SA v FA (setting aside consent order on ground of duress) [2017] EWHC 1731 (Fam)

[2017] EWHC 1731 (Fam)Case No FD 16 P 00660
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: Tuesday,16th May 2017
Before
MR JUSTICE HOLMAN(sitting throughout in public)
Between
S AApplicantF ARespondent
Digital Transcription by Marten Walsh Cherer Ltd.,1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
MR ANDREW VENABLES for Applicant/MotherMR JEREMY ROSENBLATT for Respondent/FatherMRS PENNY LOGAN for Guardian

JUDGMENT (as approved by the judge)

[1]Last year a mother, acting in person, issued an application and commenced proceedings in relation to two of her children. Not long afterwards she applied for those proceedings to be dismissed, and consented to their dismissal. They were dismissed. She has since said that, in applying for, and consenting to their dismissal, she was acting under very powerful duress and she now seeks that the dismissal order is set aside so that her application and proceedings are reinstated. The relevance is that the original application was issued at a time when this court undoubtedly had jurisdiction to make orders in relation to these children. If these proceedings cannot be reinstated, it is arguable (although I make no determination in this judgment) that there would no longer be jurisdiction for fresh proceedings to be issued, starting now.[2]The current issue is whether I should, indeed, set aside that dismissal order on the ground of duress. As I have already indicated to all parties, I intend to do so. In my view this is, on its facts, a very clear case indeed in which, however unusually, the court both can, and should, set aside its earlier order on the ground of duress. The purpose of this ex tempore judgment is to narrate the essential facts and context and to give my reasons.[3]Precisely because this is, in my view, a very clear case for setting aside the earlier order on the ground of duress, whatever may be the precise reach and scope of the jurisdiction to do so, I wish to stress that I do not, by this ex tempore judgment, intend to describe in any exhaustive or authoritative way the precise reach or scope of that jurisdiction.[4]The essential factual context is as follows. The father of the children concerned is an Iraqi who, however, lived for many years in England and became a British citizen. These parents met and married and have two sons from their marriage. The elder is now aged about 14 and a quarter, and the younger has very recently attained the age of 12. They lived together here in England. The boys were both born in England. They are British citizens, and until the events last summer, which I am about to describe, they had always lived in England. They went to school here and they were clearly completely socially integrated into England. It is beyond peradventure, and not suggested otherwise, that at any rate until last summer they were always habitually resident here in England and Wales.[5]Sadly, the relationship between the parents broke down some years ago. At that point they separated and the children lived with their father. [SOME DETAILS REDACTED] So it is that neither of the boys have lived with their mother for several years. After these parties were divorced the mother remarried although, sadly, that marriage, too, has now ended in divorce. From that marriage she has twin daughters, now aged four, who are, of course, the half siblings to the boys with whom I am directly concerned. Those twin daughters do live with their mother.[6]There came a time in 2015 when the elder of the boys ceased living with his father and moved to live with his maternal grandmother. The circumstances in which that happened are contentious and not directly relevant to anything I have to decide. It did result in the father issuing a set of proceedings in 2015 designed to achieve that that son returned to live with him. It is the case that there has been considerable litigation involving these children for now an appreciable period of time.[7]Last summer, in late July 2016, both parents, together with their two sons and also with the mother's twin daughters, all travelled to the Kurdistan area of Iraq in which the father's own family live. They had return flight tickets. The mother says that she was led by the father to believe and understand that they were merely travelling there for a holiday of a few weeks as they had been accustomed to doing every other year or so. As I understand it, that was also the understanding and expectation of both the boys,who thought that they would be returning to resume their lives in England at the end of a short holiday.[8]It may indeed be that that was also the expectation and intention of the father himself when they first travelled to Kurdistan. However, the mother says, and I accept, that after about two weeks the father made plain to her that he and the boys would be remaining permanently in Kurdistan. He said that she and her daughters were welcome to remain there too, if she wished. The mother did not so wish. She managed to return to England with her two daughters.[9]Acting in person, she commenced her original set of proceedings by issuing an application in form C100 in the family court in Manchester, which is the area in which she and the whole family live, on 18th August 2016. She paid the prescribed fee of £215. Within the application she stated that the nature of the order she sought was "return order with a penal notice and passport order".[10]The next day, 19th August 2016, the mother travelled from Manchester to here, the Royal Courts of Justice in London and appeared in person before Keehan J. On her without notice application he made an order that the two boys be made wards of court and that they must be returned to England and Wales forthwith. He fixed a further hearing date on 25th August 2016 before himself, again sitting in London. Also on 19th August 2016 Keehan J made a passport order directed to the Tipstaff in the prescribed standard form.[11]Paragraph 8 of that order required the father to hand over to the Tipstaff documents in relation to the children and also:
"Every passport relating to [himself] and every identity card, ticket, travel warrant or other document which would enable [himself] to leave England and Wales." 12. Further, paragraph 11 of the passport order provided as follows: "
