Lachaux v Lachaux [2017] EWHC 385 (Fam)

“The United Arab Emirates constitute a foreign jurisdiction with which this country has a particularly close historical connection. Orders issued by courts of the Emirates are entitled to the regard which we would expect the courts of the Emirates to have for our orders. In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less. Particularly is this so where the order, as in this case, is unenforceable and thus empty. The temptation to make conflicting orders arises from a contemplation of the gulf between legal systems based on a Judaeo-Christian model and legal systems applying the Sharia law. But if there is to be progress in the development of understanding and collaboration in international family law it is vital that we should attempt to build bridges over the divide rather than to issue empty challenges. Of course no court in this jurisdiction would have ordered a transfer of residence from the mother to the father on the application of the paramount welfare test. The fact that that was the outcome in Dubai, even the fact that that would have probably been the outcome in Dubai without compromise, does not mean that the welfare of the child is not the first consideration for the judge of the Sharia court. Both systems are child centred. It is the interpretation of child welfare, governed as it is by different religions, cultures and traditions, that produces such starkly different outcomes. In the years ahead it is to be hoped that there will be more frequent and profounder exchanges between diplomats, policy makers and judges to ensure that these differences of interpretation are not magnified by ignorance and misunderstanding.”

“During the course of their marriage the claimant believed that the first defendant, without her knowledge or consent, accessed and removed large amounts of her personal private information and data. The information removed by the first defendant includes private emails between the claimant and third parties, private photographs of the claimant and third parties, financial and social security data, Skype correspondence as well as telephone and other electronic records.”

“First: The power contained in section 51(3) as a whole provides for wide judicial discretion. The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means (An example of this is El Fadl v El Fadl). It seems to me that it is important to emphasise that those interests must be safeguarded. I would anticipate that this approach would only be adopted where the respondent spouse has no option under the overseas divorce law but to submit to the divorce. The important point to note is that the judicial discretion is wide and the applicability of the section will vary depending on the many and varied circumstances of each case. Second: When considering section 51(3)(a)(i) a judge must ask whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of them taking place. Third: In answering that question the judge must look at all the circumstances of the case and the "nature of the proceedings" in the overseas jurisdiction. Fourth: Whether reasonable steps to notify the other party have been taken is to be judged by English standards having regard to the nature of the overseas proceedings. Fifth: Whether reasonable steps have been taken is a question of fact in each case (it must also be remembered that there are cases where reasonable steps have been taken but they were unsuccessful or, in rare cases, where it is entirely reasonable for no steps to have been taken). Sixth: It is important to note that whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of enquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings.”

“Any overseas divorce, annulment or judicial separation may be refused recognition in England if its recognition would be manifestly contrary to public policy. In Kendall v Kendall, the wife was deceived by the husband's lawyers into applying for a divorce which she did not want in a language which she did not understand. It was held that recognition would be refused in England on the ground of public policy. The only other case in which a foreign divorce has been refused recognition solely on this ground seems to be B v B (Divorce: Northern Cyprus), which concerned a divorce granted in the “Turkish Republic of Northern Cyprus”, which is not recognised by the United Kingdom. However, this was not followed (after submissions on behalf of the Attorney-General and the Secretary of State for Foreign and Commonwealth Affairs) in Emin v Yeldag, where it was held that a divorce granted in Northern Cyprus would be recognised in England if it was obtained in accordance with the relevant conditions applicable to that part of Cyprus. The word “manifestly” is probably redundant. It appears in s.51(3) of the Act because it appears in Art.10 of the Convention, where it was inserted to discourage the excessive reliance by the courts of some countries on alleged grounds of public policy. On the other hand, English judges have claimed a “residual discretion” to refuse recognition to divorces which offended their sense of justice, and have occasionally exercised it. This discretion appears to have been abolished by the Act, and such divorce could now be refused recognition only on the statutory ground of public policy. If an English judge concludes that recognition would be manifestly contrary to public policy, refusal of recognition must follow; there is no further discretion. The fact that a foreign decree was obtained in breach of a Hemain injunction issued by the English court will not in itself justify refusal of recognition. So, a Russian decree obtained in such circumstances was recognised, given that the Russian court was made aware of the injunction and there were no procedural defects in that court. It was thought at one time that the public policy ground might be successfully invoked where a husband ordinarily resident in England obtained a divorce abroad (perhaps a talak, where the wife would have few if any procedural rights) in an attempt to avoid financial or other consequences attaching to a divorce obtained in England. It is now recognised that the enactment of Part III of the Matrimonial and Family Proceedings Act 1984 prevents there being any public policy issue so far as financial consequences are concerned. However, Thorpe LJ suggested that a foreign decree might be refused recognition under s.51(3)(c) where the English court held primary jurisdiction established by a fully reasoned judgment delivered on an application for a forum conveniens stay and the foreign court, with full knowledge of the London judgment, defiantly dissolved the marriage of a wife who could not establish jurisdiction for a claim under Pt III of the 1984 Act [Golubovich v Golubovich [2010] 2 FLR 1614]. These are the only grounds on which the court has discretionary power to refuse recognition to an otherwise valid foreign decree. The fact that it was obtained by fraud, or without the petitioner's consent, is not such a ground.”

