SU & SA (Children) [2017] EWHC 441 (Fam)

IMPORTANT NOTICEThis 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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular 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 FD05P02342[2017] EWHC 441 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF SU AND SA (CHILDREN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th March 2017
Before
THE HONOURABLE MR JUSTICE BAKER
Between
FMApplicantKAH (1)RespondentsSU (2)RespondentSA (3)Respondent
Ruth Kirby (instructed by Gillian Radford and Co) for Applicant motherThe First Respondent appeared in person for in personMike Hinchliffe (of Cafcass Legal) for Second and Third RespindentsHearing Hearing dates: 14 th December 2016
JudgmentMR JUSTICE BAKER :
[1]This matter comes before the court following a referral by HM Passport Office which had received an application for the renewal of British passports in the names of three teenage girls living in Australia. The oldest girl is over the age of 18 but the younger two are still minors and are wards of court under orders made some years ago following their abduction from this country by their father.[2]Before agreeing to the renewal of the passports, this court made inquiries about the views of the mother, who is still living in England and who has had only indirect contact with the girls since they left England over ten years ago. The mother objected to the renewals of the passports and the court has therefore conducted a hearing on the issue. I regret that pressure of other cases has delayed my judgment until today.

Summary of facts

[3]The parents were married in Kenya in 1996. The mother’s case is that she was then only 13 years old, although the father asserts that she was aged 20 (and has produced a document in which her date of birth is stated to be 1976). According to the mother, the father moved to England shortly after the marriage when she was pregnant with their first daughter, F, who was born later in 1997, and is therefore now aged 19. In 2000, the mother also moved to England although it is her evidence that the father did not live with her but rather visited her at weekends. She subsequently gave birth to two further daughters, SU, born in 2001 therefore now aged 16, and SA, born in 2000 therefore now aged 14. 4. It is the mother’s case that the relationship was very on and off. She asserts that the father was controlling and on one occasion physically abusive. In about 2002 the party separated and were divorced under Islamic law. Initially, the three children continued to live with the mother. In 2005, however, the father made allegations that the mother was physically abusing the children and they were placed in the father’s care while the local authority carried out an investigation. In the event, the local authority took no action in respect of the allegations although in her statement in these proceedings the mother says that she accepted a police caution following this investigation.[5]Subsequently, the mother filed an application for a residence order under the Children Act 1989. Before the final hearing in those proceedings, the father removed the children to Africa. The mother has had no direct contact with the children since that date, over 11 years ago.[6]On 3 February 2006, on the mother’s application, the children were made wards of court by order of HH Judge Cryan. In the same order, the judge ordered the father to return the children to this jurisdiction “upon service of this order or knowledge of this order coming to his attention”. The father has never returned the children in compliance with this order. In 2007, the mother went to Kenya in the hope of recovering the children but was unable to trace their whereabouts.[7]In 2009, the mother returned to court in this country having received information from the Child Support Agency that they were back in England. A location order was made but never executed and further hearings took place at which the paternal uncle who, having been arrested under the location order, was brought before the court and cross-examined before Holman J.[8]Shortly afterwards, however, the mother learnt that the father and children were in Australia. At that point, she instigated proceedings under the Hague Child Abduction Convention. Within those proceedings, a report prepared by the Child Dispute Services (which, as I understand it, provides a service equivalent to that provided by Cafcass in this country) divulged that the children had travelled from Kenya to Australia in August 2009. The report contained details of conversations with the three children. All three said they enjoyed living in Australia. They all alleged that the mother had hit them when they were in her care and said that they did not want to see her. Both parents were interviewed by the report author, the mother by telephone from England.[9]In the conclusion of her report, the author, Morgana Lord, said inter alia:
“[The children]… present as resilient and robust children who have settled quickly and happily into their new environment and new family unit. They have had no communication with their mother since June 2006. They have similarly had no reference points to their mother or the maternal family during this period and therefore effectively no longer know their mother. The knowledge they do have of her is that she is someone to be feared and who has previously caused them harm. The children have a right to have a relationship with their mother within a safe environment. Whether [the mother] is able to provide this safe environment is difficult to determine without supporting documentation that can provide historical information about her previous care of the children and any identified risk factors. The parents’ accounts of her ability to do so are disparate. The children support their father’s assessment that they are at risk in their mother’s care, however it seems more likely than not that at least the younger two girls are recounting information provided to them rather than recounting recalled experiences. This information would most likely have been provided by [the father] or the paternal extended family with whom the children have been living. It may be the case that there has been no malicious intent in the provision of this narrative, and this information has simply been provided to the girls as an explanation for their mother’s absence. Irrespective, however, the children hold a seemingly unbalanced view of their mother and there has been no avenue of recourse in the absence of their mother being able to provide a different experience. Although [the father] states he supports the children’s relationship with their mother, if this can occur within a safe environment, from the information available to the writer, it would seem he has made only limited attempts, if any, to maintain [the mother]’s involvement in the girls’ lives. If this is in fact the case, there remains a significant risk that the children will not be actively supported (and perhaps may be prevented) from re-establishing a relationship with their mother in the future.”
