L And B (Children : Specific Issues : temporary Leave To Remove From the Jurisdiction; Circumcision)

These are applications by AB, the father of two young children, L and B, who are now respectively 6 and 4¾ years old. They relate to the ongoing arrangements for the children’s care and for specific issue orders. The respondent is the children’s mother. The children’s parents were never legally married to one another although they went through a ceremony of Islamic marriage in January 2009. They were in a relationship for approximately five years during the course of which their two sons were born. The relationship broke down in circumstances to which I shall come in July 2012. They have not lived together since. The father has not formed another relationship. The mother has a new partner who is the father of their child, a daughter, C, who is now 2 years old.

I will refer to the applicant and the respondent in this judgment as “the father” and “the mother”. I intend no disrespect to either and do so purely for the purposes of protecting their, and their children’s, anonymity. The father has been represented by Mr Rupert Chapman of Counsel and the mother by Miss Katherine Dunseath of Counsel. The children were joined as parties to the litigation in October 2014. Their Guardian, MS, was represented by Miss Ellen Saunders of Counsel. I should express my gratitude for the full and careful written and oral submissions which I received from all three counsel in what was a difficult and sensitive case which I heard in the Exeter Family Court over the course of four days at the end of last year.

This is my judgment in relation to the father’s applications in relation to the following issues:-

The father is now 36 years old. He was born in Algeria and now has dual Algerian and British nationality. He is a devout Muslim and, despite what he acknowledges to be lapses in his religious observance in the past, is committed to the principle of ensuring that, as part of their dual heritage, his two sons grow up as Muslims observing all the tenets and practices of that religion. He has been living in England since 2001 having arrived in this country from Algiers via Marseilles using false travel documents. With the assistance of friends, he had obtained a stolen identity card on which he superimposed his own photograph. Using that false travel document, he travelled to London via the Eurostar rail service. His immigration status was subsequently formalised when he applied for, and was granted, a British passport.

The mother is now 34 years old. She had grown up in Devon before qualifying professionally at which point she moved to London. These parents met in 2006. A relationship between them was to develop and they began to cohabit at an address in North London. L was born in 2009 and B in 2011. Prior to L’s birth, the mother had indicated a willingness to convert to the Muslim faith. She received instruction at a central London mosque. The father’s case is that she willingly embraced his faith without any pressure or coercion on his part. She chose a new Muslim name and together this couple had several discussions about their future and what it would hold. The father’s parents are now retired and live in Algiers; he has two married sisters who live in the United Arab Emirates and Turkey respectively. By all accounts he is very close to his mother and his wider family ties are, and remain, strong.

At the beginning of 2009, before their children were born, the parties went through an Islamic ceremony of marriage. It was not a valid marriage since the father remains married to a French woman who has played no further part in his life. There is a suggestion in the papers that this was little more than a marriage of convenience which secured his immigration status. I heard no evidence about that and, since it has no bearing on the issues which I have to decide, I do not need to make any findings. Be that as it may, it is clear from the evidence I have read that, by the time the children were born, this couple regarded their relationship as a committed one, albeit that there were already tensions within their family home.

In 2011, following L’s birth they travelled with the two children to Algeria to visit the father’s parents. The father discussed quite openly with the mother his plans to return to live in Algeria and bring up the children in the Muslim faith in that country. The parties’ written statements make reference to enquiries having been made at that stage about schools and possible employment opportunities for the mother at the British Embassy. Her relationship with the father’s mother does not appear to have been entirely harmonious. These two women came from very different cultural backgrounds and the mother describes being made to spend many hours a day cleaning the family home under the instruction of this lady.

During this initial trip, there was some discussion about the possibility of circumcising the boys. The father’s case is that the mother was wholly committed to the principle of their children being brought up in the Muslim faith and had agreed that, as Muslim boys, they should be circumcised as babies. When they took this trip to Algeria, L was not yet two years old and his younger brother was about three months old. In the father’s Muslim culture it is customary following the circumcision ceremony for the family to celebrate with friends. Because there was insufficient time to make these arrangements on that trip, nothing happened in relation to the children’s circumcision and the family returned to London.

By this stage, the relationship between the parties had deteriorated significantly. The mother describes the father as an increasingly controlling and violent individual who sought to impose restrictions on how she lived her life. She returned to full-time work after the birth of the children. I accept that during this period the father was playing a full role in terms of child care, a role which he appears to have discharged with some assistance from his Muslim friends and a child minder. It was a period during which, as I accept, he became increasingly close to the children and they to him. I have no doubt that the mother was an essential and much- loved part of the family dynamic but there does not appear to be an issue between the parties over the fact that she was working hard away from the home in order to provide for them financially.

Over the next twelve months their relationship spiralled into steep decline. The father was at this stage a regular cannabis user. The mother alleges that he would fly into jealous rages and criticise her choice of dress and the friends with whom she socialised. There were allegations of increasing domestic violence. In February 2012, the father assaulted the mother on two occasions. There was a further assault towards the end of July 2012 which prompted the mother to flee the North London flat which they shared. She returned to the West Country and moved into a rented home at an address unknown to the father.

The litigation relating to these two small boys began on 22 July 2012 when, having consulted specialist London solicitors, the mother issued wardship proceedings in the Family Division of the High Court. She sought protective orders which prevented the father from attempting to remove the children from her care. Because she alleged that he was a flight risk, she sought and obtained a passport order preventing him from travelling abroad. At a without notice hearing on 23 July 2012, Moylan J made the raft of orders which the mother was seeking.

A fact-finding hearing was listed before His Honour Judge Hayward Smith QC sitting as a Deputy Judge of the High Court. Over the course of five days, the judge heard evidence from both parties and made a number of findings. These are recorded in a document called ‘Composite Schedule of Findings’ which has been included in the bundle of material which was before me. The agreed findings reflect an escalating pattern of threatening behaviour, verbal harassment and outbursts of violent temper on the part of the father. One of the agreed findings was an acceptance by both parties that “some of the physical and emotional abuse has taken place in the presence of the children”. The police had been called to the home on more than one occasion. The father was charged with assault following the incident on 7 February 2012, an offence to which he subsequently pleaded guilty. The children witnessed this incident notwithstanding that it happened at 2am in the middle of the night. He was to plead guilty to criminal charges raised as a result of the second incident on 21 July 2012 which had prompted the mother to leave the home they shared taking the children with her to a place of safety. The agreed findings record the breaches of the father’s bail conditions. The mother had obtained a restraining order which prevented any attempt by him to communicate with her. That order, too, was breached. The father accepted that he had entered the United Kingdom using false documents and that he had subsequently been convicted of theft after obtaining a bank card which was not his and which he used to obtain travel cards. He accepted, too, that he had been regularly using cannabis since the age of thirteen and had tested positive for cannabis use as late as July 2012.

Those were the agreed findings of fact made by the judge. He went on to make a further eighteen findings of fact which the father had not admitted or agreed. I set out below those which have a relevance for the purposes of the current proceedings:

“The Respondent has threatened many times that he will abduct the children to Algeria. He has threatened that if the Applicant ever leaves him, he will abduct the children to Algeria. He has also made these threats to the Applicant’s mother.”

“The father has sought to minimise the extent of the physical violence against the mother.”

“The father has been violent, threatening and controlling towards the mother.”

“”Both the mother and father love the children and want what is best for them.”

“The father has many times threatened to take the children to Algeria and keep them there.”

“If the father took the children to Algeria it would be extremely difficult for the mother to obtain their return, as Algeria is a non-Hague Convention country.”

“There is some risk that the father would abduct the children to Algeria.”

“The risk of abduction is not a high risk but it cannot be ignored.”

“The father has had access to false documents in the past. Two close friends have convictions for possession of false passports. The father’s ability to obtain false documents for the children is a risk that cannot be excluded.”

“The father went to considerable lengths to come to England and acquired British citizenship. If he abducted the children he would jeopardise his ability to live here. Nonetheless there is still a risk.”

“The father has always expressed a view that he wanted to return to live in Algeria. Apart from the mother and the children, he has no family in the UK and no assets of substance here.”

“The mother and father agreed to move to Algeria although the mother was reluctant to do so.”

“The mother has a genuine fear that the father will abduct the children. There is a real basis for her fear. It is not a fanciful fear.”

During the course of his judgment at the conclusion of the fact-finding hearing (a transcript of which I have read), the judge recorded extracts from the mother’s oral evidence. Because of their resonance to the issues which I have to consider, I reproduce various passages for the purposes of this judgment:

“At one point, before the children were born, I thought I could move to live in Algeria, but after the children were born I realised that the infrastructure and the mentality of the people there meant that it wasn’t a proper place to bring up the children. The father talked about going to Algeria. He said that I didn’t seem happy about going to live in Algeria. I told him I didn’t think there was anything for the children in Algeria, but he made it clear that if I didn’t go he’d take them anyway, and he would say, ‘They’re my children. If I want to take them, I will. My parents are in Algeria. He said, ‘My parents come first’. He said, ‘It’s my mother before everything, and that includes the children’, and I felt that he left me with no option but going to Algeria, and he smirked at me and looked straight at me and said, ‘You’re trapped, then, aren’t you?’ That was the first time I realised he knew I was trapped in the relationship.” [C:52]

“The father doesn’t care about court orders or the consequences of his actions. He acts first and thinks afterwards. A piece of paper is not enough to stop him. Even if I had all the orders in the world, he could still do it. There’s no golden bullet that would protect the children. When the time comes, he’d feel entirely justified in taking the children to Algeria. As the children become older, if the children express views incompatible with his, and if his parents became ill and say they want to see the children, he’d act impulsively and rashly and take the children and justify it to himself on the basis that he’d tell himself that he’d done the right thing by the children.” [C:54]

Of the father’s oral evidence, the judge recorded this in his judgment:

“The father told me that his parents are getting older. He is their eldest child, but he regards it as his responsibility to look after them. The father told me that it was a condition of the marriage that they moved to live in Algeria, although there was no specific time when that would happen.” [C:55]

In relation to the father’s denial that he had ever made threats to kill her, this was the mother’s evidence, which the judge accepted was true:

“I’d spent two days, with him shouting at me, telling me he’d cut me to pieces if we were in Algeria. He said, ‘I’d take you to the basement and tie you up, but if you still didn’t agree with me, I’d cut you into pieces’. He said that just before his arrest.” [C:56]

Of the incident in July 2012 which prompted the final separation, the mother said this:

“We were in the car early one morning going to work, and we had a discussion. The father was driving. He said he wanted to take the two children to Algeria. It was the last week of Ramadan. I said ‘No’. He started shouting, ‘Why are you saying no? You don’t tell me what to do.’ He said the children belonged to him and he could take them wherever he wanted. He was going to take the children to see his mother. I told him I was going to get an injunction. He said, ‘Get your injunction. Call your friends on the phone. Do you think I care about a piece of paper? That’s not going to stop me’. He said, ‘I crossed two seas to get to this country’…”. [C:57-58]

The judge believed the mother’s evidence despite the father’s denial that he had made these threats to her.

