N v E [2024] EWHC 3604 (Fam)

[2024] EWHC 3604 (Fam)

Case No FD24P00734

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF D (A GIRL) AND L (A BOY)

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

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

Date 18 December 2024

Before

MISS KATIE GOLLOP KC

SITTING AS A DEPUTY HIGH COURT JUDGE

Between

NApplicant

ERespondent

Miss Anita Guha KC and Mr Mani Basi (instructed by Sills & Betteridge LLP) for Applicant

Mr Christopher Hames KC and Miss Natasha Miller (instructed by Charles Strachan Solicitors) for Respondent

Hearing Hearing dates: 12 - 13 December 2024

JUDGMENT

This judgment was handed down on 18 December 2024 by circulation to the parties or their representatives by e-mail and by release to The National Archives on 16 April 2025.

.............................

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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

DHCJ Gollop KC :

[1]I am concerned with two wards of this court, D (a girl, aged 10 years 10 months) and L (a boy, aged 8 years 10 months). The applicant is their mother and the respondent is their father. The children were born in Wales and have dual British and Jordanian citizenship as do the parents. The children spent around a year in Jordan between 2019 and 2020 and have been abroad since mid-February 2024. Otherwise, they have lived all their lives in Wales and England.

[2]On around 16 February 2024, the father removed the children from England and flew with them to Jordan. He did so without the mother’s knowledge or consent and in breach of a final Child Arrangements Order which included a Prohibited Steps Order made by HHJ Hobson sitting in the Swansea Family Court on 10 August 2023. Shortly after arriving, and again without informing the mother or obtaining her consent, he took the children out of Jordan. He says he took them to Syria. He returned to Jordan with the children on 27 August 2024 and they have been living with him there since. The mother travelled to Jordan in February in the hopes of seeing the children and being able to return to England with them. She is in Jordan now. She has had no contact with them since handing them over to the father on 14 February 2024.

[3]On 22 February 2024 the mother issued an application for an inherent jurisdiction order (there being no applicable international treaties between the UK and Jordan) seeking the summary return of the children to England. I heard the two day final hearing of that application on 12 and 13 December 2024. On 15 December 2024, I informed the legal teams of my decision to order that the children be returned to England no later than 31 March 2025 and my views about the necessary preparatory steps.

[4]The mother was represented by Miss Guha KC and Mr Basi, the father by Mr Hames KC and Miss Miller. They provided me with very helpful written and oral submissions. I read a bundle comprising over 1,100 pages, a further bundle of police disclosure, and the unpublished judgment of HHJ Hobson of August 2023 which was not in the bundle. I had a bundle of Jordanian court documents but was not taken to them and did not read them. The hearing was held remotely and the parents attended from Jordan on both days. No special measures were sought or implemented. Both parents speak good English and interpreters were not required. I did not hear oral evidence but the father spoke to me directly. He made a further witness statement dated 13 December 2024 at my direction.

[5]The father made preliminary applications for: an adjournment of the final hearing, a stay of the application if it was not adjourned on the ground of forum, and oral evidence from the mother. I refused all of those applications reserving my reasons. This is my judgment on all matters.

The Position at the end of the December 2024 Hearing

[6]Although the summary return application was made in February 2024, it was not served on the father. This court made various ex parte orders because his location was unknown and the mother was concerned about the risk that, if served, he would move the children again. In August 2024, I made an order directing service of proceedings on the father and that was effected in early September. From March the father has been in email and videocall contact with the West Mercia police without disclosing the children’s address. He has been seeking an assurance that he will not be arrested or prosecuted if he returns the children to England.

[7]The father’s position within these proceedings has varied. In his October 2024 statement, he said:

“I want to be able to return in order to secure a job and live in the UK, which has been my home for many years.”

In his November statement he said that he would remain in Jordan with the children until he received assurances or a court order stating that they would not be separated from him. His 10 December 2024 skeleton argument suggested a hardening position. It asserted that the father wished to continue living in Jordan with the children - ideally he would like to travel to England with them on occasions but he had concluded that it would not be safe to return.

[8]At the start of the final hearing, the father had not informed the court of the address where its wards are living or the name and address of the school they attend. That was plainly unacceptable and I directed him to provide me with the information the next day, on the usual terms that it would be kept confidential and not provided to the mother without a court order. The father did not do so. At the conclusion of submissions, I asked him to reflect during a short adjournment. When the hearing resumed, the father provided the two addresses and the name of the school. He also agreed to provide the mother with redacted written school reports. I am grateful to him for working with the court.

[9]During that brief adjournment the father provided further instructions. Those were communicated partly through leading counsel and partly through him speaking to me directly (not on oath). His final position was that he does not want to stay in Jordan forever and he does want to be able to return to England when the circumstances are right. However, he faced a number of hurdles. He was fearful of criminal proceedings because they would separate him from the children. He wanted time to prepare them, to have the restriction on his ability to practise medicine lifted (he is a consultant in Emergency Medicine by profession but currently suspended from the GMC register), to find a job and to be in a position comfortably to accommodate the children. He thought arranging all of this would take 6 months to 2 years. His October statement told me that he was applying for legal aid to make an application for variation of the residence order made on 10 August 2023 to enable the children to live with him. Mr Hames KC confirmed the father was pursing that application and his solicitors had applied for the necessary amendment of the Legal Aid certificate on 9 November 2024.

