This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
SITTING AT NEWCASTLE UPON TYNE
Law Courts
Quayside
Newcastle Upon Tyne NE1 3LA
Before :
MR JUSTICE COBB
Between :
EN (mother) | Applicant |
- and - | |
AH (father) | Respondent |
Re H (A child) (Temporary Leave to Remove: Turkey) (Enforcement of Child Arrangements Order)
Miss Katherine Wood (instructed by Ben Hoare Bell, solicitors) for the Applicant (mother)
Miss Claire Brissenden (instructed by David Gray, solicitors) for the Respondent (father)
Hearing dates: 6 & 7 May 2015
Judgment
Approved Note of Judgment
The Honourable Mr Justice Cobb:
These proceedings concern one child, AH. She was born on 13.8.2010, and is therefore four years old. Her mother is EN (hereafter “the mother”), represented before me by Miss Katherine Wood. Her father is AH (“father”), represented by Miss Claire Brissenden. Both parents are Iranian nationals.
AH is the youngest of 3 children born to the mother, though the only child born to the relationship of the mother and father. AH’s older half-siblings are PO (14) and PA (12); PO and PA’s father lives in Iran.
AH has been the subject of almost continuous litigation between her parents for nearly three years.
At this hearing, which commenced yesterday (6 May 2015), three issues were placed before me for consideration, namely:
Whether I should permit the mother to have temporary leave to remove AH to Iran for the purposes of a holiday and to visit maternal (and possibly paternal) relatives; this application was made in October 2013. This is a re-hearing of this issue, as directed by the Court of Appeal (Re H [2014] EWCA Civ 989);
Whether I should permit the mother to have temporary leave to remove AH to Turkey for the purposes of a holiday; there is no formal application for this relief, and the application was signalled to the father only shortly before this hearing, but it is agreed that I should deal with it;
What, if any, order or directions I should make on the father’s application (dated 12 February 2015) to enforce a Child Arrangements Order which had been made last year.
For the purposes of considering this application, I have read:
The statements and supporting evidence submitted by and on behalf of the parties;
The judgment of the Court of Appeal in this case (reference Re H [2014] EWCA Civ 989), by which the father’s appeal against the decision of HHJ Walton (6 January 2014) granting temporary leave to the mother to remove AH to Iran was allowed (the Court of Appeal’s judgment is dated 17 July 2014);
Extracts of the transcript of the oral evidence of the father at the hearing before HHJ Walton;
The expert report of Mrs Anna Enayat, Senior Common Room Member, St. Anthony’s College, Oxford University, and an expert in Iranian law and custom, dated 15 February 2015;
Correspondence between the parties and Durham County Council children’s services.
I first heard oral evidence from Mrs Enayat, and then from the mother and father. For reasons set out in the following paragraph ([7]), I do not propose to rehearse the evidence of Mrs Enayat in this judgment; I would like to record, nonetheless, that it was clear, and forensically helpful. In summary, it underlined the difficulties which would be encountered by the mother in leaving Iran with AH if the State authorities (or the father) sought to prevent her from doing so, and/or if the father was unco-operative or frankly unable, to secure the necessary travel papers to assist a safe return to this jurisdiction. Mrs Enayat was unable to offer much comfort the mother, or the court, in moderating the concerns outlined by the FCO, referred to by the Court of Appeal at [12] of [2014] EWCA Civ 989; specifically, security forces in Iran are suspicious of people with British connections, and there are particular reasons why the forces may be particularly interested in members of this family.
At the conclusion of the expert evidence yesterday afternoon (6 May 2015), and before giving her own evidence, the mother indicated through counsel that given the absence of any degree of co-operation from the father (let alone the genuine and wholehearted co-operation which she sought), and the risks to her and AH if she was unable to achieve a swift and safe return, she recognised that such a plan was not “sustainable”, and she no longer pursued it. This left only those issues identified in [4](b) and (c) above for determination.
Background
The essential background to this case is set out in the judgment of the Court of Appeal ([2014] EWCA Civ 989), the salient parts of which (paragraphs [2]-[6] inclusive), for convenience, I reproduce below:
The child concerned was born on 13 August 2010. Her parents share parental responsibility for her as a consequence of their marriage. Both parents have indefinite leave to remain in the United Kingdom, the father having obtained asylum as a political refugee. The mother has two daughters by a previous marriage who live with her in this jurisdiction. The child with whom the court is concerned has been the subject of private law children proceedings since before 11 July 2013 when by agreement a residence order was made in favour of the mother. The same order provided for unsupervised contact for the father but prohibited him from removing the child from this jurisdiction. It permitted the mother to temporarily remove the child from the jurisdiction except to Iran which was prohibited.
