DH v CL & Ors

By application dated 9 October 2013, DH, the father of a 7½ year old boy, LL (L), seeks the permission of the court permanently to remove L from this jurisdiction to live abroad.

This relocation application is unusual in at least two respects:

DH (“the father”) is an Iraqi Kurd. He arrived in England in 2002, aged 15, as an asylum seeker, and in 2011 obtained British Citizenship. He currently works in a fast-food restaurant in a town in the north-east of England. L’s mother, CL (“the mother”) is English and resides in the same town as the father. L is their only child; the parties never married, though the father has parental responsibility by virtue of an order made on 13^th April 2010. Each parent has another child; the father has a daughter (T) aged 7, who lives with her mother. The mother has a son (W) aged 2, who lives with his father, under a care order.

The father’s application is not in fact the first in time; it was issued immediately following an application for a care order issued by ‘A’ Local Authority under Part IV of the Children Act 1989 (4 October 2013); it has been agreed by all parties that I should determine this private law application as the lead application.

In determining the issue, I heard oral evidence over three court days – from the father, the mother, the maternal grandparents, and from social work professionals. I heard from L’s guardian. By secure video-link established to Erbil, the capital of the Kurdistan region, I received the oral evidence of three members of the father’s family. The oral evidence of the paternal family members supplemented written statements; although the preparation of these statements did not strictly comply with the guidance given by Peter Jackson J in NN v ZZ & Others [2013] EWHC 2261 (Fam), I was nonetheless satisfied (on reading the statements, hearing the witnesses, and receiving the detailed written evidence of the solicitor who obtained the statements) that they were evidentially sound. The paternal family gave evidence by way of secure link provided by ‘eyenetwork.com’, a global video-conferencing service, in accordance with the guidance in Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam). With respect to the preparation of the relevant written evidence and the arrangements for receiving the oral evidence from Erbil, I wish to record my appreciation to the father’s solicitor, and (in respect of the video-link) additionally to the court staff at Middlesbrough Combined Court, for attending to these issues so conscientiously.

I have also received written reports from an anthropologist (Roger Ballard) who reported on the current political and social climate in Kurdistan, from a contemporary Kurdish writer and specialist in the socio-political situation in the Middle East (Dr. Rebwar Fatah) and from CFAB (Children and Families Across Borders). I also have reports from an independent social worker (Paul Greenhalgh), following his assessments of the maternal grandparents.

At all preparatory stages of this application, and indeed when the hearing began, the mother and maternal grandparents were firmly opposed to the father’s application, and his plans to remove L from this jurisdiction; although neither the mother nor the grandparents sought to disturb the current arrangement whereby L has his primary home with his father in England, they proposed that L should move to live with the grandparents if the father relocated to Kurdistan without L. Their position was argued vigorously throughout the hearing, and they gave evidence to this effect. At the conclusion of the evidence and before the closing submissions of the advocates, I was advised that the mother had reflected on the evidence, and, that while she continued to have concerns about aspects of the father’s relocation plan, she had resolved no longer actively to oppose the application. The grandparents, through Mrs Averis, indicated that they would wish to support their daughter in her decision, notwithstanding the pain which that decision plainly brought them.

I should add that L’s guardian (who has been involved in proceedings concerning L on and off for over 4 years) supported the father’s application, as did the local authority,

Given that the mother did not formally consent to the removal, and given the obvious concern of the local authority and the grandparents, I deliver this judgment to set out my reasons for granting the father the relief he seeks – a decision which I made known to the parties at the conclusion of the hearing, following the abbreviated submissions.

Specifically, I made a child arrangements order under section 8 confirming that L lives with his father; and granted the father’s application permanently to remove L to live in Kurdistan with effect from the end of the school summer term here (July 2014). I also made further section 8 child arrangements orders specifying the periods of time which L would spend with his mother and grandparents (a) before relocation and (b) after relocation. I set out the orders more fully below.

At the date of the application, L was (albeit briefly as it turned out) the subject of an interim care order, accordingly the application was not made under section 13 CA 1989 (as recently amended by para.22 Schedule 2 of the Children and Families Act 2014), as – perhaps – it may have been, but was for a specific issue order. That said, L had been in the primary care of his father since 2010, and for almost all of that period under the auspices of a residence order.

