M (A Child) (Temporary Removal to Kurdistan) [2017] EWHC 3492 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No FD17P00117

[2017] EWHC 3492 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/03/2017

Before

HER HONOUR JUDGE ROBERTSHAW

Sitting as a Judge of the High Court

Between

Re: M (A Child) (Temporary removal to Kurdistan)Claimant

Re: M (A Child) (Temporary removal to Kurdistan)- -

Mr M Gration (instructed by Crosse and Crosse Solicitors) for Father

Miss R Amiraftabi (instructed by Family Law Co.) for Mother

Hearing Hearing dates: 13 and 14 March 2017

Judgment

Her Honour Judge Robertshaw:

[1]By an application dated 27th February 2017, issued on 2nd March 2017, the father of a twelve-year-old girl, M, seeks orders to prevent M leaving the jurisdiction with her mother for a holiday and a family reunion with the maternal family in Kurdistan between 17th March 2017 and 4th April 2017. The mother and father are both Iranian Kurds. Their English is limited and they have each had the assistance of interpreters throughout this hearing.

Background

[2]The background to this application is unusual. The mother wishes to travel with M to Sulaymaniyah in the Kurdistan region of Iraq where she plans to meet her mother, sister and other members of her extended family who will be travelling to Sulaymaniyah from Iran where they reside.

[3]The father fled Iran in February 2012 for fear of persecution and arrest as a result of becoming caught up in an incident with the PDKI, Kurdish Freedom Fighters in which his work colleague was killed. The Iranian authorities believed the father had helped members of the PDKI and subsequently issued a summons for his arrest.

[4]On arriving in England in 2012 as a refugee, the father sought and eventually obtained asylum after a successful appeal in 2013. He has permission to stay in the United Kingdom for five years until August 2018.

[5]The mother and M remained in Iran until 2014 when they came to the United Kingdom. They were also granted permission to remain for five years. The mother and father separated shortly after the mother and M arrived in England.

[6]A Child Arrangements Order providing for M to live with her mother and to spend time with her father was made by consent on 14th July 2015. No restriction was placed on the mother being able to take M out of the jurisdiction for up to one month without seeking the father's agreement, as provided by s.13 of the Children Act, 1989. Decree absolute was granted on 20th October 2016.

[7]Both parents intend to remain in the United Kingdom and seek British citizenship when they are entitled to do so. The mother's brother and his family live in Birmingham. Both parents live in an area where there is a strong Kurdish community.

[8]The father says that in February 2017 he became aware of the mother's plans to travel to Sulaymaniyah, Kurdistan with M and he issued his application to prevent her from doing so. He believes that Kurdistan is very unstable and dangerous, that M's life and safety would be in danger if she travelled to Kurdistan, particularly in view of his previous involvement with the PDKI and that the mother would travel with M from Kurdistan to Iran, where the risks would be even greater, and that they will not return.

[9]Jackson J made a Passport Order and associated port alert at an ex parte hearing on 2nd March 2017. This was executed by the Tipstaff later that day. At the return hearing on 9th March 2017, Moylan J extended the Passport Order and the port alert until the conclusion of this hearing.

[10]In determining the father's application I have read the trial bundle and heard oral evidence from the father and the mother with the assistance of their interpreters. Exhibited to the father's first statement are a number of documents from the Foreign and Commonwealth Office, [‘the FCO’], advising against all but essential travel to Kurdistan.

[11]In view of the urgency with which this application has been listed, there has not been time for either party to obtain expert evidence, for example, from an anthropologist, on the current political and social climate in Kurdistan or an expert report on the issues of recognition and enforcement of any orders I make here.

[12]In DH v CL

[2014] EWHC 1836 (Fam)

, Cobb J referred to the advice he had received on such issues concerning Iraq from a jointly instructed expert, a Dr. Rebwar Fatah, who also gave evidence in another case relied upon in the present case by Counsel on behalf of the mother. Dr. Fatah's reports were, of course, prepared for those particular proceedings and reflected the position as it was in Iraq at the time of those hearings, for example, in DH v CL in May/June 2014.

[13]I make it plain that I do not rely on the extracts from those reports as set out in Cobb J's judgment at para.13 as providing expert opinion in this case but as Counsel submit, they provide helpful background information.

Relevant legal principles

[14]I approach the issues in this case on the basis that the father is seeking a Prohibited Steps Order [‘PSO’] and continuation of the Passport Order with associated port alert. In determining these applications I have applied the following principles:(1) M's best interest are my paramount consideration when considering whether or not to make a PSO and when exercising my inherent jurisdiction in this case : s.1(1) of the Children Act 1989.

