to have a break.’ That last point was not true. In an e-mail dated 21st May 2013 from the Acting Head of Infants at the children’s school, it was said that, ‘the school cannot offer a letter in support of extended leave for the family…for the hearing tomorrow, as the attendance levels for the children falls below the level at which we would consider applications for leave during term time.’[28]In her written statement dated 20th August the mother says that, ‘My children have never met my grandfather or my brothers, I would like to take my children to India to visit my family, particularly my grandfather, as I do not know how long he will be alive for. The children have never been to India before and I feel it is an important part of their cultural identity to see where their mother grew up…’[29]The father has produced copies of the younger two children’s passports. Endorsements in their passports show that they travelled to India in August 2011.[30]One of the reasons why the mother wished to take the children to India was so that she and they could see her grandfather who was seriously ill. She set this out in her statement dated 20th August 2013. My order dated 30th October contains a recital stating:
‘And upon the Applicant mother confirming, at the request of the Respondent father, that her grandfather is alive but currently very unwell’
. The father subsequently produced a copy of a death certificate showing that the grandfather had died on 13th September.[31]The mother is in regular telephone contact with her parents in India. She speaks to them at least every other day. She is particularly close to her father. She says that her parents did not tell her that her grandfather had died. They were concerned that she would find it too distressing and that she would be without support to comfort her. She did not find out about her grandfather’s death until she was informed by her solicitor who had received news of his death from the father’s solicitor.[32]At the time she had agreed the recital to the order of 30th October the mother claims that she had genuinely believed that recital to be true. She produces a letter from her father, affirmed before a notary in India on 26th November, in which the father says, ‘we withheld this news fearing the worst impact that it would cause on an already traumatized mind of my daughter’. If that is true, the mother can be excused from making a false statement to the court on 30th October. But is it true? The letter from her father is a perplexing document. It is a four page document written in English. Her father is unable either to read or write in English. If the letter was originally written in the father’s native language, the original document has not been produced. If it was written in English it is unclear who wrote it. It is also unclear whether it was translated for her father before he signed it.[33]On behalf of the father, Mr Verdan QC says that the father is prepared to accept that the mother is telling the truth instead blaming her father for trying to mislead the court. However, such is the lack of clarity as to the provenance of this document, and such are my concerns about the mother’s reliability generally, that I am not disposed to accept that the mother’s father kept her in the dark about her grandfather’s death.[34]Despite telling the court that he regards the mother as a very good mother, the father clearly has doubts about her care of the children. In November 2013 he instructed a private investigator to keep watch on the mother’s home, believing that she was leaving the two younger children alone in the house whilst taking the older two children to school. The private investigator did indeed observe the mother taking the older two children to school. The younger two children were not with her. He observed this over three consecutive days. He shared his concerns with the police. The police interviewed the mother. She denied the allegation. She said that the children had been taken to school by a friend. In her oral evidence the mother admitted that she had lied to the police.[35]The mother now says that although the two younger children were left at home whilst she took the older two children to school, they were not left alone. She says that they were left in the care of a friend, Mrs Z, who had been staying overnight. There is no evidence from Mrs Z. The mother explains the lack of a witness statement by saying that she did not want to involve Mrs Z in this litigation. She confirms that Mrs Z has four children of her own. Two are now adults. The other two are still at school. The oldest of those two children is aged 13. She does not know the age of the youngest child. In the absence of evidence from Mrs Z, I find the mother’s account unbelievable. I find that the younger two children were left home alone whilst she took the older two children to school.