At the conclusion of the fact-finding hearing, the judge found that the father posed a risk to the children; “constant supervision” was the only basis upon which that risk could be managed. By the order which flowed from his judgment, he made declarations to the effect that each of the children was habitually resident in the jurisdiction of England and Wales. He directed that the children should live with their mother. Whilst they would cease to be wards of court, there was a further declaration to the effect that the English court retained jurisdiction in relation to any matters affecting the children’s welfare. The father was prohibited from removing the children from the mother’s care and he became the subject of a widely drawn non-molestation order. Contact between the father and the children was to be supervised albeit that permission was given for the contact to take place in the father’s London home for up to two hours at a time on a weekly or fortnightly basis. The father was required to submit to drug-testing in respect of his cannabis use. The Cafcass High Court team was invited to prepare a section 7 report in relation to the issue of contact and the matter would come back for further review in August 2013.

The father’s solicitors were directed to continue to hold his passports.

From January until the beginning of August 2013, the father had contact with the children in the presence of an independent social worker. In June 2013 he had pleaded guilty to a breach of the restraining order which was made in the previous criminal proceedings. He had passed notes and presents to the mother in the children’s changing bag which was returned to her at the end of a period of contact. In August that year, he sent an email to her solicitor in which he referred to threats of “divine retribution” against her.

Amongst the material put before His Honour Judge Hayward Smith QC was a report from the father’s probation officer which suggested that the father’s emotional wellbeing was of concern even in January 2013. In the papers before me was a report which was subsequently prepared on 14 November 2013 by Dr Tom McClintock, a consultant psychiatrist.

By this point in time, the father had left London and had relocated to the area in North Devon where he had discovered the mother and the children were living. At one point he had apparently viewed a house which was available to rent in the same street as the home which she shared with the children. The mother was by now in the early stages of pregnancy with C and was in a settled relationship with her current partner.

Dealing with the background, Dr McClintock said this in para 2.2 of his report:

“[The father] gave a history of previous use of cocaine as well as use of cannabis. It was felt that he posed a medium risk of serious harm to current, future and former partners and the nature of that harm was physical, emotional and psychological. He was thought to pose a medium risk of serious harm to his two sons who were present when the offences took place and again the nature of the harm was said to be emotional and psychological. The risk of harm was thought to have decreased as the victim had relocated and no longer wanted to be in a relationship with [him], but there was a worrying comment as follows “the risk may increase if [the father] is to find out the location of the victim and his children or to start a new relationship with another partner. The risk of harm is likely to decrease [if the father] remains addressing his thinking and discriminatory attitudes to women.”

Mr John Power, a member of the Cafcass High Court team, had prepared a report in July 2013, some four months earlier. In that report he described how the father “continues to carry a massive torch for the mother”. He had described how he was “beset by unrequited love a year on from their separation” and presented as being “inconsolably distressed and distraught”. Of ongoing contact with the children, Mr Power observed,

“I am not sure if unsupervised contact is now occurring. It would be difficult to row back from this if it is, but the risks to mother are now potentially greater by virtue of her pregnancy than they were when I made my original recommendation.”

In fact, following the father’s move to a rented home in Devon some nine miles away from the mother’s home with the children, he was seeing them at a local contact centre for an hour each week.

In terms of his own assessment of the father, Dr McClintock recorded the following observations.

“At interview [he] seemed to use words and phrases which he had heard from professionals perhaps in the court proceedings or on the domestic violence course, but I thought that these largely excused his behaviours and were not insightful comments. For example, whilst he felt he may have been controlling in the relationship he excused this behaviour by stating that it was his nature, he came from a different culture and as the man in the house, as it were, he simply wanted to know his partner’s whereabouts as he was concerned about her safety. Regarding possible abuse in the relationship he admitted to slamming doors and punching walls, but also seemed to excuse his behaviour by telling me that “anything I don’t like I say”. There seemed to be very strong views about the relative roles of men and women within a relationship…”

He concluded,

“There did seem to be a very controlling aspect to his behaviour, he had problems with his temper and he is a man who shows a great deal of emotion. I do not think this constitutes a mental illness; he is not, for example, suffering from a clinical depression, but I suspect the controlling aspects to his personality are still present. Although he had attended between eighteen and twenty-one sessions of a domestic violence course which he described as useful the comments which he made about the benefits of this course sounded more like reports of professionals, they were like catch phrases and it remains unclear whether he has been able to put this theoretical knowledge into practice.”

One of the issues which Dr McClintock was asked to address in his report was the father’s capacity to understand the concerns in this case and his insight into any emotional harm that could potentially be caused to the children. He was also asked to comment upon the risk of future abduction. He said this:

“I think the father has a limited ability to understand the concerns n this case because he minimised the extent of his past behaviour and also told me that he had only pleaded guilty to the assault charges in order to persuade [the mother] that he was sorry for his behaviour. I very much gained the clear message from [the father] that he felt the children’s needs were paramount and had always been to the forefront of his mind.”

“I am unable to comment on the risk of abduction of these children. I do not think [the father] poses an appreciable risk of physical or emotional harm to the children during contact and this would include unsupervised contact, but I am concerned about whether he would attempt to question the children regarding the mother’s new relationship. I cannot quantify the risk of this behaviour with any more certainty.”

A few days after that report was prepared, the matter came back to court for a further review of the father’s contact with the children. His Honour Judge Tyzack QC made an order for contact going forward to be unsupervised on the basis of the father’s undertaking not to remove the children from their mother’s care. The period of contact was extended to a full day with effect from mid-February 2014. At a further hearing on 1 April 2014, that progress was built upon and contact was extended to include overnight stays on the basis that the father was permitted to enter the village where the mother was then living for the purposes of collecting or returning the children from or to nursery or school through a childminder. A schedule of alternate weekend contact with alternate midweek “teatime contact” was put in place with a further review scheduled for July 2014.

At the July 2014 review hearing, the father raised for the first time the issue of circumcision. He also sought the return of his passport. Formal applications were issued in respect of these matters on 18 and 28 July 2014. Directions were given on 27 October 2014 to include the instruction of experts. On 12 December 2014 the children were joined as parties to the proceedings with MS appointed as their Guardian. Orders were made regulating the development of contact between the children and the father on an ongoing basis. At the beginning of February 2015, the applications were transferred to the High Court to be heard by a judge of the Family Division. There had by this stage been a delay in the instruction of the proposed experts because of funding issues. The matter had been listed for final hearing in July 2015 but all parties agreed that the two days which had been allocated for the case were insufficient. Instead, Baker J dealt with final directions for this hearing. His order of 6 July 2015 provided not only for the listing of this hearing before me but also for the reception of the evidence from the four expert witnesses from whom I have heard.

Thus it was that the case came before me. By the time I heard oral evidence from the experts and from the parties, I had read a wealth of information about the case including no fewer than seventeen statements and position statements from the mother and father. I had two reports from the Guardian and reports from each of the four experts.

In summary, these were the positions of the parties as the case began.

The father is currently having staying contact with the children on alternate weekends (Friday after school until Monday morning) and alternate Fridays after school when the boys attend football club. All handovers are undertaken via their nanny in the school car park regardless of whether or not it is term time or school holidays. By his application for a child arrangements order he now seeks to extend his time with the children in order to move towards a more equal sharing of their care. He proposes a regime whereby the children spend time with him from Friday evening (as now) until Wednesday morning every other week and for an additional evening or overnight stay in the intervening week. In particular, he sees no reason why the children should be cared for by a nanny during periods when he can make himself available as a parent to undertake that care.

In terms of the specific issue orders which he seeks, he wishes to be free to travel abroad with the children during his periods of holiday contact. Given the mother’s opposition to such travel, he requires permission from the court to remove the children temporarily from the jurisdiction of England and Wales. In particular, he wishes to be allowed to take the children to non-Hague Convention countries such as Algeria and the United Arab Emirates for the purposes of visits to his family members. He proposes a short break to Paris to visit family members with a longer summer holiday in Algeria for ten days from 24 July 2016. Thereafter he envisages that travel to Algeria will be a regular part of the children’s routine as they start to know and understand more about that aspect of their dual heritage and as they become integrated into his family’s Algerian way of life. In this way, he intends that they should benefit from knowing both sides of their extended families and cultures. He offers a formal undertaking to the court to return the children at the end of each such period of contact and, in addition, will submit to whatever legal procedures can be put in place in the countries of their intended travel whether under local Sharia law or other domestic law. These mechanisms or procedures were the subject of much of the expert evidence which I heard and I shall address them in due course. His sister has offered to put in place a bond of £50,000 which will provide the mother with a “fighting fund” should he default in his obligation to return the children to this jurisdiction.