In determining this application, I have adopted and applied the following legal principles:

Finally, in relation to the legal principles engaged, I have had to consider issues of recognition and enforcement abroad of any order I make here. In this regard, I have been provided with a report from the jointly instructed expert Dr. Rebwar Fatah. Iraq is not a signatory to the Hague Convention, and he advises that:

In the circumstances, and in the absence of any meaningful reciprocal enforcement regime through the courts, I have had to assess carefully not only

In line with the guidance from the earlier authorities cited in the previous paragraph, I shall also require him before he leaves to make a formal declaration on oath on the Koran before an Imam or other suitable person to honour the undertaking which he has given this court (i.e. that he will return L to this jurisdiction for the purposes of annual contact for the maternal family).

As is apparent from my summary above, L is of dual heritage; he speaks both Kurdish and English with reasonable fluency. He is a physically healthy and active child, and is reported (as indeed the photographs show) to have many physical characteristics of his father. Since 2010 he has lived with his father, having supervised contact with his mother, and regular contact with his grandparents. In recent times, L has stayed with the maternal family almost every weekend for at least one night, and has visited their home mid-week. He has also enjoyed extended stays with them on occasions when the father has returned to Kurdistan without L to visit his wife and family.

Although described by his school as a “happy little boy”, he is struggling academically. He has recently been assessed by an educational psychologist, and is believed to have moderate learning difficulties. Some of his learning deficits (particularly in relation to his verbal ability) may be affected by the fact that he lives in a bilingual home.

L was born in October 2006. The parents had had what the mother described as an “on/off” relationship for about a year; they lived with each other only for a matter for a few days. They were no longer in a relationship at the time of L’s birth; the father was living in a house with other asylum seekers, the mother at home with her parents. L was a very premature baby, and was nursed for the first few weeks of his life on a neonatal unit before being discharged to the care of the mother, a task she shared with the grandparents for the first 18 months of L’s life.

Social services first became involved in L’s life when, in September 2008, the mother alleged to the police that the father had seriously assaulted L by biting him, head-butting him, and hanging him upside down by his feet; the father denied these serious allegations. These allegations were jointly investigated by police and social services, and L was admitted to hospital for assessment; no injuries were observed. L’s admission to hospital drew attention, however, to a much more serious issue – his emotional and physical neglect in the care of his mother. L was observed to be an unusually quiet and unresponsive child, subdued, failing to thrive and thin (the mother was found to be feeding L with baby food suitable for a 9-month old when he was over 2 years old). One of the hospital records refers to him displaying ‘frozen watchfulness’, and presenting in an extremely unusual way.

A child protection plan was drawn up, and when the mother resisted professional advice and support under that plan, the local authority issued an application for a care order. The father, whose access to L had been restricted by the mother, made an application for contact which was consolidated with the public law application.

In February 2009, L was removed from his mother’s care under an interim care order and placed in foster care, where he remained for over a year. Within those proceedings (in August 2009), the mother was assessed by a psychologist (Nicole Hampton), who opined that she displayed prominent ‘anxious and paranoid thinking’, and ‘over-reliance’ on her child to manage her own emotional needs; Ms Hampton advised that the mother would benefit from significant professional psychological help. Regrettably, the mother has not taken up that recommendation.

At a fact-finding hearing before DJ Arkless (October 2009), the alleged assault on L (referred to in [19] above) was investigated; the judge concluded on the evidence that the assault “did not occur”. The mother had further alleged within the proceedings that the father had assaulted his daughter, T; the judge rejected this allegation too. The judge however found (as the local authority had claimed) that the mother had neglected L’s emotional needs, and was stubborn and unwilling to take advice from professionals. The judge found that it was the mother’s conduct which had caused L to suffer significant harm.

The father and grandparents were assessed as long-term carers for L. The father’s assessment was extremely positive; he demonstrated a high level of commitment to care for L. The assessment of the maternal grandparents was not so positive; the independent social worker (Mr Greenhalgh) advised against placement of L with them (discussed further below – see [46-48]). The public law proceedings came to an end in April 2010; in the face of strong opposition from the mother (who had told the psychologist and other professionals that she did not even want L to have any contact with the father), the court directed that L should move to live with his father under a residence order. At the point of making the residence order, the court made a supervision order in favour of the local authority.