[36]It is not simply the mother’s honesty that is in doubt. There are also concerns about her openness. In her statement dated 3rd May the mother said that she wanted the court to be informed that she was considering moving to London with the children. At some point (and it is not clear precisely when) the mother formed a new relationship with HB. All that is known about HB is that he is of Indian origin, that he lives with his parents in London and that he is single. In her oral evidence the mother informed the court that she is engaged to HB. No date has been set for them to marry. It is, though, clear that it is the mother’s intention that he should be involved in the care of her children when she moves to London.[37]The guardian wished to undertake police checks in respect of HB. In order to do that she needed the cooperation of both the mother and HB. That cooperation has not been forthcoming. As a result, the guardian has not been in a position to undertake any enquiries concerning HB and in particular concerning his suitability to be involved in the care of these four children. Crucially, in the context of the mother’s wish to take the children on holiday to India, it is also not known what HB’s immigration status is.[38]In her written evidence the mother says that she and her family do not have the means to be able to offer property or money by way of surety to guarantee her return to England at the end of her proposed holiday. At the beginning of this hearing I was informed that mother’s family have a friend who lives in London, who has property and money and who would be willing to provide surety as part of a package of safeguarding measures if the court is willing to permit the mother to take the children to India. The mother has not provided any information concerning this man. I discount the possibility of surety being provided.[39]After completing her evidence on the first day of this hearing, at the beginning of the second day I was informed by Mr Tyler that the mother now proposes that she take only two of her children to India, TR and JR. On her behalf it is submitted that leaving two children behind in the UK is the best possible guarantee that the mother would return the other two children to the UK at the end of the holiday.[40]The factors I have covered so far are all relevant primarily to the application for permission to take the children to India. Other parts of the mother’s evidence relate to the issue of contact and to more general matters relating to the care of the children.[41]I have already noted the mother’s intention to set up home with HB in London. The father shares parental responsibility for the children. He therefore has a legitimate interest in where the children are going to live and where they will attend school. The mother was notably reluctant to agree that the father should be consulted, or even given advance notice, of her plans in either of these areas. It appeared to be the mother’s position that she will move to London, place the children in a local school and then at that stage inform the father. In other words, he is to be presented with a fait accompli.[42]The guardian’s recommendation is that the father should collect the children from school on Friday afternoon and return them to the mother (as now) on Sunday afternoon. The mother says that the children attend a madrassa from 5.00pm to 7.00pm each weekday and that that pattern should not be changed. The father’s contact with the children should begin at 7.15pm.[43]There is a secondary issue so far as concerns the handover point. Hitherto, collection and return of the children has taken place at a police station close to the mother’s home. The guardian considers this inappropriate; it gives the wrong message to the children. The mother sees nothing wrong in the present handover arrangements and says that handover at the police station is ‘nice’ for the children.[44]As for the end of contact the mother says that the father should continue to return the children at 4.00pm on Sunday.[45]Having made findings against the father’s sister, G, Judge Brown ordered that G should not be present in the house overnight whenever the father has contact with the children. The mother agrees that this can now be varied so as to provide that G shall not have sole care of any of the children overnight.

