MA v TA

This is my judgement explaining the reasons for the child arrangements order I am making concerning the nature and scope of time a 3-year-old boy Z born on the in November 2020, should spend with his father TA. Contact time both here in the UK, where he lives with his mother MA, and more problematically, in his father’s home country the United Arab Emirates (UAE).

The principle of contact is not disputed. The differences between the parents as to the UK arrangements are small. The issue on which the parents disagree is whether at some point Z might have contact with his father and spend time with him in the UAE. Father wants this to happen late summer of 2025 when Z is about 4 ½ years old and just before he starts school. If this is to happen I must review a prohibited steps order made early in the application. Mother is totally opposed, fearing father will keep Z in the UAE or take him from there to Pakistan.

I will refer to the parents as mother and father and the child as Z. Mother is represented by Ms Kate Yeomans and father by Ms Mehvish Chaudhry both of counsel.

Mother is 31 years old, born in 1992. Father is 33, born in 1989. They met on the Internet and had an Islamic ceremony of marriage in 2018. Father whilst born in the UAE is by birth a Pakistani national. Mother has Pakistani heritage although is of dual nationality being resident in the UK. Father works in financial services for a Bank in the UAE. Mother is a secondary school teacher in the UK.

Z was born in November 2020 in the UK. Mother with father’s full blessing had returned from the UAE to the UK in the latter stages of pregnancy wishing to have the support of her mother at the time of birth. Until then they had lived as husband and wife in UAE. Their marriage is valid and recognised in Sharia law. There was no civil ceremony in the UK. When Z was born father signed the birth certificate and therefore acquired parental responsibility. In June 2021 seven months after the birth mother and Z returned to the UAE. They lived with father and his family until the relationship broke down and mother returned to the UK with Z on the 20^thNovember 2021.

The relationship breakdown was a sad one. If the text messages attached to the statements of the parents are a fair reflection of the separation it was characterised by emotion, upset, feelings of anger and hurt which have framed the events which followed.

It is important I record that in the statements made by mother and in her oral evidence she made allegations of domestic abuse against father. Father claimed controlling behaviour by mother. These have not been particularised. At the start of the application both were legally represented and made clear to the case management judges, more than once, that they did not consider the conduct and behaviour of either to be a barrier to contact between Z and his father. Whilst it is not specifically referred to in the orders, recordings made in them show that practice direction 12 J was engaged in their minds. Both accepted that the circumstances of their separation, and any behaviour during the marriage did not require any judicial finding of fact. It must be that all concerned including the court did not consider it necessary or proportionate to do so to resolve the welfare question which was the time father spent with Z.

In short both agreed the father should have a relationship with Z and the only question was the specifics of the arrangements and whether it was safe to take place in the UAE. Both agreed in those early hearings to direct and indirect contact between Z and his father in the UK. Cafcass reported there were no safeguarding issues.

At the start of this final hearing, I asked for clarity from mother’s counsel as to whether domestic abuse was an issue. Practice direction 12 J is engaged at every stage of an application and my concern was the number of occasions that I had read references to domestic abuse. There seemed to be some lack of clarity as to mother’s position on this even though it was listed as the final hearing and the application had commenced 16 months earlier. The case was stood down on no less than three occasions for counsel to speak to mother and during one recess they had a conference with her solicitors. At the conclusion of this process mother’s counsel made clear no findings of domestic abuse were being asked for.

Mother returned to the UK in November 2021 when Z was just a year old. A period of about 3 to 4 months passed before any contact arrangements were agreed with father. He visited the UK twice in February and April 2023, once with his father and supervised contact was allowed. There was little agreement however between the parents about how contact might progress. Most of the discussions and negotiations took place through the extended family.

The text messages between mother and father in the short period before separation show that mother made father aware of her plan to return to the UK and with Z. The UAE has not signed and ratified the Hague Convention on Child Abduction. It does not recognize the legal concept of habitual residence. Its legal system derives from Sharia law.

The consequences would be well known to these intelligent parents at that time. If father had wished to prevent mother or Z leaving the UAE, he could have exercised his guardianship powers to apply for travel bans. He did not do so.

By the summer of 2022 there was no agreement on contact and father instructing his then solicitors Stowe Family Law to write to mother which they did on the 4 August 2022. Whilst mother is pressed for an answer on father’s contact proposals and legal proceedings are alluded to in the main this is a conciliatory routine letter that invites agreement outside of court proceedings. It records, presumably on instructions from their client, that Z was living with mother on a permanent basis in the UK and referred to him paying financial support.

Rather than replying to this letter a week later on the 11^thAugust mother applied to the family court for a without notice prohibited steps order. A without notice hearing was refused and the application was listed on notice on 23^rd August 2022. At that hearing before a District Judge the order records first that mother did not view the allegations she made in her statement accompanying the application as a barrier to unsupervised contact long term. Second in recording 7 that contact in the short term should be supervised. This was argued on capability grounds: father had not cared for Z for any significant period. Mother agreed for contact to take place supervised for up to 2 hours per day either in a contact centre or in the community. The judge made a prohibited steps order against each parent preventing the child from taking been taken from the jurisdiction. Father indicated to the court that he intended to make an application for a child arrangements order and this was issued on 27 September 2022.