[10]At the end of the hearing, the parents were in dispute about residence and contact. However, each wished to live in England and each wished the children to live in England. Therefore, the issue on the mother’s application at the end of the hearing was not whether the children should return, but the speed with which they should do so and what this court could do to make a return practicable.

Proceedings in Jordan

[11]The issues of which country the children should live in and who they should live with are currently being litigated in Jordan. The parties agree that the Jordanian courts have made two orders which prevent the children from leaving Jordan, one applied for by the mother and one by the father. The father reports that his father applied for another such order on around 12 December 2024.

[12]Orders in the Jordanian courts are a matter for that country alone. However, if they are reviewed, the judges in Jordan may be assisted by a clear understanding of the residence and contact proceedings in Wales and what has happened since those concluded finally in August 2023. I am going to direct that as soon as possible, this judgment is translated into Arabic and provided to the lawyers in Jordan with the intention that it is available to the relevant judges there.

Private Law Proceedings in the Family Court at Swansea

[13]The father commenced private law family proceedings in the Family Court in Swansea in October 2021. The proceedings were determined by HHJ Hobson who wrote three judgments which are important in this application. The first (dated 27 June 2022) followed a fact-finding hearing, the second (dated 6 December 2022) followed submissions on interim residence, and the third and final judgment was accompanied by the CAO I have mentioned both dated 10 August 2023. Not only was there the benefit of judicial continuity, but the children were also represented by the same Children’s Guardian throughout. The judge and the Guardian clearly came to know both children and both parents well.

[14]I take the background family history until August 2023 from HHJ Hobson’s judgments with some added information from the father’s statements. The parties married in 2012 and started living together in the UK in 2013. The parents are first cousins (their mothers are sisters) and both have family in Jordan, in particular the children’s paternal grandparents live there.

[15]Until August 2021, the father was working as an NHS consultant in Emergency Medicine, there was a family home in Wales, they had a good standard of living, and the children had happy and loving relationships with both parents. The relationship became troubled and the mother made complaints of domestic abuse to the police. In August 2021 the mother left the father taking the children with her and they lived in a refuge for around a year. Though the police took no action, the mother’s complaints resulted in him losing his job, his home and his savings so that he had nowhere to live. The parties have since divorced and the family home has been sold. From around July 2022 to February 2024, the mother and the children lived in a rented house in a different area and the children attended the same primary school there. She has maintained the tenancy.

[16]The father commenced proceedings in the Swansea Family Court on 18 October 2021 seeking contact and primary or shared residence. In his application, he reported two things that he said L had said to him. These were that the mother had digitally applied cream to the inside of his anus and that she had massaged his penis at times. Based on these reports, the father sought findings that the mother had sexually abused L.

[17]In his June 2022 fact-finding judgment, HHJ Hobson stated that he had found the mother to be an unreliable witness who had used issues of coercive control to try to deny the children contact with their father and to alienate them from him. He found that the mother had told lies. He found the father’s allegations about sexual abuse not proved: the application of cream was justified by a medical condition and the court did not place significant weight on the father’s reports of what he said L had said to him, observing that they were self-serving.

[18]In December 2022, the judge heard evidence and submissions. He again found that the mother did not tell him the truth and he judged that there was “overwhelming” evidence that she had alienated the children from their father. Nevertheless, it did not follow that the children should be removed from her care. She had always been their primary carer and they might suffer emotional harm if removed from her. The father sought immediate transfer of residence of the children to him. The Children’s Guardian had crafted a careful plan involving therapeutic work and the gradual reintroduction of him to the children. After first rejecting it, the father agreed this was the best choice for the children at that time. The December 2022 judgment ends with the judge expressing the hope that the parents could recognise “in their actions and words from now onwards” that the children needed both parents.

[19]The reintroduction plan was implemented between January and August 2023. The Children’s Guardian actively monitored it in the early stages and observed the father’s interaction with the children and the mother’s reaction. The children were seeing their father regularly, staying with him on alternate weekends and splitting school holidays 50/50. There was a psychological evaluation of the parents and the children by an expert.

[20]At the final hearing in August 2023, the father’s primary position was that the children should live with him for a concentrated period of time so that they could recover from the emotional damage their mother had inflicted on them. He made fresh complaints about the mother’s parenting, including that she did not properly attend to the children’s medical needs. His alternative position was that the children split their time equally between both parents. That was possible as he had recently moved to Shropshire to live closer to them.

[21]At the end of July 2023, the Children’s Guardian provided the court with a forty page Final Analysis report. Her last conversation with the children was on 15 June when the children were living with the mother and fortnightly overnight staying contact with the father was well established. L told the Guardian that he had no worries and felt very happy. There was nothing he wanted to change. He “wants to continue to live with Mummy but also to keep seeing a lot of Daddy.” D had reservations about spending time with the father but only because the visits got in the way of her hobbies and activities. The Guardian observed a difference between the children in that D was the most aligned with the mother and alert to her mother’s emotions. The Guardian noted that the mother had always been the primary care giver and “They love their mother and do not want to be separated from her.” In the Guardian’s analysis, any change in the current residence and contact arrangements was likely to cause them emotional harm.

[22]Her recommendations, which the mother accepted, were that the children remain in their mother’s care with a comprehensive Child Arrangements Order which “anticipates difficulties and thus leaves nothing to chance”. The Guardian did not believe that a shared care arrangement would work because that would “require the parents to communicate effectively with each other…. At present, the parents do not have that type of relationship”.

