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 child and members of her 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.
Neutral Citation Number: : [2015] EWFC 86
Sitting at: Royal Courts of Justice,
Strand,
London WC2A 2LL.
Monday, 28th September 2015.
Before:
MR JUSTICE BAKER
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF S (A CHILD)
Between:
SK
Applicant
and
TKB
Respondent
MR DAVID PUGH(instructed by Access Law LLP, DX 54856 Southampton 4)
appeared for the Applicant.
The Respondent appeared in person with a McKenzie Friend.
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JUDGMENT
Monday, 28th September 2015.
JUDGMENT:
MR JUSTICE BAKER:
1. These proceedings concern a little girl S born 21st August 2010 and therefore now aged five years and one month. At present S lives with her mother but spends time regularly with her father. Before me are two applications; the first by the mother for permission to remove S permanently from the jurisdiction to reside in Pakistan, and the second by the father for a child arrangements order under which S will live predominantly with him.
Background
The father was born in 1971 and is therefore now aged 43. His family come from Pakistan and many of his relations still live in Pakistan in the region of Khyber Paktunkhwa (‘KPK’, formerly known as North-West Frontier Province) the capital of which is the city of Peshawar. Although the father has lived, as I understand it, all his life in London he has visited Pakistan on a number of occasions. The mother was born in Pakistan in 1974 and is now aged 40. Her family I understand originates from Afghanistan but have lived for some years now in Peshawar. She lived there until her marriage to the father.
On 12th January 2009 the father and the mother were married in Pakistan. On 15th August 2009 the parties came to the UK. Thereafter, they spent the majority of their marriage in England although some significant periods of time were spent in Pakistan and some shorter periods in Dubai. The mother was subsequently granted indefinite leave to remain in this country. The father, as I understand it, has a dual passport, UK and Pakistan nationality. The father says that he tried to persuade the mother to live permanently in this country but she always preferred Pakistan.
The mother asserts that there were incidents of domestic violence during the marriage. The father denies that he has been violent to the mother and in support produced a tape recording of an incident when the police attended and in which the mother is said to have said that he had not been violent. The father asserts that in fact it is the mother who has on occasions been violent to him and he has produced tape recordings of conversations and photographs which he says prove that this is so. In the event, as I shall explain later, this is not an aspect of the history which I have investigated in the course of the hearing.
On 21st August 2010 the mother gave birth to the child, S, who is the subject of these proceedings. From January to March 2011, the mother and S went to Pakistan. On 28th November 2011 the mother and S went to Pakistan again. In March 2012 the father joined them and they remained there until May 2012 until they came back to this country. In October 2012 however the mother and S went to Pakistan again for the third time. It is the father’s case that he did not give his consent to mother taking S to Pakistan on this occasion. Again he went out to join them in January 2013. He says in his statement that he had no option but to do so because he wanted to be with mother and S although it seems that for much of the time during that visit he was in Islamabad whereas the mother and S were in her family home in Peshawar.
The father alleges that on 8th March 2013 he was assaulted by the mother’s brothers in her presence and verbally abused by the mother and the maternal grandmother. Following this incident, the parties separated and in April 2013 the father divorced the mother in Pakistan. The mother alleges that, on 17th April 2013, during a meeting to discuss a possible reconciliation, she was assaulted by the father and his sister. She reported this incident to the police and the father subsequently pleased guilty to an offence in criminal proceedings and a magistrate ordered the father to pay a bond of 80,000 rupees. The father accepts that there was a serious family argument involving members of the extended family but denies that he was violent. He says that he entered his plea of guilty by mistake. His solicitor entered a guilty plea without his knowledge and because of language issues and difficulties the father did not realise what had happened. On 1st May 2013, a few days later, the mother and S returned to the UK, according to the father without his knowledge. He remained in Pakistan for a few months before returning here in August 2013. It is the mother’s case that during this period the father was showing little interest in S. She says that he held to the view that in his culture men were not supposed to look after a female child.
In November 2013 the financial aspects of the divorce were concluded in this country. At about this time, however, there appears to have been some sort of reconciliation or at least the resumption of some sort of relationship between the parties. The exact extent of the reconciliation is not agreed between them. It seems that the parties did not in fact resume full-time cohabitation but the father stayed with the mother and S on occasions at weekends. The mother and S were living at this point in Southampton, the father in North London. Following the resumption of the relationship, the mother became pregnant again but in June 2014 she suffered a miscarriage following which the relationship broke down again. It is the mother’s case that during 2014 the father started turning up at her home unannounced, part of the reason being to see S, but following a further argument about money he stopped seeing S for some time. Contact between S and her father resumed in the autumn of 2014. About this time the mother and S moved to a new address which the mother tried to keep secret from the father. He then discovered where they were living and the mother says that he turned up outside her house unexpectedly. The father says that he attended for a prearranged contact visit.
On 26th November 2014 the father filed his application for a prohibited steps and children arrangements order. Under the child arrangements order he sought an order whereunder S would live with him and have contact with her mother. The prohibited steps order application was launched because the father feared – rightly, as it turned out – that the mother was proposing to move with S to Pakistan permanenty. The father in his application said that he was seeing S every two weeks by this stage under an informal arrangement but complained that the mother would cancel the visits and furthermore that she ‘uses the visits as blackmail.’ The first appointment of the father’s application took place in Southampton Family Court before District Judge Grand on 4th December. On that occasion the district judge made an order prohibiting both parents from removing S from the jurisdiction until further order. The matter was listed for a FHDRA hearing on 8th January. At that hearing, which took place before District Judge Powell, an order was made recording that safeguarding assessments carried out by CAFCASS showed ongoing animosity between the parents coupled with allegations of domestic violence. At the hearing, the mother confirmed that she was intending to apply for permission to relocate with S to Pakistan. The district judge therefore ordered the mother to make that application by 21st January and gave consequential directions as to evidence and a CAFCASS report. The district judge further ordered by consent that the mother should make S available for contact with the father on alternate weekends from 10 am to 4 pm on both Saturday and Sunday with the handover to take place at Southampton Central Police Station.
In accordance with the district judge’s direction, the mother on 19th January 2015 filed an application for a specific issue order seeking permission to remove S permanently from the jurisdiction to Pakistan. Following receipt of that application the district judge transferred the case to me. The matter came before me for a first Case Management Hearing on 13th March and Directions were given preparing the case for a final hearing to last three days in June 2015. The matter came before me again for a final Issues Resolution and Directions Hearing on 5th June at which point I gave further Directions including for the filing of further evidence and permission for audio files and a transcript thereof to be filed that being evidence upon which the father wished to rely.