The father’s evidence

[46]The father’s demeanour as he gave his evidence suggested that he is a reasonable, tolerant and forgiving man. Mr Tyler submits that the father’s evidence was choreographed. There is more than a grain of truth in that submission. Whilst the father’s demeanour was impressive – calm and measured – the content of his evidence gave a truer picture.[47]I have already referred to the outcome of the finding of fact hearing. The father told me that he accepted the findings made against him and members of his close family. However, it quickly became apparent that he does not accept those findings. He does not accept any of them.[48]There was an incident at court on 20th May 2013.

Judge Brown’s order contains a recital in these terms:

‘Upon the Father accepting on the Court record that he made a threat to cause injury to [the mother] to his barrister following the last Court hearing on the 19th April 2013’
. Rather than accepting that that recital accurately reflected what had happened, the father prevaricated.[49]The father described the mother as ‘a fantastic mother’. This jarred with his acknowledgement that he had instructed the private investigator not only because of his concern that the mother had left the two younger children home alone but also because of his concern that the mother was abusing the children.[50]The father has been kept in the dark, very much as the court has been kept in the dark, about the mother’s relationship with HB and about her future intentions. The children had told him about HB and had told him that the mother was sleeping with HB. At one point the father said, ‘It is entirely up to her. It is her life. Who am I to stop her?’ He said that what the children had told him had gone in one ear and out the other. He said he had no interest in what the mother does. However, all of this needs to be seen in the light of his observation that he had been surprised to learn that the mother and HB were sleeping together since, at that time, he and the mother were not divorced. He said that the mother ‘is exposing the children to an immoral act’.[51]All of this demonstrates the stark truth that there is absolutely no trust between these parents. The mother does not trust the father. He does not trust her. That is the backdrop against which I consider the father’s concerns about the mother’s proposed trip to India.[52]The father says he does not trust the mother to return the children. Although there is no expert evidence in the case, the father is a well-educated man (he has a Masters degree in civil engineering) and has done his own research. As I noted earlier, he has raised his concerns with the FCO and has produced their letter in response. He has produced an extract from the FCO website headed ‘Child Abduction – India’. He has produced a number of articles including one by Anil Malhotra (the parents’ original choice as expert in these proceedings) pointing up the problems arising from the abduction of children to India. Another article deals with the issue of Mirror Orders.[53]One issue arising from the father’s research is of particular concern to him. He produces two articles dealing with Section 498A of the Indian Penal Code. Section 498A provides that, ‘Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine. Explanation – for the purpose of this section, "cruelty" means:(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand’.[54]In one of the articles produced by the father the author says that, ‘when a marriage breaks up the woman is often able to get her husband and many members of his family arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrong-doers…In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children…She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot set foot in India because he will be arrested…’[55]It is clearly inappropriate that I should arrive at any firm conclusions about the way in which Section 498A is interpreted and applied by the Indian Courts based only on that commentary. There would need to be expert evidence before this court could arrive at an informed judgment. However, the father says in terms, both in his written evidence and in his oral evidence, that he is genuinely fearful of the mother invoking Section 498A were she to be allowed to take the children to India.[56]As for the mother’s belated proposal that she should take only two of the children with her to India and her submission that this would provide a copper-bottomed guarantee that she would return to the UK with those children, the father is not convinced. Such is the level of his mistrust of the mother that he believes she is quite capable of splitting the children up by wrongfully retaining two children in India whilst the other two remain in England.[57]In passing it is right that I should note that the mother complains that the father’s instruction of a private investigator puts the father in breach of a non-molestation order granted by Judge Brown on 20th May 2013 to last for a year. That order contains a number of standard provisions including a provision prohibiting the father from coming within 100 metres of the mother’s home. Paragraph 7 of the order provides that the father ‘is also forbidden to instruct or encourage any other person to do anything which he is forbidden to do by the terms of this order’. The father says he did not realise that instructing the private investigator put him in breach of that order. If it does, he apologises.

Mediation

[58]It is in my judgment plain from all that I have said so far that this is a case in which mediation may have much to offer. On 18th July 2013 I made an order in these terms:
‘The Applicant and First Respondent do attend a maximum of 6 sessions of mediation with SW, or a similarly qualified mediator to be suggested by the Children’s Guardian, such sessions to be completed by the date of the review hearing herein and at a maximum cost of £1,000 plus VAT, such cost to be split between the Applicant and First Respondent on an equal basis and are deemed for the purposes of the First Respondent’s public funding certificate to be a reasonable, proportionate and legitimate expense…’
[59]The mother’s solicitor applied to the Legal Aid Agency for prior authority to incur that disbursement. That application was refused. Mediation has not taken place.[60]In her report the guardian recommends that ‘Both parents attend a Separated Parents Information Programme (SPIP) so that they can learn about the impact of parental conflict on their children.’ It was disappointing to note that the mother appeared unwilling to accept this recommendation. She said that she did not have the time.