The respondent ... must not (a) make any application for, (b) obtain, seek to obtain, or (c) knowingly cause, permit, encourage or support any steps being taken to apply for, or obtain any passport, identity card, ticket, travel warrant or other document which would enable ... the respondent to leave England and Wales."[12]It is to be noted that in a passport order in the prescribed standard form then in use, there was no express prohibition in express terms against a respondent leaving England and Wales, although there was an express prohibition against the respondent removing or knowingly causing or permitting the removal of the children concerned from England and Wales. However, it is absolutely plain from the provisions of paragraphs 8 and 11 of the passport order, which I have deliberately quoted at some length, that the purpose and intended effect of a passport order is to prevent a respondent from being able to leave England and Wales.[13]Keehan J fixed 25th August 2016 as the return date. The case duly came before him again on that date here in London. On that occasion the mother in fact attended by a telephone link from Manchester. The father himself was in England on that date and was personally present in the court room here in London, together with his counsel, then as now, Mr Jeremy Rosenblatt. The father applied to Keehan J to discharge the entirety of the order he had earlier made on 18th August 2016. That application was expressly dismissed. Further, paragraph 2 of the order of 25th August 2016 discharged:
"the port alert and any passport orders in respect of the said children". 15. Paragraph 2 continued very clearly to state: "
BUT the port alert and passport seizure orders in respect of the father do remain in force until the matter is reconsidered ... when the ongoing private law proceedings between the parties are next listed on 13th September 2016 at the Manchester Civil Centre to where this matter is hereby transferred ...". The order further provided that both boys must be returned to England and Wales by no later than midnight on 30th August 2016:
"the children being considered to be old enough to travel unaccompanied, with flights for themselves having already been booked in any event". 16. The order further provided that: "
The father do collect the children upon their arrival from Manchester International Airport."[14]It is quite clear that as this case left Keehan J on 25th August 2016 he was contemplating and intending, and requiring, that the father should remain squarely within England and Wales until, at the earliest, the next hearing on 13th September 2016; and that meantime the father should cause the return of the children unaccompanied to England and Wales, and collect them on their arrival at Manchester Airport.[15]In fact, shortly after that hearing and order the father managed to slip out of England and Wales notwithstanding the continuing port alert in relation to him and the terms of the continuing passport order, and the fact that his passport had, indeed, already been obtained and retained by the Tipstaff. The father has since said that he managed to exit England and Wales on Eurostar, for which purpose he must have obtained a ticket in flat breach of the terms of paragraph 11 of the passport order which I have already quoted. He says that after he had exited this country he travelled into Europe, managing to use his driving licence as a sufficient identity document in place of his passport until he was able to obtain a replacement passport or other emergency travel document from the Iraqi Embassy in Germany. At all events, the father made his way back to Kurdistan in patent disregard of the purpose and intention of the passport order in relation to himself, which Keehan J had been asked to discharge but had expressly refused to discharge on 25 August 2016.[16]The mother learned from the father's solicitor that later flights had been booked for the children, who had not returned by 30th August, to return on 3rd September 2016 on a flight to Edinburgh. She accordingly travelled down again to London and appeared in person before Cobb J here at the Royal Courts of Justice. He made an order on 2nd September 2016 which provided, first, that the children shall return to this country on the flights booked for 3rd September 2016; and, second, that:
"The father shall attend the hearing fixed for 13th September 2016 ... before a judge sitting at the Manchester Civil Justice Centre". 20. The order of 2nd September 2016 further provided that: "
Service of this order shall be effected by email to '[email address of father's solicitor]'."[17]It is clear that after that order had been typed and sealed, the court officer here did duly email it to the father's solicitor who must, in turn, quite properly have supplied it to the father. I say that, for the mother said in her oral evidence yesterday (which I unhesitatingly accept on this point), that even as she was on the coach returning to Manchester on the evening of 2nd September 2016 the father rang her by Viber and was clearly very aggrieved that she had attended court that day and obtained that order,[18]The mother wrote in the period between mid August and early September two statements, now at bundle pages E100 and E101, which I will shortly read out extensively. She says, and I accept, that she personally typed out these documents at the home of a friend of hers. The signatures upon them and the dates written upon them are both in her handwriting. She sent each of these documents to the father for his "approval" as to their terms and contents, and they were in due course produced to the court on 13th September 2016. The first of the documents is dated 15th August 2016. So far as is material it reads:
"I [full name and address of mother] am writing a new statement in relation to the above matter. I would like to change my statement to say that I think the boys should reside with their father and that [the elder boy] should be returned to his father's care. These problems all stem from my mother [viz the maternal grandmother] and need to end now."
The second document is dated 3rd September 2016. So far as is material that reads:
"I would like to change my previous statement for the hearing on the 13th September 2016 to the following: These court proceedings have been going on for many years and have reached a climax over recent weeks. I feel that they need to come to an end, immediately. The boys are currently in Iraq with their father and I have spoken to them on numerous occasions and they are fine and well and are due to start a private English school in Iraq in September. They are happy over there with their father. They miss me and I miss them but they are safe and well. 23. [PART OF QUOTE REDACTED] I would like to withdraw all my previous statements and any evidence I may have given in the past in relation to the recent events. Please put an end to these proceedings as soon as possible to that the boys and [the father] can live in peace."