In the following year, the father issued private law proceedings seeking leave to remove L temporarily for a holiday to Turkey. Leave was granted (and the holiday took place), but a wider prohibition was imposed restraining the father from removing L from the jurisdiction otherwise than for the holiday. This wider prohibition expired in April 2012.

In December 2011, the father travelled to Iran (without L) where he married SM; this was an arranged marriage. SM is an Iranian Kurd, she is not currently working but previously worked in a children’s nursery. Following his marriage, the father took steps to support SM’s entry to the UK under a spousal visa; the Home Office have refused this visa. An appeal against the refusal of a spousal visa was unsuccessful. The father has therefore had to visit his wife abroad, altogether making four trips since their marriage, on one occasion (see [28] below) with L.

In the summer of 2012, the father visited Kurdistan for over 7 weeks to be with his wife, leaving L in this country, in the care of the maternal grandparents. The extended stay with the grandparents was said to be successful.

In late 2012, the mother gave birth to her second child, W. Public law proceedings followed. Within those proceedings, the maternal grandparents were further assessed by Mr Greenhalgh as potential long-term carers; in the event, their bid was not pursued. W is now the subject of a care order, though placed with his father (who has separated from the mother); a supervised contact order is in place in relation to the mother’s contact.

In July 2013, and with the agreement of the mother, the father took L to Kurdistan to meet SM and the paternal family; they were there for a little over four weeks. This appears to have been a successful trip; L was reportedly happy, and the photos would indicate that he met and spent time with many of his paternal relatives. On his return to England, the father asked the mother whether he could take L to live with him in Kurdistan; the mother did not agree. The request provoked tensions in the parental relationship.

Early in the academic term following L’s trip to Kurdistan, the mother told teachers at L’s school that the father was leaving L in her care while the father was working late. The school discussed this issue with the father, and the issue was resolved, with suitable arrangements being made for L’s care. Within a matter of a few days, the school reported that L had become upset claiming that his mother had told him that he would have to make a choice about where to live in the future – with his mother in England or with his father in Kurdistan. It appeared that L favoured living in Kurdistan.

Some days later, the maternal grandparents telephoned social services alleging (as they claim to have been told by L) that the father had assaulted L by punching him in the stomach. This serious allegation was investigated by the police and the social services; L repeated the assertion but did not elaborate. The local authority asked for parental consent to accommodate L during their investigation. The father agreed, but the mother did not. Accordingly on 4 October the authority applied for a care order, and was granted an interim care order.

At this point, the father told social services that he felt he could no longer look after L. For a few days, he did not see L; L was plainly upset by this, and missed his father. While the father’s stance was ill-considered it was mercifully short-lived; he subsequently rationalised it by reference to his increasing sense of being undermined at every turn by the maternal family in his care of L. Specifically he was frustrated at having to deal with allegations that he had had harmed L (this was, as is apparent from the history above, not the first such referral). The father’s position in rejecting L at this point, even for those reasons, and even though short-lived, is more than mildly concerning, given that he now wishes to remove L in his full-time care to live abroad. I can state at this stage that I am nonetheless satisfied on all that I have read and heard that, while I do not believe that this was a mature or welfare-based decision, it does not reveal any worrying ambivalence or lack of attachment to L.

No party has asked me to make findings of fact in relation to the alleged assault in October 2013 (see [30]); all parties appear to accept that the evidence would not support such a finding. Indeed the mother explicitly acknowledged in her oral evidence to me that she was not asserting that L’s comments were necessarily true.

Briefly L was placed with the maternal grandparents; however, when the child protection investigation proved inconclusive (concerns were raised about the validity of the complaint), L was returned to his father 10 days later. The care proceedings were not discharged or withdrawn at that stage, given the uncertainties about L’s future, though all parties have proceeded on the basis that this is essentially a private law dispute.