The Children’s Guardian’s evidence

[61]The guardian notes that the children have a close relationship with both of their parents. She records that the mother accepts that the children enjoy contact. The mother does not raise any safeguarding concerns.[62]Notwithstanding the positives of each parents’ parenting abilities, the guardian expresses the opinion ‘that all four children are being adversely affected by their parents’ ongoing disputes’. The older two children have been clear that they are unhappy about being questioned by each parent about the other.[63]The guardian supports an extension of contact. In particular, she agrees that weekend contact should begin on Fridays and not on Saturdays. She proposes that the father collect the children from school. She does not support the mother’s counter-proposal that the father should collect the children after they have attended the madrassa.[64]The guardian is clearly troubled by the mother’s refusal to provide any significant detail about her fiancé, HB. All that the guardian knows is that the marriage has been arranged, that her fiancé is a relative of her father, that he lives in London, does not have children and works full-time. If HB is to play a role in the lives of these children then the guardian remains of the view that more information must be provided and police checks undertaken.[65]The guardian noted that when talking about her proposed move to London the mother ‘lights up’. The guardian has no objections in principle to the proposed move to London though she does make the point that the mother’s plans need to be shared with the father in advance and appropriate information provided to him.[66]As for the mother’s wish to take the children on holiday to India, the guardian finds it difficult to express an opinion in the absence of expert evidence. On this issue she says in her report that, ‘52. While there may be some benefits of the children having a holiday in India these are outweighed by the harm the children would suffer if they were not returned to the UK after the holiday. The children have always lived in the UK, they are settled in the education system and if they were to remain in India they would be denied a relationship with their father.’[67]Like the father, it was not until the second day of this hearing that the guardian became aware of the mother’s proposal that she should take only two of the children to India. She said that she is ‘uneasy’ about the mother’s proposal which, to her mind, suggests that the mother is using two of the children as bargaining tools.