[19]It is to be noted that that statement was prepared and, indeed, signed and dated on 3rd September 2016, namely the very next day after the mother had made the long coach journey from Manchester to appear here before Cobb J and returned again by coach late that evening. She says that she made that statement under extreme pressure from the father in the telephone call that he made to her while she was still on the coach travelling back to Manchester.[20]The case duly came on for hearing in Manchester on 13th September 2016 before His Honour Judge Jordan sitting, I think, as a judge of the High Court. The father did not attend, in clear breach of paragraph 4 of the order of Cobb J of 2nd September 2016 which he had clearly seen even on the day it was made. He was, however, represented by counsel instructed by the same dedicated solicitors who had represented the father throughout these proceedings and still represent him today. The mother, who by that stage had never instructed any solicitors at all, appeared again in person. The formal order made by His Honour Judge Jordan at the end of that hearing recites that the mother attended court that day. The father did not attend and remains outside the jurisdiction with the subject children. The recital continues:
"The court acknowledges that in respect of the mother there is a presumption of capacity and having made enquiries with the mother at court today the court does not believe that this presumption has been rebutted. The court, having made oral enquiries of the mother today, is satisfied that the mother understands the proceedings before the court. The court is further satisfied that the mother is content for the children to continue to live in Kurdistan with their father. The court is satisfied that the mother presents as having a clear understanding of today's proceedings and of her own free will wishes to end these proceedings. The court is satisfied that the mother does have a clear understanding of the proceedings and that the court, having explained the nature of the proceedings to the mother, believes that the mother does wish these proceedings to be concluded today. The court accepts that the mother wishes these proceedings to be concluded immediately and that the mother seeks to discharge the orders of 18th August 2016, 25th August 2016 and 2nd September 2016."
[21]The operative part of the order went on to order "by consent" that the proceedings first issued on 18th August 2016 do hereby stand dismissed and that the various subsequent orders of Keehan J and Cobb J were also dismissed. In other words, the effect of that order from His Honour Judge Jordan of 13th September 2016 was to bring the entire set of proceedings, number MA 16 P01476, which the mother had commenced on 18th August 2016, to a total end.[22]As a result of a direction which I made at a later hearing in Manchester last February, a verbatim transcript has more recently been made of the whole of the hearing before His Honour Judge Jordan. It extends to just over seven pages, plus a further page of judgment and is obviously far too long to quote from extensively in this judgment. It is available for any other court or person that has a proper interest in this matter to see and read.[23]The hearing was initially opened by counsel who appeared on behalf of the father, but at internal page 5 of the transcript there is the following passage between the judge and the mother. He referred to the statement which she had made dated 3rd September 2016 which I have already quoted above. He said:
"THE JUDGE: The file shows that you have had mental health problems in the past. MOTHER: Yes. THE JUDGE: I have to check that you have a clear capacity and understanding as to what you are saying to the court, all right, and that you have insight into what is being said. Are you clear that your statement of 3 September, you stand by that? MOTHER: Yes."
At that point the transcriber has inserted the following comment "[the mother becomes upset]". "THE JUDGE: You seem very upset. Is there anything you want to say to me? Are you under pressure to agree to this? Is this of your own free will? MOTHER: Yes. Yes, it is. THE JUDGE: I have to take what you tell me at face value. MOTHER: Yes, it is. THE JUDGE: Are you sure? MOTHER: Yes. THE JUDGE: You are crying. MOTHER: I am just you a bit emotional. THE JUDGE: All right. Do you need to speak to anybody? We have a PSU unit here, Personal Support Unit. MOTHER: No thanks." The judge then turned back to discuss the way forward over several pages with counsel appearing for the father. At the very end of the transcript the judge says:
"Do I understand from your statement and what you have told me, that you wish to abandon those proceedings? You do not want those proceedings to proceed? I know you are nodding your head to say, to confirm ---- MOTHER: Yes. THE JUDGE: But I do need you to speak ---- MOTHER: Yes. THE JUDGE: ---- because the proceedings are recorded. So you do not wish to pursue those and you wish to discharge the orders made by Keehan J? MOTHER: Yes. THE JUDGE: Do you understand what that means? MOTHER: Yes. THE JUDGE: Tell me what it means? MOTHER: It means I do not agree with it and I want it to end. THE JUDGE: You want it all to end? MOTHER: Yes. THE JUDGE: All right."