Thus, by this hearing, L has lived with his father for more than 4 years, with only a few interruptions; he has enjoyed regular contact with his maternal family (which I find the father has conscientiously facilitated, sometimes in the face of hostility). L spent at least one night each weekend with his grandparents, and generally one tea-time mid-week. When L has stayed with his grandparents, he has been taken to school punctually, and the grandparents have shown appropriate interest in his education. In spite of the family tensions, this is encouraging, particularly when looking at the proposed arrangements for the future. When the father has visited Kurdistan on his own (summer 2012, February 2013), he has asked the maternal grandparents to care for L and they have done so. While Mr Greenhalgh (the independent social worker) has not actively supported the grandparents’ ability to offer long-term care for L, he nonetheless has commented positively on the contribution which the grandparents have made to L’s life: “they are a humble couple who are not looking for medals or haloes [but] I do think that a formal acknowledgement of what they have achieved for L would be helpful to them”. I willingly give them that acknowledgement.

The father now wishes to return to live in Kurdistan to be with his wife, and his family; he has a large and close-knit extended family in and around Erbil. He has nine brothers and two sisters, all married and living in their own homes in and around Erbil. They are described (per Ballard) as part of Erbil’s ‘middle class’.

Understandable concerns are raised by the maternal family about the security of the region, about L’s safety, and about the social and cultural context in which L would be living. The father had, after all, come here as an asylum seeker (though it appears that the rest of his family remained in Kurdistan); the father asserted confidently to me that the situation is now materially different (“Saddam Hussein was alive then [i.e. in 2002]…”). Much evidence was filed by the father to address these concerns: the evidence included the Joint Report of the Danish Immigration Service / UKBA fact-finding mission to Erbil and Dahuk (2011). Their investigations revealed that there had been no major security incidents in Kurdistan since 2007. The Iraq Bulletin (2013) published by the Home Office confirmed that the Kurdistan Region of Iraq remained “largely free of violence” in the relevant period (late 2012), although it was still felt to remain “a potential target for terrorist operations…”. There was indeed one attack on an Interior Ministry building in Erbil in 2013, which appears (from the other reports which I have read, and the lack of subsequent incident) to have been isolated. On the information provided, many foreign state observers consider that the country is “safe”.

I have been provided with reports from Mr Ballard and Dr. Rebwar Fatah. They describe Kurdistan as having a strong local ethnic solidarity, a region which is infinitely more stable than it was during the era of Saddam Hussein’s rule, and in the immediate aftermath of his fall. Kurdistan is now a relatively prosperous region of Iraq; the ancient city of Erbil is thriving, and a growing centre for commerce in the region. There is a large number of highly qualified professionals from central and southern Iraq settling there because of its reputation for business (oil-fields lie within its borders) and tourism. Within the last year, the Kurdistan Parliament formally ratified a Child Protection law designed to improve the welfare of Kurdish children. It appears, in short, to be a very different from the place which the father left 12 years ago.

In his written evidence, the father indicated that he planned to move to Erbil in the near future irrespective of the outcome of this process (i.e. with or without L). The father’s position was explored during the hearing; in his oral evidence he bared a mind tortured by the irresolvable dilemma of his competing family commitments. The father explained with considerable sadness and exasperation, how he had been frustrated in his efforts to bring his wife to this country, yet feared being unable to relocate with his son to Kurdistan. Indeed, he turned to me during his evidence and directly asked me to decide for him what he, the father, should do in these impossibly difficult circumstances; I made clear that I could not make that decision for him.

The father recognised that the options for L, were he to be left here, were not propitious; the mother did not put herself forward to care for L (and, in my judgment, sensibly so). Therefore either L would live with the maternal grandparents, or he would be placed in foster care. The local authority had indicated in the clearest terms that it would not support L remaining with his grandparents if L were left here by his father, would seek to persuade the court that this outcome would be likely to cause L significant harm, and would seek a care order, a course to which the guardian had signalled her support. The father initially indicated that if I refused permission for L to relocate abroad, then L should live with the maternal family; the father later modified his position to reflect a wish that L should in these circumstances reside in foster care.

I made clear to counsel at the outset of the hearing that while I would have to consider all of the potential options for L’s future (including possible placement options while L resided in this country), on the evidence I could not ultimately resolve the specific question of L’s long-term placement were the father to leave L in England and return to live in Kurdistan.

The father’s detailed proposals to relocate L can be summarised thus:

It appears to me that were L to reside in Kurdistan he could expect to enjoy a material lifestyle which is significantly superior to that which she has so far enjoyed in the UK – a view which is shared by Mr Ballard.