Discussion

[68]The more difficult of the applications before me is the mother’s application for permission to take the children (or two of the children) to India for a holiday. For the mother, Mr Tyler seeks to persuade me that the father’s objections to this holiday are rooted in his ongoing desire to control and belittle the mother. I do not accept that submission. Notwithstanding the findings made by Judge Brown, I am satisfied that so far as this holiday is concerned the father’s fears are genuine. He does not trust the mother to return the children to England. He is concerned that she is very close to her father and open to persuasion by him not to return the children to England. He is also concerned that his own research suggests that if the children were wrongfully retained in India, securing their return to England would be a lengthy, costly and uncertain process the difficulties of which would be compounded were the mother to invoke Section 498A.[69]Having made that point, I turn to consider the three elements set out by the Court of Appeal in Re R (A Child). Firstly, I must consider the magnitude of the risk of breach of the order if permission is given. For the father, Mr Verdan concedes that the risk is low. I accept that that is so. However, it is important to make the point that ‘low’ does not equate with ‘non-existent’. There is a risk in this case which, though low, is nonetheless real. I accept that the mother appears to be intent on making a new life for herself with HB in London, though I am concerned that so little is known about him, not least about his immigration status. I accept that the mother wants her children to know about their wider family and culture, though I am concerned that she is very close to her father and susceptible to persuasion by him. The risk of wrongful retention is low but is nonetheless a risk which cannot be ignored.[70]Secondly I must consider the magnitude of the consequence of breach if it occurs. It is on this issue that Mr Tyler concedes he is in the greatest difficulty. There is very clear evidence from the guardian, which I accept, that all four of these children have a close and loving relationship with both of their parents. They are equally comfortable in either home. They are settled in school. Although they may have a curiosity about their wider family and about life in India, they were born in England, they have spent their entire lives living in England, their social relationships are all in England. They are habitually resident in England. Although Mr Tyler eschewed the use of the word ‘catastrophic’ to describe the consequences for the children were they not to be returned to England following the proposed trip to India, he accepts that the consequences for them would be profound. They would be life-changing. They would not be life-enhancing. Wrongful retention would have a profoundly damaging impact on their relationship with their father and wider paternal family. The damage could not adequately be compensated for by use of modern technology such as Skype.[71]Thirdly, I must have regard to the level of security that may be achieved by building in to the arrangements all of the available safeguards. What are the safeguards that could be built in? Mr Tyler does not advocate any particular safeguards. Rather, he points to the various safeguarding measures adopted by Wall J (as he then was) and Hogg J in the first instance decisions in Re A (Security for return to jurisdiction) [1999] 2 FLR 1 and Re S (Leave to remove from the jurisdiction: securing return from holiday) [2001] 2 FLR 507 and effectively says to the court, ‘take your pick’. That is simply not good enough. It is the responsibility of an applicant wishing temporarily to remove her children from the jurisdiction to set out precisely the safeguarding measures being proposed together with a reasoned analysis of why the court should accept that those proposed safeguards are(a) the best that can be achieved and(b) likely to be effective. It is in this area in particular that the court would have been assisted by expert evidence.[72]In considering the security that can be achieved by building in all the available safeguards, it is in my judgment appropriate that the court should also have regard to the difficulty of the task likely to be faced by the left behind parent in the event that the safeguards fail. In this case the evidence from the FCO makes it clear that the task of recovering the children were they to be wrongfully retained would likely be lengthy, complex, costly and uncertain. To that mix must be added the father’s concern (and in the absence of expert evidence, the uncertainty) about the consequences were the mother to invoke Section 498A.[73]The court’s consideration of those three elements must then be brought within the welfare analysis required by s.1 Children Act 1989. The court is exercising a discretion and must weigh and balance the competing factors before arriving at a conclusion that it is both proportionate and in the children’s best welfare interests for the mother to have permission to take them on holiday to India.[74]I acknowledge and accept that there are benefits to these children in allowing their mother to take them on holiday to India. However, I have come to the conclusion that the consequences of wrongful retention are so great and the safeguarding measures so uncertain that it would not be in the children’s best welfare interests for permission to be granted. The mother’s application is therefore refused.[75]That leaves the issues relating to contact. They can be dealt with shortly. I commend the mother for accepting that contact should be extended. However, I agree with the guardian that handover at school rather than at the conclusion of the children’s attendance at the madrassa is more appropriate. As for return on Sundays, the father proposes that this should be at 6.30pm rather than 4.00pm. I disagree. With school the next day, 6.30pm is too late. However, given that the father has to travel from Birmingham to Leicester to return the children I am of the opinion that a small extension should be allowed. I propose to direct that the father should return the children by 5.00pm.[76]I agree with the guardian that handover at a police station gives the children the wrong message. I also accept that it would not be appropriate for the father to return the children to the mother’s home. In the absence of any alternative agreement between the parents I direct that handover take place at the Mosque closest to the mother’s home.[77]The mother accepts that there can be some relaxation of the order prohibiting G from being present overnight during contact. That should be replaced by an order prohibiting G from having sole care of any of these children overnight.[78]I agree with the guardian that it is appropriate to require the parents to attend a Separated Parents Information Programme. The more so is that the case given that my order that the parties attend for mediation cannot be complied with. I shall make a direction accordingly.[79]Finally, I turn to the mother’s plan to relocate to London. It is unusual for the court to restrain internal relocation. In this case, however, I am concerned that the mother has not been forthcoming with more detailed information about HB, that HB has not undergone police checks, that nothing is known about his immigration status, that the mother has made it plain that she does not consider it appropriate to involve the father in discussions about choice of school and her apparent intention only to inform the father of the details of her move after the move has been carried out. That simply will not do. I propose to make a prohibited steps order prohibiting the mother from removing the children from their present school or from relocating outside Leicester. I make it clear that there is no basis for the prohibited steps order continuing once the following matters have been addressed:(1) appropriate police checks have been undertaken in respect of HB;(2) appropriate information has been provided concerning HB’s immigration status;(3) the mother has notified the father of her proposed address in London;(4) the mother has consulted with the father over choice of school in London; and(5) the mother has informed the father of the date when she intends to move to London.[80]The father should not see this as an opportunity to block the mother’s proposed move. There will be liberty to the mother to apply to the court on 48 hours notice to the father for the prohibited steps order to be discharged. That application, and indeed the case in general, is reserved to me.