MOTHER: Yes." MOTHER: No thanks."[24]That was the end of the dialogue part of the proceedings and the judge then gave a very brief judgment in which he said: "In those circumstances and having read the papers, I am content first of all that the mother told me, under the presumption of capacity, that she understands the proceedings and she, of her own free will, has signed the statement on 3rd September wishing to end the proceedings ... The mother presents to me as having a clear understanding as to the implications and, although being very upset, I can say that I have talked to her at some length about the implications and I am satisfied she understands and has consistently been of the view that those proceedings and those orders should be discharged and she understands and has explained to me, echoing my explanation to her, but explaining to me in her own words, her understanding and the purpose of the termination of those proceedings. I am content in those circumstances to discharge the orders that have been made as sought ... and given her leave to discontinue those proceedings ...".[25]Even before that hearing on 13th September 2016 the mother had in fact clearly stated to a third party, namely a social worker of the Manchester City Council, that the father had made threats to her. That social worker has recently made a statement dated 26th April 2017 in which she explains that she was for a period, until earlier this year, the social worker to the two twin girls until the case in relation to them was closed. The social worker states at paragraph 1.2.2 of her statement:
"Telephone contact between social worker and [the mother] on 15th August 2016. [The mother] advised that [the father] wanted her to change her statement for court and that she was prepared to do this. She expressed that [the father] made threats of taking [the two boys] 'elsewhere' if she did not do this. 1.2.3. Telephone contact between social worker and [the mother] on 25th August 2016. [The mother] expressed that [the father] was continuing to make threats if she did not retract her statement. [The mother] confirmed to the social worker that she had sent a written statement to [the father's] solicitor retracting her initial statement."
[26]I wish to stress that I do not regard that statement by the social worker as in itself in any way probative of the truth or reliability of what the mother now says. It is, of course, perfectly possible that if the mother has been fabricating her account as to threats, which I will describe more fully in a moment, then she may have deliberately narrated that fabricated account to the social worker. The only significance that I attach to that statement by the social worker is that it does indicate that the evidence which the mother now gives with regard to threats by the father is not of recent invention. She was clearly telling the social worker as long ago as mid August last year that the father had made threats of taking the children "elsewhere" if she did not change or retract her statements to the court.[27]Not long after that hearing on 13th September 2016 the mother consulted solicitors for the first time and began her fresh set of proceedings in which, among other matters, she seeks that the order 13th September 2016 is set aside on the grounds that at the time she consented to it she was acting under duress.[28]That matter came before Her Honour Judge Singleton QC, again sitting here in London, on 18th January 2017. Following that hearing Her Honour Judge Singleton made an order. Mr Rosenblatt, who acted on behalf of the father at that hearing, says that there was in fact some adjustment by Judge Singleton or the court to the precise terms of the order after the advocates themselves had left court that day. As I understand it, Mr Rosenblatt had contemplated that there would be both a short directions hearing and then a later substantive hearing before myself setting in Manchester during February 2016.[29]When the order emerged from the court, those two hearings had been, as it were, elided to remove the slightly earlier directions hearing and make provision for a single composite hearing before me. I think from memory that that may, indeed, have been done in part after an enquiry had been made of me, for I knew that the state of my list in Manchester was such that I could not sensibly accommodate the earlier directions hearing that had been contemplated. At all events, the order which clearly emerged after 18th January 2017 and as sealed by the court provided that:
"This matter is listed for final hearing before Holman J ... sitting at the High Court in Manchester at the Civil Justice Centre on 27th February 2017 to 1st March 2017 (with 3 days allowed ...) to determine all outstanding issues in this case, including the issues of duress and jurisdiction."
Paragraph 4 of the same order provided that the mother must file and serve: "... a comprehensive statement setting out why she says the orders dated 13th September 2016 by His Honour Judge Jordan were compromised by duress ...".[30]So, it seems to me quite clear that the terms of the order as made on 18th January 2017 fairly and squarely identified the agenda for the hearing in late February 2017 as being "all outstanding issues in this case, including the issues of duress and jurisdiction" and that the mother was to make a comprehensive statement with regard to duress.[31]It is right to say that that order of 18th January 2017 did not expressly require the father personally to attend the hearing in Manchester in late February. However, as Mr Andrew Venables, who now appears on behalf of the mother, points out, rule 27.3 of the Family Procedure Rules 2010 clearly provides that: "Unless the court directs otherwise, a party shall attend a hearing or directions appointment of which that party has been given notice.”[32]It thus follows, by operation of the rule, that the father was under an obligation personally to attend the hearing in Manchester in late February unless the court directed otherwise, which it at no stage did. A hearing did indeed take place before me sitting in Manchester over two days, or straddling two days, on 27th February 2017. The mother attended the first day of the hearing but did not in fact turn up for the second day. The father personally did not attend at all. The mother was represented then, as now, by Mr Andrew Venables, and the father was represented then, as now, by Mr Jeremy Rosenblatt.[33]There were, I think, a number of reasons why there was no effective "final hearing" on those days. One was the absence of the father, and I was, to put it no higher, reluctant to reach any conclusion on disputed issues of fact with regard to duress without the availability of both parties personally to give oral evidence before me.[34]Another reason was that there was no transcript available at that time of the hearing or judgment of His Honour Judge Jordan, and it seemed to me impossible for the court reliably to form any view with regard to whether that hearing was impacted by duress without knowing verbatim what had passed at the hearing.[35]A third reason was that there is growing concern in this case as to the wishes and feelings of the two boys and, in so far as it may be relevant, as to whether by now they have become integrated into life in Iraq to such an extent that they should now be regarded as habitually resident there. The elder son, in particular, had sent some concerning text messages to his mother which if reliable and true, indicated great unhappiness on his part in Iraq and desperation to return to England.[36]In order to try to investigate those issues further, I wished to engage, as I did, the CAFCASS High Court team in this case. For a combination of essentially all those reasons that hearing was adjourned, or was inconclusive, and I fixed a further hearing here in London this week.[37]During the hearing in Manchester Mr Rosenblatt, who was able to communicate by telephone with his client, made plain that the main reason why the father had not attended the hearing was a concern on his part that if he returned to England and Wales he might be arrested and not permitted to leave again. In order to try to meet that concern I expressly provided by paragraph 17 of my own order of 28th February 2017 as follows:
"The court records that there is no passport or similar order currently in force preventing the father from leaving England and Wales and, unless he is in contempt of court subsequent to the date of this order, this court in these proceedings will not prevent him from leaving England and Wales at the conclusion of the above hearing."