I was initially asked on behalf of the mother to find that these proposals do not approach the range and depth of information ordinarily expected on a relocation application; as it happens, I do not agree. The father has made realistic proposals, which have been well thought-and cover all domains of L’s life. The report from CFAB was disappointingly light on information (notwithstanding that specific supplementary questions had been raised of its authors) but the information garnered from social workers in Erbil all indicated favourable conditions for L’s relocation.

The maternal grandparents plainly dote on their grandson. They told me of their concerns that if L were to be removed to live abroad they would not see L again. They doubted the father’s commitment to return with L. They poignantly referred to the relative inadequacies of Skype communication to maintain the strength and intensity of their current relationship – the grandmother told me “you cannot hug a plasma screen”.

As indicated above ([2(ii)] and [38]), if I were to refuse the father’s application, issue would arise as to (a) whether the father would move back to Kurdistan without L, and (b) if he did so, whether the grandparents would be able to offer adequate care for L.

Without doubting their strength of feelings towards their grandson, there are nonetheless serious concerns about the grandparents’ ability to offer long-term care for L. These concerns have been highlighted in the three reports of Mr. Paul Greenhalgh, independent social worker, who has assessed the couple at different points over the past four years.

Mr. Greenhalgh’s first report was prepared in January 2010 (within the original care proceedings). At that time, Mr. Greenhalgh recognised that the grandparents had offered L some positive experiences in his early life, and had offered good quality care for him at times; he however expressed no confidence that the mother would accept the court’s, the local authority’s, or perhaps more importantly her parents’ “views and rules”, and that it would be “precarious” to place L in such a situation. He understood (from other assessments) that the mother was someone who found it difficult to accept other people’s views, was “extremely egocentric, stubborn and adamant” and “unable to accept help”. He was concerned that the mother would undermine the grandparents’ ability to care for L.

In his oral evidence before me, Mr. Greenhalgh advised me of his continuing concern that the mother had been allowed to have unsupervised time with L while in the grandparents care; he was further troubled by the grandparents’ minimisation of the findings of the court in 2009/2010, and their tendency now to make excuses for the serious maternal shortcomings of their daughter. None of this was auspicious.

The grandmother’s physical health (she is 53) is poor; she suffers from Type II diabetes, and other disabling conditions. The grandfather (aged 61) is her registered carer. Although their commitment to, and in many ways their basic care of, L has been generally positively assessed (they have been involved in L’s care from a young age), several concerns have been identified including the grandmother’s tendency to over-identify with her daughter’s stance in relation to her parenting abilities, which led to unhealthy collusion within the family (this was apparent to me, to some extent, during her evidence). Concern has also more recently been expressed that the grandparents had allowed standards to slip while L was in their care – not ensuring that he had clean clothes, nor allowing him to sleep in his own bed (L slept in bed with his grandparents, notwithstanding that they had been repeatedly asked by social services to ensure that L had his own bed).

I formed a favourable view of the father and was impressed by his evidence. He gave full and detailed answers (largely through an interpreter in Kurdish Sorani); he came across as a thoughtful and sensitive man. He displayed a conscientious approach to his responsibilities as parent of L. At the invitation of Ms McKenzie, he gave some of his evidence in English – demonstrating a more-than-adequate grasp of basic language, which will remain vital for L as he continues to converse with his English maternal family. It was apparent that the father had developed a great fondness for, and an allegiance to, England, and was keen to retain his relationship with this country, and his citizenship.

The mother asked me to conclude that the father was not to be trusted, and specifically criticised the father for having acted high-handedly and unilaterally in the past. She alluded to the fact that the father had arranged L’s circumcision without her knowledge or consent. I heard no evidence about this event, but felt that if this happened as she said, it would indeed have been a significant misjudgement on the father’s part, but possibly taken when relations between the families was poor. Even if it were true, it is not, in my judgment, in itself illustrative of a basic lack of integrity or trustworthiness on the part of the father.