In terms of the second limb of the relief which he seeks from the court, he asks for the court’s permission to allow the children to undergo the surgical procedure of circumcision under local or general anaesthetic notwithstanding the absence of the mother’s consent and the children’s inability to consent to such a procedure. He acknowledges that there is no medical reason for carrying out this procedure on either child but wishes to observe the strict requirements of his Muslim faith.

In terms of increasing the time which the boys spend with their father, the mother is not against progression in the future, subject to the wishes and feelings of the children themselves. However, she says that the recent development of contact has taken place at a pace which has left the children, particularly B, unsettled and “clingy”. There have been a number of major changes in the children’s lives and they need a period of calm and stability in order to settle in their (still new) school routines. She does not set her face against extending contact in the future but asks me not to be prescriptive at this stage but to allow matters to develop at their own pace. That position inevitably involves a consideration of whether she is indeed committed to such a development in the children’s lives or whether staged orders are required or appropriate in this case. It is certainly not in the children’s interests to continue to be at the centre of this long-running litigation for any longer than may be necessary to ensure their continuing physical and emotional wellbeing.

She is wholly resistant to the relief which the father seeks in terms of his application for specific issue orders. In relation to foreign travel, and regardless of whether his intended destination is a Hague Convention or non-Hague Convention state, she perceives the risks of a wrongful retention by the father as too great to countenance. She does not believe that there are any protective measures which could be put in place by the court which would adequately ensure the swift return of the children to this jurisdiction in the event that the father failed to comply with his obligation to return them. She advances her case on the basis that he has been willing to comply with court orders to date because his conduct has been under judicial scrutiny throughout the course of this litigation. Without that scrutiny, she does not believe that he will be able to resist the urge to do whatever has to be done to ensure that the children are brought up as devout Muslims in Algeria. That has always been his intention and she believes that the ties which bind him to England are tenuous and would be easily broken if, for example, his parents’ health were to fail and/or in circumstances where he was refused permission to circumcise the children. In these circumstances, she believes he would put his religious duties and obligations above the needs of the children and retain them in Algeria to be brought up in a Muslim household with his own family.

In relation to circumcision, for a number of reasons to which I shall come shortly, she sees this as an unnecessary medical procedure which carries with it certain risks for the children both in the short and longer term. She does not say “never” but she does say “not now”. She asks me to allow the children themselves to decide whether or not they wish to undergo the procedure once they are competent to decide for themselves.

As the hearing commenced, the Guardian’s view was that the stability which the children enjoy in returning to their primary home during the early years of school and the fact that this time is also shared with their half-sister militates against any significant increase in the contact they currently enjoy with their father. Direct communication between the parents is non-existent save for emails and notes made in the contact book which travels backwards and forwards with the children. Handovers are overseen by their nanny. For these reasons the Guardian views a shared care arrangement as one which would place increased pressure on these children who are already showing signs of compartmentalising the lives they lead in their respective parents’ homes.

In respect of circumcision, the Guardian invited me to consider a number of different factors which have to be weighed in the balance before reaching conclusions about the children’s best interests. I shall come to these shortly once I have considered the law as I must apply it to the facts of this case as I find them to be.

In terms of removal from the jurisdiction, the Guardian accepts and acknowledges that the children are entitled to know and respect their father’s extended family and culture. He has concerns about the issue of protective measures and their adequacy in circumstances where the expert evidence points to a need for a high level of co-operation between parents if the mechanisms proposed are to have any efficacy at all. His preference is for a degree of finality to be achieved in terms of the prospects of ongoing litigation even if this results in the father being prevented from removing the children from the jurisdiction for the foreseeable future.

Before moving on to analyse the evidence which I heard from the parties and the experts, I turn now to consider the law. There is broad consensus amongst the advocates in the case as to the legal landscape into which I am treading. Whilst the application regarding the arrangements for the division of the children’s time is familiar territory for any family judge, the aspects of the law raised by the specific issue applications require some consideration of the developing jurisprudence in relation to travel abroad to non-Convention countries and the circumstances in which circumcision, absent the consent of both parents, is likely to be approved by the court.

In Re A (Prohibited Steps Order) [2014] 1 FLR 643 (sub nom Re R (A Child) [2013] EWCA Civ 1115) the Court of Appeal was dealing with an application by a mother who sought permission to take a 10 year old child to Kenya to attend a family wedding. The judge at first instance had been impressed by the mother’s evidence that she wished to remain living in England and accepted her evidence that she would return the child. In considering the father’s appeal, Patten LJ reviewed the earlier authorities, including Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084, and gave the following guidance.

“[23] The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the court in investigating what safeguards can be out in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M (Removal from Jurisdiction: Adjournment) (Footnote: ¹), we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.”

…….

“[25] As the quotation from Thorpe LJ’s judgment in Re K (Removal from Jurisdiction: Practice) (see para [19] above) confirms, applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:

(a)

the magnitude of the risk of breach of the order if permission is given;

(b)

the magnitude of the consequence of breach if it occurs; and

(c)

the level of security that may be achieved by building in to the arrangements all of the available safeguards.

It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave. In the present case, His Honour Judge Oliver, having rightly concluded (at paras [39] and [40]) that the magnitude of the consequences of a breach were ‘great’ or ‘huge’, did not return to that crucial element in his subsequent analysis on 18 April (from para [69] onwards) where the safeguards are evaluated in the context only of ameliorating the risk of a breach occurring (‘not that great’) but not in the context of the consequences (described by Ms Okine as catastrophic) that would flow for the child if a breach were to occur. Most notably, however, the magnitude of the consequences of a breach was not referred to at all when the judge considered the matter ‘afresh’ on 1 August.

[26] If, therefore, Ms Okine is right and the judge made his order solely in reliance on his assessment of the mother’s intentions the he was also wrong to do so. Not only was that inconsistent with his view expressed in April that some security was necessary, it was also (as in Re K (Removal from Jurisdiction: Practice)) an inadequate basis for granting permission to remove given the gravity of the consequences for the child if she is not returned. If the highly adverse consequences for the child of a breach had been kept in focus, as they should have been alongside the risk of breach and the available safeguards, the judge would have been bound to conclude that those consequences far outweigh any possible benefits to the child from the holiday and do not justify the making of the order absent security for her return,”

Six months after the decision in Re A (Prohibited Steps Order), His Honour Judge Clifford Bellamy, sitting as a Deputy High Court Judge, was dealing with an application by an Indian mother for permission to take four children, aged between 7 and 3, to India for a two week holiday. In that case, Re R (Children: Temporary Leave to Remove From the Jurisdiction) [2014] EWHC 643 (Fam), [2014] 2 FLR 1402, the mother had been raised in India and only came to England for the purposes of an arranged marriage with the children’s father who had always lived in England. Her application was made some three years after the breakdown of the marriage in circumstances where the court had made findings of domestic abuse and violence against the father. During the course of the hearing the mother made a proposal to take only two of the four children to India which she said was evidence on which the court could rely by way of guarantee that that she would return with their two siblings. The only evidence available to the court in terms of safeguards or protective measures was a letter from the Foreign and Commonwealth Officer which outlined the difficulties in returning children to the jurisdiction once they had been wrongfully retained in India. In refusing the mother the permission which she sought, the judge set out the principles to be found in the two Court of Appeal decisions to which I have referred above, Re A (Prohibited Steps Order) and Re K (Removal from Jurisdiction: Practice). He said this in relation to the application of the law:

“[21] … With respect to each of the issues I am asked to determine, the starting point is s 1 of the Children Act 1989. The children’s welfare must be my paramount consideration. In determining what is in the children’s best welfare interests I must have regard to each of the factors set out in the welfare checklist in s 1(3). I must have regard to the general principle set out in s 1(2) that any delay in determining the questions before me is likely to be prejudicial to the children’s welfare…..

[22] I must also have regard to the Art 8 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 rights of both parents and each of these children. Ultimately, the orders I make must be proportionate and in these children’s best welfare interests.”

Having applied each stage of the threefold enquiry set out by the Court of Appeal in Re A (Prohibited Steps Order) (paras [69] to [72] of his judgment), the judge refused to allow the mother the permission she sought and reinstated the prohibited steps order which had been in force until that point. If I may respectfully say so, his judgment is a paradigm of the proper approach to this type of application as determined by the Court of Appeal in Re A.

About a year before this case came before me, Cobb J considered an application by a mother for permission to travel to her home country of Algeria with her 5 and 3 year old children in C v K [2014] EWHC 4125 (Fam). Having referred to the guidance given by Patten LJ in Re A (above), Cobb J reviewed the expert evidence he had heard in relation to Algerian law (para 24). That review informed his assessment that it was not in the children’s interests to discharge the prohibited steps order which prevented their removal to Algeria. He identified a clear risk that any order for the children’s return would be breached and that the safeguards were ineffective to mitigate the risk. In these circumstances, he was not positively satisfied that the advantages to the children of visiting Algeria outweighed the risks to their welfare which the visit would entail.

Whilst counsel provided me with other examples of cases at first instance and at appellate level where the courts have considered applications by parents for permission temporarily to remove children to various non-Convention countries, they are examples of the application of these principles and do not establish any new principles or guidance. The most recent example is the decision of Her Honour Judge Atkinson sitting as a Deputy High Court Judge in Re M and K (Temporary Leave to Remove to Non-Convention Country) [2015] EWFC B229. In that case permission was granted to a Malaysian mother to travel with her two children (aged 8 and 6) to Malaysia for the purposes of a family wedding despite their (British) father’s objections. Having applied ss 1(1) and 1(3) of the Children Act 1989 and considered the three elements in Re A, the judge concluded that the risk of the mother not returning to England was “virtually non-existent …. tiny, minute, miniscule”. That assessment of risk, coupled with the judge’s acceptance of a bond put up by the mother as adequate security and the benefits to the children of visiting Malaysia, was sufficient to provide a platform for the judge to allow the mother to travel for the limited purposes she sought.

In relation to the specific issue of circumcision and its consequences for these children, my starting point is their welfare which is paramount. All the factors set out in s 1(3) of the 1989 Act must be considered again in the context of this discrete application. So, too, is s 1(5) of that Act which states that I should not make orders in respect of these children unless I consider that it would be better to do so in terms of their best interests than to make no order at all.