The matter duly came before me for a three-day hearing on 17th June. At the start of the hearing, the parties agreed that the previous allegations of domestic violence made and summarised as set out above should not be investigated during the hearing since neither party was seeking to rely on the allegations in support of his or her case. Having considered the matter carefully in light of the relevant Practice Direction I concluded that it would be disproportionate and unnecessary to conduct a fact-finding hearing in respect of those allegations as part of this hearing. The hearing therefore started, the mother represented by counsel Mr Pugh, the father acting in person. As is often the case the hearing took rather longer with a party acting in person than it might have done had the father been represented. I allowed the father a degree of latitude in the conduct of his case. I wish to record at this point that the father has conducted his case fairly and very competently and I do not consider that he has been at any material disadvantage as a result of the fact that he has represented himself.
At the conclusion of the three days, I adjourned the matter to enable the mother to apply for permission under Part 25 of the Family Procedure Rules for an expert as to the enforcement of any order made by this court in Peshawar. I directed that contact should continue on a fortnightly basis save that thereafter by consent it was arranged that S would stay with the father overnight on Saturdays during his contact weekend. There was then unfortunately a delay because of a misunderstanding as to the terms of the order. No application for an expert was received by the court and I therefore listed the matter for a further hearing. At that hearing on 20th July, I directed the mother to file an application and instruct an expert by 27th July and any response by the father including any cross-application to be filed by 28th July, and I indicated that the applications would then be determined on paper. The matter was listed for a final half day’s hearing to hear any expert evidence and submissions on a date to be fixed in September. The mother then filed an application for permission to adduce evidence from a Pakistani lawyer on the issue of recognition and enforcement of any order made by this court. The father indicated by email that he opposed this instruction on the grounds that the expert did not appear to have specific experience of the law in Peshawar. On 28th July, having considered those written submissions, I granted the mother’s application and directed that the expert’s report be filed by 27th August.
There was then regrettably yet a further unfortunate delay because the mother’s solicitors for reasons I have been unable to ascertain did not receive the sealed order of 28th July until 25th August which did not allow sufficient time to instruct the expert. On discovering what had happened when I returned from leave I considered the matter again on 1st September when I extended the time for the mother’s expert’s report to 4th September and relisted the final half day’s hearing for 21st September. I gave further directions in the event the father wished to apply for permission to adduce expert evidence after reading that report. All these delays meant that the mother’s application was not determined before the start of the school year and as a result S has now started school in Southampton.
The expert’s report was duly filed and the hearing took place as arranged on 21st September. The expert attended and gave evidence and was cross-examined following which the parties made submissions and I reserved judgment until today.
The law
When considering an application for a child arrangements order or a specific issue order permitting a parent to remove a child from the jurisdiction, the court applies section 1 Children Act 1989 in particular section 1(1) – the cardinal principle that the child’s welfare is the paramount consideration. This is the overarching principle which must be applied on any application. The court must also have regard to the other provisions of section 1. including subsection (2) – that any delay in determining the question is likely to be inimical to the child’s welfare – and the so-called welfare checklist of relevant factors in section 1(3). In carrying out its analysis the court must also have regard to Article 8 of ECHR the right to respect of family life enjoyed by all three family members, mother, father and S. It is well-established that the paramountcy of the child’s welfare is consistent with Article 8.
Applications for permission to remove a child permanently from the jurisdiction are recognised as being amongst the most difficult issues that come before the Family Court. Over the years the senior courts have sought to give helpful guidance as to how the courts at first instance should address such applications. In the modern era the leading cases are the Court of Appeal decisions in Payne v Payne[2001] 1 FLR 1052; K v K (Children; permanent removal from jurisdiction)[2011] EWCA Civ 793; Re F (A child; relocation)[2012] EWCA Civ 1364; and most recently Re F (International relocation cases)[2015] EWCA Civ 882. Prior to the decision in Payne, the approach of the court was clear and consistent. In those days, after the breakdown of a relationship between parents, it was common for one parent to be the primary carer and applications for permission to remove a child from the jurisdiction permanently were invariably brought by that primary carer. At paragraph 26 of his judgment in Payne Thorpe LJ summarised the court’s approach as follows:
‘In summary, a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is a paramount consideration, and (b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.’
16 The decision in Payne comprised something of a reassessment, partly as a result of the implementation of the Human Rights Act 1998 and the incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 8. Thorpe LJ at paragraph 40 suggested a modified approach:
‘However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of a breach of the Respondent’s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare, I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question, is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? then ask: is the mother’s application realistic, by which I mean founded on practical proposals both well-researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition. Is it motivated by genuine concern for the future of the child’s welfare? Or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration directed by the statutory checklist in so far as appropriate.’
17 The President of the Family Division Dame Elizabeth Butler-Sloss summarised the approach later in the judgment in Payneat paragraph 85:
‘In summary, I would suggest the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered including the points I make below so far as they are relevant and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case it may be worthwhile to repeat them.
(a) The welfare of the child is always paramount.
(b) There is no presumption created by Section 31(b) in favour of the Applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to break contact between the child and the other parent.
(e) The effect on the Applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.’
Thereafter the courts followed this guidance where there was a primary carer. Increasingly, however, parents after breakdown of their relationship came to adopt shared care arrangements and, as they became more common, it was recognised that the guidance in Payne was not always as valuable - see for example the decision of Hedley J. in Re Y[2004] 2 FLR 230.
In K v K, supra, the Court of Appeal reconsidered the law. At paragraph 85, Moore-Bick LJ stressed that the Payne guidance was indeed guidance as opposed to principle and furthermore that its relevance will vary from case to case. Black LJ, having revisited the law in detail, drew these conclusions:
‘141. The first point that is quite clear is that, as I have already said, the only authentic principle that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.
142. Whilst this is the only truly inescapable principle of jurisprudence that does not mean that everything else – the valuable guidance – can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.
143. Furthermore the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary nor any similar presumption however it may be so expressed. Thorpe LJ said so in terms in Payne.
144. Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their important to the welfare of a child and suggests helpful disciplines to ensure that proper matters are considered in reaching a decision while it does not dictate the outcome of the case. I do not see Hedley J.’s decision in Re Y as representative of a different line of authority from Payne applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer. I see it as a decision within a framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.’
20. In Re F (A child; relocation), supra, and in Re F (International relocation cases), supra. the Court of Appeal has emphasised that K v K is now the starting point. In Re F (A child; relocation) Munby LJ (as he then was) summarised the position thus at paragraph 37:
‘There can be no presumptions in a case governed by section 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the welfare checklist of section 1(3).’
At paragraph 61, he added:
‘The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regard to the welfare checklist though of course also having regard where relevant and helpful to such guidance as may have been given by this court.’