[23]At the August hearing, the judge was troubled by the father’s presentation, finding him to be so “consumed by his negative feelings towards the mother, that he is unable to acknowledge the considerable progress that has been made since December 2022, and the mother’s role in achieving that progress”. He found that the father was using a hyper-critical approach to the mother’s parenting to justify a transfer of residence to him. In contrast to the 2022 hearings, the judge found the mother to be honest and straightforward. She had seen the benefit to the children of renewed contact with their father and she supported it. The father viewed – and views - the mother’s change of heart with suspicion. He suggested that once the court case was over, the mother would resume her alienation of the children against him.

The judge said this about the children’s wishes and feelings:

[24]“It is plain that both D and L wish to remain living with their mother. She has been their primary caregiver for their whole lives. Equally, both children wish to have contact with their father…”.

[25]He made findings about the children’s health. That was necessary because the father had become overly concerned that D was unwell and had taken her to hospital without informing the mother for unnecessary investigations. He had also made complaints that the mother was not looking after L’s eczema properly. The judge did not agree. He found that the father’s actions “were motivated by a desire to discredit mother’s parenting and provide material to support his application for a transfer of residence.” The judge rejected the suggestion that the children would come to physical harm in the mother’s care.

[26]He considered the effect on the children of any change of residence. He found that that could cause a risk of the children reacting badly and rejecting their father. He also found, noting evidence from the expert, that there was a risk of “alienation flipping”. If that occurred, it could leave the children isolated from both parents. The judge was also concerned about the father’s plans, if he were the resident parent, for the children’s contact with their mother.

[27]An additional reason not to order a transfer of residence to the father was that doing so would prolong the proceedings because there would have to be a review hearing.

The judge said:

“One of the themes of the Guardian’s analysis is the need for these children to have a more “normal” existence, free from these proceedings, as soon as possible. This is important for obvious reasons, and I discern that it is accepted by both parents in principle. Such acceptance is one of the reasons why both parents (to their credit) support the making of a section 91(14) order in this case.”

[28]The judge agreed with the Guardian’s evidence that, “The key obstacle to shared care is the parents’ communication issues. At present the parents remain so focused on conflict and proving points that this places the children at risk. Whilst understandable, F has a high level of resentment that is spilling over into him failing to be objective with the children.”

[29]HHJ Hobson ordered that the mother ensure that the children spend time with the father from Friday after school until Sunday afternoon every fortnight. He also ordered that:a. Any future applications in relation to the children are reserved to His Honour Judge Hobson, if available, until the 1 December 2025;

b. The children must live with the mother as a final order;

c. The father and the mother must not remove the children from the UK until 1 December 2025 without the written consent of the other parent (a Prohibited Steps Order);

d. The children’s passports must be surrendered to the mother who will hold them until 1 December 2025;

e. No application for an order relating to the children’s welfare shall be made by the father or the mother without the court’s permission until 1 December 2025 (a s91(14) order).

[30]In concluding his judgment of 10 August 2023, he noted that the children had the potential for a happy future and a loving relationship with both parents. He said:

“if these children are denied that potential by the selfish approach of these parents, then that would be a tragedy”

. He invited both parents to reflect on that. It is distressing to have to record that the foreseen tragedy for the children that the parents were urged to avoid has eventuated.

Events After Conclusion of the Private Law Proceedings

[31]On 21 August 2023, the father sent the mother text messages informing her that: he was in Jordan for family reasons, he had given up his property in England, he had decided to give up medicine permanently, his benefits would be stopping, he would be dependent on family support in Jordan until he could change career, that would affect her claims against him in England and Jordan for maintenance, and he would update the children about this change of circumstances during his next skype call with them. The father did not return to England until 9 January 2024 and they had little indirect contact with him.

[32]The father’s explanation for his absence is that it was a consequence of the mother’s pre-conceived plan to force him to return to Jordan, trap him there and thus remove him from the children’s lives. She achieved that by commencing or continuing litigation in the Jordanian courts which obliged him to attend in person. She made false allegations which resulted in him being arrested on arrival and having a travel ban imposed upon him so that he could not leave. It took him months to resolve that. He said he was in Jordan for family not litigation reasons because he knew the mother would read the messages to the children and he wanted to protect them.

[33]Within this context, it is notable that when the father returned to England the mother got in touch with him to arrange indirect and direct contact. She readily agreed to overnight staying contact and to him having the children for half of the half term holiday as directed by the August 2023 order. The parents agreed that the children would go to the father on 14 February and he would take them to school on 19 February.

[34]14 February 2024 was the first time children had been with their father for six months. The mother describes how in the morning the children presented her with a handmade Valentine’s card, flowers and chocolate. At around 3pm, she took them to the train station to meet the father off the train. They were, she says, happy and healthy when she handed them over.

[35]In his October 2024 statement, the father says that as soon as he saw them, the children broke down and were extremely distressed. They were begging him not to take them back to their mother and L said they were locked up like dogs in a cage. L also complained of genital pain. On the train, the father examined that area. He sent an e mail to the police on 20 March 2024 submitting a claim of “serious sexual/physical abuse of my son L by his mother” and describing what he saw. He said he found a wound “which takes a circular shape all the way around the base and continued to the soft body of the penis” which was “very inflamed and bleeding”. The father exhibits to his November 2024 statement a document dated 08/09/2024 obtained in Jordan “on the request of the manager of Family protection services” for inclusion in a judicial medical report. The document records an examination of L by two doctors in Jordan and their finding of “a longitudinal scar consisting of a light coloured discolouration on the right side near the penis with a length of 2cm”.