Specific guidance on the issue of circumcision was given by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678. That was a decision by Wall J who was subsequently upheld on appeal by Thorpe LJ reported sub nom Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) at [2000] 1 FLR 571.

At page 682, Wall J recorded the expert evidence he had heard in relation to circumcision. He said:

“Circumcision in Islam

According to Dr Hinchcliffe, circumcision is not mentioned in the text of the Koran, but in the Sunna (the practice of the Prophet Mohammed) which is the second recognised source of law, it is strongly recommended, and sayings from the Prophet himself are cited in support of the practice. Thus although circumcision does not occupy a prominent place in the traditional texts of Islamic law, Muslims regard it as a necessity to fulfil their faith. That is certainly the father’s position.

In Islamic law, responsibility for ensuring that a male child is circumcised lies with the father, and Islam does not consider that it is a decision for the child to make himself. The decision when to circumcise is also made by the father, and the evidence is that Muslim practice varies from locality to locality. According to Dr Hinchcliffe, some jurists assert that the father must ensure that the child is circumcised before puberty, whilst others state more precisely that the child should be circumcised on the seventh day after birth. The father himself was circumcised in Turkey when he was 6 or 7.

Dr Hasan describes circumcision of a boy as:

‘… an obligatory duty which should preferably be done at a tender age which helps the wound to heal quickly. It is a father’s duty to carry it out as soon as possible. [If] he doesn’t do it, while the child is still a minor, he would be failing in this duty.’”

The child in Re J was 5 years old when the case was considered by Wall J. In refusing the application, the judge stressed that his conclusion was finely balanced and depended on the facts in that case as he had found them to be. He summarised the factors which had influenced his conclusion in the following way (at pages 699-700):

“(1)

Although born a Muslim, it is clear to me that J is going to have an essentially secular upbringing in England. He is not going to mix in Muslim circles, and his main contact with Muslims and the Muslim ethos will be his contact with his father. J is therefore not going to grow up in an environment in which circumcision is a part of family life; or in which circumcision will be in conformity with the religion practised by his primary carer; or in which his peers have all been circumcised and for him not to be would render him either unusual or an outsider. To the contrary, circumcision in the circles in which J is likely to move will be the exception rather than the rule.

(2)

Circumcision is an effectively irreversible surgical intervention which has no medical basis in J’s case. It is likely to be painful and carries with it small but definable physical and psychological risks. For it to be ordered there would have to be clear benefits to J which would demonstrate that circumcision was in his interests notwithstanding the risks. The principal benefits put forward are J’s identification as a Muslim and the strengthening of his bond with his father. The strength of each is substantially weakened, in my judgment, by the facts of J’s lifestyle and his likely upbringing. As I have already made clear, he is not going to be brought up as a Muslim child, and the strength of his bond with his father – viewed from his perspective rather than the father’s – is unlikely to be weakened if he is not circumcised unless his father chooses to allow the absence of circumcision to work to weaken it.

(3)

J is in the middle of a hostile battle between his parents over contact. He is to that extent a vulnerable child. The operation and the period leading up to it are likely to be highly stressful for the mother, who would find it difficult to explain to J why it was being undertaken and would have grave difficulty presenting it to J in a positive light. Furthermore, J is of an age and understanding to feel pain and discomfort without at the same time being fully able to understand why the operation was being carried out.

(4)

J’s mother, who not only shares parental responsibility for him with the father but cares for him on a day-to-day basis and is currently the most important person in his life, is opposed to his circumcision, and there is a rational basis for her opposition. It is a strong thing to impose a medically unnecessary surgical intervention on a residential parent who is opposed to it. In my judgment, this should only be done if the evidence shows that J’s welfare requires him to be circumcised. For the reasons I have given, I do not think that the evidence overall shows that it is in J’s interests to be circumcised.”

The Court of Appeal unanimously upheld Wall J’s decision for the reasons he gave and the point of principle that the judge’s conclusion that s 2(7) of the Children Act 1989 (Footnote: ²) does not enable a parent to arrange circumcision without the consent of the other was correct.

Re J was considered by Baron J some six years later in the context of an application by a mother, following family breakdown, for permission for both children to become practising members of the Islamic faith and for her son to be circumcised. The father opposed the application. He was a follower of Hindu Jainism which forbade circumcision. The mother was concerned that, if the children were not raised as Muslims within the Islamic faith, she, and possibly her entire family, might be expelled from their religious community. The case was reported as Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236. One of the judge’s reasons for rejecting the mother’s application was explained by her Ladyship in this way (para 83(k)):

“Circumcision once done cannot be undone. It may have an effect on K if he wishes to practice Jainism when he grows up. He has been ambivalent about his religion and is not old enough to decide or understand the long-term implications. It is not in his best interests to be circumcised at present. The Muslim religion, whilst favouring circumcision at 10 years and below, does permit of an upper age-limit of puberty or later in conversion. By the date of puberty K would be Gillick competent and so he could make an informed decision.”

Most recently, the issue of circumcision was considered by Sir James Munby, President, in Re B and G (Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905. That case concerned two children (a girl of 3 and a boy of 4) who were born to Muslim parents. The President was dealing with the case in the context of a fact-finding hearing in care proceedings initiated by a local authority which was concerned that the girl might have been subjected to female genital mutilation (FGM) in one form or another. In his review of the law in the context of whether or not FGM amounted to ‘significant harm’ for the purposes of s 31 of the Children Act 1989, his Lordship dealt with circumcision as a parallel topic. Having observed that some forms of FGM might be regarded as much less invasive than male circumcision, he said this:

“[61] It is also important to recognise that comparatively few male circumcisions are performed for therapeutic reasons. Many are performed for religious reasons (as in Judaism and Islam). However, large numbers of circumcisions are performed for reasons which, as the particular prevalence of the practice in, for example, the English-speaking world and the non-Muslim Africa suggests, are much to do with social, societal, cultural, customary or conventional reasons as with anything else, and this notwithstanding the justifications sometimes put forward, that circumcision of the male is hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.

[62] Now there is a very simple but important point to all this. There is nothing in the case law to suggest that male circumcision is, of itself, such as to justify care proceedings: see Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236. On the contrary, judges in the Family Division have on occasions made orders providing for non-therapeutic circumcision: see, for example, Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005, at 1015-1016 (T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230, was a case of a medically indicated circumcision). As against that, and as Mr Hayes helpfully points out, there are voices in the Academy who take a different view: see, for example, Christopher Price, ‘Male Circumcision: An ethical and legal affront’ (May 1997) Bulletin of Medical Ethics 128: 13-19, and Brian D Earp, ‘Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse’ (2014) Practical Ethics.”

Whilst accepting that these were ‘deep waters’ into which he hesitated to enter, the President nevertheless justified the distinction which the law made between the two in para 72 of his judgment in this way:

“Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, ‘reasonable’ parenting is treated as permitting male circumcision.”

With the exception of Mr Gordon Muir, all the expert witnesses gave their oral evidence by means of a video link with the court.

I heard first from Mr Ian Edge, a practising barrister and director of the Centre of Islamic and Middle East Law at the School of Oriental and African Studies in the University of London (more commonly known as SOAS). He prepared two reports in relation to domestic law in Algeria and the United Arab Emirates. The focus of his first report (which had been commissioned by the father’s solicitors) was the potential safeguards which might be put in place to secure the children’s return in the event of a wrongful retention by the father. He also dealt with the application of domestic law in both foreign jurisdictions in relation to the respective rights of the father and the mother. The main points to emerge from his first report can be summarised thus:

When he came to give his oral evidence, Mr Edge told me that the option of registering an agreement in a local Algerian or UAE Sharia court was an untried and untested process. Whilst he had known of cases where this had been done, in none had the parent visiting the jurisdiction on a temporary basis failed to return the child or children at the end of the temporary stay. In this sense, it was what he described as “a self-defining ordinance”. He told me that this sort of structure had never been “road tested” in the local Algerian courts and it would in any event rely for its core validity on a consensus between the parents which does not exist here.

Crucially, in my judgment, in compiling his reports and answering the specific questions put to him, he told me that he had been unaware that the children’s mother was not following the Muslim faith herself and that she was not intending to bring them up in her (English) household as practising Muslims. This fact alone would be viewed as a significant contra-indicator in terms of upholding any agreement which the parents had reached as between themselves. He told me that it would undoubtedly go against her in the local courts in terms of her fitness as a mother. He could not rule out the possibility that she might be arrested for apostasy in the event that she were to travel to Algeria to seek the return of the boys. In answer to specific questions put on behalf of the Guardian, Mr Edge accepted that if the local Algerian courts became aware that the children would be returned to a household where they would not be brought up as practising Muslims, they would be unlikely to uphold any agreement which the parents had made without an in depth enquiry into the merits of the case. Further, he did not believe that any Algerian court would be prepared to “rubber stamp” a parental agreement reflecting an English court order in circumstances where the court had refused to permit the children to be circumcised. That factor alone would be a serious cause of concern to an Algerian judge. Indeed, he accepted that he had very little experience of cases where parents were not in agreement that their children should be brought up to receive a Muslim cultural education.

Further, Mr Edge told me that any proceedings initiated in the local courts could take a very long time to resolve. If the father declined to provide information about the whereabouts of the children, the local courts would be unlikely to make orders in respect of disclosure. Mr Edge had experience of such cases which took many years to reach a final conclusion. The expense of pursuing such proceedings might run into tens of thousands of pounds. In relation to the provision of a bond as a form of “fighting fund” for the mother, he had experience of such situations where a charge was secured on an English property for these purposes. He accepted that, in circumstances where the father was in part-time employment (as here) and in receipt of public funding for this litigation, he was unlikely to be in a position to provide this mother with an adequate remedy in this respect. Of course, here I have evidence from the father’s sister that she is in a financial position to assist to the extent of a £50,000 bond. I shall need to come back to the sufficiency of this offer as a real and tangible safeguard in due course.