21. In Re F (International relocation cases), Ryder LJ at parargaph 18 observed this of the Payneguidance:
‘In the decade or more since Payne, it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender-based assumptions as to the role and relationships of parents with a child. Likewise the absence of any emphasis on the child’s wishes and feelings or, to take the question one step back, the child’s participation in the decision-making process is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare questions before it.’
At paragraph 27 he warned that:
‘’[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular a judgment that not only focuses solely on Payne but also compounds the error by only referring to the four point “discipline” set out by Thorpe LJ at paragraph 40 of his judgment in Payne is likely to be wholly wrong. There are no quick fixes to be had in these important and complicated cases. The paragraph 40 discipline in Payne may or may not be of assistance to a judge on the facts of any particular case (whether there is a primary carer or not) in marshalling his or her analysis of the evidence prior to the all-important analysis of the child’s welfare.’
At paragraph 30 he gave this further guidance:
‘Where there is more than one proposal before the court, a welfare analysis of each proposal will then be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child’s upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits i.e. an analysis of the welfare factors relating to each option should be undertaken. That prevents one option (often in a relocation case the proposals from the absent or “left behind” parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merits on its own may still be better than the only other alternative which is worse.’
At paragraph 31 Ryder LJ said:
‘A step as significant as a relocation of a child to a foreign jurisdiction with the possibility of a fundamental interference with a relationship between one parent and a child is envisaged requires the parent’s plans to be scrutinised and evaluated by reference to proportionality of the same’
At paragraph 32 he added:
‘That evaluation will inevitably focus upon the welfare analysis of each of the realistic options and may amount to no more than an acknowledgement that one option is better than the other and that the preferred option represents a proportionate interference with the Article 8 ECHR rights of those involved.’
He suggested the court might usefully adopt a balance sheet in analysing the alternative options, although McFarlane LJ at paragraph 42 added this warning:
‘Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide-memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight or lack of it to each of the relevant considerations. One danger that may arise from setting out all the relevant factors in tabular format is that the attribution of weight may be lost with all elements of the table having equal value as a map without contours.’
22. With those legal principles in mind I turn now to consider the issues in the case.
The mother’s proposal.
The mother as set out in her written and oral evidence and submissions puts forward the following proposal. She wishes to move back to Peshawar. She has exhibited information about the area to her statement. Her family home is in a modern suburb of the city known as Hayatabad and her plan is to return to live there. The house is a four-bedroomed property on two floors. Photographs exhibited to her statement show the property. When the mother came to the UK her parents let the top floor. If she returns to the property that floor will be made available to her and to S. The mother’s evidence, not accepted by the father, is that there is now an internal staircase joining the two floors. The mother and S would therefore be returning to a family home known to them. It is occupied by the maternal grandmother and two of the mother’s brothers. The mother’s parents divorced some years ago. Her father lives elsewhere in the city. S has in fact stayed at the property on a number of occasions with the mother when she has spent time in Pakistan.
24. Prior to the marriage, the mother worked for a number of years in the family’s beautician business and built up a strong clientele and business for herself specialising in bridal make-up. If she returns to Pakistan it is her plan to resume working in the business and she is confident that she will be able to rebuild her business and client base. If she succeeds in doing so, she reckons she would earn between £1000-£1200 per month which would provide a comfortable income for her and S. The mother also owns some land in Pakistan in the region which she plans to sell and invest in the business. The business is based at their home, which will enable the mother to supervise child care of S when she is not at school. The mother describes the work as providing a family-oriented environment for S. Some child care would as necessary be undertaken by the maternal grandmother with whom S is said to have a very good relationship having spent, as I have said, considerable periods of time in Pakistan in the past. In the long term, if the business succeeds, the mother would like to explore the possibility of opening up work in Islamabad.
25. The mother’s evidence is that there are very good schools in Peshawar. Her preferred choice for S is called Beacon House School, which follows an internationally-recognised curriculum. A number of S’s maternal cousins attend the school. The mother says that S is bilingual and will be able to fit into the school easily and make friends. Both the mother and S have Pakistan nationality so there will be no immigration difficulties.
26. In contrast to her proposals for a move to Pakistan, the mother paints a somewhat bleak picture of her life in England. She is at present living with S in rented accommodation in Southampton. She says that she has little support in this country following the breakdown of her marriage and also the breakdown of her brother’s marriage. He lived nearby with his wife but he has now returned to Pakistan following the breakdown of the marriage, and relations between his wife and her family on the one hand and the mother on the other have also broken down. Previously they were apparently on good terms and saw each other regularly but that is no longer the case. Allegations have been made that the mother’s brother was violent to his wife. The mother’s evidence is that she has received threats from members of her brother’s family. The mother says that she has no other family members or real friends in the region and is lonely and on occasions has become depressed. She has received medical treatment for this depression. All her friends and family are in Pakistan. She finds it difficult being separated from her husband because, she says, it is culturally inappropriate for a woman in her position to be living on her own. In contrast to her financial prospects in Pakistan, where she would be able to resume her business, she says she is now dependent on welfare benefits plus some financial support from the father, who is paying maintenance for S. The mother’s case is that these maintenance payments have been erratic.
27. The mother acknowledges that Peshawar and its region are a more conservative area of Pakistan compared to cities such as Islamabad, Lahore and Karachi. She says, however, that despite the greater restrictions it is still possible for women to thrive and have careers as she herself has done. She says that she lived separately from her parents for a number of years in Peshawar and came to no harm and she did not feel obliged to wear a hijab. She acknowledges that the area does have a higher incidence of political unrest, Taliban activity and terrorism, notably an attack in the last year or so on an Army school in which 140 people, teachers and children, died. The mother’s case, however, is that the degree of unrest and political violence is not so significant as to make the area generally unsafe for her or S. The school attacked was an Army school and she does not believe that S would be at risk. In oral evidence, cross-examined by the father, she insisted that she would never put S at risk of harm.
The mother says she recognises the importance of S having contact with the father. Her evidence is that the father initially showed only limited interest in his daughter but latterly has begun to make an effort and since a regular pattern was established following District Judge Powell’s order the contact visits have gone reasonably well. She accepts that S enjoys seeing her father. The mother’s proposal is that she would return to England for three months in the Pakistan school summer holidays (which rune from June to August), renting a property in this country in advance, to enable S to have contact with her father, which the mother suggests should be built up and should be for about six weeks in total in the three month period. In addition the father would be welcome to visit S in Pakistan. The mother says the father has family in the region and it would be easy for him to visit S there; alternatively she could make arrangements for S to see him in Islamabad. In addition she proposes regular contact by Skype, which S already uses to speak to her grandmother, and also by telephone.