[38]Those words in that order were reinforced by what I said in judgment that day. I did, indeed, order that an official verbatim transcript be made of my judgment, which has not been done, but I do have the noted version as noted by Mr Andrew Venables. Within that judgment, as noted, I said:
"Although I do not order the children are returned, I do positively order father attends. Not been suggested cost is beyond his means. He has already been to England at least twice since children went at the end of July. Seems to me to be essential if there is to be any just resolution that both parents engage directly in the court room with the court. There is currently no passport order in force against father. He is free to come and go. I make crystal clear that so far as I am concerned if he attends the next hearing and is not in contempt, he will be free to go. Of course, if he were to have committed or commit any offence, a criminal court may prevent his leaving. So far as this court is concerned, he will be freely enabled to leave at the end of the hearing provided he is not in contempt. As I have said, there have been earlier breaches of earlier orders. That is now in the past. There has been no application to commit for contempt. On the hearing of 13th September 2016 it must have been patent that father had been and was in contempt but she chose not to take any action in relation to it. He is not at risk in respect of any contempts up to today. Of course, I cannot bind myself in respect of any contempts committed after today."
[39]So, with those very clear recordings, both on the face of the order and in my judgment, that provided the father was not in contempt of court between 28th February 2017 and this hearing, and provided, of course, that he did not commit any criminal acts, then there would be no restriction upon his leaving England and Wales at the end of this hearing, if he attended to give oral evidence and generally to participate. On that basis I made a clear, express order by paragraph 16 of my order of 28th February 2017 that:
"Both the mother [with her full name] and the father [with his full name] must personally attend the hearing on 15 and 16 May 2017."
Paragraph 15 of the same order made crystal clear that the scope of this hearing was: "At that hearing, the court will, so far as possible in the light of the evidence then available, including the oral evidence of both parties in the court room, determine all issues as to: (i) whether the mother acted under duress during the hearing of 13 September 2016 such that the order of His Honour Judge Jordan should be avoided ...".[40]So, the present hearing was set up. As required by my order of 28th February 2017, both parties have since made written statements with regard to duress. It is convenient first to quote from that part of the father's statement dated 27th April 2017, which deals with this topic, namely paragraph 18. It said:
"... it is true that she went to see my solicitor who has been aware of all these proceedings and knows the mother, and had readily signed the statement to say that she was happy for the children to remain with me in Kurdistan. There was no coercion on anybody's part as she made this decision quite freely as she knew the boys were happy, after seeing them there when she came with us. This was done prior to my leaving to go back."