Professor Haleem had prepared an expert religious assessment of the Islamic religious basis for circumcision of male children. He is a Professor of Islamic Studies at SOAS and was instructed on behalf of the Guardian.

In his report he confirms that the Qur’an does not mention circumcision explicitly. The Islamic basis for circumcision is the words of the Prophet Muhammad who described the procedure as “recommended practice”, or sunna. It is also an essential aspect of cleanliness in relation to the five daily prayers. His report refers to the fact that there are different legal opinions as to the age at which circumcision should be undertaken but there is a consensus that it must have happened by the time a male child reaches the age of 10 because that is the age at which they he is obliged to perform prayers (salãt). Further, circumcision is seen as part of a Muslim’s identity. Without undergoing the procedure a boy would not be considered to be a true Muslim. It is regarded as an essential part of Islamic religious tradition. In Professor Haleem’s view, a Muslim child’s relatives would find it shocking if a family member had not undergone circumcision. In this sense, both the religious and social implications for an uncircumcised Muslim child are important factors.

He was asked a number of questions about the timing of the procedure. He explained that circumcision must be performed by the time a Muslim boy “came of age”. That was generally assumed to be by the time he reached 10 years because this was the point at which he entered into a contractual relationship with God (Allah) and participated in daily prayers with adult Muslim males. He acknowledged that an uncircumcised boy would still be able to enter a mosque and pray since he was unlikely to be asked whether or not he was circumcised. However, he told me that a Muslim father is under a religious duty to ensure every male child born to him did undergo the procedure. He spoke about the social prejudice which a child would be likely to suffer if it became known that he had not been circumcised by the age of 10 and probably sooner. Given the ages of these children, he believed they should be circumcised as soon as possible and could see no reason to delay. A Muslim would be likely to say, “Why create potential difficulties for these children? What is the harm of having this done ? Why is there all this fuss?”. It seems to me that those rhetorical questions which he posed demonstrate the extent to which circumcision is seen as an ordinary incidence of being a Muslim (as Professor Haleem told me he was) but they do not address the social and family situation of a child where only one parent is a practising member of the Muslim faith.

He dealt with this point when he was asked questions on behalf of the Guardian. In a case where a family had mixed religious beliefs, as is becoming increasingly commonplace in society, he expressed the view that the issue of circumcision was likely to lose the vital importance it currently held within Muslim society. However, this did not derogate from the fundamental duty or obligation placed on a devout Muslim father to ensure that his sons were circumcised in accordance with his own religious beliefs.

Dr Ahmad is a consultant paediatrician who works from a hospital in Nottinghamshire. He was instructed by the Guardian to prepare a report to assist the court in relation whether or not there was a medical basis for circumcising these children and, if so, the risks or possible implications of the procedure.

He referred to the wide debate in the medical world and the absence of any consensus in the profession as to whether the procedure carries sufficient health benefits to justify carrying it out on medical grounds alone. If undertaken by an experienced surgeon, he told me that the risks of complications are low.

As to the specific risks associated with circumcision, he set these out in his report as follows:-

As to the potential benefits of the procedure, these included the following:-

When asked questions on behalf of the mother, Dr Ahmad told me that, in relation to the surgical risks, he himself had never undertaken a surgical circumcision. Most of his own surgical experience was gained in the early 1980s when he worked in India. His current experience as a consultant paediatrician lay in diagnosing and managing children with all forms of non-accidental injury.

Mr Muir struck me as an impressive witness. He was instructed on behalf of the mother. He works as a consultant urologist at King’s College Hospital in central London, a position he has held for almost twenty years. He is a registered urology specialist at the General Medical Council. His written report was wholly compliant with the requirements of Part 25 of the Family Procedure Rules 2010 and confined to those matters which lay within his particular expertise. In particular, he set out his experience in this field in these terms:

“In my practice I routinely offer treatment of foreskin and penile disorders and have patients referred to me from all over the UK and also from overseas to this end. For men with foreskin problems I practise a number of treatments including non-surgical therapy, minimally invasive surgery, and circumcision. I carry out medically indicated circumcisions in children and adults. I operate on competent adults who wish circumcision for non-medical reasons and wish to proceed after informed consent.”

He told me during the course of his oral evidence that the large number of circumcisions he performs enables him, as a surgeon, to express his views without any bias one way or the other. The views he has expressed are based solely on the large body of empirical data with which he is familiar, his own research and his many years of professional experience in this field. That he has participated in a wide-ranging number of medical studies and has published widely in various medical journals is apparent to me from the extensive bibliography appended to his report.

For the purposes of compiling his report, Mr Muir had seen these children’s medical records and confirmed that there were no medical indications for performing circumcision on either. His report concludes with this paragraph:

“I would not be able to make a convincing argument for circumcision for these boys on medical grounds. Circumcision would remove the perhaps 2% lifetime risk of needing a circumcision for foreskin problems, and could reduce their risks of HIV or other STI’s were they as adults to engage in high risk sexual practice or unprotected sex in HIV endemic areas of sub-Saharan Africa (circumcision as a young adult prior to engaging in sexual activity would also be protective). Circumcision would have a significant risk of mild to moderate post-operative surgical complications such as bleeding, tiny risks of severe surgical complications such as major bleeding or glans damage, and small risks of cosmetic or functional problems needing to be addressed in adulthood. There is also the issue of patients who feel unhappy or disenfranchised as adults and while the risk may be small and as hard to qualify it is nonetheless present.”

His report dealt with the risks and benefits associated with non-therapeutic circumcision for these two children. In general, about five per cent of boys will suffer a significant complication after circumcision with about one in fifty needing emergency treatment for bleeding. He told me that by “significant” he meant anything over and above mild pain. At the extreme end of the spectrum (albeit rare) are major complications such as glans amputation, penile necrosis and death. Whilst deaths are very rare, they occur in Europe “every year”. He has personally treated five boys who have suffered partial or complete amputation of the glans with the Plastibell device, a form of circumcision which he would never recommend. Where they occur, these major complications require complex multiple plastic surgical operations with often unsatisfactory outcomes.

He referred to the lack of proper or adequate research into subsequent lack of sensation although he did not attach any particular significance to this risk or the psychological sequelae, or non-physical effects of circumcision. Whilst there were a number of websites and charities dedicated to men who feel they have been harmed by the practice of circumcision, these were informed to a large extent by a self-selecting group and thus little reliance could be placed statistically on their reportage of symptoms.

He was asked about some of the benefits which had been addressed by Dr Ahmed in his report. In relation to phimosis, his clinical experience was that almost 90% of boys who presented with this problem are cured by the application of steroid cream. In cases of balanoposthitis, circumcision can be indicated but less invasive surgical techniques such as frenuloplasty produce excellent results as reflected in one of his own research papers (the reference for which he provided). In terms of the more generally perceived health benefits associated with HIV protection and non-HIV sexually acquired infections, Dr Muir’s opinion was that there may be some small benefit in circumcision but the studies have not been compared with safe sex and condom use in at risk patients. As to prevention of urinary tract infections, he said that to prevent one urinary tract infection, over one hundred circumcisions would have to be performed which he regarded as an untenable proposition. Similarly, in terms of overall hygiene and cleanliness, he was of the opinion that, from a medical point of view, normal bodily hygiene was all that was required.

He was able to tell me about his personal data (risk factors which all surgeons are required to maintain). One in three hundred of his cases involving circumcision resulted in excessive bleeding at the site of the wound. There was a 1.5% chance of surgical revision in the following five year period and a 10% to 15% chance of a minor infection requiring treatment with antibiotics or a dressing. This data does not differ amongst patients’ respective age groups.

When cross-examined by Mr Chapman on behalf of the father, Mr Muir stressed that, in medical terms, the principle of competence was an important factor to be taken into account. Children should have competence before consenting to a procedure which was not medically indicated. In the absence of any discernible or direct medical benefit, a patient (be they child or adult) should always be competent to consent to the surgery. If children were non-competent for the purposes of giving their consent to surgery, he would view them as non-competent to consent to surgery for religious reasons.

In response to questions from the Guardian, Mr Muir confirmed that circumcision was a simple and safe operation when performed well but it nevertheless presented the risk of the complications he had outlined. In terms of the appropriate procedure were the court to authorise circumcision for these two boys, he told me that sleeve circumcision was the preferred, and safest, option. If they were old enough to consent to the procedure, they were usually old enough to consent to a local anaesthetic which was safer than a general anaesthetic. Here, the children would need a general anaesthetic if the surgery was to be undertaken now. They would be off school for about 48 hours and would thereafter need to avoid contact sports for seven to ten days.

Thus, in one sense, the two medical experts were approaching their task from different perspectives. Dr Ahmad does not have the surgical experience which Mr Muir has because he is a consultant paediatrician. He was certainly medically qualified to provide me with an overview of the possible risks and benefits but he did not have (and did not profess to have) the particular experience and expertise which Mr Muir had of this surgical procedure and its possible consequences. Dr Ahmad had not read Mr Muir’s report when he gave his own evidence by video link and deferred to his colleague at appropriate points in his evidence. Mr Muir had not only read Dr Ahmad’s report; he sat in court to listen to his oral evidence. It was clear that there were aspects of the medical evidence in respect of which there were marked disagreements of emphasis and substance between the two witnesses. On one view, it might be said that an experienced surgeon who specialises nationally in problems arising out of complications resulting from circumcision would be exposed to the reality of these risks as part and parcel of his daily professional life and thus more cautious in his approach to evaluating risk. However, on balance, I found Mr Muir’s evidence to be careful and helpful. He was not approaching his task from any religiously informed perspective and that was not his function albeit that it is an important aspect of the issues which need to be weighed and balanced in this case. I heard separately from other experts in that respect.