[36]The father says that his decision to take the children to Jordan without delay was instinctive, unpremeditated and made for the children’s protection. He accepts that he knew he was breaching the Prohibited Steps Order to which he had agreed. He offers no explanation as to why he did not seek medical attention for L, report a safeguarding concern to a doctor, or contact the police or his previous solicitors while he was in England and Wales on 14 or 15 February. I agree with Miss Guha KC that as an NHS consultant in Emergency Medicine, he was ideally placed to appreciate the child protection procedures that would be set in motion by a medical examination confirming the injury he describes sustained whilst L was in the sole care of his mother.

[37]The police investigated as best they could, given that L and the father were in an unknown foreign country, and took no action on the father’s complaint. The mother denied and denies harming L in any way. The mother does not believe that the father’s decision to take the children to Jordan during the contact period was unpremeditated.

[38]They arrived in Jordan on the morning of 16 February 2024 and were soon seen by members of the mother’s family who alerted her to their presence. The father alleges that some of the mother’s family tried to remove the children from his care and there was a serious fight. I have already described how the father says he took them to Syria bringing them back to Jordan at the end of August (he provides almost no information about the children’s lives in this period). He again complains of being trapped outside Jordan by a court order obtained by the mother. He says she put their lives at risk by sending gangs to hunt them down and beat him up in Syria and that that she has traumatised the children by these actions. The mother says that any court order preventing the father from bringing the children back to Jordan arose from his non-payment of maintenance and was not initiated by her. She did not send gangs to find the children or harm the father.

The Children’s Present Life in Jordan

[39]The father’s account of the children’s present life in Jordan is not corroborated by any documents. He says they live in a three bedroom flat a short walk from his parents’ property where the wider family live. The children have a close bond with their extended paternal family, particularly his mother. His family pays for the children to attend a private school. They have friends and hobbies and attend after school clubs. They play with local children and are invited to parties and birthday celebrations. They are registered with a dentist and doctor.

[40]In his November 2024 statement, the father said he has a girlfriend. They met in Syria, she is living with him and the children, they intend to marry, and she is pregnant with their first child. None of this was mentioned in his October statement. He said that the children were excited about the coming baby and it would be necessary for the court to consider the impact on them if separated from the baby to be and the girlfriend.

[41]At the end of the first day of the hearing (12 December 2024) I asked him to file a further statement the following morning giving me more information about the children’s current living circumstances including the baby’s due date. The statement he provided was silent about the girlfriend and the pregnancy and was worded in such a way that it was unclear whether she was living in the flat with him and the children.

[42]The father says the children have two sources of professional, emotional support. One is a specialist professional based at the school who sees them daily. The other is the Jordanian child protection service. This service is involved with him and the family as a result of a referral made by Interpol when he and the children arrived in Jordan in, I think, August. A team of four people visits the children at the flat, or the grandmother’s home, every month. A child psychologist talks to the children and advises the father on how to support the children. The father says he has no paperwork at all from the team.

[43]On 28 October 2024, Mr David Rees KC made an order directing twice weekly indirect contact between the children and the mother. At the time of the final hearing in December, the order had not resulted in any contact. The father says the children declined to join a videocall and reports that they said: “If she takes us back, she will punish us badly and you will not be able to help us…she is mad, we know her”, “If I had a magic wand I want a different mother” (L), and, “We waited for her for months to contact us and talk to her, why she decide to speak with us now…we miss her but she is not a good mother” (D). For reasons I now set out, it has not been possible to explore these concerning reported wishes and feelings which strongly indicated that the children are suffering emotional harm.

The Children’s Voices

[44]As I have explained, the father’s position in October was that he wanted to return to the UK to live and work here. That position was accepted by the court at the hearing on 28 October 2024 and as a result, no steps were taken to ascertain the children’s up to date wishes and feelings.

[45]He indicated a change of position in his November statement and said he wanted the children’s wishes and feelings to be considered. He said it was difficult to get a report from the Jordanian child protection services because that required a court order. He did not apply for an order and provided nothing from the professional at school.

[46]The issue of how the children’s voices could be heard at the final hearing was canvassed in skeleton arguments. The father’s position was that the final hearing should be adjourned so that a respectful request could be made to the Jordanian authorities for a welfare report. The mother suggested that if the court considered it necessary, the Cafcass High Court team could be asked to assist.

[47]As the order of 10 August 2023 was made more than sixteen months ago and the children have been subjected to so many changes since, I did consider that some information about their wishes and feelings about which country to live in and which parent to live with was desirable. A request to the children that they engage in a conversation with a stranger about these matters at short notice was far from ideal. However, having had considerable contact with a Children’s Guardian last year, they have experience of such conversations. They probably know that there is another court case and the request would have been less onerous for them than it might have been for less litigation experienced children. In any event, I considered a conversation with a Cafcass officer the best available option within the children’s timescales. Those did not permit a lengthy adjournment in the hope of receiving a welfare report from the Jordanian children’s service.

[48]On 12 December 2024, the father agreed to make the children available on the afternoon of Monday 16 December. The Cafcass High Court team was kindly willing to accommodate that and to provide a brief written report afterwards. I asked the legal teams to consider overnight what documents and remit the officer should have and indicated that I would direct brief written submissions following receipt of the Cafcass report. When the hearing resumed on 13 December, I was told that the father had withdrawn his agreement to any Cafcass conversation with the children.