For reasons that are just not clear the matter did not return to court until 17 February 2023. It was seen by a District Judge who noted that the safeguarding letter dated 12 September was incomplete. He ordered an updated letter by 19 May 2023 and listed a First Hearing Dispute Resolution Appointment (FHDRA)on 22^nd May 2023. The issues were identified: the court mother’s request for a live with child arrangements order within her application for a prohibited steps order; father’s application for a spend time with child arrangements order; mother’s request that the prohibited steps order made against her be discharged; lastly any interim spending time child arrangements order. Once again it is recorded on behalf of mother that the unparticularized domestic abuse allegations were not a barrier to contact. Finally, it is recorded that if father was coming to the UK, he should contact her solicitors to arrange contact supervised either by the maternal grandmother or at a contact centre.

The FHDRA was conducted by a DDJ with Cafcass attending. Both parents agreed to mother having a live with child arrangements order.

The contact arrangements were supported and supervised by an ISW’s within a local respected Agency. The notes of these are in the bundle and are positive.

At the October final hearing it soon became apparent that the primary problem concerned contact in the UAE. There were no experts’ report on the enforceability of any UK order in the UAE. It was agreed that the final hearing could not proceed. The application with the approval of the DFJ was reallocated from the district bench to the circuit bench. Interim arrangements for face to face-to-face contact whilst father was in the UK were decided by the judge on submissions and indirect contact as before continued. It was listed for a directions hearing before me on 1^st of November2023.

At that hearing I gave permission for the parties to obtain as a single joint expert a report from a highly experienced barrister and expert in Middle eastern law Dr Ian Edge of 3 Paper Buildings and timetabled the application to this final hearing.

Dr Edge’s report, dated the 25^thNovember is agreed. Accordingly, the only live witnesses I heard are mother and father.

Before I turn to the parents however a summary of Dr Edge’s comprehensive report will lend context to the risk assessment of Z visiting and spending time with his father in the UAE.

Mother provided three written statements. The first a note attached to her C 100 supporting her application without notice for a prohibited steps order. In the fifth sentence she explains the reason was that father had threatened to take Z away from her and back to the UAE. She had been advised by the British embassy not to return to the UAE. She said father had very little involvement in Z’s care both whilst in the UAE and after she left. She was concerned father was unaware of Z’s food allergies. He could have contact with Z but only supervised either by her or her family in the UK.

In her first court directed statement made on 21^st July she said that she was ‘now aware that she can never return to the UAE and that father may have applied for a travel ban although that this wasn’t clear’. She was worried about the consequences for her in the UAE. She criticised father for lack of engagement as a parent both in the five months they were together in the UAE and since her return to this country. Worried about Z’s milk intolerance and whether father could manage this. She criticised his family particularly his grandmother describing her as illiterate and conservative and unable to properly meet Z’s needs. She criticised father not being present Z’s birth even though they had agreed she give birth in the UK (apparently father was on the plane at the time). She considered father unable to properly manage Z’s eczema. Concerned about abduction she said both he and his family had strong links to Pakistan and were constructing a family home in Pakistan. Father had no right to remain in UAE independently of his work which she described as insecure. She was also critical of father’s contact in February and April, not bringing appropriate food, nappies and being distracted. She opposed any unsupervised contact until 8- 10 supervised contact sessions had taken place and Cafcass gave the green light. She wanted independent evidence from an independent Social Worker (ISW) that he can care for Z properly. She said that once Z is in school full time (in September 2025) she fully supported alternative weekends with his father in the UK. Quite how this could be achieved when father lives and works in the UAE is difficult to understand. Overnight contact she said might be possible when Z is older and in secondary school.

Mother’s second witness statement filed shortly before the final hearing comments upon the supervised contact describing it as ‘relatively trouble-free’. This strange description of the contact notes is hard to reconcile with 99% of the information contained in them which describe a close relationship between father and son and positive contacts. She explains this by saying that father had ‘hidden in his true self’ to the ISW’s. This statement again asserts unparticularized domestic abuse despite those issues having been put on one side by both in the recordings to previous orders. Anticipating that the court may consider her overprotective and anxious she explains that the court has not seen father for who he truly is. She did not believe that he can offer the level of care and security needed by Z and which would be in his best interests although didn’t expand on how.

She said ‘I am now aware that I can never return to the UAE and that I may be arrested if I return’. No evidential basis for this proposition is put forward anywhere. In live evidence she said neither she nor her lawyers had checked with the UAE police as to whether there is a travel ban or indeed any form of restriction upon her returning to the UAE as an independent religiously divorced Muslim woman. She simply said it was up to father to get this information not really understanding how odd it would be for him to ask the local police if he had asked them to implement a travel ban when on his case he knew that he hadn’t. And she had not asked him to. The comments about the deficiencies in father’s parenting and that of his family are repeated and she complains about the absence of child support. Her proposals for contact were that father should visit regularly which can begin to become unsupervised in the UK for 4-6 hours provided there is a prohibited steps order in place and provided father provides meals, nappies, details of his accommodation and travel including acquiring a toddler seat (she was not prepared to share). Overnight contact was not possible or contact in the UAE. In the former case because Z had not had a night away from mother and it was not in his interests for that to happen and in the later because of the risks set out in paragraph 67 of Dr Edge’s report.

In cross examination when asked initially whether she thought father could provide anything positive to Z she could not think of anything and after a pause replied that in her eyes, she was a ‘sole parent’. When the positive comments father had made about mother to Cafcass in safeguarding, to the ISW during his supervised contact and positively to Z himself during that contact, she was unwilling to accept that these statements were genuinely made commenting that ‘he had to do it’ inferring that this was done cynically for the purposes of the application. Cafcass officers and ISW’s are not fools. They can detect when parents are behaving with insincerity. There was not the slightest suggestion of that here.