[10]Ms Lord recommended that, in view of the settled condition of the children, they should remain in the care of their father who was providing a safe environment in which they appeared to be thriving. She added, however, that the children’s reconnection with their mother should ideally occur in a planned manner and that, if the children remained in Australia, there needed to be exploration of methods of reintroducing the children to their mother perhaps through a UK agency such as Reunite.[11]On 17 June 2010, the Honourable Justice Bennett sitting in the Family Court of Australia, dismissed the mother’s application for summary return of the children to England under the Hague Convention. This order was not, however, brought to the attention of the English court for several months. During this period, various court orders were made in this court by a number of judges. On 6 October 2010, the matter came before me for the first time. I was informed about the existence of the judgment and furthermore that the mother had not filed any appeal. Full information about the Australian proceedings was not available and the matter was adjourned then and on subsequent occasions.[12]In early 2011, the father filed an application in a family court in Melbourne seeking an order for residence of the three girls. In March 2011, the court in Melbourne granted a residence order in the father’s favour, made an order for telephone contact between the girls and their mother twice a week, and adjourned the issue of future contact. The English proceedings were again adjourned in the hope that the father would be granted public funding to be represented in this court. No such funding was forthcoming and on 5 May 2011, the mother’s application in this court was adjourned generally with permission to restore.[13]In July 2011, a hearing took place before the Honourable Mr. Justice Bennett in Australia in which the mother participated by video link from the Royal Courts of Justice in London. An order was made for skype contact between the mother and the children under auspices of, and supported by, International Social Services (“ISS”). It seems, however, that no contact took place. It is the father’s case that, despite attempts by ISS, the mother did not engage with the agency nor respond to various attempts to re-establish communication.[14]On 28 November 2012, a further hearing took place before Justice Bennett. The mother did not attend, and the judge made an order that the father have sole parental responsibility for the children, that the children should live with the father and spend time with and communicate with the mother as may be agreed between the parties. The court further released the children’s passports back to the father. Prior to this hearing, a supplemental report was filed by Ms Lord. Having spoken to the children, she reported that they seemed settled in Australia. The children seemed receptive to a renewal of their relationship with their mother, which contrasted with their earlier views. Overall, they seem to be progressing very well, but Ms Lord thought that there may be some risk to the children’s future emotional and psychological well-being, particularly in the area of identity formation and self-esteem, resulting from the mother’s complete and ongoing absence.[15]In 2013, the mother started having telephone contact with the children every weekend. In her statement, she says that this was arranged by the father’s third wife. In 2014, the mother and children started having contact via Skype. This contact, of which the father is fully aware, is still continuing.[16]No further steps were taken in this court for nearly five years. In March 2016, the court was contacted by HM Passport Office which had received applications for renewal of passports from F and from the father in respect of the two younger girls. The Passport Office wished to see all orders since 2006 before determining the applications. F had attained the age of 18 but the two younger children remained wards of court. On 27th April 2016, I made an order directing the Passport Office to disclose contact details of the father and the three girls. The Passport Office duly supplied an address in Melbourne which had been put in the passport application, and I listed the matter for a hearing at the beginning of July, the mother to attend in person, the father to attend by telephone. In the event, no party attended the hearing, and it was adjourned and eventually listed on 4th October. On that date, the mother appeared with counsel and the father participated in person from Australia. The father informed the Court that he and the three children were planning to visit the UK in December and therefore required new passports. Counsel on behalf of the mother, Miss Ruth Kirby, stated that the mother was concerned that the Respondent father intended to remove the children from Australia to another country. The court indicated that it wished to consider as a preliminary issue the question whether the Court had jurisdiction in respect of the children and, if so, whether it should exercise that jurisdiction or whether any issues about the children’s future should be determined in Australia where the children are now habitually resident. I therefore listed the matter for a further hearing three weeks later and directed the mother to file a position statement for that hearing.[17]At the next hearing on 27th October 2016, the order made contained a recital summarising the parties’ positions as follows.(1) The mother is asking that the wardship and the order preventing renewal of the children’s British passports should continue.(2) The father is asking the court to discharge the wardship and remove all restrictions on the issue of passports but accepting that the British court has jurisdiction to deal with the passport issue.