… the reason for that prohibition was the 'agreed' risk of travel to Iran for this family. At the time the order was made in July 2013 the apparent solution to the problem presented by the mother's wish to meet her own family with the child was that she could do so in Turkey. Such was the extent of the risk identified on that occasion that by agreement the court prohibited both parents from obtaining an Iranian passport for the child and the father surrendered an existing passport and his own passport which are held by solicitors to the order of the court. Before this court the mother explains that order by saying that she agreed to it as a 'package' not on the merits of the individual clauses.
In February 2014 the case proceeded on the evidence of the parties alone. The father was content to rely on the Foreign and Commonwealth Office (FCO) guidance and his own evidence as to how his own relatives and opponents of the regime in Iran had been treated. The mother relied on her own experience of free passage while travelling to and from Iran since she moved to this jurisdiction. There were background issues relating to whether the mother's family worked with or for the intelligence services in Iran but the judge was perhaps unsurprisingly unable to do other than comment on that claim given that it was unsubstantiated.
Father's case was that his child's safety would be at risk because of his previous political activity in Iran and that this was not a fanciful risk: his relatives from Sweden had already been detained for six months for no apparent reason while visiting Iran. He sought to substantiate that risk with evidence about the imprisonment of and restrictions upon his relatives in Iran. His subsidiary case was that there was also a possibility that the mother might remain in Iran with their daughter, removing her from the reach of anyone who could assist him.
The judge's findings and value judgments on the concessions made and the evidence heard were limited and are as follows:
father is a political refugee i.e. is at serious risk of harm if he returns to Iran;
there is advantage to the child in reinforcing her cultural ties with Iran and meeting her extended family;
mother owns two properties in Iran, one of which was or is being used as a school;
the likely motivation for the visit was one of the mother's other daughters suffering extreme homesickness for her own father and family in Iran; a genuine reason though not one that is directly relevant to the child in these proceedings;
the mother's ties to this jurisdiction are not the strongest (she has a fiancé, a tenancy and is enrolled on a training course);
the court is dependent on the mother's word that she does not intend to stay in Iran but it is improbable she would fight for leave to remain in the United Kingdom and then within a short time leave to live in Iran;
the father's political convictions and religious beliefs (or lack of them) are an unlikely foundation for actions against his child given that he is living in this jurisdiction and is not at present politically active in Iran.
I would like to supplement this history by adding the following facts:
The mother spent an extensive period in Iran during the marriage; she says that during one of her visits shortly after AH’s birth (when she was attempting to arrange the emigration of PO and PA to this country), the father took steps to prevent the mother from leaving that country; during that period, AH was in the care of the father in England (this is relevant to my consideration of the application for temporary leave to remove to Turkey);
There has been a troubled history of contact between AH and her father; the mother has suspended contact in the past, by reason of the father’s alleged conduct towards the mother and AH; there has been no clear findings of fact about this alleged conduct (relevant to the enforcement issue);
And relevant to my directions for further hearing:
There is a history of alleged domestic violence between the parents; the mother left the father in 2012;
That Local Authority Children’s Services have had periodic involvement with this family since 2010; it has become involved once again;
The last Child Arrangements Order (which made provision for extensive contact between AH and her father) was made on 2 July 2014 by DJ Morgan.
I now turn to deal with the two (unrelated) outstanding issues.
Temporary Leave to Remove
The mother wishes to be able to have a summer holiday abroad with her immediate family, in a country in which it would be easy for members of her extended Iranian family to join her. The mother’s specific proposal is to travel to Turkey for a 2-week holiday in the school summer holidays, with AH, her older two children PO and PA, and her partner, PG. It is proposed that they take a package holiday to a hotel in or near Marmaris. It is further proposed that the mother’s mother (i.e. the maternal grandmother) together with the mother’s sister (maternal aunt) and niece (cousin) should join them there from Iran (where they live), together with PO’s and PA’s father (also a permanent resident in Iran). AH has never met her grandmother nor has she met her aunt or cousin. PO and PA are said to be very keen to see their father again.