She said father had no relationship with Z. Asked about the contact notes which describe a warm and close relationship she replied that this was only the case ‘recently’ and then only because of the care she had given to him. This was the first of a sequence of direct contradictions by the mother in her evidence. Within a few sentences she went from asserting that he had no relationship with his father to one in which he had. She in fact ended this sequence of her evidence by describing the relationship as important! There were moments in mother’s evidence, and this was one, where I thought she was just making it up as she went along.

When asked if she could identify any risks or potential harm to Z if he grew up without a close relationship with his father, she answered that she thought the risks were very small and it probably just revolved around his sense of identity. She quickly moved on to say that father didn’t provide financially, then correcting herself by saying that her views were nothing to do with finances. What struck me about this part of mother’s evidence was her inability to be able to identify or accept how father might contribute or provide anything positive into the life of his son. It caused me frankly to reflect on whether mother is genuine in saying she wishes to promote their relationship. And the linkage in her mind between money and contact.

Whilst father had parental responsibility, she accepted that she had not spoken to father or consulted him about preschool or indeed on any issue of parental responsibility. As she said ‘I make the decisions’. When pressed on this point and agreeing she would communicate and consult with father in the future I was left feeling the concession had been wrung out of her and was reluctantly given.

Mother said that she did not think father was committed to Z. Had he been committed she would not have left the UAE. She said he only demonstrated commitment after these applications were made. Reminded of all the messaging and the pleas for contact, the visits to the UK in February and April, the solicitor’s letters, these proceedings, his attendance on parenting courses she accepted he had been committed although wanted him to attend a first aid course also. She agreed this had never been suggested before.

There was a sharp difference between the written record and mother’s description of Z and his engagement with supported contact on the 17^thAugust 2023. The supervisor LP records mother saying to her that Z was tired and ‘wasn’t happy to be coming back’ to the contact. LP however found Z cheerful and excited upon arrival, comfortable in his father’s company, holding his hand, pulling him to different parts of the venue. And despite becoming tired towards the end still eager to play until the very last moment. She described father showing affection to Z and this being a very positive contact. Questioned about this discrepancy mother could not explain other than to say that as his mother she knew him ‘best, more than the court and the ISW’.

She was resistant to acknowledging anything positive about father’s care of Z during the supervised contacts despite all the positives set out in the contact records, explaining that father’s care was only ‘adequate’ because the ISW was present inferring again that father was cynically putting on an act to impress the ISW to improve his prospects in the application. When pressed on this in cross examination she adjusted her qualitative assessment of father’s care from adequate to high quality but again maintained this was only because the ISW was present.

She acknowledged father loved Z but was concerned about father’s ‘type of love’ referring to the time before they returned to the UK and the lack of help and support from father and his family. Mothers commonly take charge in the early weeks and months of a baby’s life. It is quite a leap to say that fathers who accept this somehow do not love their baby. Listening to their evidence and reading the text exchanges I wondered if this mother and father had struggled to make the necessary adjustments within their own relationship following Z’s birth.

Everything changes when a baby comes along, and it presents challenges to all parents in their relationship. It is not uncommon that a mother’s time and attention moves away from her partner and towards the child and for the partner to start to feel marginalized and move away. It is not uncommon for the mother to then feel unsupported. The close physical and emotional relationship between the couple can deplete at one and the same time as those between mother (or primary carer) and baby strengthens. These problems do not arise in every family but are not uncommon. Most parents with forbearance understanding patience and empathy navigate their way through them. Some parents don’t. Mother and father here appear not to have done.

The text exchanges between them reveal mother is capable of verbal abuse and racial stereotyping. In cross examination mother rejected the latter point saying that as a Pakistani woman she could not make racist comments against another Pakistani national. Describing father however as an idiot, a typical Pakistani (and candidly conceding that she had no regrets about saying these things) illustrated that she was capable of verbally abusing father and lapsing into lazy racial stereotypes. As a British educated Pakistani woman, she saw father and his family as inferior to her. At the end of this section of her cross examination she conceded that she had no right to say these things and apologised for them. The apology did not come at the start of this part of her evidence. As I will return to there were several moments in mother’s cross examination when she made apologies. They came in my view too easily and felt insincere.

She was critical of father not spending enough time with Z without reflecting on the possibility that she had contributed to this by blocking contact with him when she left. She describes wanting him to be an active father but couldn’t quite explain how this was possible when contact was not being promoted. She had a very poor view of father describing him and his family as conservative and patriarchal. Never buying a toy for the baby before she returned to the UK and spending time with his family and friends at her expense. The photographs attached to father statement which show happy family moments were not she said typical.

She agreed that after she left the UAE on 21^st November 2022 she did not promote or facilitate indirect contact with father. She said this had no impact upon Z because he was very little at the time. She simply left it to the extended family to sort out the problems. When questioned about whether this was the right thing to do, she apologised and said she didn’t do it out of hate.

On this, in fact on each occasion when mother apologized, I formed the view that it was very much a response to her finding herself in a situation where she had no real credible answer. An apology should flow from genuine insight and reflection into a mistake made and be sincerely meant. I am sorry to say I did not get that sense from mother. To cut off father from all communication with his son was unkind and hurtful. There was no risk to Z. She could have provided photographs, updates even a FaceTime call. She did none of these things. And with it inevitably increasing the probability of these court proceedings.