“The first ground is that recognition of the foreign judgment would be manifestly contrary to public policy in the State where its recognition or enforcement is sought. The public policy exception is to operate only in exceptional circumstances, a fact which is reinforced by the incorporation of the word “manifestly” into Art.34(1). The European Court, in interpreting the corresponding provision in Art.27(1) of the Brussels Convention, provided a definition of when recognition may be said to be contrary to public policy: whereas the content of English public policy is a matter of English law alone, the role of that public policy within the framework of the Regulation and the Convention is a matter for the European Court. Before it may find recognition contrary to public policy, the court addressed must conclude that recognition would conflict, to an unacceptable degree, with the legal order in the State of recognition because it would infringe a fundamental principle, or would involve a manifest breach of a rule of law which is regarded as fundamental within that legal order. Accordingly, where the adjudicating court had refused to hear a defendant who had placed himself in contempt of court, the recognising court was entitled to consider this to be a violation of Art.6 of the European Convention on Human Rights, and to refuse to recognise the judgment. By contrast, where the adjudicating court had misapplied European competition law, the effect could not be regarded as the manifest breach of a fundamental right, serious enough to raise issues of public policy, especially as the adjudicating court had a proper procedure for the correction of errors by appeal or review.”

“An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.”

“'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over-much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, it is so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness' motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.”

“Presently, [while] there is trust, respect and warmth towards each other we seriously need to rebuild and I guess we both feel shattered by how stubborn we can be and all the debates we have had and how entrenched we can be in our own views.”

“you said this morning that you did not wish to speak to me again and refused to talk about arrangements for Louis. There is little point in sending recriminations or throwing accusatory insults at each other. It is the end of the road for us and I have no more energy to disagree, fight or argue with you anymore. It is clear that our relationship is poisoned and irrevocably damaged. I agree that we should not speak or see each other. I did not have a chance to tell you this morning. But ironically you will get your wish not to see me as I have my final interview next week, so I will not be able to fly back to the UAE anyway. I have sought advice from a family lawyer friend and I should be able to get an annulment as we had married at the beginning of the year.… I will go and see the lawyer on Monday morning to kick things off… I do not want to drag this out any longer than I have to. Please try and get a lawyer sorted ASAP so that I can see my son unless of course you wish to deny my right to see him (which I would not be surprised by). Anyway, regardless, I will ask the lawyers to sort it out”

“Our clients have been provided with the attached document by Afsana. She states that it was retrieved from the hard drive of her computer in around the end of March 2011 by a computer technician in Dubai in the course of it being repaired after it had been identified as having malware. It purports to be a letter from your client to a French lawyer in relation to divorce proceedings.”

“Currently however, the most pressing reason that I need to leave Dubai is that I am fearful for my life. I have discovered in the past week that my husband has been spying on me and has compiled a “dossier” on his computer which is composed of screenshots from my laptop of emails/message exchanges, voice recorded clips from when I have spoken to him and friends/family and also a host of personal information (financial, private etc) which I did not disclose willingly to him.” (Emphasis added)

“On 14 January 2011, Bruno physically assaulted me in our home. He became angry that I had thrown away a decoration on the Christmas tree. He started shouting at me. I continued to throw away the decorations. He became more agitated and lunged at me, shook me, pushed me to the floor and pinned me down while shouting at me. I fought back in an attempt to free myself. I grabbed an adjacent small brush and started to hit him with it to get him off me. He grabbed a kitchen knife and held it above me. At that point I froze. Bruno got up, left the kitchen and shortly after left the apartment. I started crying when I heard Louis crying from his cot. After the assault, Bruno left the home for many hours. I was in shock and stayed at home, feeling frightened and needed to take care of our baby. Very late into that evening, I received a call from Bur Dubai police station and was informed that the claimant had filed a report stating that I had physically attacked him. Bruno and I were sent to Rashid hospital to obtain separate medical reports and give a statement to the police. I had sustained some injuries and a hospital provided me with a medical report to give the police. Despite making a statement to the police and explaining the history of abuse, the police officer told me that “I should go home, after my husband’s forgiveness and obey my husband”