The mother has made it clear that, if the court does not grant her permission to take S to Pakistan permanently, she will remain living in this country. She does not propose returning to live in Pakistan without S.
The father’s proposal
30. The father’s proposal as set out in his written submissions and evidence is as follows. The father seeks a child arrangements order whereunder S would live with him. He opposes the mother’s application for permission to take S to live in Pakistan. He says he has a close and loving relationship with S and is well suited to being her principal carer. The father owns two properties in the London area, but if she goes to live with him, his proposal is to move to live with his family in the family home in West London and S will attend a local school in Brent which he has identified. There are many local amenities and activities which she will be able to use and enjoy. The father has a large family in this country and if S moves to live with him she will be able to benefit from a close and supportive relationship with many members of that family. If, on the other hand, she went to Pakistan with her mother, she will be deprived of those relationships. The father works as a self-employed contractor and is able to manage his working commitments so that he will be available to care for S. If S does move to live with him he is committed to ensuring that she will be educated in English schools and brought up within a UK lifestyle free from the prejudice which the father argues is suffered by women in Pakistan.
31. The father says he fully accepts that S must have regular contact with the mother. If S moves to live with him he will ensure that regular contact takes place.
32. If S stays with the mother, the father would be concerned that she would be at risk as a result of the mother’s depression. In his statement he refers to 2011 when the mother took an overdose but the mother denies that she took any overdose intending to harm herself. The father does not accept however that the mother needs to leave the country. He does not accept that she is isolated here and drew attention to the fact that she has an uncle and family living in South London. The mother’s case is that she is not close to that uncle any longer. The father does not accept that women in his culture are stigmatised if they live alone in this country and points by way of example to his two sisters each of whom has lived alone for a time. If S stays with her mother, the father is concerned that the mother would not adhere to any order or agreement as to his contact. He alleges that the mother has been obstructive about his contact and has failed to agree alternative visits when he has been unable to take up contact. He believes that, if the mother goes to Pakistan with S, she will not comply with contact as ordered or agreed. He believes the mother wants to exclude him from S’s life.
33. It is the father’s case that the mother’s plan for moving to Pakistan to resume her career is not feasible or practical. It is his evidence that the family business in Peshawar has in fact been moribund for several years since the mother came to live here. It will therefore involve a very significant effort on the mother’s part if she is going to revive the business and she will, says the father, therefore have to work long hours which will preclude her devoting time to care for S. As a result, much of the responsibility for caring for S will fall upon maternal grandmother. The father is concerned that this will prove too difficult for the grandmother who he says has a broken hip as a result of an assault perpetrated by the maternal grandfather.
34. The father is further concerned about the influence of other family members on S. He has exhibited pages which he says are from the maternal grandfather’s website showing pornographic images of Western women. Father is also concerned about the risk he says will arise to S from the mother’s two brothers living in the family home in Hayatabad, one of whom is the man separated from his wife in the Southampton area following allegations of domestic violence, and the other a man who has, according to the father, suffered from mental health difficulties. The father is also concerned that S’s safety may be jeopardised by servants in the house, according to one incident when a servant stole property from the house. It is the father’s case that the mother will be unable to protect S from these risks within the home particularly if she is required to work long hours in an effort to re-establish her business.
In addition to these risks within the home the father identifies a number of external risks.
First, he points to the fact that the mother has family connections with Afghanistan and is concerned that once allowed to take S to Pakistan she may make a further move to that country. The mother denies that she has any such plans.
Secondly, the father submits that women are treated as second class citizens in Pakistan and in particular in the KPK province which is one of the most conservative areas of the country. He contends that this is not a suitable society in which S should grow up. He relies on detailed evidence on this point from his sister which I consider below and in addition various reports from Government agencies including the Home Office report (page C217 in the bundle). This guidance headed ‘Country – information and guidance – Pakistan – Women’ refers as follows to the issues:
‘1.3.1. In Shah v Islam the House of Lords held that the women of Pakistan constitutes a particular social group because they share the common immutable characteristic of gender. They were discriminated against as a group in matters of fundamental human rights and the state gave them no adequate protection because they were perceived as not being entitled to the same human rights as men.
1.3.2. There have been a number of legislative measures undertaken to improve the situation for women in Pakistan in recent years. However, Pakistan remains a heavily patriarchal society. Levels of violence continue to be high, being rape, “honour” crimes and killings, acidattacks, dowry disputes, kidnappings, domestic violence and forced marriages.’
38. Thirdly, the father relies on the evidence of political instability and terrorist activity in Pakistan, in particular in the KPK province, and contends that S would not be safe. He lists the terrorist bombs and attacks that have occurred in the area and again draws attention to Government reports on this aspect, notably the Home Office ‘Country – information and guidance – Pakistan: Fear of the Taliban and other military groups’ guidance which I have read and from which I quote the following passage:
‘1.3.1. Simply living in an area occupied either wholly or partly by the Pakistani Taliban or other military groups does not give rise to a protection need. In general the risk from the Pakistani Taliban or other military groups will depend on the particular profile of the person, the nature of the threat and how far it would extend.
1.3.2. Primary targets include political and/or tribal leaders, security forces and minority religious groups. However, ordinary Pakistanis including students and those perceived to be opposing the Taliban and other military groups who are not following the Sharia law have also been subjected to violence by these groups. The risk will be highest in the areas where anti-Government groups are operating or have control. Those main areas [include] the KPK province.’
I note in passing that this guidance was updated and dates from May 2014.
39. Finally, the father contends that S would be at specific risk of kidnapping and other threats as a result of her status as a child with Western connections and moreover a child without her father, one whose father is not living nearby. She will therefore need to be escorted whenever she goes out.
Other Evidence
40. In addition to their own evidence on these points, the parties both in writing and orally rely on evidence from others. The mother called two witnesses; the first a woman called GY, a woman from the same part of Pakistan – Peshawar. She gave a similar picture that exists for women in Pakistan and in particular the KPK province as that given by the mother. She accepted that the women in the region were expected to be modestly dressed when out of doors but did not accept that women were oppressed in the way that was suggested. On the contrary, she described the opportunities available to women to pursue education and business careers. She rejected the suggestion that Peshawar would be unsafe for S. She also spoke highly of the mother’s business as a beautician when she was living in Peshawar. GY adhered to this position in oral evidence when she was cross-examined by the father.
41. The mother’s second witness was JB, the father’s younger brother. He is homosexual and said his sexuality had in the past led him to be ostracised by the father’s family although relations had now improved to some extent. It was his evidence that contemporary Peshawar is less conservative than it was when the father’s parents lived there and in fact it is now less conservative than the father’s family are in this country. He was critical of his mother and his sister ShK and their collective attitude towards the mother.