Quite apart from the fact that Turkey is a signatory to the 1980 Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), to which I refer again below, various additional safeguards are offered to the court by the mother in order to guarantee AH’s return :
That the order contains a recital that AH is habitually resident in this country, which has sole and primary jurisdiction in relation to her;
That the order reflects the fact that AH is not recorded or registered on the mother’s Iranian passport; I proceed to determine the application on that basis;
Sworn undertakings will be given by the mother to this Court:
to provide to the father no less than 28 days before the date of travel, details of the holiday, the address of the accommodation, the flight numbers, and other relevant information;
to return AH to this jurisdiction at the conclusion of the holiday;
not to seek a passport for AH in Turkey, from the Embassy or consulate in Istanbul or Ankara or elsewhere;
to apply as soon as practicable to obtain a British passport for herself.
The mother would swear her intention to return AH to this jurisdiction on the Koran before an Imam, if required;
The mother will lodge:
her Iranian birth certificate;
AH’s Iranian birth certificate;
The mother’s divorce certificate,
with her solicitors during the period of travel;
The father opposes the mother taking AH for a holiday to Turkey; his principal objection is that Turkey has a border with Iran, and he fears that the mother will one way or another flee to Iran with AH.
Before looking at the more fully developed reasons (at [15] below), the father’s stance requires some background context. Until December 2014, the father had been actively proposing that the mother take AH for a holiday in Turkey. In this regard, it is notable that:
The transcript of the father’s evidence before HHJ Walton in January 2014 contains this exchange, (which, notably includes reference to the neighbouring proximity of the Turkey and Iran as a benefit to AH and the mother rather than a disadvantage, emphasis by underlining added):
“Q: So how do you suggest that AH gets to experience the culture of Iran and get to meet her family, how would you suggest?
A: They can go to different country like Turkish is not much different than you know Iran if all the family …
Q: How far is Turkey from where …?
A: It’s on the same border, they have got the same border with Iran so the culture is probably the same you know it’s a …
Q: How long would it take to travel to Turkey?
A: It’s less than Iran….
… I have got a member of family in Australia, my sister and brother, you know they live in Australia. She can travel there, the mother can take them there you know, they can go to Turkey all the family come there you know? I will help them, until they come to Turkey to meet her you know. But to go to Iran that’s I won’t take that risk you know; I cannot risk my daughter’s life.”
The father’s uncle’s witness statement (filed in support of the father) dated November 2014 contains these passages:
“I said her family could stay with me in Dubai where it would be easy to get a visa or they could go to Turkey where a visa would not be required. I offered to provide accommodation or pay their hotel costs in Dubai or Turkey. I am still willing to do this. Travel costs from Iran to Turkey would be only £25 by train and I have a home there so I think that would be a good option. They could spend time with AH and have a good time with her but without AH being placed at risk by having to travel to Iran”.
“I know that family is important to the child and I can understand that [the mother] wants her to know her family on her mother’s side but she could do this without travelling to Iran. [The mother’s] family could come to the UK or I would still be willing to provide accommodation for [the mother] to travel to Turkey with her children to see [the mother’s] family”.
“I have a holiday home in the Antalya area of Turkey. It would cost around £25 for [the mother’s] family to travel by train to Turkey. Antalya is a popular holiday destination so it would be easy to get a flight from England”.
The father commented on that evidence thus:
“I would love for her to be able to meet members of my family including my father who is in his 80s and in poor health. I agree with [the mother] that family relationships are important and it is important for AH to understand her Iranian family background and culture. In an ideal world I would like AH to go to Iran but I do not think that she will be safe. I have talked to my family about whether AH could meet her maternal family in another country and my brother has offered to provide accommodation and meet travel costs so that this could happen”.
So, as mentioned earlier ([13]), the father now opposes the proposed trip, and asserts that the application for leave to remove AH to Turkey is a ‘smoke screen’ behind which the mother will fulfil a hidden plan to relocate to Iran with AH permanently. His opposition is now based on the following:
His concern about the lack of effective border checks/control between Turkey and Iran;
The opportunities for the mother to smuggle AH out of Turkey and into Iran; he considered that there were essentially ‘open borders’ between the two countries;
The news reports of increased political and military activity on the border between Turkey and Iran (and Turkey/Syria and Turkey/Iraq);
That the mother has now suspended contact (he maintains in an effort to alienate AH from him), and he believes that the holiday is an extension of a grander plan of the mother to disappear to Iran, out of his effective reach.