(3) Both parties agree that the Australian court has jurisdiction to deal with all issues relating to the children’s welfare. I directed that the Cafcass High Court team should appoint a guardian and solicitor to represent the children; directed the guardian to file a report by 7th December; gave further directions for the filing of statements; listed the matter for a full hearing on 14th December; and directed that pending the outcome of the hearing the Passport Office should not issue a passport in respect of SU and SA. Evidence[18]In her statement, the mother says that, since divorcing his third wife in Australia, the father has no fixed abode in that country. As a result, she does not believe that the children have a stable base in Australia. She says that she is now aware that in 2013 the father moved his second wife, with whom he has a son, from Kenya to Malaysia. The mother believes that the father divorced his third wife so that he could make an application to bring his second wife to Australia. Until this application is processed and granted by the Australian government, the mother asserts that it is the father’s intention to move to Malaysia to be with his second wife to strengthen the application to bring them to Australia. The mother is concerned that this will involve moving the children to another country and starting over again until such time as the father chooses to return them to Australia. The mother says that she has been told about the proposed move to Malaysia by the children during their telephone and Skype contact. In oral evidence she said that the children had told her not to hand over the passports to their father. She says that, following the last court hearing on 27 October 2016, the children have denied that they told her they would be moving to Malaysia. She believes that they are being put under pressure to deny saying anything to her about Malaysia.[19]The mother further asserts that she is concerned that, if the passports are released, the father may attempt to arrange a marriage for the girls. She asserts that she was only 13 years old when she married the father. She says that the father portrays himself as a very religious man “and therefore would be of the view that the girl should have an arranged marriage”.[20]The mother asserts that the father has never been focused on the needs of the children, only on himself. She claims that he has married women for the sole purpose of raising the children as he could not be bothered to do this himself. She asserts that she has requested the father on many occasions to bring the children to London to see him but he has always refused. The mother does not believe that if the children are not allowed passports at this time it will affect them psychologically or emotionally or jeopardise their welfare and well-being. In her statement she says that she did consider dropping her opposition to the father’s application but has decided to continue to contest the release of the passports because she believes that he will remove them from Australia to Malaysia as that is what suits him despite the negative impact this will have on the children.[21]In his initial statement for this hearing, the father asserts that ever since he left the UK he has always try to establish a link between the mother and the children. It is his case that the mother was given all avenues to be in touch with her children but has failed to take advantage of the opportunities offered. He says that she failed to engage with the court process in Australia, or with the efforts of International Social Services to arrange contact. One reason he has given for applying for a renewal of the passports is so that the children can visit the mother.[22]It is the father’s case that the mother is lying when she asserts that the children will be taken to a third country. He states that they are well established in Australia and there would be no reason for taking them elsewhere. He states that he has never been to Malaysia in his life and that the mother is making false allegations for which she has no evidence. In oral evidence, he said that his plan was to bring his second wife and their son to Australia. He already has an older son by another relationship living in Australia and wishes his younger son to join him in that country. He insisted he has made every effort to try to re-establish relations between the mother and the children, including inviting her to Australia. He claims that the mother’s failure to take up the opportunities offered to her shows that she has no understanding of the emotional needs of the children. He says that she has never sent photos, letters or greeting cards to them. He promises that he will continue to support every opportunity for the children to be in touch with their mother.[23]In his oral evidence, the father said that the girls are entitled to Australian passports and are able to travel freely on those passports but he and they wish them to be able to travel freely to the UK and therefore seek the renewal of the British passports.[24]In his report for the hearing, the Cafcass family court adviser, Mr McGavin, reported on telephone conversations with the two younger girls. He described SU as a confident and assertive young woman. She told him that “the reason we want our passport is to visit mum and other relatives in London.” Asked if there was any chance that they would be taken by the father to another country, she responded “no, I don’t think that’s true”. She told him more about her life in Australia including her progress at school. Her ambition is to be a doctor. Asked who would look after her passport if her father was able to obtain, she replied vociferously “I would look after it because it’s my passport and my choice”. In his conversation with SA, Mr McGavin noticed that she was somewhat more reserved than her sister and less spontaneous in what she said, although was still able to assert herself. She said:
“I believe the passports should not be on hold because we want the ability to travel wherever we want, we could even visit our mother. That would possibly be the first on our list”
. She told Mr McGavin that the passport would have to be kept somewhere safe adding “no one would give it to me because I’m really good at losing stuff”.[25]Mr McGavin concluded that he was not able to make a welfare-based recommendation. He noted that both parents were in agreement that the Australian court has jurisdiction to deal with all issues relating to the children’s welfare. He concluded that the risk of removal from Australia, possible relocation to Malaysia, and the implications for the girls, including the fears expressed by their mother regarding marriage, are best dealt with by the Australian authorities. He did not think there was sufficient evidence to justify a safeguarding referral to the Australian authorities. He concluded that wardship is not serving any discernible beneficial purpose for the girls and that denying them their passports appears necessary nor proportionate.