“I have been missing Louis very much and your continual refusals to allow me to see Louis and to be with him is having a devastating effect on me. Louis needs to be with his mother, I have taken care of him since his birth and he cannot be looked after by strangers. It is cruel and unfair on Louis and it is clear that you have been using him as a weapon against me. It is very clear that our relationship has deteriorated. What I care most about is Louis’s welfare and his needs. Forcibly keeping Louis in Dubai when he should be with his mother is inhuman and unjustified. This situation cannot continue any longer, I have tried to reason with you and come to arrangements that you have refused to even discuss these matters with me and have hidden his passport and documentation since last year. You have left me with no option but to pursue actions through the Dubai Courts. I have seen a sharia lawyer in Dubai who has advised me that our marriage is illegal under sharia law and that any child of the marriage (given that Louis was born two months after our marriage) born to a Muslim parent will be awarded to that parent. Court action has serious consequences for both of us which will ultimately result in jail and deportation for us both. The law is very clear on this matter. I know that you still have assignments where you will be away, out of the country and there is currently no primary carer for Louis so I am begging you to sort this out immediately, for Louis sake. As I have consulted my lawyers they are ready to act upon my instruction. If I do not hear from you by Thursday 14th lunchtime as to when you will bring Louis to London I will instruct the lawyers to make an application to the court. Please go see your own sharia lawyer as I am sure that you have not told anybody about our mixed faith marriage and the circumstances of Louis birth. They will advise you that we will both be facing criminal charges resulting in imprisonment and deportation, and of course that would mean you lose your job. You must also know that if I file this court action it cannot be withdrawn so I implore you to think about this as it will have serious consequences. I do not wish to take this action in the first instance but there is still time for you to correct the situation by doing the right thing and bringing Louis to London where we can discuss arrangements for his well-being. As parents Louis’s welfare must come first and we can then discuss our own personal issues when you come to London. Please reply by email as I am tired of the abusive phone calls.”

“I am contacting you on the advice of my lawyers to request the possibility of seeing my child Louis Lachaux. I gathered from Alaa Diab here copied, he had enquired verbally the same at multiple occasions with you and my wife has always turned down any possibilities for me to spend time and see our child Louis. This is now nearing a month I have had no physical contact with him and you would agree I still have the same right as my wife does to be with him while we are husband and wife. As the case will certainly extend for some time, there is no reason to think the next hearing on May 26 is the final milestone and as such, I should be granted the same right she has to be with him until a final settlement is concluded.”

“On the 13th June 2011 I was arrested by the Dubai police in connection with the false complaint that I had gone missing with Louis (despite the fact that we had both instructed lawyers and that he knew how to get in contact with me). Indeed, shortly before my arrest he had written to my lawyer Mrs Alwatif, asking her to take my instructions on contact.”

“My estranged husband has a recorded history of sexual offences and has been violent towards me. He is a violent person and I consider him to be a danger to both my child and me. He blatantly abuses the laws of this country with the full knowledge of the authorities… I am formally requesting that the consulate make representation to the UAE authorities on human rights grounds, that my child and I are allowed to return to our home in Britain. My estranged husband is illegal here, he has no legal entitlement to stay here and neither do we.”

“The interest of the baby should come before the interest of an abusive parent. My son and I are suffering greatly and I do not understand why if Bruno Lachaux is an absconder he is not deported like everyone else who is in the UAE illegally. If the UAE authorities execute the deportation order against Bruno Lachaux, I will allow access to our son back in Europe where we legally belong. I beg you to send me and my baby home to England.”

“I am sending you this email to let you know that we received a phone call from the police today. The police told us that the court granted one visit a week for the father to see your son. I have been told that when the father did not see your son, he complained to the court, so the court issued an arrest warrant against you. The police explained that this is not a criminal case, but it is a family court case, so it is unlikely that the court will order to detain you unless you fail to follow the court orders. I have managed to persuade the police to hold up the arrest warrant for a grace period of two days. The police said that you should go and ask to see Major Saeed Al Saadi at the CID. He said that would be taken to the court to show that you are not hiding and to drop the arrest warrant. You can explain your fears and why you have so far failed to go to the police. You could take a copy of the letter you wrote before, although this would need to be in Arabic. This is not going to be in a police vehicle. Major Saeed said that if you go to the police yourself, this would be much better than enforcing the arrest warrant, bearing in mind that your son is with you. I suggest that you speak with your lawyer and discuss the above. Being [in] hiding from the local authorities can complicate the matter and probably could weaken your situation in the custody case. I understand from the lawyer that he was happy to help you in this case without extra charges.”