[49]The father’s November statement says that the children have seen the mother’s social media posts aimed at locating them and that they are now scared of her. Other than that, he provides no information about what they know about court proceedings concerning them, or what he has told them about why he took them away from their mother and their home and has not taken them back.

The Father’s Preliminary Applications: Adjournment, Stay and Oral Evidence

[50]Adjournment. The grounds for the application were:a. Insufficient court time: a 5 day hearing was necessary;

b. Insufficient preparation time;

c. Incomplete disclosure: from the police, the proceedings before HHJ Hobson, and the proceedings in Jordan;

d. Insufficient evidence on forum and other matters. This argument was advanced despite the fact that the Order of 28 October 2024 recorded that the father raised the issue of forum and the father had had ample opportunity to provide such evidence as he considered relevant in his November statement;

e. Lack of evidence about the children’s wishes and feelings;

f. In all the circumstances a hearing that was fair to the father was not possible.

[51]I refused the application for the following reasons. The parties agreed that two days of court time was sufficient on 28 October 2024 when jurisdiction was in issue. I considered that two days remained sufficient given that jurisdiction was no longer in issue. I did not agree that the father had had insufficient preparation time. He had had the same solicitors since being served with proceedings in September and had made lengthy statements with exhibits. Many of the documents were not new to him. He was very familiar with the private law documents and judgments and the documents in the Jordanian proceedings and many of the police documents. I did not agree that disclosure was materially incomplete. I did not require further documents from the Jordanian proceedings to determine the summary return application. The key document from the private law proceedings was HHJ Hobson’s final judgment and that was made available shortly before the final hearing started. As to the children’s wishes and feelings, those could be obtained before I determined the application (at the time of refusing to adjourn I did not know that the father would stand in the way of that happening.) Though the father’s representation had changed recently and he had not long had public funding for leading counsel, it was clear that Mr Hames KC and Miss Miller were fully prepared. I was entirely satisfied that a fair hearing was possible and that any delay was contrary to the children’s best interests.

[52]Stay. The father’s application for a stay was made on the single ground that the courts in Jordan are the appropriate forum in which to determine what arrangements are in the children’s best interests. His application was made within the context of what was happening in the custody proceedings in Jordan. The father’s instructions were that there was a procedural hearing on 15 December 2024 at which he intended to seek consolidation of various matters relating to the children. If they were consolidated, he anticipated being given a final hearing date. In effect, he was inviting me to stay this application for an undefined period so that the Jordanian courts could determine all child arrangements disputes at a future, unlisted hearing.

[53]On behalf of the father, it was submitted that the children are settled in Jordan and that the extended family and other witnesses who can speak to their day to day lives, education, activities and state of mind and their welfare now are all in Jordan. The parents are in Jordan and represented in proceedings there. The Jordanian children’s service is involved with the children and better placed than any professional in this jurisdiction to investigate and report on the children’s welfare, including their wishes and feelings.

[54]The father further submitted that the prohibitions on the children’s travel outside Jordan mean that were I to make a summary return order, there would need to be further proceedings in Jordan to consider facilitation of compliance with my order in any event. A Jordanian court order that the children be returned to England would be enforceable whereas a summary return order made by this court would not be. The mother had commenced custody and/or return proceedings in Jordan before issuing these proceedings: implicit in that sequencing was an acceptance that Jordan was the most appropriate forum.

[55]On behalf of the mother, Miss Guha KC submitted that the parties’ agreement to a s91(14) order and a Prohibited Steps Order were in the children’s best interests was not only sensible because the family was so well known to the court in Swansea but also powerful evidence that they agreed that the courts in England and Wales would continue to be the natural and appropriate forum for the determination of any future welfare disputes up to 1 December 2025. It was accepted that the mother was in error when she commenced custody or return proceedings in Jordan before doing so in this jurisdiction. However, she was under pressure because she knew the children had crossed the border from Jordan into Syria but did not know where they were. She was in Jordan and the Jordanian courts seemed best placed to help get them back. The father was simply playing for time in order to make good the argument that the children had acquired habitual residence in Jordan. His application for a stay was, in reality, a request that this court delegate its decision making function to Jordan. He now accepted that this court had jurisdiction to determine the summary return order and it was necessary in the children’s welfare interests that I do so without delay. The father could make misrepresentations to the Jordanian courts about the proceedings before HHJ Hobson with impunity. In contrast, he would not be able to do so in future welfare proceedings before that tribunal.

[56]I was taken to Williams J’s summary of the principles relevant to a stay of inherent jurisdiction proceedings in V v M

[2019] EWHC 466 (Fam)

at paragraphs 34 and 35. I have considered and applied those.

[57]I refused to stay the mother’s application for a summary return order because in my judgment, the father (the burden being on him) had not established either that England and Wales is not the natural and appropriate forum in which to determine the post-August child arrangements disputes or that Jordan is clearly the appropriate forum in which to do so. My reasons were:a. The private law proceedings background. The current welfare disputes are, in their essence, the same or very similar to those before the court in Swansea between October 2021 and August 2023. The judge there knows this family well. He is demonstrably well placed to discern when either of the parties is not being straightforward with him and to determine what arrangements are in the children’s best interests. England and Wales remains the natural and the appropriate forum for resolving these fresh residence and contact disputes.

b. The specifics are important. That court’s detailed investigations led it to be confident that in August 2023, what the children wanted was to live with their mother and see their father. If their wishes and feelings about those matters have changed since, that court is in a uniquely appropriate position to determine whether those altered wishes and feelings are genuine, what has brought about that change, and to evaluate the emotional harm they have suffered since being separated from their mother and primary carer. Further, the father’s February 2024 allegations of physical or sexual assault of L by the mother are similar to his earlier such allegations which HHJ Hobson found not proved after the 2022 fact-finding hearing. Again, the court in Swansea is clearly the most appropriate forum.

c. Not only did the parties agree that any such further disputes should be resolved there but the father’s written evidence and present actions strongly suggest that he continues to consider that the Swansea court is the appropriate forum. His October statement says:

“I seek an undertaking from the Mother that any family related issue should only be dealt with by the Court in the UK and that she will not re-open any family related cases in Jordan without the UK Court’s permission.”