He told me that he would be happy for the mother to take AH to America, Africa, Australia and (as mentioned above) anywhere in Europe “except where my daughter is in danger”, by which he meant Iran, and now Turkey.
The decision whether to grant a parent temporary leave to remove a child from the jurisdiction must be determined by reference to the best interests of the subject child (section 1 of the Children Act 1989), guided by the provisions of the welfare checklist (section 1(3)), in the context of the specific circumstances of the case. Specifically, on these facts, it is necessary for me to consider carefully the harm or risk of harm, the age and background circumstances of the child, the capability of the parents, and the range of orders available.
Turkey is a Hague Convention country. It is well-known that this Convention provides a mechanism for the swift return of children to their country of habitual residence when they have been unlawfully removed or retained abroad. In itself, this represents a significant safeguard to ensure AH’s safe return to this country. However, I recognise that the father’s concern is not really about the mother’s retention of AH in Turkey, rather it is that if the mother were permitted to travel to Turkey, she would travel onwards and over the border to Iran from where AH would not return. In those circumstances it is necessary for me to consider:
the risks that she would take those steps feared by the father;
that if she did do so, the magnitude of the consequence of breach if it were to occur; and
the safeguards offered in order to moderate any of the identified risks.
I have therefore considered it appropriate to pay due regard to the Court of Appeal’s judgment in Re A [2014] 1 FLR 643 (sub nom Re R (A Child) [2013] EWCA Civ 1115) which draws on earlier authorities including Re K (Removal from the Jurisdiction: Practice) [1999] 1 FLR 1084 and Re M (A child) [2010] EWCA Civ 888. In Re A Patten LJ, giving the judgment of the court, said this at [23]:
“The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M (Removal from Jurisdiction: Adjournment), we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.” (emphasis by underlining added).
At paragraph 25, Patten LJ added:
As the quotation from Thorpe LJ's judgment in Re K (Removal from Jurisdiction: Practice) (see para [19], above) confirms, applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
the magnitude of the risk of breach of the order if permission is given;
the magnitude of the consequence of breach if it occurs; and
the level of security that may be achieved by building in to the arrangements all of the available safeguards.
It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave”.
I turn to discuss the merits of this particular application.
It is, in my judgment, in AH’s best interests that she is able to enjoy a holiday during the summer school vacation with her mother, half-sisters and her mother’s partner. More specifically, it is abundantly to her advantage that she is enabled to meet her grandmother, aunt and cousin (in each case for the first time, although they have spoken and seen each other on Skype) and to spend some time with them.
I acknowledge that there is a risk that once in Turkey the mother would slip with AH into Iran and not return. I regard that risk as negligible, having evaluated it by reference to the following factors, revealed by the evidence:
The history of international migration of this family reveals that the mother (unlike the father) has always conducted herself in accordance with the law; the arrangements which she has made for herself and her older children to leave Iran and enter this country have been undertaken with full regard to official and legal requirements;
The mother made strenuous and sustained efforts to move permanently to this country, and since being here to obtain work and achieve a life for herself, which would inevitably be jettisoned if she were to return to Iran; while her connections in this country could reasonably easily be severed, there is no indication that this is in mind;
She has made similarly strenuous and sustained efforts to move her older daughters here at considerable personal and financial cost to herself, and achieve a life here for them, which would also be jettisoned if she were to return to Iran;
She is currently in a stable relationship with (though is not married to) a non-Iranian partner; it would not be easy for her to return to live in Iran permanently either with or without him;
Although the mother has family and a business in Iran, there is no actual evidence that she wishes to make her life there.
Mrs Enayat was asked about the practicalities of cross-border migration between Turkey and Iran, specifically with regard to the travel documents required in order to cross the border. AH has no Iranian passport, only a British one; she has an Iranian birth certificate. Mrs Enayat described it as “theoretically possible” that the mother could convey AH through the Turkey/Iran border relying on just AH’s Iranian birth certificate. Without AH’s birth certificate, this would be much harder, indeed only realistically achievable if the border guards could be bribed to ‘turn a blind eye’. The mother offers to surrender AH’s birth certificate to her solicitor in England before travel, thereby eliminating her facility to use it as a travel identity document. Mrs Enayat went on to describe the practice of illicit people trafficking/smuggling between the relevant countries over the Taurus Mountains as “common”, though plainly risky and physically challenging.