42. The father called three witnesses to give oral evidence. The first was his sister ShK. She has provided a witness statement describing Peshawar as dangerous and extremely conservative. Her five children are living with their father in Peshawar and it is these children who are attending the school to which the mother is proposing to send S. One of these daughters, however, has provided a letter which the mother exhibits to her second statement painting a more positive picture about the life for women in Peshawar. On the other hand, the father has produced a statement from one of ShK’s sons living in Pakistan in Peshawar who broadly supports the picture provided by ShK. SkK said that she did not accept that the letter written by her daughter was genuine. In her statement ShK said that women had to wear a burkha but when shown photographs in oral evidence of women not wearing the burkha she conceded that a headscarf would be acceptable.
43. The father’s second and third oral witnesses were DK and her mother ZK. DK is the estranged wife of the mother’s brother who has alleged she is a victim of domestic violence, the brother being the brother now living in the house in Peshawar. DK and ZK in their statements make a number of disparaging comments about the mother’s ability to care for S. This evidence was largely inconsistent with that provided by the CAFCASS officer to which I shall turn in a moment.
44. In addition the father has filed a number of other statements and letters from witnesses. These witnesses were not called to give oral evidence, Mr Pugh on behalf of the mother taking the view that it would be disproportionate to require them to attend.
45. I make it clear that I have considered all the evidence that the father has put before me both orally and in writing in coming to my decision. Overall I found that the evidence of the supporting witnesses was of limited importance. Relations between the mother and father have plainly polarised and each side has supporters who were I find keen to give evidence supporting the party who called them. On balance I prefer the evidence of GY to that of the father’s sister ShK on the position of women in Peshawar, and I find that ShK’s evidence presented an exaggerated picture of the difficulties and hardships women face in that region.
46. I make it clear in passing that I have also considered the transcripts of recordings made by the father. I do not consider they are material to the information which I have to consider when making decisions in this case.
The CAFCASS officer
47. The CAFCASS officer Mr Chamberlain interviewed the mother at her home address and the father at his request by telephone initially. He also met S at her current school. He reported that she presented as timid and a little anxious and shy. She told him that ‘Mummy and Daddy don’t like each other’ and said that this made her feel sad. Her class teacher reported that S is a very capable child with many positive attributes but also that S is very shy and lacking in confidence.
48. Subsequently, Mr Chamberlain observed S at home with her mother and then with the father in a local park. He observed S to communicate confidently with both parents. Both parents displayed emotional warmth towards her, which was reciprocated. Her parents responded to her needs both emotionally and physically. Mr Chamberlain noticed a marked change in her confident behaviour with her parents as opposed to when he saw her at school on her own. His observations led him to conclude that she has a secure attachment with both parents.
49. The CAFCASS officer provided further information on a number of aspects. First, he reported that safeguarding inquiries revealed that both parents were unknown to the police and Social Services raised no concerns. Secondly, although he himself has not visited father in his home in London, a colleague from the London area has inspected the living arrangements which would seem to be appropriate although there was no garden and lack of apparent age-appropriate toys. Thirdly, Mr Chamberlain received a letter from the mother’s GP confirming that she is being treated for depression via counselling and medications. When he spoke to the mother himself he concluded that although she presented as distressed at the possibility of not being able to return to Pakistan, this did not give him a concern about her ability to parent S. Fourthly, Mr Chamberlain considered the travel advice to Pakistan provided by the UK Government website. It advised against travelling to Peshawar and alluded to serious terrorist attacks on a school in 2014. That is of course the Army school to which I have referred. Mr Chamberlain adds though that this advice is directed to ‘Western travellers.’
50. Mr Chamberlain observes that this is a crucial time in S’s emotional and behavioural development. How she develops now will impinge upon her emotional welfare in the future. There is a danger that ongoing conflict between her parents will cause the child to become emotionally entangled in their relationship, affect her capacity to deal with changes, and lead in the long term to behavioural problems, depression, anxiety and in due course under-achievement. Mr Chamberlain concludes in the light of his interviews that S has been exposed to negativity from both her parents. He does not suggest that either parent is purposely setting out to influence her but, given the high levels of anxiety that each holds about the other, he does not believe it possible for them to shield S from this. He has concern that S may encounter other emotional issues in the future if her parents cannot learn to communicate more effectively.
51. Mr Chamberlain points out that both parents were born in Pakistan and, whilst S can identify with the British culture, she also shares in a Pakistani culture due to her parents’ heritage. She has spent time in Pakistan herself when she was younger and has a number of family members, both maternal and paternal, living in that country. Mr Chamberlain believes it is important that she is able to identify with both British and Pakistani cultures.
52. Mr Chamberlain points out that the mother has always been S’s primary carer and there is no evidence available to suggest that she is at risk of harm in her mother’s care. He observed that the mother is meeting S’s developmental needs and promoting contact between S and her father. She has a secure attachment to her mother and he has no concerns regarding the mother’s parenting capacity. It is his opinion that ‘to change S’s primary carer during her formative years runs a high risk of causing S anxiety, instability and confusion’. He does not doubt that the father is important in S’s life and he has no concerns about the father’s ability to meet S’s physical needs. His telephone conversation with the father however led him to question whether the father has a true understanding of S’s emotional needs because when asked how he thought a change of primary carer might affect her the father said ‘She’ll be fine. She’ll have a nice life and so it won’t be a problem.’
53. In all the circumstances, Mr Chamberlain recommends that S should continue to live with her mother.
54. Regardless of with whom S lives, it is Mr Chamberlain’s view that she should spend time with the other parent. Plainly this is a material consideration when deciding the mother’s application for leave to remove S permanently from the jurisdiction. As to that application, Mr Chamberlain makes no specific recommendation but identifies a number of issues for the court to consider. First, he points out that the significant change in her life, such as living in a new country and starting a new school, would be a difficult process for her in the short term due to her lack of confidence. Mr Chamberlain believes, however, that this would be overcome as a result of her mother’s ability to provide support and stability. Secondly, Mr Chamberlain rightly observes that if S moved to Pakistan the current pattern of time she spends with her father will be disrupted. He notes, however, the mother’s proposal that there should be regular communication via Skype and telephone and that it is her intention to visit the UK with S each summer, which would enable direct contact to take place. Mr Chamberlain concludes that, while S’s relationship with the father would change if she moved to Pakisatan, this does not mean that S would not continue to have a relationship with him. Thirdly, it is the mother’s case that she would have much more support from her family in Pakistan than is available to her in this country, particularly since the breakdown of her relationship with the father’s family. Mr Chamberlain acknowledges that this is the case, although he does not have serious concerns about the mother’s ability to parent S appropriately if they remain in this country. He points out that the mother is accessing appropriate support from her GP at present. Fourthly, whilst acknowledging that in terms of her self-identity and family relationship S may perhaps gain more on a consistent basis as a result of a presence of a large number of members of her extended family in Pakistan, it is his opinion that she will always have an understanding of her heritage and family history wherever she lives, particularly if the mother is able to visit Pakistan on a temporary basis.