When father travelled in February 2022 to see Z she accepted that his time with him was minimal answering ‘we facilitated what we could’. This was supervised time which mother insisted upon and could not conceivably have been unsafe. In April when he travelled to the UK one meeting took no longer than five minutes before he was taken upstairs. Mother explained that he was taken away so that they as parents could talk.

It is not easy when couples separate but nevertheless a fundamental part of parental responsibility that parents promote the relationship between the child and each other where it is safe to do so. That is a shared responsibility. In those first 4 months mother did not. There is no suggestion at this time that father was threatening abduction. Indirect contact would have been perfectly safe.

She said that later when indirect contact was agreed she had been committed to it although this was inconsistent with the documentary evidence. In the 18^th recital to the order of 17^th February she agreed to send pictures photos videos and updates to father monthly. Father says they were not sent promptly, sometimes at all. At page 150 of the bundle mother’s solicitor wrote to father solicitors sending three months’ worth of photographs demonstrating (aside from what either parent might say) that between March and May they had not been sent. When confronted with this mother once again apologised and promised to stay on top of it in the future. This cast a shadow of doubt over mother’s statements that she would promote contact.

When questioned on whether there was a continuing need for the supervision of contact, she accepted it was no longer necessary. That said she qualified the answer by saying that it must not intrude upon her time with Z and time with father must accommodate his continuing attendance at nursery and playgroup as she was paying for it. She was also wanting details of the accommodation that he was staying at, the transportation he would use, confirmation that he would personally prepare Z’s food from home and provide her with details of what he was eating. To some extent mother’s underlying concerns here have validity. Z has a serious dietary issue with milk intolerance and also a medical problem with eczema. These are however manageable challenges to any parent and ones father has said he will.

It was difficult to rationalise mother’s position on contact generally as anything other than parental micromanagement of the care of the other. The information mother provided as to Z’s attendance at nursery and playgroup (presently just half days only) with mother working full time illustrated that the maternal grandmother is very closely involved in his care at times when mother is working.

When asked about whether father might have unsupervised overnight contacts with Z from November 2024, she replied that she would personally prefer him not to have overnight contact because he is used to his bedroom and ‘needs me to sleep’. She said she did not feel comfortable with him spending overnight with father in the UK for many reasons which she could not articulate other than to making oblique references to his safety and night-time routine. She thought when he was older, perhaps 8 or 9, overnight contacts might be possible. She describes him as having ‘complex needs’ although could not articulate what they were beyond the asthma and the dietary issue. She believed firmly that father would

Asked about her concerns over contact in the UAE she accepted that she had travelled abroad with Z by plane, and he had a large extended family in the UAE that it was important he had a relationship with. She opposed contact in the UAE as it was just not safe referring to the risk issues set out by the Dr Edge at paragraph 67 of his report: the required consent and cooperation of the parties (which ironically she was unwilling to give), the time and cost of setting up a registrable agreement in the UAE courts, the possibility one might use the local law for their own ends and lastly the lack of authority in the UAE where a breach of such an agreement or judgement has been challenged or considered by the local courts. As an aside this fourth point may be an indication of the success and durability of these agreements rather than their vulnerability. In short, they might just work. Alternatively, they may be entered into only by honourable parents who intent to stand by their agreements. Or perhaps both are at play here. They work for the honourable and trustworthy, and by deterrent the not so.

She acknowledged that Z knew his father lived in the UAE. She would never travel there however because of the advice that she had been given by the UK embassy in the UAE and the police. The only evidence of communication with the embassy was the May 2023 email which said nothing.

The risk associated with Z travelling to the UAE however is in plain sight and in one sense does not have to be evidenced beyond the points made by the single joint expert. The UAE is a non-Hague Convention country in which the law is Sharia-based one in which the father alone has guardianship and with it the ability to exercise significant control over the movements of his son.

Mother therefore is entirely right to be concerned about this and the risks that it presents both to Z and their important relationship. Risk assessment however is not the same as risk elimination. The court must identify the risk, consider the likelihood of it happening, consider the consequences for the child’s welfare and lastly what might be taken or done to mitigate the risks. Looking at and evaluating the very different circumstances of each case. The court must evaluate and balance the welfare benefits to the child of contact in the parent’s home country against the risks that presents to the child.

Mother made clear that she would not travel with Z to the UAE considering this would put herself at too greater risk so father would have to collect and take him back to the UAE. She was concerned Z had never travelled on a plane without her. Neither would she agree to preparing and lodging in the UAE courts a settlement agreement canvassed as a credible solution by Dr Edge. She simply would not agree with it. If there was any risk at all, why should she agree to it? At the end of her evidence when I asked her whether she thought Z was more or less at risk without an agreement in having contact with father in the UAE she rowed back from this position and said that she would cooperate with an agreement if it was thought contact should take place there.

She agreed that she had seen no evidence of father asking the UAE authorities to impose a travel ban on her or Z. The email from the British embassy at page 244 the bundle seems to suggest the opposite recording father’s conversation with the proconsul in which he said to them that his preference was to navigate a solution to his problems with contact sensitively. Importantly he declined to open a parental child abduction case. There is nothing in this email suggestive the father was intent on being vindictive with mother or indeed exploiting the undoubted legal advantages that are open to him as a Muslim father in the UAE.