I recognise that if, contrary to my assessment, the mother were to travel with AH to Iran the consequences of such conduct could be very grave indeed. If the mother chose to stay, or the State officials sought to make a return difficult (given the political connections of the family) it would be extremely difficult for the father to secure the safe (let alone swift) return of AH to this jurisdiction; he would experience enormous difficulties in travelling to Iran himself even for a short time, given his political status, and the legal and bureaucratic hurdles of seeking to do so remotely from England would be overwhelming, even if not insuperable. I bear all this in mind.
The safeguards offered by the mother (identified in [12] above) materially and significantly reduce the risk of the mother removing AH to Iran from Turkey; in particular, the mother’s offer to surrender her birth certificate and AH’s birth certificate for safekeeping in England during the trip would mean that she would not be able easily to demonstrate that AH was her daughter at border-control. AH only has a British passport, which would not be so easily accepted at border control as an Iranian passport. I consider it unlikely, having seen and heard the mother’s evidence, that she would choose to cross the Taurus Mountains with AH, and her two other daughters, covertly and illicitly.
I take into account (though it is by no means determinative) that for over a year, until as recently as December 2014, the father had actively been advancing and encouraging a proposal that the mother and AH travel to Turkey for a holiday, citing its geographic proximity to Iran as a benefit, not a drawback. I have analysed his changed position at this hearing with considerable care, and conclude that it does not I regret carry much weight; specifically:
I do not accept that the expert evidence of Ms Enayat can properly be said to have added materially to his personal sum of knowledge about the risks surrounding the international borders, as he contended;
The father made his escape from Iran covertly across the land border through Turkey some years ago, so his allegedly recent discovery of the apparent weakness of some of the border controls is unconvincing;
He now states that he believes that the mother will illegally smuggle AH into Iran (rather than travel there legally and stay); this has not been a concern of his in the past; he has not explained adequately or at all his changed position;
His fundamental lack of trust in the mother is inconsistent with his proposal that she could travel with AH (with his blessing) to any country this summer, other than Turkey (or Iran);
That his awareness of the facility of bribing the border guards is new; this seems unlikely, as he deposed in his evidence to having bribed officials himself to escape from the regime in Iran;
He has not provided anything more than very general evidence that the political and military situation around the borders is materially different in May 2015 than it was in December 2014 (when he last proposed Turkey as his favoured destination for the mother and AH); indeed in his recent statement he refers to the political changes having occurred “over the last year”, i.e. long before he last suggested a holiday for the mother and AH in Turkey.
In short, the father’s objections to this proposed trip do not stand up to critical examination, even if they are sincerely or genuinely (which in some respects I have to say I doubt) held. The father has demonstrated a proven ability to tailor his case to suit best his situation, a point well-illustrated by Miss Wood’s cross-examination of him on a number of significant inconsistencies between the father’s statements in the Children Act 1989 proceedings and those to the immigration officials. He sought to avoid answering questions about these inconsistencies in oral evidence on the basis that he found it too traumatic to recall the events; in my judgment this was an unconvincing attempt to avoid facing up to the difficult and obvious lies which he has told in one or other arena.
The safeguards offered by the mother are realistic, and appropriate. I propose to accept them (though do not insist on [12](d) given that I have no evidence that such a step would have particular significance to the mother). I propose further to direct that the mother should travel to Turkey on a British passport; at present she does not have one, but has made enquiries about applying for one and there is a chance that this could be obtained before the end of July. This would make the travel from Turkey to Iran yet more problematic. In the event that the mother is not able to obtain a British passport before the date of travel, she can apply to me to vary or discharge this requirement, which I shall consider favourably only if I am satisfied that she has made every effort to obtain the British passport. In the meantime, she shall surrender her Iranian passport to her solicitors forthwith
Enforcement of the Child Arrangements Order
By Order made by DJ Morgan, dated 3 July 2014, the father is entitled to see AH for contact a minimum of once per week, overnight on a Friday evening until Saturday afternoon.