Submissions

[26]On behalf of the mother, Miss Ruth Kirby accepts that jurisdiction in respect of the children’s welfare rests with the courts in Australia, being the country of the girls’ habitual residence. On the other hand, she submits that the girls, as British nationals, are entitled to the protection of the Crown, exercised through the inherent jurisdiction of the High Court. She cites in support the dicta in the judgements given in the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 and Re B (A Child) [2016] UKSC 4. In A v A, Baroness Hale of Richmond said, at paragraph 60, “The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national.” Miss Kirby accepts that the circumstances must be sufficient to warrant the use of the jurisdiction in respect of a child abroad but submits that there is no requirement for the circumstances to be “exceptionally grave” or “dire and exceptional” to use phrases adopted by the judge at first instance and the Court of Appeal in Re B which were not endorsed by the justices of the Supreme Court in that case.[27]In this case, the children have been living in Australia for a number of years and are settled there. For the past two years they have been having some contact with their mother. Miss Kirby submits that, if there British passports are renewed, they may disappear again, with the father or at his behest, and would lose all that is theirs in their current habitual residence as well as contact with their mother. Miss Kirby submits that, due to the mother’s inability to litigate in Australia, absent the exercise of the protective jurisdiction of this court, the girls’ welfare may well be beyond all judicial oversight. For that reason, she submits that the court should exercise its protective jurisdiction by not sanctioning the Passport Office to reissue passports for the girls. There is no immediate need for the girls to travel and in any event they are entitled to Australian passports. Ms Kirby describes this as the only shred of parental responsibility remaining for the mother and states that she wishes to exercise it to ensure that the children remain safe in Australia. The court has been unable to carry out a full investigation into the girls’ interests so as to justify making an order approving the renewal of the passports. Ms Kirby concedes that there is no need for the wardship to continue but contends that the Court should decline to support the applications for renewal of the passports without the mother’s written consent.[28]On behalf of the guardian, Mr Hinchliffe accepts that Mr McGavin’s enquiries have been limited but states that neither the guardian nor Mr Hinchliffe himself as the children’s solicitor see any reason based on either law or welfare practice to override the clearly expressed wishes of SU and SA. The court must pay due regard to the children’s increasing right to self-determination in relation to personal matters. Mr Hinchliffe reiterates Mr McGavin’s conclusion that denying the girls their passports is neither necessary nor proportionate.