Mother described being kicked out of the family home although the text messages suggest that having laid down an ultimatum to father and giving him notice that she was leaving that’s what she did. She left; she was not kicked out. She was prevented from returning but that is different.

In her own risk assessment on abduction, she relied heavily on father’s nationality, the fact that he is a Pakistani passport holder with strong connections through his family in Pakistan. She thought little of the golden Visa which father was entitled to apply for in December of this year or the golden Visa which his father had been granted recently. Mother had a particularly negative view of Pakistan evidenced in the text exchanges between them evidenced at 142 of the bundle. Father’s birth in the UAE, his employment there and his stated plans carried little weight in her assessment. Believing him just to be a very good actor. She accepted everything that was said in the single joint expert’s report but still felt the risks were too high.

In re-examination mother relied heavily upon her own well-being and how that would be significantly depleted if permission was given for contact in the UAE. The risks were now twofold the risk of Z being detained in the UAE and secondly the effect upon her health and wellbeing as Z’s primary carer. There was no medical evidence however on the last point.

Mother presented at different times as variously calm thoughtful and determined, then when questions became difficult and hard to explain emotional and vulnerable. She is an intelligent woman. A schoolteacher, describing herself in evidence as a safeguarding lead and who clearly understands the issues. She plainly has a very poor view father and has not moved on from the relationship breakdown. There is no credible evidence of domestic abuse within their relationship and every opportunity has been given for this issue to have been considered should it be relevant. Father himself accused mother of controlling behaviour but has also has not pursued it. Unlike mother it was not mentioned by him again. The broad tenor of all the text messages exhibited suggest a sad battle of equal intellects whilst they were descending into the awful breakdown of their relationship. Mother was stuck very much on the premise that as Z’s mother she knows best and resists any other view.

All children need available attentive parenting attuned to their needs. Mother has provided this although listening to her there were many times when I felt her approach to parenting was dogmatic to the point almost of being suffocating. She has not promoted Z’s contact to father thinly attempting to justify this on safety grounds either in terms of abduction or on father’s parenting skills which have been independently shown by the ISW to be fine. She says in evidence she wants to promote contact but conducts herself quite inconsistently with these statements. She has accused father of not supporting her in parenting Z at the same time as preventing him by denying contact from doing so. When inconsistencies in her evidence and behaviour are put to her and conceded she gave insincere apologies or explained by describing it as ‘her truth’ as though truth is a wholly subjective concept detached from facts and evidence. I am sorry to say I found her an unsatisfactory witness.

Father relied on two statements. The first dated 31 July 2023. Whilst a Pakistani national he was born in the UAE working presently for a bank based in the UAE. He can apply for a Golden Visa in December this year which if granted will entitle him to live in the UAE for 10 years with or without employment. Piecing together the events of 2021: the many phone calls between mother and the maternal grandmother; the return to the UK to give birth and the long stay afterwards; the comments directed to him and his family by the maternal family when they visited in October 2021, and the changing attitude of mother towards him including the derogatory language used he had formed the view that their relationship had disintegrated under the influence of the maternal family. This did not augur well in terms of maintaining his relationship with Z once mother had returned to live with her mother. Nevertheless, after mother left and when he spoke to the British Embassy, he told them he did not wish to open a case of abduction against mother. This is independently verified by the email later sent.

During his February visit to the UK, he described a mean-spirited approach by mother and her family towards facilitating his time with Z. He returned at the end of March with his father for a family funeral and described meeting a similar response.

He was hoping to return in August and tried to agree arrangements for contact. When unsuccessful he instructed his solicitor to send a letter that resulted in mother issuing this application. Mother was only prepared to agree contact if it was supervised. Her cooperation with the ISW were poor. There is a communication from the ISW support agency to mother referring to her failure to engage with them.

Father had by then taken advice from a UAE lawyer who had suggested entering into a settlement agreement (like the advice later given by the single joint expert Dr Edge)

He proposed 3 periods of contact in the UK annually using his leave of 20 days, all unsupervised and by July 2025 when Z was 4 ½ years old two of those periods moving to the UAE.

Father’s second witness statement is dated 27 November 2023 just before this hearing. It extensively quoted the positive comments in the contact notes prepared by the ISW’s following the supervised contacts in August and October. The ISW’s reports are unchallenged.

He described arranging direct contact with mother as difficult experience. Some of the arrangements only being finalised at the very last minute.

He wanted indirect contact to continue and be better managed by mother. Fewer distractions, toys put away for a short time, although accepted it was always going to be a challenge to keep a three-year-old engaged. His contact plan remained the same. In the UK three times a year in April July and November unsupervised. To include overnight contact for one night after two further visits to the UK. In other words, starting in a years’ time in November 2024.

He agreed to enter into the family agreement suggested by Dr Edge, give the suggested oaths on the Koran and provide the security deposit.

In cross examination he was first asked about his attitude to buying gifts and birthday cards. He said that he had not sent a separate birthday card this year but brought a toy car from the UAE and another one in a shopping centre one of which had a card with it. He said that he had tried to send gifts although encountered resistance from mother. It was put to him that he hadn’t contributed towards his son since November 2021. He denied this and when he attempted to explain was stopped. At the end of his cross-examination several hours later and presumably on instructions as it followed a period in which counsel spoke to mother to check if anything else should be asked, she returned to the subject of financial support. He explained that prior to the start of the proceedings he had been sending £400 a calendar month to mother. The financial impact of the case had caused him to stop. It had become very expensive. He said once over they should both have a breathing space and then talk about how much he should contribute.