That arrangement has (for the time being at least) come to an end; the father last saw AH on 2 January 2015. The circumstances in which that occurred are set out below:
The mother reports that in the autumn of last year, AH had told her said that she was sleeping in her father’s bed with her father and with a female (“Ms X”) when visiting for contact. The mother says that she had raised her concern with the father about AH sleeping in the father’s bed in a ‘contact handover book’ which passed between the parents which recorded issues of relevance in AH’s daily care. I pause to note that the mother had only raised her concern about AH sleeping with the father (not Ms X) in July 2014, and not, so far as I could tell, since that time.
The mother went on to say that just before Christmas, AH complained that her father was “shouting” at her on her visits, that he “gets angry” and “pokes his fingers in [her] eyes”. AH was reportedly reluctant to attend for contact (indeed, on the mother’s case, adamant that she would not go).
In early January 2015, the mother received a letter from Durham Social Services asking her to contact them.
Pursuant to that request, the mother did make contact with social services by telephone; she gave oral evidence about that conversation. She reports that she was asked whether she knew the father’s partner; she denied knowledge (other than a name), and says that she was told by the social worker that the woman in question was not (contrary to the impression given by her forename) Iranian, but was in fact called Ms Y, and indeed may have had a number of other identities/pseudonyms. The mother says that she was advised by social services that they would prefer for her to stop contact between AH and the father given Ms X/Y’s presence in the father’s home; she acknowledged to me that social services were not advising her (indeed could not advise her) to breach a court order. In her witness statement, the mother records the conversation thus:
“Social Services made me aware of this woman, they stated that she is not Iranian and they do not want her around any children and they have reports that she has been around [AH]. I asked them what to do; they told me that they can tell me to protect my child which at the moment is stopping the contact. I would have stopped the contact even if they had not told me to. As a mother I had to protect [AH]. They said we cannot advise you, but you need to protect your child you need to stop the contact.”
On 6 January 2015, the mother’s solicitors wrote to the father’s solicitors in these terms.
“… we have been informed by our client that Durham Social Services have contacted her on the 5th January and advised her to stop contact due to concerns that they have around [the father’s] partner [Ms X] and her past history that is known to them. Our client wants to act in the best interests of [AH] and to safeguard her, at this time our client is therefore acting under social services recommendations to safeguard [AH] it is bearing this in mind that an application for legal aid has been made and once legal aid is granted an application will be to the Court. Our client has also raised concerns regarding physical chastisement between your client and [AH]. Our client will therefore not be producing [AH] for contact until these issues have been dealt, which we hope can be done as soon as possible”.
This was not in fact (as is apparent from the account at (d) above) an entirely accurate account of the advice received.
Contact was suspended from that point.
On 21 January 2015, Durham Social services wrote to the father’s solicitors (in response to a letter which I have not seen) saying that they had not advised the mother to suspend contact. The letter goes on to say:
“The team managers inform me that [the mother] (child’s mother) was not advised by a member of children’s services of Durham County Council to suspend contact between [AH] and her father.
Information was shared with mother as to concerns in respect to Ms X / Ms Y (a.k.a. Ms Z). This information had been forwarded from a sexual health nurse in the North Tyneside area. The information was shared with [the mother], on a basis that there was a "pressing need" to inform her of third party information in respect to Ms X/Y.
The social worker from the First Contact Service spoke with mother on 5 January, but did not direct mother to stop contact, as the Local Authority were aware there was a Court Order in place. Mother advised that she was seeing her solicitor on 6 January and mother was advised to address all issues of concern with her solicitor.
I note that both yourselves and solicitors for mother have made legal aid applications to bring the matter back before the Court.
The … Assessment and Inspection Team undertook to speak with the child directly at school with a member of school staff present. Mother was not in the room when the child was spoken to, but gave permission for such interview to take place. Mother had expressed concern that the child had stated that father "slaps, pokes and kisses her too hard" and that the child had been sleeping in father's bed.
However, the child stated that she had her own room at father’s and made one comment only of concern that she was “worried” when she was at father’s but would not elaborate on this. The child acknowledged that there were people she could speak to if she was worried in the future. It is apparent that there was a lack of information to justify a s.47 investigation which would need to take place in collaboration with South Tyneside Council in any event….