The father told me that, having heard the medical experts, he remained wholly committed to his application that these children should be circumcised. He was able to convey to me in very clear and direct terms the depth and strength of his religious beliefs despite what he described as “some bad things” he had done in the past. For himself and for his sons in due course, he said that circumcision went to the very core of his identity as a Muslim man: that was how essential it was in terms of way he perceived himself and his children. His own father, his uncle and his grandfather were all circumcised and it was a fundamental part of his personal and family identity. He did not know how he would be able to look his father in the eyes if his application is not granted. Both he and his family would feel devastated. In this respect circumcision had both a religious and a social importance which overrode any slight risk which the procedure carried. In terms of its religious importance, his view was that if the obligation had been created by Allah, “he knows it is in our best interests”.

He was clearly disappointed and irritated by the mother’s current stance on this issue. He felt that she had “moved the goal posts”. She was a Muslim when they went through a ceremony of marriage; they had discussed these issues at length and she was keen that the children should be circumcised in accordance with their (then) jointly held religious beliefs as early as possible. He told me that the children mixed with his own Muslim friends and their children during the time which they spent with him. He was teaching them Arabic and they attended sessions at the Islamic school at the local mosque. He described his experience of practising his religion in a small rural village as being very different from the time he was able to spend with a large group of extended friends when he visited London with the children. He was, nevertheless, doing all he could to ensure they were familiar with their religious heritage and Islamic beliefs and festivals.

He told me that there had been no formal enquiry by anyone at the mosque as to whether or not the children were circumcised although the Imam was aware that there was an issue because he had told him.

He wished the circumcision to be carried out as soon as possible but he was not concerned about the procedure used provided it was safe. He was happy for the surgery to be performed in England and he would postpone the ceremony until later when he could invite his family and friends in Algeria.

He was asked on behalf of the Guardian whether he thought there might be an impact on his emotional bond with the children were his application for their circumcision to be rejected until they were old enough to make their own decision. This was his reply:

“That is a very difficult question. All I can say is that I am 99% sure that these children will be circumcised during their childhood. I am not saying I am going to go against what the court orders. But I will do anything possible to ensure that they are circumcised.”

In relation to his application for temporary leave to remove the children from the jurisdiction for the purposes of foreign travel, he told me about family members who lived in Paris and Marseilles who had children of a similar age to L and B. He wanted the opportunity to take the children to Disneyland. He viewed it as entirely natural and appropriate for the children to spend time with his own family in Algeria since it was his homeland and he wished them to know something about the circumstances in which he had grown up as a child and subsequently as a young man. He told me that it was difficult for his parents to travel to England, although his mother had visited before. It transpired during the course of the evidence that the children had been having Skype sessions with their paternal grandparents although this was not revealed by the children to their mother.

When he was cross-examined about previous threats which he had made about taking the children to live in Algeria, he accepted that he had said to the mother on two occasions during heated arguments that he intended they should move to Algeria sooner rather than later but he was now wholly committed to the children’s lives in England. He told me that he had “left thirteen years of his life behind in London to live in the middle of nowhere” just to be close to the children. When he was cross-examined by Miss Saunders on behalf of the Guardian, he acknowledged that, in the event he was granted permission to take them to Algeria, it would be a disaster for the children if they were not returned to the care of their mother just as it would be contrary to the teachings of Islam. He pointed more than once to the fact that he never attempted to abduct the children in all the time he had been having unsupervised contact. When I asked him at the conclusion of his evidence what justification he saw now for my taking “the first leap of faith” in him, he said, “If I say it [i.e. taking them to or keeping them in Algeria] did not cross my mind, I would be lying to the court. But I recognise it is not in their best interests”.

He felt no hate for the mother although he did hate what she had done. He did not seek to criticise her as a mother but pointed to the very different experience of childhood which he had had with his own mother caring for him in the family home. He did not have a particular problem with either of the children’s two nannies and he accepted that the children were close to them and had a stable routine and upbringing. The lack of trust between them as parents was one of his major concerns. He told me that he had never met her current partner although he had offered on more than one occasion to meet all together so that the children could see them in the presence of one another. He accepted that she had chosen a good school for the boys but, whilst he was prepared to trust her, he acknowledged she had no trust in him at all and realised why that might be the case.

He saw no particular issues about the safety of travel to Algeria. He was asked about the current official Government travel advice which recorded “a high threat from terrorism” and advised against non-essential travel. He saw this as a global issue rather than a localised issue specific to Algeria which he described as “a very safe place to take the children”.

In terms of his personal circumstances, he told me that he was self-employed and had worked for the past two years for a double-glazing company. His work involved a great deal of travel throughout the south-west of England. He was renting the house in which he lived and did not own property in this jurisdiction. His parents did own the large family home in Algiers. His father was 70 and suffered from diabetes. His mother was 65 and had arthritis. In terms of the assurances he offered the mother in respect of the children’s return to this jurisdiction, he told me that he and his family members were willing to give whatever promises or undertakings might be required. His sister was prepared to put up a bond of £50,000.

He accepted that he had in the past used fraudulent travel documents when he came to England in 2001. He had maintained contact with the friend who had been charged in connection with these documents whom he described as “my very best friend”. However, this was a person whom the mother had known and whom she had trusted to help care for the children when they were younger. He took the view that, as parents, they were three years further on and it was time to leave these events in the past where they belonged. He had moved on in his life and had ceased to use cannabis entirely since the day she had left the home they shared.

Whilst he is not currently in a relationship, he told me that he would welcome the opportunity to marry and have more children. He thought it was more likely that he would find an Algerian bride in due course but his British citizenship was important to him as were the fifteen or sixteen years he had lived in this country. The likelihood therefore was that he would wish to bring any new wife to live here so that he could continue to be close to his sons.

When asked about the benefits which he saw for the children in moving to a more extensive regime of shared care, he told me that it was a natural progression of their relationship of father and child. He saw it as an opportunity to teach them more Arabic and he felt they would gain a lot. He was keen to be more involved in their school and with the day to day aspects of their lives, including any medical issues which might crop up. He saw no benefit to the children in being cared for by their nanny in the absence of their mother when he had the flexibility to make himself available to look after them. The Friday evenings he was spending with them in alternate weeks when they did not stay for the weekend were absorbed by football club at school and so they were unable to spend time at his home. Whilst he acknowledged that the holidays had been shared on a more or less equal basis since August 2014, he was currently seeing them on six days a month whereas they were with their mother or the nanny for the other twenty-four. He wanted a little more balance in those arrangements for the sake of the children whom he felt were being raised by the nanny in the mother’s absence.

He denied that he had ever sought to undermine the mother’s new family. He was asked about an episode which was recorded in the mother’s written evidence. On one occasion one of the boys had said words to the effect that “C [their half-sister] was a ‘baddie’ because she was not a Muslim and would not go to Heaven”. He did not understand why the children might have said this and he accepted it was a matter of concern if it had been said.

The mother confirmed that her current position in relation to the issue of circumcision was that the children should have the right in due course to make decisions about what happened to their own bodies at a time and age when they had sufficient understanding to appreciate all the implications. She did not believe the procedure was medically necessary. It was an irreversible and permanent step which was likely to cause them pain and it was not a decision which either she or their father should take now on their behalves. She recognised the strength of his religious convictions and was not seeking to place any obstacles in their practice of his faith whilst they spent time with him. They could still attend prayers with him and go to the mosque as often as he chose to take them, but a decision in relation to such a final and irreversible procedure was best deferred until the children reached a level of maturity to make the decision themselves. She did not intend to bring them up in the Islamic faith. Neither she nor her partner held any structured or formal religious beliefs and the children had no Muslim friends at their school.

She accepted that, following her earlier conversion to Islam, and at a time when the children were very young, she had agreed to circumcision. She said that if she had been asked before she met the father what her views about circumcision were, she would have been unable to provide an answer because the issue would not have entered her sphere of experience. She explained that when she met the father and fell in love, she wanted very much to please him. She was happy to listen to his thoughts and wanted to defer to him. In 2009, when L was a small baby, he had persuaded her that it was a simple procedure and one from which their son would very quickly heal. She had other Muslim friends at the time whose babies had been circumcised and she simply assumed that, as parents, they would do the same thing. The father had wanted to delay matters to a time when the children would be conscious of the procedure and recognise it as part of their Muslim faith. He had also wanted it done in Algeria in the midst of his family. The mother told me that it was only once she had found the strength to leave the controlling environment of their relationship that she was able to carry out her own research and form her independent views on the subject. She told me,

“I don’t want my children to be exposed to pain, risk or harm for the purposes of a culture of which I am not a part. I am not saying that they should not be circumcised but only at a time when they have made their own decision. It is not mine to make for them any more than it is the father’s. I was very surprised to discover the procedure carries far more risk than I had imagined having now had an opportunity to look into it.”

When she was being cross-examined by Mr Chapman on behalf of the father, she said this:

“I don’t myself practise a formal religion. If the children want to pray at home, I would not stop them. They will want to grow up knowing who they are and what their heritage is. I tell them in Ramadan that Daddy is not eating or drinking. Although he was away for the last Eid festival, I talked to them about Eid and made them available to speak to him when he asked. I don’t in any way undermine their practice of Islam. A ‘competing’ faith would not be fair to the children. I do not intend to ‘campaign’ with them towards a more liberal way of thinking. Their father’s religion will be an important part of their upbringing. The danger is that, because he adheres to a fundamental religion which imposes strict beliefs on its followers, he believes that his beliefs carry more weight than mine. My beliefs do not exist within a religious framework as such but they are equally strongly held.”

She told me that the other parents and children at the school were well aware they were dual heritage children. They had more unusual names; their father often came to collect them wearing traditional dress; they were all aware of his ethnicity because he had the appearance of a national of North Africa. Happily, the children had not yet experienced any overt racism or teasing although she realised that, living in a rural community away from a multi-cultural city centre, this might be an issue which would have to be confronted at some future point in time.