He agreed they were both unhappy at the time of separation. He was aware from the messaging between them that she was planning to return to the UK. Before she left, he said she took possession of and retains all the marriage gold. He was devastated and still is by her decision to leave. He didn’t believe at the time she would leave, and he had to call the airline to confirm that she had left. He tried to ring her, but she didn’t pick up. Her mother and father had visited the UAE in mid-October 2021 and stayed in the family home. Whilst it was a happy time he noticed when grandmother left the problems between them seemed to escalate. He understood that mother felt alone in the UAE. She still had him, however.

He had been quite happy with mother’s decision to return to the UK for Z’s birth and said Z was doing amazingly well, thriving. He was very happy with mother’s care and did not want to do anything to upset that. He only wanted the best for his son. That was why he agreed to her remaining in the UK with his son. It was a painful but easy decision. All he has ever wanted is contact.

He agreed when together in the UAE, mother provided 100% of their son’s care an ‘amazing mum’ always putting Z first.

Talking of the difficult discussions in February and March 2022 over contact he said mother’s initial position was that he would have to move back to the UK if he were to see his son. His response was that it would take time and he would need their support. He denied feeling frustration, just a sense of grief and desperation.

He denied ever threatening to abduct his son, he would never do that. Neither did he say this to anyone else. It was put to him he had spoken to mother’s uncle in Pakistan and threatened abduction. He said he did speak to him but that was to ask for his support in the mediation process. He did not threaten abduction. There is no statement from the uncle evidencing such a threat.

Father agreed he could apply for a Pakistani passport for Z but would not without mother’s consent and the court’s permission. He accepted they were now fully divorced Islamically. Correspondence passing during divorce was simply a request to the council to arrange mediation in that in the hope that the relationship might be saved, and he saw nothing wrong with that. He had now accepted they were divorced, wished mother well and had moved on.

Referring to the first hearing of mother’s application he said he did not ask the court to make a prohibited steps order against mother. He did not wish to constrain her movements and had later agreed to its discharge.

He understood the seriousness of his son’s eczema, the daily use of creams, the bathtime routine and when the condition worsens the use of steroid creams. He appreciated the desert heat might worsen the condition and that was why he felt visits in April and December were best when it was cooler. He also understood the dairy intolerance. He didn’t criticise mother or grandmother for the attack that occurred whilst in the care of the maternal grandmother. It was no one’s fault. Criticised for not returning to the UK at that time as mother asked, he explained that the UK Covid restrictions applicable then meant him quarantining on arrival to the UK for 10 days, making the trip pointless.

He asked for unsupervised contact in the UK three times a year in April July and November and would book a hotel or apartment close to the mother as she wished. Coinciding with his son’s birthday he particularly wanted November even though it was not a school holiday. He would hire a car and asked mother if she would share the child seat. He was content for the April and July visits to coincide with school holidays. If a full week was not possible, he would share a part week agreeing all arrangements needed to have some degree of flexibility.

He agreed when changing his son’s nappy during supervised contact he should not have said ‘let’s prove mother wrong’. He also agreed the contact on 29 October was not well planned. The arrangements had been agreed at the very last minute.

On overnight contact he accepted that Z had not yet spent a night away from mother. He was now three years old, and the proposed arrangements would not start until next year when he was nearly 4. When it was put to him that leaving it until the child was older might have merit he agreed but felt that there was no real solution other than to try and see if it worked. He understood the bath time routine, accepted it might not be successful although neither would know until it was tried. If problems arose both could rethink and illustrated the point by referring to the last contact session which had been planned for 4 hours but cut down by him to 3 when Z said that he wanted to go back to his mum. He was very happy to give mother advance notice of travel plans and hoped to avoid all conflict.

Given the geographical distance that separated him from Z he wanted them both to persevere with the video contact and simply asked the mother to encourage the process and address its vulnerabilities like keeping toys out of reach until the contact was over. He was content with there being flexibility on times, accepting the suggestion from the court that between 5 - 6pm (9 - 10pm UAE time) would work for them both not interfering with their daytime activities.

With contact in the UAE his plan was for Z to make his first trip when 4 ½ and to stay in his accommodation. If mother came, he would make arrangements and be financially responsible for her accommodation and share the overnights. He had not and would not apply for a travel ban. Mother was welcome to contact the police in the UAE to verify this. It could be part of the settlement agreement. He would prioritise his son so that he could be with him whilst in the UAE and introduce him to his mother, his 2 aunts, 2 cousins and grandfather all who lived there.

It was a very safe place to live and would be an enjoyable experience for his son. Specific plans for care had not been put forward although the trip was quite a long way off. He agreed to the security bond of £5000 and agreed that mother keep Z’s passport. The settlement agreement could include all the terms suggested by Dr Edge. If mother did not travel, he would be prepared to do all the travelling and fully responsible for his care. He accepted the possibility if mother was unwilling to travel this arrangement might have to be deferred a year or two beyond 2025.

Father was a calm, measured, reasonable and empathetic witness. There was not a hint of bitterness or anger in his demeanour or answers. He was not shown to lie neither was he inconsistent. I kept in my mind mother’s comment that father can put on a show. To some extent all witnesses can do that. My assessment of father having listened to his evidence and reflected, is that he is an honest straightforward man who loves his son, has good intentions and would be good to his word. His assurance on oath that he had not applied for a travel plan perhaps should have been verified by mother, and still can be. He gave this evidence on

First the abduction risk assessment. If Z travels to the UAE for contact will father retain him there or take him to Pakistan? I have come to the firm conclusion he will not.