(2) In giving primacy to M's best interest and applying the test in s.1(1) I have had specific regard to the factors relevant to M's welfare under the welfare checklist under s.1(3).

(3) I have considered the advantages and disadvantages, the benefits and the detriments and, importantly in this case, the risks to M in her visiting Kurdistan with her mother within the confines of the evidence before me.

(4) I have borne very much in mind that the facts of this case engage not only the mother's rights to respect for private and family life but importantly and significantly, M's Art.8 rights under the ECHR. M has a right for family life with her extended maternal family. As Cobb J said of the child's rights in DH v CH, M's rights in this case "are not merely theoretical but real and dynamic rights deserving of the closest attention", [para.12(vi)]. M has not seen her maternal family since arriving in England almost three years ago. Prior to her arrival she had lived for the whole of her life, ten years, in Iran with her mother enjoying a close relationship with the maternal family.

(5) I have considered and applied the discipline of the principles established by the Court of Appeal in Re R (A child) [2013] EWCA CIB 115 in evaluating and assessing the risk of harm to M. Although Re R was a case involving consideration of the risk of abduction, the discipline of considering the three questions set out in that judgment is helpful and relevant in undertaking the welfare analysis and balancing the factors, as I do, for and against the court sanctioning this trip to Kurdistan and determining whether or not I can be satisfied that the advantages to M of visiting her maternal family in Kurdistan outweigh any risk to her welfare which the visit will entail.

[15]I therefore need to consider:(a) the extent of the risk and the magnitude of that risk to M's health, safety, physical and psychological wellbeing.

(b) secondly, I need to consider the extent and magnitude of the detriment to M if these risks materialise; and

(c) thirdly, what safeguards can be put in place to minimise the risks to promote M's health and safety in Kurdistan and to secure her return to the UK if the risks materialised.

The Father’s case

[16]The father conceded in cross-examination that there is no evidence that the mother plans to travel from Sulaymaniyah to Iran, which she accepted would present a significant risk to her and to M and which would jeopardise her immigration status, or that she would not return to the UK with M after the holiday. Consequently, the thrust of the father's case is that the risks to M's physical and psychological health and safety are too great. I turn then to consider the father's case concerning these risks.

[17]The father identifies the risks to M's health and safety in two particular aspects. The risk of terrorism in Kurdistan and secondly, the risks arising from his previous association with the PDKI and his political activities in the United Kingdom since 2012 which he says include continued connection with the PDKI. He says that as M bears his last name and has attended a political meeting with him she would be identified as being connected with him and consequently at risk.

[18]As far as the risk of terrorism is concerned, the father relies on the current and up to date FCO travel advice to Iraq [the ‘Guidance’] and recent events which he says have taken place in Kurdistan. The FCO advises against all but essential travel to Iraq and Kurdistan, including Sulaymaniyah. The maps which are included with that Guidance show that Sulaymaniyah is in relatively close proximity to other areas in Iraq in relation to which the FCO advises against all travel. It is also reasonably close to the Iranian border. The Guidance includes this information:

"There is a high threat of terrorism including kidnapping across Iraq.” “The Daesh (formally referred to as ISIL) and other armed groups control parts of Iraq." [page C38] The Guidance identifies particular provinces and states: "

The front line between Daesh and Iraqi and Kurdish Security Forces is changeable. There’s an increased risk within 10km of the front line." [page C38]

[19]In respect of the Kurdistan region, the Guidance provides as follows: "While the Kurdistan region has a different security environment to the rest of Iraq, Daesh controls territory nearby. The security situation in the Kurdistan Region could deteriorate quickly.” “Road travel within Iraq remains highly dangerous and there continue to be fatal roadside bombings and attacks on military and civilian vehicles. False vehicle checkpoints have been used to launch attacks. There is also a risk of carjacking and robbery." [page C41]

[20]At page C42, in respect of the risk of terrorism identified, the Guidance provides as follows:

"There is currently a very high threat from terrorism in Iraq. Extremist groups like Daesh (formally referred to as ISIL) are responsible for the majority of attacks. Following Parliament's support on 26t September 2014 for UK airstrikes against Daesh in Iraq, there is a heightened threat of attacks against western interest in Iraq."

[21]The risk of kidnap is identified at page C43 of the Guidance and, at page C48, the map sets out the particular regions and areas subject to the discussions and issues in this case.

[22]The mother's case is that this is guidance only and not mandatory and that it is focussed at British nationals and not at Kurdish-Irani nationals such as the mother and M.