In November his solicitors applied for legal aid to enable him to the court in Swansea for a varied residence order. His position at the December hearing that the Jordanian courts are best placed to decide the welfare dispute appears tactical at best. That position is also inconsistent with his finally expressed intention to return to live and work in England in 6 to 24 months’ time. The reality is that he is litigating welfare disputes in Jordan because he believes he is stuck there in the short term and has no choice, not because he considers the Jordanian courts to be the appropriate forum or because he wants to live in Jordan in the long term. d. I did not agree that the Jordanian children’s service is better placed to assist the court in Jordan than Cafcass would be in this jurisdiction. The father provided me with no evidence that team of four people who visit the children in Jordan every month have had any contact with the mother. To be clear, I make no criticism if that is the case: it may not be within the remit of that service either to liaise with her or to provide an investigating and reporting service to the Jordanian courts. In any event, the children have not seen their mother since February 2024. That fact puts any children’s service in Jordan at a disadvantage, compared with the court in Swansea, if tasked by the Jordanian court to report on the children’s relationship with their mother. e. As to witness availability, the extended paternal family in Jordan can provide evidence to the court in England and Wales remotely. The time difference is only three hours, the technology worked very well, and the parents had no difficulty in attending a two day hearing held on MS Teams. The need for interpreters does not make Jordan the appropriate forum. f. Legal representation is available in England and Wales. There will be less expense to the parties if the welfare disputes are determined here and both parties are eligible for legal aid. In Jordan, both parties pay privately for legal advice and representation. g. Whilst a return order made in this court would not be enforceable in the courts of Jordan, principles of international comity indicate that those courts would take into account the fact that such an order had been made and the reasons for making it. h. Finally, it is abundantly clear that it is not in the children’s welfare interests for these proceedings to be stayed. Their pressing needs remain as they were in August 2023: certainty, stability, resolution of all disputes about residence and contact arrangements, and an end to the situation where they are a continuous focus of litigation between their parents. There is no final hearing date in Jordan and those needs are best met by a determination of the mother’s summary return application without delay.

[58]Oral Evidence from the mother. The father submitted that the mother should give oral evidence so that Mr Hames KC could cross examine her on the following: her attitude to the father’s relationship with the children, whether she still believed she was the victim of domestic abuse, whether she had orchestrated an attack on him in Jordan or encouraged solicitors to “hound” him or seek travel bans against him, and how she expected him to live in England when he had no income of his own. I did not agree that these proceedings required oral evidence on those matters. I also considered that such cross examination was only likely to inflame an already very unhappy situation and was not in the children’s best interests.

The Parties’ Submissions on a Summary Return Order

[59]The mother submitted that a summary return order was the only way in which the children’s welfare could be safeguarded. The father should be ordered to return the children to England by 6 January 2025. Absent compliance, there should be a further hearing so that orders could be made permitting the mother to bring them back. Miss Guha KC submitted that all the dangers foreseen in the course of the final hearing in August 2023 had come to pass: “alienation flipping”, emotional harm from a series of changes in circumstances, instability, further protracted litigation about the children with resulting detriment to them, and isolation from their mother whom they have not seen for ten months now. I could not be confident that the children’s needs were being met in circumstances where the father was not even prepared to tell the court where they were living or what school they attended. In contrast, I could be confident that the children would be safe in the mother’s care.

[60]As to emotional harm, it was impossible to know what the father had said to the children – or allowed them to believe – about why he had suddenly taken them away from their mother, suddenly moved them from Jordan to Syria and back, and why they had had no contact with her. Miss Guha KC suggested that I should infer from his withdrawal of consent to them speaking to Cafcass that he had much to hide and was likely to have lied to the children. It was submitted that there was an emerging picture of the father’s intention not to co-operate with the orders of this court except on his terms and where his conditions were met.

[61]On behalf of the father, Mr Hames KC told me that all things being equal, the father would want to return freely to the UK with the children. However, all things were not equal. I was asked to consider an e mail sent by West Mercia police on 3 December 2024 in response to a request from this court. That asked what the position of the police would be if the mother withdrew her complaint and agreed not to pursue prosecution of the father. The responding officer advised that the mother was not the complainant (it did not state if there was a complainant and if so who) and any decision about whether to continue with an investigation was kept under continuous review as circumstances evolved. Having seen that communication, the father’s personal assessment was that there was a high risk that if he returned with the children now, he would be arrested, perhaps imprisoned, the children would be separated from him and suffer emotional harm as a result, and they would suffer additional harm by being placed with their mother, who poses a risk to them, against their wishes. This could not be in their best interests. The appropriate course of action was for me to dismiss the mother’s application and allow the welfare proceedings in the Jordanian courts to take their course.