Further discussion and conclusion

[29]The Supreme Court reached its decision in Re B on other grounds without carrying out a full analysis of the extent and exercise of the inherent jurisdiction based on nationality. The judgments of the Court do, however, contain important guidance on the use of this jurisdiction, in particular the joint judgment of Baroness Hale and Lord Toulson. In her submissions, Ms Kirby quotes passages from their judgment. It is worth citing it more extensively. “59. … It is… one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be ‘dire and exceptional’ or ‘at the very extreme end of the spectrum’. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and thirdly that it may result in unenforceable orders….60. The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant)[1965] Ch 568, at 587, is that ‘an infant of British nationality whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection”. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to “cases which are at the extreme end of the spectrum”, per McFarlane LJ in In re N (Abduction: Appeal) [2012] EWCA Civ 1086 ….61. There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court

Justice Breyer in his book The Court and the World (2015), pp 91-92:

‘… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of ‘comity’ has assumed an expansive meaning. ‘Comity’ once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another’s toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.’ 62. If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29. Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in Mercredi. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B’s welfare being beyond all judicial oversight (to adopt Lord Wilson’s expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.” ‘… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of ‘comity’ has assumed an expansive meaning. ‘Comity’ once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another’s toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.’
[30]This family has been the subject of proceedings in England and Australia on off for over 10 years. A striking feature of the litigation is that it has been very rare for both parties to appear together in any one hearing. The mother has engaged in the wardship proceedings in England but rarely in the Australian proceedings. The father has engaged in the Australian proceedings but has rarely appeared in proceedings in this country. This hearing therefore represented an unusual moment with both sides participating.[31]Notwithstanding that, the scope of any jurisdiction that can or should be exercised by this court is limited. The mother recognises that jurisdiction in respect of all matters concerning the children’s welfare lies with the Australian courts who have been seised of this case for a number of years and have made a number of orders designed to regulate where the children live and the contact they have with their mother. Where a court in another country has jurisdiction, and furthermore has exercised that jurisdiction on a number of occasions, the circumstances in which this court will exercise its inherent jurisdiction to protect the children are very limited. It is not necessary to characterise the circumstances as “dire” or “exceptional”. The important point is that, in most cases, the courts of the country of habitual residence will, as part of their welfare jurisdiction, be able to take all necessary steps to protect the children. The circumstances in which it is necessary for this court to take protective measures under its inherent jurisdiction will be therefore be limited.[32]In this case, I am not persuaded that there is any justification for exercising the inherent jurisdiction to protect the children by preventing the renewal of their British passports, save as a very short term measure. The children have Australian passports on which, it seems, they are able to travel freely. If the mother wants to take measures to prevent them doing so, she must apply to the Australian court. The mother has raised a number of arguments why the children should be prevented from travelling out of Australia. These arguments are strongly contested by the father. This court is in no position to judge where the truth lies without a full investigation. In my judgment, such an investigation is manifestly a matter for the Australian court responsible for making decisions about the children’s welfare.[33]In view of the history of this case, and in particular the circumstances of the children’s removal from England, I am persuaded that it would be in the children’s interests for this court to exercise its protective jurisdiction in a limited way, namely by permitting the mother an opportunity to apply to the Australian court before the British passports are renewed and released to the father and the children. By ordering a short further pause before the renewal of the passports, this court will allow the mother to apply to the Australian court. I consider this to be consistent with the duty of this court to take measures necessary for the protection of children. In making such an order, this court is not intruding into the jurisdiction of the Australian court. On the contrary, I consider such an order to be consistent with the principles of comity to which the Supreme Court referred in Re B.[34]I therefore propose to extend both the children’s wardship and the order restraining renewal of the British passports for a period of one month. I consider that to be a sufficient period to enable the mother to apply to the Australian court if she so chooses. The mother has used Australian solicitors in the past and with the assistance of the English solicitors ought to be able to do so again. The mother must plainly act expeditiously if she wishes to apply to the Australian court. I will include a provision in the order enabling the parties to apply to vary or discharge that order. That will permit the mother to seek an extension of the restraining order but no such extension is likely to be ordered unless there is very strong evidence to justify such a course. I recognise that a time-limited restriction on the renewal of the passports is a restriction of the children’s Article 8 rights but in my judgment such a restriction is not disproportionate.[35]I will therefore make an order the following terms(1) the British passports of SU and SA shall not be renewed before 6 April 2017;(2) on that date, the children shall cease to be wards of court and all restrictions on the renewal of the passports shall be lifted;(3) there be liberty to the parties to apply to vary or discharge the order;(4) a copy of this order shall be served upon HM Passport Office;(5) a transcript of this judgment shall be transcribed at public expense, and an approved copy sent to the parties and to the Family Court of Australia.

Cited in 1 later judgment