It is in Z’s best interests to spent time in the country of father’s home, to be with him there and to meet and spend time with his paternal family. Father is one half of his identity, and the paternal family are important. It is not his fault his parents have chosen to live apart. A relationship with his father will enrich his life. There are no safeguarding issues. All the evidence points to a close loving relationship. I am satisfied father will not break his promises. Of course, risk cannot be eliminated. A determined and desperate parent could abduct from this country. The risk is small, manageable, and the benefits of contact significantly outweigh the taking of taking the risk.

My reasons for this conclusion are as follows.

First mother says that he will abduct, the often repeated assertion that father has threatened to retain Z in the UAE or will take him to Pakistan. This is the central plank of mother’s case known to her and those advising her for nearly 18 months. Father has denied this throughout. What is difficult to understand about mother’s evidence on this is the lack detail.

In her 3 written statements spanning a period of 15 months it is confined evidentially to little more than bare assertion. At Line 8 on page 8 of the bundle, in the statement attached to her C100 she says the reason for (applying without notice for) an emergency prohibited

No detail about where and when these threats were said to have been made, who was present, the words used, anything else said and what happened in consequence.

On day 2 at the conclusion of mother’s evidence and perhaps sensing this was a problem an application was made on her behalf to admit further documents, said to be important evidence relevant to the risk of abduction. I agreed to this being admitted on the basis that mother could be recalled and questioned by father’s counsel and an e mail from father also admitted.

This evidence comprised.

Recalled at the start of day 2 to be questioned on this information mother accepted the December police referral was in respect of father’s emails. She agreed she did not reply to them considering this the responsibility of her family. At one point she said father didn’t ask for video calls incredibly given the content of the emails she received and which the formed the basis of her complaint to the police. That was not true. In denying father all contact with and information concerning Z she said she was not being selfish, that was in his best interests. She accepted father was likely frustrated, as she was. She considered the e mails as harassment.

It was suggested to her that her police reports in April and July coincided with father’s visit to the country in March / April and the planned one in August and were motivated to block his efforts to regularise contact. In essence suggesting they were tactically made. Mother denied this. Or that her contact with the UK UAE Embassy in May 2023 was similarly motivated. Aside any issue of abduction this was an opportunity not taken to evidentially nail down the issue of whether she was subject to a travel ban.

In re-examination and perhaps acknowledging the information produced that day was silent on the issue of abduction mother accepted this although said that she had made the police aware of the threats of abduction and wanted the opportunity to obtain information from them. I stood the case down to give mother and her counsel opportunity to discuss whether they wished to have time to obtain this evidence. They did not, explaining that the police incident logs would only record what mother was saying. This was not a convincing explanation.

Whilst maintaining that she reported the risk of abduction to the police there is no supporting evidence. The police evidence simply refers to a complaint of malicious communication and harassment, not abduction. Half a day was spent considering this additional evidence and none of it corroborated mother’s evidence. I should add that those representing father were understandably frustrated having this evidence sprung upon the mid-trial when it could have been disclosed a long time ago.

It was only in questions that I put to mother after the conclusion of re-examination that she said the threat of abduction was made by father on the third visit to their house in 2023. She could not remember the day, whether it was the same time as the second visit or not and provide any further detail of what was said, who was there and so on.

Her evidence was thoroughly unsatisfactory. If father threatened abduction on this or indeed on any occasion either to mother, her parents or anyone it would be a memorable event of real seriousness. I would have expected clear evidence from whoever heard the threat. When and where the statement was made, detail.

The conclusions that I drew from this part of the evidence is that mother is prone to quickly and unnecessarily reporting problems to the police. Whilst father perhaps should not have sent eight reminder emails in December it is very hard to characterise their content as malicious unless a parent denied contact and asking for it is now considered that way. Irritating of course because of the number of reminders but a criminal offence? Mother was living in a different country and completely safe in all other respects.

I have already set out why I concluded mother was not a reliable witness.

Father denies ever saying he would never abduct. He stood by this through robust cross examination. He is in difficulty proving a negative particularly when there is no detail. I concluded he was a truthful witness. I was careful throughout to remember mother’s statement that father is not showing his true self. He did not at any time however reveal the slightest hint of malign intent towards mother. Rather he was sensitive kind and empathetic both to mother and Z.

I arrive at the firm conclusion and find that father did not threaten to abduct Z.

That does not conclude the risk assessment, however. Father lives in UAE and his residence in a non-Hague convention country particularly one where the legislative system originates in Sharia law which vests decision making with the father. I must look much wider than things said or not said between the couple, to all the circumstances. Looking at the full picture before concluding the assessment.

Father’s conduct at and immediately before mother left does not suggest the risk is increased. Even though mother talked openly about returning to the UK he did not ask for travel bans. His e mail from the British Embassy shows after mother left, he did not make an abduction complaint rather was trying to find a negotiated solution with contact.

When mother returned to the UK, he accepted from the very start this was the right outcome for Z. This must have been a painful concession knowing his son would grow up so far away from him. He has never deviated from that position.

On each occasion he came to court he made clear, and it is recorded in the orders that Z should live with mother. He could do no more to reassure her. He agreed to the live with child arrangements order.

He has spoken positively about mother’s qualities to CAFCASS, the ISW and importantly Z.