[62]Mr Hames KC repeated the submission that the final hearing before me was not fair to the father because he had not had an opportunity to adduce all of the evidence he wished the court to consider, or to adduce evidence from the Jordanian children’s service. He urged upon me that this was not a pre-planned abduction. He submitted that further welfare proceedings in England and Wales could not be in the children’s best interests in circumstances where all of the welfare issues were already before the courts in Jordan.

[63]He then addressed the relevant aspects of the welfare checklist starting at the end with section 1(3) (g) this court’s range of powers. This court could not enforce a return order. Further, a summary return order would be one with which the father was unable to comply because of the Jordanian court orders prohibiting the children’s removal from Jordan. It would be wrong for this court to make an order it knew the father could not comply with for reasons outside his control.

[64]As to the children’s wishes and feelings, they were set out in the father’s November statement and what he said there should be accepted. As to the children’s physical, emotional and educational needs, there was good and reliable evidence that those were being met. The effect of the change of circumstances was that the father could not return the children on a summary basis. The children had not suffered harm by being taken to Syria. The father, and the wider family in Jordan, could meet all of the children’s needs. They did not want to see their mother who had never requested contact. The father would facilitate their contact with her when he judged them to be ready. Work with professionals were necessary to enable them to be ready.

[65]I have already explained the developments after submissions and the father’s estimation that he would need 6 months to 2 years to prepare for return with the children.

The Law

[66]The leading cases concerning applications under the inherent jurisdiction for a summary return of a child where there is no applicable international treaty between the UK and the other jurisdiction concerned are In re J (A Child) (Custody Rights: Jurisdiction)

[2005] UKHL 40

and In re NY (A Child) (Reunite International and others intervening)

[2019] UKSC 49

. The legal principles to be derived from those judgments were set out by Cobb J in J v J (Return to Non-Hague Convention County)

[2021] EWHC 2412

at paragraphs 34 and 37. I have considered and applied those principles. This is a long judgment and I have hesitated to reproduce them here but I have done so in case it assists in the Jordanian court proceedings: “[37] I was then taken to the current definitive statement of the law pronounced by the House of Lords in Re J (A Child) (Child Returned Abroad: Convention Rights )

[2005] UKHL 40

. I have extracted from the speech of Baroness Hale the following 11 key quotes which I have borne firmly in mind in reaching my conclusions: i) "… any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration" [18]; ii) "There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it" [22]; iii) "…in all non- Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration." [25]; iv) "… the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960s, these came to be known as 'kidnapping' cases." [26]; v) "Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child" [28]; vi) "… focus has to be on the individual child in the particular circumstances of the case" [29]; vii) "… the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever" [32]; viii) "One important variable … is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this" [33]; ix) "Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests" [34]; x) "In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned" [39]; xi) "The effect of the decision upon the child's primary carer must also be relevant, although again not decisive." [40] Baroness Hale summarised her views … "These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be fought and decided here." [41] [38] I was then taken to Re NY (A Child)

[2019] UKSC 49

, a case in which the Supreme Court set aside an order made by the Court of Appeal under the court's inherent jurisdiction in what are accepted to be very different circumstances to those obtaining here. Mr Khan argued that I should give (as the judgment suggests) "some consideration" ([55]) to the eight linked questions posed by Lord Wilson in that case: i) The court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order ([56]); ii) The court ought to consider the evidence and decide what if any findings it should make in order for the court to justify the summary order (esp. in relation to the child's habitual residence) ([57]); iii) In order sufficiently to identify what the child's welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act ; a decision has to be taken on the individual facts as to how extensive that inquiry should be ([58]); iv) In a case where domestic abuse is alleged, the court should consider whether in the light of Practice Direction 12J , an inquiry should be conducted into the disputed allegations made by one party of domestic abuse and, if so, how extensive that inquiry should be ([59]); v) The court should consider whether it would be right to determine the summary return on the basis of welfare without at least rudimentary evidence about basic living arrangements for the child and carer ([60]); vi) The court should consider whether it would benefit from oral evidence ([61]) and if so to what extent; vii) The court should consider whether to obtain a Cafcass report ([62]): "and, if so, upon what aspects and to what extent"; viii) The court should consider whether it needs to make a comparison of the respective judicial systems in the competing countries – having regard to the speed with which the courts will be able to resolve matters, and whether there is an effective relocation jurisdiction in the other court ([63])." Baroness Hale summarised her views …

Analysis and Decision

[67]Although there was no dispute that this court has jurisdiction to determine the mother’s summary return application, it is right that I should address that issue. I find that the courts of England and Wales have jurisdiction because the children were habitually resident in England when the application was issued in February 2024, that being the relevant date. I also agree with Miss Guha KC’s written submission that the Family Court in Swansea, Wales was exercising rights of custody over the children at the time they were removed in breach of a Prohibited Steps Order.