[41]Mr Rosenblatt quite rightly submits that I must pay due regard to what the father has there said in his written statement, which is part of the evidence in this case. However, he has not personally attended the present hearing. I was told that he has not done so for he continues to fear that if he were to come to England and Wales to participate in a hearing he might be prevented from subsequently leaving, notwithstanding the lengths to which I had gone on 28th February 2017 to try to give him reassurance.[42]For that reason I asked yesterday that arrangements should be made to enable the father to engage with me and others in the court room by telephone link. The technical arrangements were made over the lunch break, and after we resumed yesterday afternoon he was able to do so.[43]I interpose at this point that, as in my experience so often happens, the telephone link proved to be a difficult form of communication. It is clear that the father frequently had difficulty in hearing what all or some of us were saying in the court room. Equally, all or some of us had considerable difficulty at times in hearing or clearly following what he was saying. Indeed, I at one stage left the bench and, effectively, huddled close to the instrument with the three counsel in order that we would try all to hear what he was saying and enable him to hear what we were saying. I mention that because of some observations I will later make with regard to my own unwillingness to hear formal oral evidence from the father by telephone link in this case.[44]My purpose in arranging the telephone link yesterday afternoon was not to embark upon hearing oral evidence from him; but, rather, to enable me in particular to have a discussion with him about his possible future attendance. I doubt whether it would be possible for an intelligible verbatim transcript to be made of that part of the hearing yesterday, because I doubt whether a shorthand writer would be able to pick up much of what the father himself was saying. But I will try, for the purposes of this judgment, to summarise as best I can the thrust of it.[45]In repetition of what I had said in Manchester on 27th and 28th February 2017 I repeated to the father that I was anxious that he should indeed attend a court hearing here in England in order to give oral evidence in relation to the issue of duress, and generally to engage with the mother and the court, and now indeed with the children's guardian, as to the numerous issues in this case. I stressed to him repeatedly that provided he was not in contempt of court subsequent to yesterday, and provided he did not commit any criminal offences while in England and Wales, he would be free to leave and return to Iraq at the end of any adjourned hearing.[46]He stated that he could not attend between now and sometime after 10th June 2017 because the boys have exams, but I discussed with him the possibility of his attending towards the end of June or perhaps during July. As I understand his answers during that part of the exchanges, the father was saying that provided I could sufficiently reassure him that he would be permitted to leave at the end of any adjourned hearing, he would indeed attend one. I think it was clear to all present, and presumably also to the father, that my own fervent desire yesterday was to try and achieve the situation in which both parents were personally present in the court room, both in order to hear oral evidence from each of them on this issue of duress and any other relevant issues, and also to try to have constructive dialogue as to future arrangements for these boys generally. It was my understanding at the end of the first period of exchanges that the father was agreeable to attending personally, although he made crystal clear from first to last that he would never agree to the children returning to England and Wales.[47]I then broke off direct exchanges huddled around the telephone instrument and returned to the bench. In the ensuing discussion with counsel about the possibility of adjournment, Mr Rosenblatt told me that his, that is, Mr Rosenblatt's, understanding from his instructions generally was that in fact the father would not attend any hearing unless he had a prior assurance that there would not be any order for the children at any stage to return to England and Wales. That, of course, was not an assurance that I could give. It may very well be that there should be a requirement that the children return to England and Wales for a number of reasons, even if they do not return to live here permanently. They should, of course, resume contact with their mother, their maternal family and, indeed, their half siblings, the twin daughters. It is highly desirable that there be a face to face meeting between them and their guardian, Mr John Power of CAFCASS, who has so far only been able to speak to them by Skype or some similar audio visual method.[48]So I returned again to the well of the court and spoke again to the father to clarify exactly what his position is. In contrast to what he had said earlier, but consistent with what Mr Rosenblatt had correctly said, the father then made clear that he would not attend himself if there was any possibility that the boys might be required at any stage to attend in England and Wales. Since I could not preclude that possibility, a stalemate was effectively reached, in which there is blanket refusal by the father personally to attend any hearing. In those circumstances it seemed, obviously, that there was in fact no purpose or utility in a further adjournment and I proceeded to hear the evidence of the mother and consider the issue of duress.[49]I made very clear that if the mother gave credible evidence, which was not contradicted by oral evidence on oath or affirmation of the father, then that evidence of the mother might be likely to prevail, subject to any inroads upon it as a result of cross-examination.[50]Mr Jeremy Rosenblatt had made a number of references at this hearing to the possibility that the father might himself have given his oral evidence by telephone or, I suppose, by video link, although video link has not in fact been suggested. Mr Rosenblatt says that at the hearing in Manchester I indicated that I would not be willing to receive oral evidence from the father by telephone, Although I do not currently personally remember that indication, I accept what Mr Rosenblatt says.[51]I now have quite considerable experience of trying to communicate with litigants by both video link and telephone. In my experience it remains frequently highly unsatisfactory as a means of reliably gathering evidence on disputed issues of fact. Much may depend upon the country with which the connection is made and the technical quality of the facilities there. But there is still frequent breakdown, and, as was so vividly illustrated yesterday, frequent difficulties in hearing with any clarity what is being said. I readily accept that it may now frequently happen that, for instance, expert evidence is given and received by telephone or video link. That, however, is in circumstances where there is no underlying issue as to the integrity of the witness and the credibility of their evidence.