The Legal Aid Agency

[81]I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).[82]In a case such as this, where expert evidence is considered by the court to be necessary, the question arises ‘who will pay for it?’ Where the party or parties who must pay for it are publicly funded the solicitors for those parties have a choice. Either they may instruct the proposed expert, incur responsibility for paying his fee and trust that they will be reimbursed at the end of the case as a result of the fee being approved by the person assessing their bill of costs or, alternatively, the solicitor may apply to the LAA for prior authority to incur that disbursement. Not surprisingly, in my experience it is almost always the case that a solicitor is unwilling to take the risk of not being reimbursed the costs paid to the expert and therefore insists on obtaining prior authority. In my judgment that approach is entirely reasonable. No solicitor acting for a publicly funded party should be expected to take the risk of being out of pocket by instructing an expert without prior authority from the LAA.[83]With that in mind, it is appropriate to consider the experience of the solicitors for the mother and children’s guardian in this case in their dealings with the LAA.[84]As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.[85]On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are,(i) the estimate of the expert’s fees is excessive,(ii) no alternative quotes have been obtained,(iii) there is insufficient breakdown of the costs to be incurred,(iv) the expert’s costs should be borne by or shared with the other party,(v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.[86]On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.[87]I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.[88]As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.[89]The level of the LAA’s lack of understanding about the critical importance of expert evidence in this case is eloquently displayed by an e-mail from Mr Rimer to the mother’s solicitor dated 5th December in which he said, ‘there are additional issues on which our High Court Cost team will have to consider further, namely the hourly rate of your new proposed expert, and the cost benefit to the fund of paying what appears to be a considerable sum of tax payers’ money to determine whether an individual may go on holiday. I am unclear how you consider the reasonable private paying client test to be met, and so it may help if when you submit your new estimate to the High Cost team, you address these points.’[90]E-mail exchanges continued. In an e-mail dated 18th December, Lucy Harrison, a High Cost Caseworker with the LAA, said, ‘I note that the expert refers to mirror orders and research of the same. I must stress that all work in this respect will not be covered, this is to include, but not limited to, research, reporting, advice and recommendations in relation to mirror orders, and obtaining and implementing the same. Further to this, the amount of time sought for research is surprising considering the expert to be instructed is an expert in this area, i.e. Indian case-law, hence the reasoning behind the instruction. We would expect to see this reduced significantly prior to an agreement being reached.’[91]The mother’s renewed application for prior authority was refused on 17th January.[92]In light of the order made by Eleanor King J that the costs of the expert assessment be shared between the mother and the children’s guardian, on 31st January 2014 the guardian’s solicitor submitted an application for prior authority in Form APP8. The application was dealt with promptly. On 6th February the LAA wrote to the guardian’s solicitor saying, ‘Please be advised that your application was refused yesterday for the reasons in the attached letter’. Unlike refusals of the mother’s applications, which appear to have been communicated using a standard form letter, the letter from the LAA to the guardian’s solicitor appears to be a bespoke letter. The letter includes the following:
‘Experts of foreign law jurisdiction: S19(1) of the Access to Justice Act 1999 says, ‘The Commission may not fund as part of the community Legal service or Criminal Defence Service services relating to any law other than that of England and Wales, unless any such law is relevant for determining any issue relating to the law of England or Wales’
. Consequently you should distinguish how the prior authority you have sought can be distinguished from this rule. Reasonableness: It would appear unreasonable to allow an expert report for the purposes of a holiday now that the main reason for this application (the death of a relative) has altered. It would be necessary to know who would be funding the cost of the holiday or travel and if it is someone other than the client’s mother whether they would contribute to the cost of this application. The cost benefit ratio would not appear to be met. Appeal: There is no right of appeal against this decision however, if you have any further information you wish to put to the Legal Aid Agency in support of your application, the same will be considered de novo.’[93]That letter was written by a senior case worker who appears to have been completely unaware of the similar applications made by the mother.[94]Section 1(2) Children Act 1989 provides that ‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child’.[95]The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.[96]There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.[97]In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

Cited in 6 later judgments