When she was asked questions by Miss Saunders on behalf of the Guardian about the father’s ability to put the children’s interests above his own, she replied in this way:

“I absolutely believe that he holds his religious beliefs above the children’s wellbeing. I think his fundamental core religious beliefs and his need for them to be brought up as Muslims is more important to him than any objective view of the children’s best interests. He feels it is a reflection on the strength of his own religious convictions as a Muslim to achieve the children’s observance of that religion.”

When she was asked about how she would support the children in the event that the court gives permission for them to undergo circumcision, she said this:

“I cannot mentally imagine taking my children crying to a procedure when it is something which I did not want done. It is not in the children’s best interests for me to refuse to comply with a court order. It would be detrimental to them in the longer term. I would be put in an untenable position if I had to comply with an order with which I disagreed. I can’t quite fathom how awful that might be. I am both a human and a good mum. As much as I might want to conceal my emotions from the children, it would be very difficult to conceal my distress.”

In my judgment, that was a very honest answer. I do not believe that this mother would fail to comply with any orders which the court might make. I accept that she would do her level best to minimise any distress she might feel for the sake of the children but I accept that it would be a highly distressing situation for her. Whilst my focus must remain on the best interests of the children in the wider sense, her role as their primary carer requires me to take into account her ability to manage the process for their benefit if I am to accede to the father’s application.

She continues to resist any attempt by the father to lift the current restrictions on his ability to travel with the children outside England. She told me about the frequent threats which he had made whilst they were together to take the children back to Algeria. She believes that it is his wish to see them brought up in that country. As his parents get older, she believes that motivation will only increase and, put simply, she fears that were he to retain them beyond an agreed period of travel, she would be unable to secure their return to her care for the remainder of their childhood and adolescent years. Whilst she recognises that France is a Hague Convention country, she says that he used the direct Marseilles to Algiers ferry link when he travelled to England in 2001. If he is determined to reach Algeria with the children, she does not see the application of any Convention safeguards in France as a means of preventing onward travel to Algeria.

She sees their inability to communicate as parents as entirely the function of his conduct towards her whilst they were in a relationship. The orders which had been put in place for her protection were still in force and she felt that she needed those orders. She continues to believe that the father is merely biding his time. Whether or not that is indeed the case (and I shall set out my findings about the father in due course), I have no hesitation in accepting that this remains the mother’s subjective belief. I could sense the extent to which it was difficult for her to sit in the same court as the father as the hearing progressed. Her body language visibly tightened and she became very tense, albeit controlled, when she was dealing with many of the questions put to her, perfectly properly, by Mr Chapman. In answer to a question put to her on behalf of the Guardian, she told me that her fear of the father had not abated at all although she tried to forget it.

“In my mind, I have to dredge it out of a box marked “Do Not Open” whenever I come back to these proceedings. It is a visceral reaction; it never goes.”

She told me that she retained an overriding fear that if he felt that she and her partner were bringing the boys up improperly, she had no doubt that he was capable of acting rashly and refusing to return the children if he were permitted to take them to Algeria. As his parents become older and increasingly unable to travel, he may believe it is better to retain them with close family ties in a home where they can be brought up in a traditional Muslim manner. She spoke about his closeness to his mother (“she is everything to him; he constantly defers to her”). She told me that he has a family, a home and obligations in Algeria which he does not have here. Once the boys are with him and England is far from his thoughts, she believes he will persuade himself that retaining them in that country is the act of a caring and deeply religious father who is complying with his obligations both to his family and to his father. For so long as the English proceedings have been ongoing, there has been a structure and a framework which has meant he has been under scrutiny and having to attend hearings. She fears that, as that framework falls away, the ease of opportunity and the motivating “pull factors” may lead him to make good his earlier threats.

Of the father’s wish to increase the time he spends with the children, she is against an increase at this point in time. She told me that there had been significant changes for the children as contact has developed under the court’s supervision over the past eighteen months. Given the children’s need for predictability and stability, the speed of the changes had been very difficult to manage. Her own professional routine of work as a full-time solicitor meant that she had limited time at home with the children in any event and, were they to spend even longer periods with their father, it would undermine the stability of their current family unit which included her partner and C. She told me if she could afford to stay at home with the children, she would but financially it was not an option. Her partner currently spends part of his working life abroad and family time is precious.

She spoke very positively about the good relationship which the children enjoyed with their father. She wanted that to continue. She believes that the current status quo provides each of the children with an acceptable level of security with each of their parents and B, in particular, “is not up to [further change] at the moment”. They have now reached a pattern of relative equilibrium which has produced a comfortable stability for the children. To change that now would unsettle the children.

I heard from MS, the children’s Guardian, at the conclusion of the evidence. His position, having heard that evidence, is as follows:

When he gave his oral evidence, MS told me that his impression in terms of the father’s motive in seeking shared care of the children was the issue of the use by the mother of “nanny” care. He objects, as a parent, to not being seen as the most suitable carer in the absence of the mother when he is in a position to step in and offer that care.

He was concerned about the father’s failure fully to accept and understand the role he had played in the current tensions which exist between the parties as parents and the reflection which that behaviour found in the mother’s perception of risk in the event of travel to Algeria. He accepted that the father’s promise to return the children because he “risks losing everything” demonstrates some insight into the effect such actions might have on the children but it was not a sufficient reassurance in the Guardian’s view.

In terms of the dynamic of the relationship between these parties, the Guardian told me that he could see from the conversations he had had with the mother that she was frightened of the father. Despite the fact that her life had moved on since her relationship with him had come to an end, he regarded those fears as genuinely held.

My impression of the mother, having listened carefully to her evidence, is that, despite her obvious intelligence and emotional insight, she remains deeply guarded and suspicious of the father. She was able to recognise not only the strength and depth of his relationship with their children but also the benefits which their enjoyment of that relationship bring to L and B. That acknowledgement is much to her credit. She has demonstrated her willingness to allow the father’s influence over the boys in terms of the religious upbringing they receive in his home to find a limited degree of reflection in the lives they lead in her home. That cannot have been an easy thing for her to do given the history of her relationship with the father and the manner in which it ended. Her life now is very different from the life she led with him in London during the time they were together. I have no doubt that it would be very much easier and less stressful for her if she were simply able to close that door and absorb these two children into an insulated family life in North Devon which reflects her current, more liberal, approach in the context of her current social circumstances and the less structured agnostic beliefs she now holds. Nonetheless, she recognises that these boys have the right and entitlement to benefit fully from their dual heritage and, whilst she does not actively promote their Muslim religious education within her home, she does not seek to erect barriers against it. I have confidence in her to maintain that position as the children grow and become more aware of the different environments in which home life is lived with their parents. In my judgment, there is much in what the mother says about the boys’ emerging ability to “compartmentalise” their lives as they move between the two homes.

That she is a good and emotionally intuitive mother was abundantly clear to me from the evidence she gave. Despite the somewhat controlled and precise manner in which she gave her evidence, she presented me from time to time with illuminating vignettes of family life within her household. These showed me a nurturing, warm and loving environment with much laughter and fun absorbing all three of the children living within it. I accept that she would wish to spend much more of her time looking after the children but for the financial imperative to support them financially. She has no doubt worked hard and diligently to gain the professional traction she now has in terms of her career and she has structured her present child care arrangements in the best way she can to ensure that the children have a seamless transition from “nanny” to “Mummy”. It is an arrangement with which the children are settled and familiar. Sometimes their maternal grandmother is involved in these arrangements but all the evidence points towards a happy, secure and grounded arrangement which sees them moving happily between home, school and their father’s home some nine or ten miles away in a neighbouring village.

I do not regard the mother’s opposition to the father’s present applications to be motivated by any sense of a need to regain control or to marginalise the father from these children’s lives. I accept as entirely genuine her all-consuming fear that, if they travel to Algeria, she may never see them again. She did not enjoy the best of relationships with the father’s mother during the short period she spent with him in the family home in Algeria. Certainly, she does not regard the children’s paternal grandmother as any form of check or balance in the event that father were to decide to act irrationally. To the contrary, in this mother’s eyes, that lady is one of the “pull” factors (as she described them) which is likely to lead to that which she fears so much. Whilst my focus throughout has to be these children and their best interests, I have no hesitation at all in finding that the mother would be completely devastated if these children were to be retained by the father in Algeria without her consent.

What then of the safeguards which the father offers to reassure her?

First there is his own assurance that he will return them to this jurisdiction at the end of any agreed period of holiday travel. For reasons I have explained, that will never provide the mother with adequate reassurance. But should it suffice to reassure the court?

I found the father to be a complex character. I have no doubt at all that he loves his children deeply and they return that love and affection. I am prepared to accept that, in making these applications, he is genuinely promoting to the court what he regards to be in their best interests. But he sees those best interests very much through the prism of his own deeply held moral and religious beliefs. Those beliefs are entitled to the utmost respect from this court whose role in this parental dispute is to determine the course which will best safeguard and promote the children’s best interests. It is much to the father’s credit that he has been able to put behind him the drug use in which he formerly indulged. He has been prepared to sacrifice a rich and multi-cultural life in central London, a life he chose over and above his former life in Algeria, for a different life in a rural community where I suspect he feels it is less easy to practice his religion so freely and where he knows that he is likely to be singled out as being somehow separate and apart from those around him. He told me about his frequent trips back to his London Muslim community, both with and without the children, and that evidence only serves to reinforce the sacrifice that he has been willing to make in terms of the compromise of his own lifestyle in order to continue to be part of his children’s daily lives. Whilst I suspect that the original impetus behind his decision to track down the mother and the children was his desire to rekindle some form of relationship with her, I am prepared to accept that he recognises that life has now moved on for them both. The fact that he has stayed and made a life for himself close to the children is further testament to his commitment to remaining an important presence in their lives.