“I debriefed my [refuge] caseworker yesterday regarding the divorce hearing outcome and told her that I now fear even more that I will be left to hang with my poor legal representation and the fact that the two Bur Dubai police officers were allowed to testify on his behalf. The judge did not even want to listen to me. … I have to prepare my witnesses. She [the caseworker] was very critical of my lawyers and told me that I should complain to them as they have a duty to explain and translate everything to me. I told her I had bitter experiences with all the sharia lawyers I have had. All of them have operated in the same unscrupulous way. … There is no point in me pleading to go home. I will never get out of this nightmare. His threats, the police persecution, proof positive now that I know he has these corrupt officers on his side, they will stop at nothing. I told the embassy and everyone all along that he bribes the police and they stitch me up. They never took any of my complaints seriously and when I was assaulted I had to argue to have a case opened. Now I know why the officers at Bur Dubai police station treated me so badly. Their attendance at court is proof of the lengths they will go to. The public prosecutor is also victimising me. I am not safe here and fear that they will do more things against me. So many times he threatened he would use the police and courts against me. And now he is succeeding. It is grossly unjust and persecution”

“It is understood from all of these that their life is full of problems, and repeated quarrels in a way that changed life to be a hell and this will gradually move to the children and the married couple shall have the right to ask the divorce when they define degree and danger of the damages that adds to the misery of life which makes it impossible to live peacefully. These damages may be material or spiritual and these damages shall be, and apparent in the surroundings, families and friends of the married couples. Based on the above-mentioned as well as the document proves that the damages are public and, in the midst of their surroundings and the defendant does not obey the claimant and she is careless in taking care of the child and fulfilling her marital duties and she is always depending (sic, recto “spending”) nights at nightclubs with friends, and through the provided documents which prove that the defendant travels a lot and leaves the house and she prevents the claimant from seeing his child/Louis. Whereas the defendant does not provide what negates these facts and her sayings were evidence-less; this makes it clear for the court to be satisfied that the claimant is aggrieved deeply supported by the testimonies of the witnesses in which they stress that the defendant beats, insults and takes no care of his feelings as a husband and she always refuses to obey him all of these shall lead the court to divorce him from the defendant for the insults and damages he suffered.”

“Accordingly, and since it was established in the documents and personal evidence of the original petitioner that the original respondent is not trustworthy to take care of the child Louis and has prevented the petitioner from seeing him in spite of the presence of a legal permit to see the child from the authority of the court, and the respondent abstained from executing the judgment of the right of the legal custodian to commence his custodianship I have assumed that this reference to “custodianship” corresponds to “tutelage” – see para 16 above. of the child Louis and nurture him. And according to the documents submitted to the authority of the court that the respondent had neglected taking care of Louis which resulted in skin diseases which spread over his face and body, and such allegations were not refuted or disputed by the respondent in addition to her negligence of the child because of travelling outside the country according to the statements of the Immigration and Nationality Department, and being busy with her friends at nightclubs. And whereas the petitioner has stated that the respondent is not safe for the child to be around and worrying about the child and his health, and since the petitioner has a woman who is able to provide nurture for the child in addition to the ability to provide.”

“Whereas the duty of the wife to obey her husband, the breach of which was expressly put forward by Mr Lachaux as part of the grievances justifying that the divorce be pronounced against his spouse, as well as by the witnesses, is in no way reciprocal under UAE law; whereas the same is true for the fault constituted by the simple act, on the part of a wife, of attending nightclubs with friends or travelling frequently; Whereas these provisions, referring to the husband’s authority over his wife, are manifestly discriminatory, in the context where the wife is a British citizen and the husband of French national; whereas they are contrary, in this respect, to the principle of equality between spouses and, more generally, of gender equality protected by virtue of French international public policy; Whereas accordingly, the disputed judgment cannot be declared enforceable in France, regardless of the other grievances retained against the wife.”

“The respondent was granted a sharia-based divorce and custody judgment in Dubai on 12 August 2012. The petitioner was never served with any divorce proceedings and judgment was granted in her absence. On 23 April 2014 the respondent filed an application in France for recognition of the Dubai sharia divorce. The petitioner does not recognise the validity of the Dubai divorce and is contesting the French proceedings.”

“In October 2013, the respondent found out where we were living and snatched our son while he was out in the playground. The British Embassy informed me that he had obtained a sharia divorce in my absence. I was never served with any divorce petition and was not told that a final hearing had taken place in my absence. I was severely traumatised by this news and the loss of my son. The Dubai sharia divorce judgment granted the respondent custody and wiped out all my parental rights. I was advised by my Dubai lawyers that I have no right of appeal against the sharia divorce and custody. I was not allowed any contact with my son at that time. The sharia judgment provided for no contact.”