Insofar as I was able to form a judgment on the father’s family, via the medium of video-link and interpretation, they also made a good impression on me. SM appears to be a thoughtful and sensitive woman; she was questioned about how it came about that L now calls SM “mummy”, but was reassured that this was not planted in L’s mind by SM (“I did not suggest that he called me that. we started to chat through skype and he started of his own free-will to call me Mummy.”) or by the father. I considered that L’s use of ‘mummy’ to address SM was simply expedient short-hand, rather than any confusion or desire on his part to displace his own mother (he had specifically referred to SM as “mummy from Kurdistan” in discussion with the social worker). Indeed, I felt that SM will ensure that CL, L’s natural mother, continues to occupy that unique place in L’s life; SM told me that L’s “mother is something precious”.

There is clear evidence in a number of the filed reports (which suggested that the mother had confided her views to more than one reporter) that the mother held deeply antagonistic views about L’s Iraqi heritage and identity, and had allegedly spoken negatively about Iraqi people; the jointly instructed psychologist expressed concerns that the mother would be likely to teach L to be ashamed of his Iraqi heritage, and would not be able to promote L’s awareness of his cultural mix. The mother was said to believe that L would be ‘bullied’ if it was widely known that he was part-Iraqi. In her oral evidence the mother played down these reported views, and claimed that her words had been “twisted”; although I am not able to form a view about that (I have not heard from the authors of the reports in which the mother’s comments were expressed), I heard no recent evidence of hostile attitudes being expressed by the mother in respect of the father’s Iraqi heritage and his role in L’s life. Therefore, if the earlier accounts were accurate, it appears that the mother has at least moderated her opinions.

The mother is reported (earlier Guardian’s report) to have refused to accept that her actions placed L at risk, and was not accepting of the concerns of professionals; she felt that everyone except for her had ‘got it wrong’. I felt that in her oral evidence some years on from that original report she continued worryingly to play down her past failings in parenting of L; this coincided with the grandparents’ benign views of her parenting. The maternal grandmother clung onto an artificially positive and as it happens wholly distorted view of her daughter’s shortcomings as a parent, over-identifying with her, and minimising the mother’s responsibility for the deficits in L’s early life.

Understandably the mother and the grandparents all genuinely expressed their concerns about the impact of the proposed relocation on their relationship with L. The grandparents spoke with obvious warmth about L.

I was impressed, as I infer was the local authority, by the fact that in spite of the adverse views which had been expressed about the father and his heritage, the father had managed to maintain reasonably cordial relationships with the maternal family even though “he feels that he has been shamed in the British culture due to the allegations made against him.”

While I have conscientiously reviewed L’s welfare ‘in the round’, the following features of the checklist in my view have particular prominence on the facts of this case.

L has suffered not inconsiderable disruption in his short life; he has already experienced many losses. He has regrettably spent more than one year of his life in local authority care. Whatever the outcome of this litigation, L faces the prospect of suffering additional loss – either the loss of full-time care by his father, or of the regularity of his contact with his mother and maternal grandparents. In determining this application, I was in very large measure engaged in an exercise in the balancing of losses; the balance was, in many ways, reasonably evenly poised. Whichever way the Gordian knot was to be cut, one party would inevitably feel themselves to be the losers.

In important domains of his life – cultural, social, educational, and of course the diminution of the immediacy of established family relationships – the greater upheaval for L will be reflected by a move to Kurdistan. That said, I am satisfied that short-term disruption will be more than compensated by longer term stability for L – importantly, L will remain in the loving full-time care of his father, who has offered him permanence and consistency, and who has shown a high level of commitment to his upbringing. The father himself will, I believe, be more settled in his own life, being able to live with his wife, surrounded by his family, and in more stimulating employment; L will benefit from school where his needs can be met.

The mother’s change of instructions just prior to the conclusion of the case removed any real contest to the outcome; but more than that, it demonstrated an ability (which, given the history, may have in itself been a significant turning point) to prioritise the interests of L over and above her own. I do not under-estimate her pain in confronting this life-changing decision for herself and for her son. In this, she showed great courage, and selflessness.

The mother indicated that she wished to compile a scrapbook for L, with mementoes of his life in England, for L to take with him. I support her in fulfilling this task for L; this showed very considerable understanding of L’s likely needs. The father helpfully agreed to contribute to and co-operate with that plan.

For the reasons more fully set out above, I am as confident as I can be that this planned move will promote and enhance L’s best interests, and I am pleased to be able to grant the father’s application. It is far better for L that he knows that, in the end, his mother did not stand in the way of him moving to start a new life with his father and family in Kurdistan.

That is my judgment.