Expert evidence
55. I turn now to consider the evidence of Sulema Jahangir, the expert lawyer instructed in this case. Ms Jahangir is a solicitor employed at Dawson Cornwell. She qualified as a solicitor in this country in 2007 and as an Advocate of the High Court in Pakistan in December of that year. She is a member of the Punjab Bar Council and the Law Society of England and Wales. For two and a half years, June 2010 to June 2012, she practised in Pakistan in the fields of family, constitutional and criminal law. She has practised in the Guardian Courts in the Punjab and in the High Court in Pakistan. She is entitled to practise in Pakistan up to the level of High Courts in each province including the High Court in Peshawar. While in Pakistan she worked primarily for a legal aid cell providing free legal aid to women involved in disputes in family matters and to women and children in prison. In this case, she was asked to provide an expert opinion on ‘the law in Pakistan and in particular in Peshawar as to the means by which any order made in these proceedings may be recognised and enforced in Pakistan and in particular Peshawar.’
56. Ms Jahangir advises that, in the area of family law in Pakistan, the personal laws, (that is to say, the religious laws) of each religious community tend to govern in matters concerning the family alongside statutes and judicial precedents. The substantive and procedural laws governing the grant of custody, guardianship and visitation of minors are provided under statutes, in particular the Guardian of Wards Act and the West Pakistan Family Courts Act 1964. Applications for custody, guardianship and contact (known as visitation in Pakistan) are generally made in the Guardian Courts. Visitation rights are a right of both parents and are usually not denied by the courts in Pakistan. When deciding applications, the Guardian Court will normally base the decision on the welfare of the minor. Under Islamic personal law, ‘guardianship’ is of two categories – ‘guardianship of the person’ of the child and ‘guardianship of the property’ of the child. Guardianship of the property of a child is generally awarded to the father and the paternal family. Guardianship of the person of the child is normally vested in the mother up to a certain designated age of the child, depending on whether they are Shia or Sunni. S is a Sunni Muslim and according to the laws relating to such children the female child normally stays in the custody of her mother until she reaches the age of puberty. Ms Jahangir advises, however, that these personal laws will be subject to what the court considers to be in the interests of the child’s overall welfare.
57. Ms Jahangir advised that there are two routes open to parties wishing to achieve the recognition and enforcement in Pakistan of an English court order in children proceedings. First, an application can be made for implementation of the judgment in the civil courts under section 13 of the Civil Procedure Code 1908. This section provides that, where a foreign judgment is made inter partes based on merits and is conclusive, it may be enforced in Pakistan. The Code is not, however, applicable in the Guardian Courts but the law does not bar a foreign judgment in family matters from being implemented through the civil courts. Ms Jahangir cites two cases where the court specifically did not rule out such an application being made in the area of family law. Although she does not know of any case where this provision has been successfully used to exercise a foreign judgment in Pakistan in the area of family law, Ms Jahangir therefore advises that it is possible that an English Family Court order could be enforced in Pakistan under this procedure..
58. The second method is to file an application for guardianship and visitation in the Guardian Court under the 1890 Act. Ms Jahangir proposes that both parties make an application for guardianship along with an application for visitation before the Guardian Court, asking that custody and visitation be ordered in accordance with the orders and judgments made by this court. Ms Jahangir advises that in order for this procedure to be successful it will be necessary for the order and judgment to be attested by this court and/or the Pakistan consulate. The order should clearly set out that father would have a right of contact with the child and to visit the child in Pakistan and details of all such contact arrangements. In this instance, the foreign judgment would be one arrived at following an inter partes decision in which both parties had been heard. Ms Jahangir advises that, as both parties have freely submitted to the jurisdiction of the courts of England and Wales, and provided the terms of the order are not outside the normal range of contact provisions, the courts in Pakistan would be unlikely to alter the basic judgment of this court. When considering applications for permanent custody, the Guardian Court in Pakistan is bound to have regard to the welfare of the child as the paramount consideration. Since this court would also base its decision by considering the welfare of the child, Ms Jahangir considers that this should prevail upon the Guardian Court not to depart from the basic judgment of this court. Ms Jahangir advises an order should ideally be obtained from the Guardian Court before the child arrives in Pakistan. She also advises, however, that, where such an order is obtained on the same terms as the English court order, it will be open to a party to apply at a later date to vary the order or appeal the order granted. There is, she warns, no guarantee that the courts in Pakistan would not then interfere with the order made by this court.
59. Ms Jahangir advises that it is the practice of the courts in Pakistan to order that a surety be furnished if there are apprehensions expressed that either parent would abduct a child once visitation is permitted. She has no experience of a reported case where a surety bond is furnished by a parent with custody or guardianship to guarantee they will abide by visitation rights of the other parent. However, she adds that, if the terms under which such a bond would be furnished by the mother is agreed by the parties, it is likely that the Pakistani Guardian Court would approve its terms and include this in the order. Thus she advises that, where the parties obtain an order from the Guardian Court in Pakistan in the same terms as the English court order as described above. the parties could also agree a direction that the mother would furnish a surety bond before the Guardian Court in Pakistan with conditions guaranteeing that she will allow the father contact with the child.
60. Finally, Ms Jahangir advises that in 2010 the Constitution of Pakistan was amended by the National Assembly so as to give greater provincial autonomy to the provinces including KPK. Pursuant to that amendment certain matters remain within what is called the concurrent legislative list, including marriage and divorce, infant and minors and adoption. ‘Concurrency’ means that there is simultaneous authority with the federal government and the provincial government in KPK to enact legislation in this area. Thus the government of KPK does have jurisdiction to enact further legislation in the area of family law specific to that province. Ms Jahangir advises that to her knowledge there has as yet been no enactment by the provincial government of KPK in this area, and her professional opinion is that it is highly unlikely that a different regime will be implemented for Peshawar.
Discussion and analysis
61. There are three options for S’s future: (1) allowing the mother’s application and permitting her to take S to live in Peshawar; (2) refusing the mother’s application to remove S to Pakistan but making an order that substantially confirm the current arrangements whereunder S lives with her mother in England and has regular contact with the father; (3) making a new child arrangements order whereunder S lives principally with the father and has contact with the mother.