[68]In considering the mother’s application, I need to exercise a broad discretion in order to determine what is in the children’s best interests. I remind myself that the

Art 8 ECHR

rights of each parent and each child are engaged and any order I make must be necessary, justified and proportionate. That said, I must make the children’s welfare my paramount consideration. Mr Hames KC submitted, and I agree, that I should consider the welfare checklist in section 1(3) of the Children Act 1989 even though the application is not made pursuant to that statutory framework. That requires me to have regard to all the circumstances including, in respect of each child:(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

[69]In my judgment, an order that the children be returned to this jurisdiction is in the children’s best interests and necessary, justified and proportionate. The salient best interests and welfare checklist factors are these:a. The children were born here and have spent most of their life in Wales and England.

b. They were attending school in England up to the February half term. They have a home here which is waiting for them.

c. Their mother has been their primary carer all their life. The only reason why she is not the resident parent and their primary carer now, as HHJ Hobson finally determined she should be, is the father’s wrongful removal of them from her care. He has compounded that injury to them by keeping them from her for ten months now. The mother is devastated.

d. Many of my reasons for refusing the father’s application for a stay are also reasons why it is in the children’s best interests to return to England for the determination of the father’s intended application for a change of residence. I repeat them here.

e. The mother agrees to the children living with the father pending a further decision about residence, if he returns them to England. If the father’s allegation that she deliberately harmed L and ill-treated the children are well founded, that interim step will protect them from harm from her.

f. As to the characteristics of each child, I remind myself of what the father reports they said when asked to speak to their mother as this court ordered on 28 October 2024. L was reportedly dismissive of his mother. But D reportedly said:

“We waited for her for months to contact us and talk to her, why she decide to speak with us now…we miss her but she is not a good mother”

. D’s reasoned response resonates strongly with the Guardian’s observation in her July 2023 report that D was more aligned with the mother and tuned in to her mother’s emotions. D’s suffering may be different in kind to L’s but both have been harmed by the father’s actions. It must be terrible for the mother to read that her daughter waited for her, felt abandoned by her, and misses her now. g. The father is capable of meeting the children’s physical needs. He tells me, and I accept (he has agreed to provide school reports) that their educational needs are being met. But their emotional needs are not being met. He continues to assert that he is unable to persuade them even to speak to their mother on the phone. If that is the case, it is a sea change from August 2023 when they wanted to live with her and one that is likely to be psychologically damaging to them. Any such sea change is likely to arise from the upheaval the father has subjected them to, what he or others close to him have told them, or what he and others have caused or allowed them to believe about their mother; h. All reasonable steps have been taken to obtain information from an independent source about the children’s current wishes and feelings within a timeframe that does not delay the determination of this application. I cannot let the fact that the father withdrew his consent to that to stand in the way of the return order that in my judgment the children’s welfare requires. i. In Jordan the children are isolated from their mother and nothing is being done to change that. In England and Wales the children are likely to have the benefit of reunification work, this time to help them reconnect with their mother not their father. j. If the father’s instructions that within the last few days his own father has either applied for or obtained another court order in Jordan preventing the children from leaving are reliable, then at a minimum the paternal grandfather is not promoting the children’s welfare. He is also not helping the father who wants to be able to return to England with the children. I remind myself that the parents’ mothers are sisters. The interconnectedness of the two sides of the children’s wider family means that they have a particular interest in their grandparents not taking sides.

[70]Not all factors point in the same direction. I accept that the children have a family, social and school life in Jordan and that their Arabic may be improving. There is a risk they will be sad to leave that life behind and for a time they may struggle to adjust. A return to England means yet another change of circumstances albeit one to more familiar surroundings this time and to the school, friends and teachers they left in February. The accommodation their father arranges may be less comfortable than they are used to if, as he suggests, money is tight. However, the father was renting a suitable property near to the children’s home in 2023 and he was not working then. He has provided no evidence that he will not be able to do so again and considerable evidence that his family and friends will be willing and able to help him re-establish a home for himself and the children when they return. Money now being spent on school fees could be redeployed.

[71]This court’s jurisdiction does not extend to the police or Crown Prosecution Service and the powers available to this court in these proceedings are not international. The mother agrees not to support criminal proceedings arising out of the father’s wrongful removal and retention of the children. I agree that it is not in their best interests for their father to face arrest or criminal proceedings, provided that he co-operates with this court and complies with court orders. Any assurance that the police and CPS are able to give in that regard will be welcome because it will facilitate the children’s return to England.

[72]The Jordanian court orders are a matter for the courts in that country. But the parents are not without agency. The father’s witness statements suggest that it is open to both of them to seek discharge of the orders preventing the children from leaving Jordan. Financial disputes about maintenance (which may be tied to the prohibitions on travel) can and should be settled. Each parent can withdraw applications. They can and should, as the father suggests, engage in mediation. I accept the father’s submission that there are no guarantees that the prohibitions on travel will be lifted. But concerted and co-ordinated attempts should be made. Part of the problem, I am told, is that both parents have given the Jordanian courts the impression that they intend to reside there long term. Each felt that was necessary to persuade those courts to grant them custody. The father and the mother each need to make it clear to the courts in Jordan that their futures, and those of the children, lie in England.

[73]I have indicated to the parties that the children must be returned to England as soon as possible and by no later than 31 March 2025. I have made it clear to the father that in the meantime, the children must have twice weekly indirect contact with the mother. They have access to a child psychologist to assist with that and he tells me that they have a support worker at school who could also support them. If the children have that contact, then in my judgment the interval of around 15 weeks is not outside their timescales and gives the father sufficient time to make the necessary preparations.

[74]A return by that date will give the children time to settle before they return to school at the start of the summer term. And it will stand the father in good stead with the GMC which will be reviewing the interim suspension order in or around April 2025. The father urges upon me a delay of at least 6 months but in my judgment the children cannot wait that long. Such a delay would also mean them returning to England at the start of the summer holidays. In my judgment they will find it less difficult to adjust if they return to England when school is about to start and they have the benefit of that structure and routine.

[75]I have timetabled a further hearing in February so that this court has oversight of the arrangements for and after the children’s return. If concrete progress is being made but either party has good and corroborated reasons for needing more time, there will be an opportunity to ask the court to extend the timetable.