[52]I readily accept that a video link or telephone link may be used, as indeed it was used yesterday, as a means of engaging with a party or witness abroad in order to discuss important issues in a case. But when it comes to the task of assessing credibility and evaluating the quality of a witness's evidence, then it remains my view, however old fashioned it may seem, that use of a telephone or video link is far from satisfactory and potentially unreliable.[53]In this case there has been no suggestion that this father cannot afford to travel from Iraq to England for the purpose of participating in hearings. He has, indeed, travelled two or three times to England since the commencement of these proceedings, in part because he desires to receive continuing medical treatment here, and in part because he owns a property which he rents out in England and needs to attend to. So, there has been no suggestion that there is the slightest practical obstacle to his attending. The only suggested obstacle is his fear that if he were to attend he would not then be permitted to leave.[54]I have now twice, both by my judgment and order on 28th February 2017, and again by all that I said yesterday, done all I possibly can to meet and assuage that fear and give such assurances as a court properly can to the father. In those circumstances, in my view, this is not a case in which he requires to be afforded the choice or opportunity of giving his evidence by telephone link.[55]The fact of the matter is that he had an opportunity to attend a hearing in Manchester and was, indeed, by virtue of rule 27.3, under an obligation to do so. He did not avail himself of that opportunity. He had a further opportunity to attend the present hearing, and was under an obligation by virtue of paragraph 16 of my order of 28th February 2017 to do so. He is in breach of that order and has not availed himself of the opportunity.[56]Further, as I have explained, I bent over backwards yesterday afternoon to afford to him a yet further opportunity to attend a further adjourned hearing, and I was only too willing to adjourn the whole of the present hearing if he had indicated to me that he would definitely do so. But, as I have explained, his final position was that he would not.[57]For all those reasons, and in those circumstances, I do not accept the submission of Mr Rosenblatt that a fair trial in the present case requires that I should have heard oral evidence from the father by telephone link, and I continue to decline to do so. But I stress I do not at all overlook what he said in paragraph 18 of his statement of 27th April 2017.[58]I turn now to the evidence and account of the mother. It is simple and may be shortly stated. She has said, both in written form and again by her oral evidence yesterday afternoon, that before and after she commenced the proceedings on 18th August 2016 the father threatened her by telephone, or Viber, that if she proceeded with those proceedings he would remove both children from Iraq to some other undisclosed place whose whereabouts she would never learn and from which she would never, ever be able to recover them or, indeed, communicate with them again. She said in particular that, after she obtained that order from Cobb J on 2nd September 2016, the father repeated that threat to her even as she was returning to Manchester by coach later that evening. So it was that she made the written statement of 3rd September 2016.[59]She says that the threat remained a real one and operative on her mind throughout the hearing on 13th September 2016. She says that she could not inform His Honour Judge Jordan of the threat, nor even hint at it, because she appreciated that if she did do so he might not dismiss those proceedings. Her very great fear was that if she did or hinted anything which had the effect that the proceedings were not dismissed, the father would carry out his threat and she would never see her children again.[60]She further says that she believed the threat to be a credible threat. She knows that the father is a determined man. By 13th September he was already in breach, as I will later explain, of no less than four recent court orders. He had managed to leave England and Wales despite the continuing existence of the passport order which had been designed to prevent that very act. As she said during the course of her evidence yesterday:
"I did not feel I had any other choice. He had threatened me. He had already taken the children to Iraq under false pretenses and kept them there so if he was capable of doing that, why would he not take them somewhere elsewhere I would not know where they were? I did not explain this to His Honour Judge Jordan because it would have got back to him and I could not risk that."
[61]Mr Rosenblatt put to her that she had been "playing games" with her children and, in effect, that this whole story with regard to the threats and duress was either fabricated or imagined by her as a result of her admitted mental ill health. She said that she does not have schizophrenia, she has never had any hallucinations or delusions, and that what she was saying was not imagined but was entirely true.[62]As I have indicated, by the time of the hearing on 13th September 2016 the father was in fact in breach of at least four court orders. He had failed to obey the order of Keehan J made on 19th August 2016 that he return the children forthwith.[63]He had disobeyed the passport order of Keehan J of 19th August 2016 in that he had travelled out of England and Wales by Eurostar, for which he must, as a minimum, have obtained a ticket, and in the accomplishing of which he used his driving licence. If his driving licence was able to be used in that way, then it is a document which should have been handed over to the tipstaff in obedience to paragraph 8 of the passport order.[64]Third, he was in breach of paragraph 3 of the later order of Keehan J made on 25th August 2016 to return the children to England and Wales by 30th August 2016.[65]Finally, he was in breach of paragraph 2 of the order of Cobb J made on 2nd September 2016, in that he did not return the children to England and Wales by flights which had been booked for 3rd September 2016 to Edinburgh; and in breach of paragraph 4 of that order, in that he failed personally to attend at the hearing in Manchester on 13th September 2016.[66][PARAGRAPH REDACTED][67]Generally, I found the mother to be a witness of quite considerable intelligence. She was clear and forthright. She gave her very painful evidence with appropriate affect. In my view she is, in this regard, a witness of truth upon whom I should rely and, notwithstanding the denials of the father, I am satisfied to a high standard of proof that he did repeatedly make to her the threats that she described. Of course, it is only necessary to make findings to the civil standard of the balance of probability, but I am in fact satisfied to a considerably higher standard that the facts are as she states.