… Durham County Council do not intend to carry out any safeguarding action and further investigation, as the child is safe in mother’s care in the are of Durham County Council. The issues raising concern originate in the South Tyneside area in any event. I appreciate that any further involvement by a Local Authority might result in joint working between Durham County Council and South Tyneside Council.”
The mother raised her concerns with the Family Liaison Worker at school, HC.
On 26 January 2015, AH is reported to have spoken with HC; HC reports the following:
“I spoke with [AH] in class and we chatted about what she had done on the weekend. [AH] told me that she had drawn a picture for her mummy. I asked what the picture was of and she said her family, [father, identified by his forename], Mummy, Daddy [the mother’s partner], her two sisters and herself. [AH] then said to me "Guess what [father] does?” I asked [AH] what [father] does and she said “he hits and punches me and hits and punches me in the eye when he gets angry “. I repeated this and [AH] said “yes”. I asked [AH] if anyone else was in the house when this happened and she said "no". [AH] then stated that her friend was in the house. I asked [AH] how this made her feel and she told me she felt "sad", I asked [AH] what she did when this happens and she said “I go to my room”.
[AH] then started to talk to me about the games she and her friend play and said no more on the subject.”
None of these recent allegations are recorded in the contact handover book, a point which the father relies on as an indicator that the mother has manufactured the allegations and encouraged AH to repeat them. I do not regard it as particularly significant that the mother had not recorded these matters in the book; the mother may well not have wanted a direct confrontation with the father about this.
The father for his part has now had an opportunity to comment on this material:
He denies that Ms X has slept at the home while AH has been there for overnight contact;
He denies that he has ever slept in the same bed as Ms X at all.
He knows only a little about Ms X’s family situation; though believes that she has a daughter aged 12/13 who lives with her father, and that this arises as a natural arrangement under Sharia law, or by a specific Sharia ruling; the father knows that Ms X does not see her daughter and has not done so for years; although Ms X has explained that this is because the daughter lives in the south of the country (Ms X being in the north), the father was not persuaded (he told me) by this but has not pressed Ms X who was (in his estimation) emotionally vulnerable.
The father said that he had spoken with Ms X’s social worker, telling me: “I asked social worker. [Ms X] has no problem and there are no concerns about her at all.”
The father denies that he has physically chastised AH in any way at all. He said to me in oral evidence that the allegations are “coming from a sick mother’s mind… what she is doing to her daughter is wrong”; later he described her as “a mentally sick woman”. He told me (re HC’s evidence, see [31](i) above): “she [the mother] has poisoned AH’s mind deliberately, I don’t know what she is after, what she wants to get…”. At the end of his oral evidence that the mother “wants to use the child as a bullet against me”.
He accepts that he has play-fought with AH, with pillows and the like, but has not hurt AH as alleged.
Social services have not apparently been in touch with him about these allegations and have accordingly not discussed these with him.
As I say, there has been no contact since January 2015; it was the father who brought the application for enforcement, not the mother for variation or discharge of the earlier order. The father is distressed not to have had contact with AH since January 2015; he points to the fact that the mother has stopped contact in the past. The father requests an immediate reinstatement of the contact and offers an undertaking not to bring AH into contact with Ms X.
I must deal with this application for enforcement by reference to section 11J(2) Children Act 1989 and PD12B FPR 2010 para.21. The relevant statutory test is:
If the court is satisfied beyond reasonable doubt that a person has failed to comply with a provision of the child arrangements order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
I interpolate to point out that I am satisfied beyond reasonable doubt that the mother has breached a Child Arrangements Order. Indeed the mother does not dispute this. Section 11J(2) has to be read with section 11J(3) and (4), viz:
But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the provision.
The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
Pausing there, the word ‘satisfied’ in the subsection above is to be read as ‘satisfied on the balance of probabilities’.
I must also have regard to section 11L of the CA 1989:
Before making an enforcement order as regards a person in breach of a provision of a child arrangements order, the court must be satisfied that –
making the enforcement order proposed is necessary to secure the person's compliance with the child arrangements order or any child arrangements order that has effect in its place;
the likely effect on the person of the enforcement order proposed to be made is proportionate to the seriousness of the breach.
Before making an enforcement order, the court must satisfy itself that provision for the person to work under an unpaid work requirement imposed by an enforcement order can be made in the local justice area in which the person in breach resides or will reside.