[23]As far as the political activity of the father is concerned, he claimed for the first time in oral evidence yesterday that he has continued to be politically active in England, that he has attended Kurdish rallies and meetings and that he had visited the PDKI offices in London. He also claimed to have taken M to meetings where she has held a Kurdish flag and claims she would be at further risk if these photographs were circulated or had been circulated and she could be identified.

[24]If what the father says is true, he would have made reference to these matters in his statements, as he has done considering the incident with the PDKI in Iran in 2012. He did not do so.

[25]I reject the father’s explanation that he omitted to include anything about these activities and the risks he says arise from them to M because he had either forgotten about them, had not been asked about them by his solicitor, or that he had told his solicitor about them but his solicitor had not been included them in his statement. The father either fabricated or embellished and grossly exaggerated his political activity in England since his arrival here and the consequences of this for M. He also lied when challenged about why he had not made any mention of these matters when giving evidence.

[26]The father initially concealed from the court that he had visited Sulaymaniyah with his mother, sister and sister's children for the Kurdish New Year in February 2016, making no mention of this either in his application, his first statement or to Jackson J at the ex parte hearing on 3rd March 2017. It was only after the mother brought this to the court's attention in her statement that the father admitted to Moylan J at the inter partes hearing on 10th March 2017 that he had indeed made this trip and included details about it in his second statement provided to me yesterday.

[27]Again, I reject the father's assertion that he had either forgotten about this trip, had not been asked questions about it by his solicitor or he had told his solicitor but it had not found its way into the statements as untruthful. Reasons advanced by the father to explain other omissions in his evidence I also reject as untruthful.

[28]I am further quite satisfied that the father had, in fact, asked M to join him on the trip to Sulaymaniyah in 2016 as contended by the mother but that M had refused to go with him.

[29]The father further lied in denying, contrary to this statement, that M was excited at the prospect of going to Kurdistan. He lied about not having initially told M she could go on the trip with her mother and, as I have said, he lied about his own trip.

[30]The father's evidence as a whole was unsatisfactory. Much of it was unreliable and untruthful.

The Mother’s Case

[31]The mother says she has no intention of going to Iran and accepts it would be dangerous for her to do so. She wishes to stay in England with M permanently and she has put down strong roots here. She says she has no intention of not returning if she was allowed to go to Kurdistan with M. She described the trip as being as an intended family reunion. Initially, the family were going to meet in Armenia, but this was changed to Sulaymaniyah as it was more convenient and less costly.

[32]The mother's evidence about the arrangements for the trip and how they came about were very vague and unclear. Although the mother claimed her mother could not travel due to poor health, she conceded in cross examination that whilst the doctor had not said anything about her mother not travelling, this is what the family had decided amongst themselves. The mother was also unsure how far her mother would have to travel from her home in Iran to Sulaymaniyah or the distances involved. She agreed in cross examination that they would have to travel across a border which had been graded as dangerous and along roads that were classified as highly risky and dangerous in Kurdistan.

[33]The mother accepted in her evidence this morning that she did not think that the advice and Guidance from the FCO was wrong, but said she had not looked at this herself when planning the trip, preferring to rely on the views and advice of the local Kurdish community, many of whom she said had made the trip safely and upon the opinion of her family and friends in Kurdistan. No details were provided to the court of the background of any of these persons, when they made the trip or the circumstances and background to their journeys. I must, of course, must look at the situation for M for this trip at this time.

[34]The mother does not have any insurance in place for her planned holiday. She would not be travelling on a passport: she would be travelling on a blue book travel document. She did not know of or have any contact details if she needed help from the British authorities, such as the consul in Kurdistan. Again, she said she would be relying on friends and family if anything went wrong or if she or M or any of her group needed healthcare.

[35]The mother conceded in cross-examination that she had taken no steps at all to prepare safely for the trip and simply said that although there will be crowds for the Kurdish New Year in Kurdistan, she intended to stay away from them.

[36]As with the father's evidence, there were aspects of the mother's evidence that were very unsatisfactory. Her evidence was vague about her plans and how they had materialised and she was untruthful when she claimed that the father had told M that wherever she was going, he was not going to allow it, something which she had never mentioned in either of her two statements. The mother concluded her evidence by stating in cross-examination that there was nowhere else in the world other than Iran that was unsafe for her to visit with M. If she truly believes this, she is being naïve in the extreme.

[37]Ms Amiraftabi, on behalf of the mother, invites me to consider a number of authorities and submits that the information from the FCO is guidance only. I have considered the authorities and documents she put before me today in a file for this morning's submissions including: SK v TKB

[2015] EWHC 3288

, a decision of Baker J almost twenty months ago in September 2015, AA (Article 15(c)) Iraq CG

[2015] UKUT 00544 (IAC)

the decision of the Upper Tribunal (Immigration and Asylum Chamber) heard in May 2015, almost two years ago, the Home Office guidance for August 2016 together with information from Canada about Sulaymaniyah and the decision of Cobb J decided in June 2014 and to which I referred at the beginning of this judgment, DH v CL.