His position on contact has been sensitive. Agreeing to its supervision to provide mother with the reassurance of independent evidence from an ISW about the quality of their relationship and that Z is safe and well in his care. He agrees to contact in the UK to build mother’s confidence in the arrangements. Child centred stepped arrangements.

Whilst the family may have property in Pakistan there is a large extended family in UAE. Would father risk the consequences to them if he left for Pakistan? They would have to follow or possibly lose touch.

If he went to Pakistan, he would lose not just his job but also his chance of a golden visa.

Mother’s rather mean-spirited approach to contact between November 2021 and the involvement of the ISW in August 2023 might ironically have been a vulnerability with some parents prone to act unwisely and recklessly, taking the law into their own hands. Father did not. Faced with a struggle he was patient and worked with the legal system.

These all tend to suggest father is unlikely to abduct quite aside the absence of threats.

The recommendation of Dr Edge for a Written Agreement formalised into a Consent Judgement supported by Oaths freely given and a Security Bond is a significant protective factor. Its terms can reduce further the small residual risks. This is a common solution with a track record of success. In this case there is more than sufficient time for it to be put in place.

Of course, I cannot assess the risk at zero. It is very low however in my judgment.

Risk assessment requires consideration of consequences and any protective factors.

If father abducted Z he would cause profound emotional harm to his son. Z’s whole world as he knows it would be destroyed overnight. His important relationship with mother severely damaged. He would feel abandoned. He would lose for a time his primary attachment figure. The emotional harm would be akin to grieving with potentially long-term emotional consequences. The consequences are very serious.

The agreement would provide a litigation solution although it would take time. If he went to Pakistan the Protocol could come to mothers’ assistance although again it would take time. There is a good prospect however in either scenario that mother would be successful eventually. Father would have blown it. At best infrequent heavily supervised contact. Perhaps none. Probably loss of his job and financial ruin. Would father take that risk?

My assessment is that he would not. Z’s welfare is furthered by contact in the UAE. Father will not in my judgement retain him there unlawfully and the risk that he might, a risk which can never be eliminated, is so small that even having regard to the dire consequences to Z if he did, the balance of the assessment still falls in favour of permission being given for contact in the UAE subject to the protections advised by Dr Edge.

Dealing firstly with contact in the UK. I make a contact order that mother makes Z available for contact with his father for period of 1 week three times a year in the UK on dates to be agreed between them for the following year by the 31^stDecember of the year before. The 2024 dates to be agreed by 31^stDecember 2023 and so on. If they have not agreed the 3 dates by 31 December this year either may by application to ask for it to be determined. Father’s suggestion that one take place in November around his birthday is one which I am sure he will enjoy. During each week there will be daily daytime visiting contact flexibly between 4-8 hours long. Flexible so that if he becomes tired or wishes to return to his mother, they know this can happen without either falling in breach of the order. On the second visiting contact in 2024 (likely July 2024) there will be one overnight contact with father midpoint during the week. He will return to his mother in the morning of the following day and stay with her in lieu of having contact with father that day’s (unless she is working). I expect both parents to reassure him about this so that he feels comfortable with it. It will be sensible for the parents to agree a later start time for contact on the day prior to the overnight sleep. Father should also facilitate a FaceTime call with mother just before bedtime so that she can be reassured all is well. In the weekly contacts following in the UK there will be two overnight stays with father following a similar pattern. The prohibited steps order will be discharged on 1 December 2024 after the second sequence of overnight contacts. By then both parents, mother in particular will have more confidence in the process. I have given careful thought to whether the prohibited steps order should be discharged now but feel it is a protective factor on the evolution of these arrangements. I expect mother and father to cooperate and be sensitive to each other in these arrangements father finding accommodation close to mother in the UK and mother sharing the car seat and child buggy. This will be the pattern of the UK arrangements moving forward.

In terms of indirect contact, I order mother to make Z available for indirect contact through FaceTime twice a week between 5 and 6pm on a Wednesday and Sunday evening for a period of up to 15 minutes. I have directed it to take place twice a week as the arrangements are vulnerable and some may be cut short given children of this age are easily distracted. The parents will have to be considerate and tolerant over this, it will get better as he gets older.

In terms of contact in the UAE I direct that mother make Z available for contact in the UAE for a period of one week each year. Mother agreed to engage with Dr Edge’s recommended agreement, and I make it a condition of the order that this is in place prior to the first weekly visit which I order takes place in December 2025/January 2026. That is during the school Christmas holiday. I have decided December rather than August or September as the temperatures in the UAE will be lower and it will be easier with his eczema. He will by then have had his first term in school and be more used to spending time away from mother with his new teacher and classmates. He will adapt to this new arrangement easier then. I express the hope that mother will travel with him to the UAE although that is a matter for her. If she refuses father can take charge of the travelling arrangements. If she does travel time can be shared in the UAE. If she does not, I direct that there be FaceTime calls between Z and his mother not less than three times in the week. The terms of the agreement to be presented to the UAE court must be particularised in an agreed annex to this order. They must include that both parents agree for Z to live with his mother in the UK, that father has had independent legal advice and has not been coerced into this arrangement, that he will return Z to his mother at the end of contact and not take him out of the UAE during the time he is there, that he will not apply for travel bans either in respect of mother or Z. They will need careful legal advice on this, and the agreement must be in place no later than three months before the contact is due to start. It must be supported by the oaths offered by father and the security bond.