[68]In his helpful skeleton argument for this hearing, Mr Andrew Venables has made considerable reference to a number of authorities in civil law in relation to the impact of duress upon consent. Those authorities, which are in the commercial field, seem far removed from the facts and circumstances of the present case. It does not seem to me necessary to make reference to any authority in the situation in which there does not appear to be any clear authority directly in point on the impact of duress on court orders in the field of family law.[69]There is no doubt that, in the field of family law, court orders may be vitiated and may be set aside if tainted by, or obtained as a result of, fraud. I can see no reason why the court cannot, and in appropriate cases should not, set aside orders if they are tainted or obtained as a result of duress. I stress, however, that it is a strong and exceptional matter for any court to set aside earlier orders on this ground, and it should only be done with the utmost circumspection and care. That is particularly so in the field of family law, for it is endemic and almost inevitable in any aspect of family law, that one or other or both parties are acting under, and motivated by, pressures of one kind or another. To say that one felt under pressure could never of itself justify subsequently setting aside some consent order. Much more is required than that. As a minimum, as Mr Venables rightly said this morning, the pressure must be deliberately imposed by the other party and it must have the element of illegitimacy.[70]As I said at the outset of this judgment, I do not in any way by this judgment seek to identify or circumscribe the test or criteria for deciding whether or not an order should be set aside for duress. I am absolutely satisfied on the facts and in the circumstances of this case that, under any possible approach and test, the order of 13th September 2016 was made as a result of, and impacted by, severe duress.[71]I am satisfied on the evidence of the mother, first, that the threats which were repeatedly made to her by the father, were credible and convincing threats.[72]Second, they were threats of a very powerful kind. Short of a threat to kill a child, it is hard to imagine a more powerful or cruel threat to make to a parent than that the child will, or may, be removed to some place from which the parent would never be able to recover him; where the parent would not even know where he was; and where the parent would have no communication with him. I am further satisfied that threats of that kind are patently illegitimate, and there can be no conceivable legitimate or justifiable reason for making them.[73]Further, and significantly in this case, these were threats which had a continuing coercive force, from which the mother could not achieve any safety or release. The contrast is with a threat, for example, to the personal safety of the victim himself or herself. In those circumstances, if the victim is able to seek refuge, for example with the police who may be relied upon to protect him or her, then the continuing coercive force may cease.[74]In this case, there was nobody to whom the mother could turn who could protect her from the threat being carried out. The recent history already demonstrated the powerlessness of this court here in England to protect her children out in Iraq. There were the several breaches of court orders that I have been at pains to describe. The father knew, and the mother equally knew, that if he were to take the children to some other undisclosed place, this court and the English authorities would be almost totally powerless to do anything about it.[75]Further, the threats were being made by a demonstrably determined person, who had recently demonstrated his capacity and resourcefulness to carry the threats out. He himself had managed to leave this country despite the protection that the mother thought she had gained by the making of the passport order and its continuation by Keehan J on 25th August 2016.[76]Of course duress can only be in play if it was in fact operating upon the mind of the victim so as to destroy the victim's own free will. On the evidence of this mother, I am totally satisfied that the threats were powerfully operating on her mind in the whole period before and throughout the hearing on 13th September 2016. Indeed, the coercive effect of the threat was so strong that, despite repeated attempts by His Honour Judge Jordan, in passages I have quoted, to penetrate through to what was going on, the mother never wavered and never hinted at the truth.[77]Mr Rosenblatt submitted as his second point this morning that the fact that the mother did not buckle under questioning from His Honour Judge Jordan tends to undermine both(a) her credibility as to the fact of the threats, and(b) her credibility that she was acting under the coercion of the threats. That, of course, could be one conclusion. I, however, unhesitatingly draw the reverse conclusion, that the very fact that she did not "buckle" under the questioning from His Honour Judge Jordan serves to demonstrate just how coercive and powerful upon her these threats were.[78]I am thus satisfied that when the mother asked His Honour Judge Jordan to dismiss her proceedings and consented to his doing so, her own free will had been over-borne by powerful threats in all the circumstances that I have described.[79]A further effect of the duress was that His Honour Judge Jordan himself was misled as to the true facts. The true facts were that the mother was only asking him to dismiss her application because of the threats; but so powerful were the threats that she was able to mislead His Honour Judge Jordan into believing that it was simply her own wish and free will that her proceedings be brought to an end.[80]Further, I am in no doubt that the result of the duress, and of the fact that he was misled in that way, was that His Honour Judge Jordan made an order which it is inconceivable that he would have made if he had known the true facts. If His Honour Judge Jordan had managed to gain even a hint of what the mother says is the truth at the hearing on 13th September, it is inconceivable that he would at that hearing have simply dismissed all these proceedings. I cannot speculate as to what precisely he might have done, but unquestionably he would have required further enquiry before bringing the proceedings to an end.[81]So, in the unusual circumstances of this case and for all the reasons which I have given, I am absolutely satisfied that the order made on 13th September 2016 was impacted by duress. It is an order that would never have been made but for the duress, and an order which in the circumstances should never have been made.[82]I will accordingly exercise a discretion to set aside the whole order made by His Honour Judge Jordan on 13th September 2016, which is expressly headed in proceedings number MA 16 P01476. That has the effect that those proceedings revive and are immediately reinstated. Those proceedings were commenced by the mother by her application on 18th August 2016 at a time when, as is accepted by Mr Rosenblatt, both these boys were still clearly habitually resident in England and Wales[83]There was, therefore, a clear jurisdictional basis for those proceedings, and that jurisdictional basis persists even if (which I have not so far considered) either or both of these children is now habitually resident in Iraq.

Cited in 1 later judgment