62. I have found this to be a particularly difficult case. I have read and re-read the written evidence including, as I have said, the record of tape recordings and listened to the oral evidence, re-read my notes of that evidence. In the end however I have reached a clear decision.
63. In analysing the options in the way prescribed by the Court of Appeal, particularly in the case of K v K as reconsidered in the latest case of Re F (International Relocation), I shall look at the three options in the light of the factors in the welfare checklist in Section 1(3).
64. S’s wishes and feelings must be considered in the light of her age and level of understanding. S is only just five and has understandably not been asked to express her own wishes about with whom she should live. In the light of Mr Chamberlain’s assessment, which I accept, it is plain that S has feelings of love and affection for and an attachment with both parents and wishes to have a relationship with both of them. I conclude however that her feelings for her mother are probably much stronger and her attachment to the mother is probably much stronger at this stage in her life, if for no other reason than the fact that the mother has been her principal carer throughout her life.
65. I must have regard to the likely effect of any change in circumstances. I accept Mr Chamberlain’s assessment that to change of S’s principal carer at the formative stage runs a high risk of causing S anxiety, instability and confusion. S’s needs include being kept safe and physically looked after, helped with her education, and allowed the opportunity to grow and prosper in every way, and to be given the emotional support that every child needs. I accept that both parents will be able to provide for her physical needs and I am sure each is committed to ensuring that she receives a good education. I accept that the father could meet her physical and educational needs, but I share the CAFCASS officer’s concern as to whether he has a true and deep understanding of her emotional needs. His answers to Mr Chamberlain as quoted above suggested some lack of insight as to the emotional impact of changing her home at this point in her life. I accept, however, that if S moved to live with her father, he would ensure that she had regular contact with her mother. It is also the case that if she lived with her father she would be able to enjoy emotional support from members of the extended paternal family. This would help S grow up with a knowledge and understanding of her family and culture which are important elements in her background. It seems the father can organise his working life fairly flexibly so that he would be able to devote time for caring for S, but in so far as he would need help he would be able to turn to his family. Thus I have no concerns about the practicalities of the father taking over as principal carer. There is however considerable cause for concern about the emotional consequences for S of such a change.
66. If S stays with her mother as principal carer but living in this country, she will continue to go to school in Southampton and have contact with her father on alternate weekends as at present and presumably for longer periods in the holidays/ Her emotional needs will plainly be met in a way that they would not be in my judgment if she were uprooted and moved to her father’s care. There would be no change of circumstances. Furthermore, in contrast to what would happen if she moved to Pakistan, she would be able to see her father regularly and presumably his family as well and would benefit emotionally from a close and deeper relationship with them. On the other hand, I note the mother’s evidence – which I accept – that she feels isolated and depressed in this country, having lived here for only a comparatively short part of her 40 years, and that in contrast to her prospects in Pakistan her options for financial independence in this country are limited. The father accepts that during the marriage the mother was at times not happy here and preferred living in Pakistan. I accept what he says about this, which is consistent with her position now. I consider that these problems are likely to be exacerbated if she is refused permission to take S to Pakistan and that this would impinge upon her capacity to care for S. It is therefore possible that S might suffer directly and indirectly if the mother is obliged to stay in this country.
67. If the mother is permitted to take S to live in Pakistan, she will be returning to the life that she has lived for most of her life and to her family, and would not therefore feel as isolated as she does in this country. The mother will be able to return to her career in the family business. The father has queried whether that business is functioning effectively at the moment since the mother came to this country. It may now need considerable effort on the mother’s part to revive it but, having heard and read her evidence, I consider that the mother has the skills and the determination to do so. It will take time and effort and that may mean at times she is not always available to care for S but, having considered her evidence, I accept her assurances that other family members, in particular her own mother, would be able to help, and that S would possibly be able to spend time with the mother while she was working in the house with her clients. Another advantage is that S would be able to form close relationships with the maternal extended family, an important part of her heritage, although I accept of course she would see her paternal family in this country less frequently.
68. If the mother moved to Pakistan with S, there will be a very considerable change in her circumstances. She will no longer be able to have regular fortnightly contact with her father. This would be undoubtedly an emotional loss for her. On the other hand, I believe the mother is being genuine when she says that she is committed to ensuring that S sees her father every summer when she brings her back to this country and that she will make S available to see the father in Pakistan whenever he visits and will also facilitate regular contact by Skype. The father expresses concern about whether it is safe for him to visit Pakistan but he has done so in the past and, having heard and considered all the evidence, I consider that he is exaggerating the risk to himself if he visits there again. He has the means and ability to visit S if she is in Pakistan at least twice a year, possibly more frequently. It follows that the emotional loss that S will undoubtedly suffer from not seeing her father will be reduced to some extent by contact in the holidays for several weeks in the UK in the summer and during visits by the father to Pakistan as well as the contact by Skype and phone. Assuming S has the contact suggested by the mother, I do not consider that this aspect of the change of circumstances – a change in the frequency of contact – would have a significantly detrimental effect upon S.
69. The father puts forward other arguments why the proposed change in circumstances would be hard for S. He raises concerns about the behaviour of the mother’s brothers and father, and also draws attention to the incident of theft perpetrated by a servant working for the family. Having seen the mother, read and listened carefully to her evidence, and having considered the view of Mr Chamberlain, I conclude that, in so far as her male relatives are capable of such behaviour, the mother would protect S from adverse consequences. I accept her evidence that her parents are now more careful about whom they employ.
70. A major focus of the father’s case has been on the external threat to S. He portrays Pakistan, and in particular the KPK province and Peshawar, as more conservative and traditional with a society that treats women as second class citizens. I have carefully considered all the evidence he has put forward in support of his argument on this point, including the evidence exhibited to his statement and the statement of his sister. I accept that, by Western standards and through Western eyes, women and girls are seen to be treated differently, but it would be wrong for this court to consider this issue only by Western standards and through Western eyes. Millions of women and girls live and prosper in the community of KPK. I do not agree with the father’s suggestion that it would be harmful to S to be brought up in such a society. There are of course more extreme societies elsewhere in the world where woman and girls are at risk of significant harm and in appropriate cases this court will take steps to protect them. In my view, this is not such a case.
71. The mother’s plan is that S should return to live and grow up in the same society in which she grew up. Section 1(3)(d) requires me to have regard to S’s background and any characteristics of hers which I consider relevant. S’s maternal family live in Peshawar in a more conservative society and her mother has lived there for most of her life. That is in my judgment a very important part of her cultural and family background and heritage. Of course, her paternal family is equally important.