Before making an enforcement order as regards a person in breach of a provision of a child arrangements order, the court must obtain and consider information about the person and the likely effect of the enforcement order on him.
While I am not at present in a position to know the truth about Ms X’s circumstances, and any risk she may pose to AH, let alone specifically what the mother was told about her, I do know that ‘concerns’ had specifically been raised with the mother by social services about Ms X which had been communicated to the mother as a ‘pressing need’ given AH’s contact with her father, and Ms X. This is likely to afford the mother a “reasonable excuse” for suspending the contact in light of what she was told, and the father’s enforcement application is therefore likely to fail (quite apart from the other allegations raised) at the second hurdle. However, I am not prepared to dismiss the application at this stage for two reasons:
There are still gaps in the evidence, and the disposal of the application can and should await the emergence of a clearer picture;
The future of contact requires determination; I propose to give directions for further investigation; it is probably sensible for all possible outcomes to be open to the court at the conclusion of that investigation.
The need for further investigation is clear enough from what I have said above; it is further highlighted by the contents of a letter which has been produced at court today from the AH’s Primary School which reads as follows:
“As Class Teacher of [AH] date of birth 13/08/2010, I would like to state that there has been a significant change in [AH]’s behaviour since the contact arrangements were changed.
It was evident that [AH] exhibited anxiety on the days that her father was due to collect her. On these days she was quiet, reserved and generally didn't look her usual happy self.
Since contact has ceased [AH] has become much more confident and happy. [AH] often talks about her home life, but no longer talks about her father”.
I am not in a position to form any view about the accuracy or significance of the information contained in this letter, but it plainly raises a question or questions which warrant(s) investigation.
Specifically I shall direct Durham Social Services to prepare a report for the court. I have considered carefully whether that report should be directed under section 7 or section 37 of the Children Act 1989. I listened carefully to the evidence of the parents this morning; I was disturbed by the mutual anger, mistrust, contempt, and self-absorbed justification for their actions, particularly on the part of the father. I am satisfied that if AH were to pick up even a fraction of these adult attitudes and hostilities, she is sadly inevitably destined to suffer immediate and profound damage to her emotional wellbeing. In the long-term I worry about her mental health. This outpouring of parental bile comes on the back of
Three years of inter-parental litigation concerning AH;
The apparent concerns about Ms X and AH’s exposure to her;
The mother’s blunt acknowledgement that she wishes to bring all direct contact between AH and the father to an end.
In the circumstances, I consider that the appropriate course would be for the local authority to prepare a report under section 37; I am of the view that state intervention in this family’s life at some level may well be indicated. I direct the Local Authority to consider and report so far as it can on the following specific issues:
Whether there is social services involvement in relation to the woman known as Ms X; the Court would want to know if possible at least an outline of that involvement, and any implications for the safeguarding of AH;
Its discussions with the mother about Ms X (5 January 2015) and/or about the continuation of contact more generally;
Its views on the allegations made by AH in relation to Ms X;
Its views on the allegations made by AH in relation to the conduct of the father (especially AH’s alleged disclosures to HC);
Any correspondence and/or discussions with AH’s school and/or HC concerning AH;
The future contact arrangements between AH and her father.
If the local authority proposes to issue proceedings under Part IV of the Children Act 1989, a Children’s Guardian will be appointed as a matter of course within those proceedings to represent AH. If the Local Authority does not propose to issue public law proceedings once they have completed the section 37 investigations, urgent consideration should be given at the next hearing as to AH’s representation in the proceedings. I am satisfied that in those circumstances there are, or would be, grounds for making an order under rule 16.4 FPR 2010 having regard to the criteria in paragraph 7 (b)(c) of the PD16A FPR 2010.
I propose to direct that the matter is transferred back to DJ Morgan for further hearing as soon as the section 37 report is available. At the next hearing the parties and the Court should specifically consider:
The future route of these proceedings, whether as private or public law proceedings;
The possibility of a rule 16.4 appointment for AH if these continue as private law proceedings;
Transfer to different tier of judiciary in the Family Court, if necessary/appropriate, having regard nonetheless to the considerable benefits of judicial continuity.
In the meantime, I propose to direct that there should be contact between AH and her father by Skype. This should take place in the next few days, then a fortnight later, and then thereafter weekly. The mother should be enabled to be in the background during this contact with AH, but should not record it.
That is my judgment.