[38]As Mr. Gration, Counsel for the father submits, the contexts against which these cases were decided were materially distinct and different from the situation in this case. The legal framework, for example, against which the Upper Tribunal considered their decision in approaching the interpretation of Art.15 is very different. The question I have to determine is whether or not it is in M’s best interest to travel to Kurdistan for this holiday. The question for the court in AA was whether or not Article 15 prevented the removal of Iraqi nationals. The decision of Cobb J was a decision relating to permanent relocation, again, a different context and background, indeed was so with the decision of Baker J.

[39]As Mr. Gration submits, I do not know and cannot know the evidence given by the mother before Baker J who concluded that she was able to protect her child, nor do I know the situation on the ground in Iraq and Kurdistan as it was when the advice and guidance was issued. From the judgment, the advice and guidance appears to have been less stringent then than the advice and Guidance now emanating from the Foreign and Commonwealth Office.

[40]It is correct that this advice is aimed at British nationals but, nevertheless, the Guidance clearly identifies the risks and dangers. There are risks in crowds, there are security risks of significant proportions as well as the other dangers to which I have already referred and quoted from this Guidance.

[41]It is quite plain to me that there are significant risks and safety concerns in travelling to Kurdistan. They are less than in other areas of Iraq but nevertheless, they are still such that the Commonwealth and Foreign Office advises against all travel unless it is essential.

[42]The mother concedes and recognises that this holiday, although beneficial and welcome and long overdue in many respects, is not essential.

[43]It is apparent from the mother's evidence that she has not given any real consideration to the security situation in Kurdistan for M as anything approaching a risk to herself or her daughter's wellbeing.

[44]I have not heard expert evidence of the situation on the ground as it is at present. Expert evidence was before the court in other cases and this is relied upon on behalf of the mother, but it is out of date and it is quite plain from the Guidance from the Commonwealth and Foreign Office that the situation in Iraq and Kurdistan can change very, very quickly.

[45]I referred at the beginning of this judgment to the principles that I apply and to the welfare checklist. I have given particular care and attention to the following factors in reaching this decision: M's cultural needs and the need for her to have association and communion with her maternal family in Kurdistan; the capacity of the mother to protect M; M’s physical and emotional needs and the likely effect on her of the change in her circumstances if she went on this trip to Kurdistan and the risk of harm to which she would be exposed if this trip took place.

[46]I have also been referred to and have taken into account throughout M's ascertainable wishes and feelings. I have identified that she certainly wishes to go on this trip.

[47]I am quite satisfied and so find as follows:(1) If the mother went to Kurdistan, she would not travel with M to Iran.

(2) If the mother went to Kurdistan she would return, as she intends to do, to the United Kingdom.

(3) The purpose of her planned trip is for a holiday to see her family whom she has not seen for three years.

(4) M wishes to go on this trip and wants to see her maternal family.

(5) The father's motivation in seeking orders preventing M from going to Kurdistan is primarily because M would not agree to accompany him on the same trip in 2016. He made that trip when there would still have been a significant risk to himself and M and he would have taken that risk.

(6) The father has fabricated, exaggerated or embellished his political activities and association with PDKI to bolster his case.

(7) There is a risk to M's health, safety and wellbeing in her travelling to Kurdistan at this time. This risk is real, significant and cannot be ignored.

(8) If the risk materialises, the consequences for M could be grave. She would be exposed to a significant and real risk of severe and serious physical and psychological injury, even death.

(9) No matter how hard the mother tries and how desirous she is of protecting her daughter, which I accept she is, she could not, and is not in a position to take any steps to reduce the risks to M to an acceptable level.

[48]I know that my decision will come as a bitter disappointment to M and to the mother, but M's welfare is my paramount consideration and I must consider whether or not the benefits to her of having time and communion with her maternal family outweigh the risks to her health and safety. In my judgment, they do not. The risks for M are just too great to enable the court to permit M to go to Kurdistan at this time.

[49]The mother, of course, can make a decision about whether to travel to Kurdistan herself and without M if she is able to make other arrangements for M’s care and she can take M out of the jurisdiction to meet her family elsewhere without going to Iran, Iraq or Kurdistan.

[50]I hope that the situation in Kurdistan will settle to such an extent that in the future it will be possible for M to be accompanied by her mother and go to Kurdistan.