72. The father suggests that S’s safety and security will be threatened as a result of political activity and terrorism. He further contends that as a child with Western connections S will be at greater risk of kidnapping. I accept that the incidence of terrorism is high in KPK province – higher than in other parts of Pakistan – but I do not consider it to be at a level which is going to give rise to a significant risk of harm to S. I accept that her Western connections may conceivably mark her out but it is more likely in my judgment that she will be seen as a child of local background and local heritage as part of her maternal family. The mother is plainly a very protective and responsible mother who I judge can be trusted to take all reasonable steps to ensure her daughter is safe.
73. The father attaches very great weight to these factors and I have given them very careful consideration. Ultimately, however, I have concluded that they do not amount to significant arguments against giving the mother permission to relocate to Pakistan with S.
74. At this point in the context of my overall welfare analysis I consider the guidance of the earlier relocation cases. First, I conclude that the mother’s application is genuine. The father is suggesting that the mother has an agenda to separate him from S and to make it difficult for them to have a healthy relationship. I disagree. I do not accept that that lies behind the mother’s application. I find that she is genuinely committed to ensuring contact continues. It is not in my judgment motivated by any selfish desire to exclude the father but rather by a sense that she is isolated and disadvantaged here and will be able to make a better life for herself and S in Pakistan. Secondly, I conclude that the plans she puts forward are both realistic and well researched and investigated. She plans to return to live in the family home and to resume her business career which was successful before she came to this country. I think these plans are realistic. In addition she has put forward after investigation a proposal for S’s schooling which I consider to be well researched and realistic. Thirdly, I do accept that the father’s opposition is motivated by genuine concern for S’s future. To some extent his relationship with S will be affected because he will no longer be able to have as regular contact as he has enjoyed in the last nine months. I conclude, however, that the mother is being genuine when she says that she wishes to encourage contact and any harm to S through not seeing her father so regularly can be reduced if she sees him for the prolonged periods proposed by the mother, albeit less frequently. It will also be to S’s advantage that she will be able to build up close relations with her maternal extended family in the mother’s homeland. As for the impact on the mother if the court refuses the application, I find she will suffer considerable stress and a sense of isolation and in all probability depression and that this will have an impact on S’s welfare.
75. When considering what order the court could make, I accept the expert evidence of Ms Jahangir. It does seem to me to be appropriate, if I permit the mother to remove S, that I should require that she uses her best endeavours to obtain an order from the Guardianship Court in Peshawar, as suggested by Ms Jahangir, incorporating the terms of any order made by this court. I regard this as a desirable course but I do not see it as essential that such an order be obtained before the mother is permitted to remove S to Pakistan. I trust the mother to abide by whatever order I make as to contact.
Conclusion
76. Drawing these threads together and having carried out a thorough analysis of all the options individually and comparatively, I have reached a clear conclusion that S’s welfare will be best served overall by an order permitting her mother to remove her from England to live in Peshawar in Pakistan. The evidence strongly suggests that S’s best interests will be served by remaining in her mother’s care. I accept Mr Chamberlain’s analysis that to remove her and place her in the principal care of the father would be contrary to her interests and could cause her emotional harm. S’s primary and principal attachment is with her mother. I accept the father loves her and sincerely wants the best for her. But I conclude that he lacks a detailed understanding of her emotional needs. He does not fully comprehend the impact it would have on S to remove her from the primary care of her mother. It is manifestly in S’s best interests to remain living with her mother.
77. The question whether the mother should be permitted to remove her from the jurisdiction is more finely balanced, but in the end I have reached a clear conclusion that this is the best outcome for S’s welfare. Her welfare will be better served living with the mother in Pakistan where the mother can resume her career and live with the support of her family. I regard it as an advantage for S to be able to live with her mother’s community where she will come to a better understanding of her cultural heritage. I do not regard it as a significant disadvantage for her to move to a society where women are by Western standards treated differently. This court respects cultural diversity and acknowledges that there are different views as to how society should be organised and how children should be brought up. The mother comes from that community herself and I do not regard it as in any sense harmful for S to move there.
78. I have considered carefully the evidence about the risk of political terrorism and kidnapping but conclude that there is no significant risk to S as a result of these activities. It is a factor to be placed in the scales but ultimately not one which carries significant weight.
79. The main argument against allowing the mother to remove S is that it will affect her relationship with her father and his family here. S and her father have a loving bond and it is very important that this should be maintained. S’s paternal family is just as important a part of her heritage and background as her mother’s family and a relationship on both sides must be sustained as far as possible. S will no longer be able to see her father on the same basis. Skype contact is useful and important but not the same as spending time together. The mother has, however, proposed bringing S back to the UK every summer holidays for a three-month period during which time she will spend under the mother’s proposal six weeks with her father. In addition he is welcome, she says, to go and see S in Pakistan. Although this will not be the same as contact he has enjoyed recently, it will be a significant amount of contact in total and coupled with the contact via Skype I conclude that it will enable S and the father to maintain a close and loving relationship.
80. I conclude that this is the right outcome for S. I conclude that it is a proportionate outcome, having regard to all the Article 8 rights of the parties and the child.
81. Although I do not regard it as an essential precondition of my decision that there should be an order taken out in the Pakistani Guardian Court I do think that it would be helpful if the parties could obtain such an order in the same terms as the order I shall make today so that the legal obligations and rights are clearly stated in both countries. I shall therefore direct the mother to file an application in the Guardian Court. Ultimately however I accept her assurances that she will comply with the order I am making. The mother has also offered to lodge a bond in the sum of £2000 to guarantee her compliance with the terms of this order. I accept this offer.
82. I shall therefore make an order in appropriate terms including:
(1) a child arrangements order whereunder S shall continue to live with her mother;
(2) a specific issue order permitting the mother to remove S to Pakistan permanently;
(3) an order that the father shall have contact as follows:
(a) during the summer each year for a total of six weeks’ staying contact in England on dates to be agreed between the parties;
(b) staying and visiting contact in Pakistan on dates to be arranged between the parties;
(c) contact once a week via Skype, I would suggest for a period of not less than 30 minutes;
(d) such further or other contact as may be agreed between the parties including telephone contact;
(4) I direct the mother to lodge a bond in the sum of £2000 by way of a surety to guarantee compliance with the terms of this order. I leave it to the parties to discuss the terms upon which this order should be finalised;
(5) I direct this judgment to be transcribed at the joint expense of the parties;
(6) I direct the mother to file an application in the Guardian Court in Peshawar after her arrival there with a view to obtaining an order from that court in the same terms as this order.
(7) I give permission to the parties to disclose the transcript to the Guardians Court in Peshawar for the purposes of obtaining an order in the terms of this order.
I will consider any further or ancillary orders the parties may now suggest.