Against that background, am I able to say with the necessary degree of confidence that I can repose complete trust in this father to return the children to their mother if I grant permission for foreign travel at this stage of their young lives? With some justification, the father asks rhetorically what else he can do to convince the court of his good intentions. He said during the course of his evidence that he could not change the fact that he was an Algerian and that his home country was a non-Convention country. He pointed to the fact that he had been having unsupervised contact since the summer of 2014 and had never sought to abduct these children or remove them from their mother’s care. He urges me to take the first leap of faith but recognises that any wall of trust he is able to erect will need to be built brick by brick so far as the mother is concerned. How, he asks, is that process to be commenced if he is not given the opportunity to demonstrate to her and to the court that he can be trusted to return the children?

In my judgment, the father is not, and should not be seen as, an angry and resentful father who is simply biding his time and waiting for that first opportunity to abduct these children and remove them from their mother’s care. I believe that he does indeed understand that their physical and emotional wellbeing flows from, and depends on, the care she provides on a day to day basis. I take the view that much of his resentment of the current arrangements with the nanny stems as much from cultural issues as from any criticism of the mother’s abilities as the primary carer of these children. He was brought up in a home where he was reared entirely by his mother. His experience of family life as a child was not influenced by English attitudes towards working families being the norm in households up and down the land. I suspect it is difficult for him to accept that what the mother describes as the “wrap around care arrangements” which she has put in place should displace, or take priority over, the care which he could give their sons. I suspect, too, that a part of him probably feels that she is dictating terms to him as a parent and that somehow his “rights” or status as an equal parent are being downgraded. He was entrusted by her to care for these children, and L in particular, from the time they were tiny infants. He finds it difficult now to understand what has changed.

It is in this context that I believe he lacks any proper insight into the effects which his own actions have had in terms of the parenting dynamic which has been scrutinised so carefully during the course of this hearing. I agree with the Guardian that he has little understanding of the reasons for the deep-seated mistrust of the mother. Whilst he acknowledges he has behaved badly in the past, he appears to believe that the page should now be turned simply because of the passage of time and his commitment to the present arrangements which have become more relaxed as the litigation has progressed. The Guardian spoke in his evidence of a sense he had that these parents were already beginning to work together and sort things out for themselves. Whilst I would hope that will become the case, I have to say I did not see much evidence of that myself albeit that my observation of the parties was confined to their appearances in the more stressful confines of the court and the witness box.

The greatest risk to these children, as I perceive it, is one of an unpremeditated decision on the part of the father to retain these children in Algeria at the end of a period of authorised travel. I believe his motives in wanting them to experience life and family in Algeria are genuine. The children know they have a family in Algiers; they speak to their grandparents by Skype. I have no doubt that their father speaks to them often about his childhood and early life growing up in that country. These are memories he wishes to reflect in their sharing that experience with him by means of regular visits to Algeria in the coming years. However, it is not difficult to see how, once back in that familiar environment where he is likely to receive the unqualified support of his parents, he may convince himself that, no matter what the mother has to offer these children, it is better for them to grow up fully immersed in their Muslim culture and tradition. I do not know what influences may operate once he is back in Algeria. Whilst I am told that his parents are prepared to provide oaths or undertakings, I have not seen or heard them. I simply have short emails. The father has made me well aware in his own evidence of the attitude which they take to these proceedings and the need for their grandchildren to be circumcised. A combination of influence from his family, his religious leaders and the fact that England will be a very long way away may well operate on his mind in terms of the imperative which he has told me he regards to be his own sacred duty as a father to these children. The fact that he was prepared to admit in evidence that the thought of removing the children to Algeria or retaining them there had crossed his mind from time to time is to his credit, but it demonstrates to me that these thoughts are very present in his mind to this day, albeit he assures me he would not act on them.

Having considered all these matters in the round, I am driven to the clear conclusion that the risk of abduction which was found by the court to exist in relation to these children in 2013 remains a risk today. Whilst my evaluation of that risk remains “slight”, I am more concerned about the possible risk of retention after a period of contact in Algeria. In my judgment, and for the reasons I have set out, my evaluation of that risk is greater than the risk of abduction per se.

In terms of the magnitude of the consequences for these children if such abduction or retention were to occur, I need say very little. ‘Catastrophic’ is a word which has been used frequently in the authorities in this context. It is, in my judgment, of equal application here. These are still very young children whose lives are only just achieving equilibrium and balance after a difficult and stressful period of change. Litigation and conflict between their parents has been the backdrop to their existence for the last three years. I accept that they have engaged their own strategies for coping with these issues and that they are now experiencing a loving and secure family environment which embraces the periods of time which they spend in their father’s home. The transition between those two homes has become part of the routine of their lives and they are coping well, according to the evidence I heard from MS. Were that structure to be unilaterally dismantled by the actions of the father, it would on any view have an appalling effect on their emotional wellbeing. The effect on their lives would be shattering.

What of other safeguards or protective measures which might be put in place for these children? I do not place any weight on the offer of a bond of £50,000 as a fighting fund, generous though that offer from his sister might be. I am aware, not only from the evidence of Mr Edge but also from my own experience of these international cases, that any litigation in the local Algerian courts could take years. The mother is simply not in a position to drop all family ties here and engage in that sort of litigation. She has a very young child to care for who will remain in this jurisdiction come what may. Whilst the cost of litigation may well be proportionately less expensive in that jurisdiction, any fighting fund put in place would have to include provision for the cost of international air travel and accommodation whilst she is in Algeria. She would be likely to have to attend several hearings over a lengthy period of time. I am conscious of the disadvantage at which she would find herself in those proceedings if it were brought to the attention of the court that she had renounced her embrace of the Islamic faith and was now living with a non-Muslim partner in circumstances where the children were not being brought up as Muslims within her home. Mr Edge was clear to me in his concerns for her in this respect. He said her position would be regarded as “sinful” and he would regard her status in the local courts as “extremely worrying”. I share the Guardian’s concern that she could have no confidence in her ability to be able to bring the children back. Further, if the father were to be given an indication by the local Algerian courts or by his legal advisers that his position in retaining the children in that jurisdiction would be sanctioned as an appropriate and proper discharge of his religious and parental duties, his resolve to return them to this jurisdiction might well disappear.

As to the possibility of lodging with the local Algerian courts some form of parental agreement with a view to securing from the Algerian courts a “mirror order” or its equivalent, it seems to me that there is no guarantee, or even expectation, that this would have the slightest effect in the circumstances I have outlined above. Mr Edge was quite clear in his evidence that this was an untried and untested procedure and one which, in his experience, had never been utilised in circumstances where there was parental discord as to the children’s religious upbringing. Further, it required a high level of co-operation between the parents which simply does not exist in this case.

I fully acknowledge and accept the potential benefit to these children of exposure to their wider family and culture. They are dual heritage children and they have a right and expectation that this aspect of their lives will be properly respected and reflected in appropriate court orders. But I remind myself of the law which I must apply to the facts as I find them to be.

In my judgment, none of these safeguards proposed by the father is likely to have any real or tangible effect in Algeria in the circumstances of this case and there are very considerable obstacles in the mother’s path in terms of her ability to access a swift mechanism for securing the children’s return to this jurisdiction.

I have to be satisfied that making an order which provides for these children to travel internationally to a non-Convention country is in their best interests. For these purposes I am required to have in mind all the relevant factors listed in s. 1(3) of the 1989 Act. I have already referred to the tender ages of these children. Each is entirely dependent upon the parent who is looking after them at any given point in time. They have no independent voices of their own in terms of their ability to resist any unauthorised removal or retention if that was a course upon which their father might determine at some future point in time. I have already referred to the consequences of any separation from their mother who is, and will remain, their primary carer. The effects of any such change would, in my judgment, be incalculable for these children.

I must also bear in mind that we are living in an advanced technological age where instant means of communication are developing with every day that passes. Whilst I am conscious of the rights which the children and the father have under Article 8 to respect for their private and family life – which, in the case of these children, includes respect for their Algerian heritage – I must also pay due and proper regard to the mother’s Article 8 rights for her family life as it is presently constituted. That family life will be ruptured in a very significant way if these children were retained in Algeria against her wishes in circumstances where she was unable to secure the children’s return. There is no evidence that the children’s grandparents and other extended family members cannot travel to England to see the boys although I accept that this would inevitably mean they incurred the costs and inconvenience of making arrangements for accommodation and the like. There does not appear to be any particular problem in relation to financing such travel whether in respect of the father’s ability to purchase tickets for himself and the children or his family’s ability to pay for or sponsor his parents’ travel to England. I appreciate that they are now retired but his mother has made the journey on at least one occasion of which I am aware. Even if direct contact with extended family members in England is not possible for whatever reason, they are having Skype contact already and there are many other means by which the father can teach his children about modern Algerian life without being physically present in that jurisdiction.

Having thought very carefully about all these matters and weighed each factor in the balance, I have reached the clear conclusion that, given the risk of abduction or retention in this case, I cannot say that I am positively satisfied that the advantages to these children of visiting Algeria outweigh the risks to their welfare which that or future visits will entail. Because I am left in doubt, I must err on the side of caution and accordingly I refuse to make the orders which the father seeks in relation to international travel to a non-Hague Convention country. The existing orders in respect of these prohibited steps will therefore remain in place until further order.

In terms of travel to France, which is a Convention country, I have reconsidered all these matters afresh. I do not set them out again but they inform my conclusion that I cannot safely say that the safeguards provided by the provisions for summary return encapsulated within the Convention and the obligations imposed upon Member States who are signatories to its terms will have the necessary degree of protection for these children. Whilst I accept that they represent real and tangible safeguards for any child abducted to or retained in a jurisdiction which is a Convention country, the reality in this case is that, if the father did form any intention to remove or retain these children, France (or any other Convention country) would be likely to be no more than the springboard for a removal to Algeria. The remedies provided by the Convention would not assist the mother once he had left that jurisdiction. The reach of the Convention would not extend into Algeria and her position would be exposed in terms of securing their return from that jurisdiction. I cannot ignore the fact that flight from France to Algeria, if necessary through the use of false travel documents, would be a simple reversal of his earlier inbound passage to England. He has family in Marseilles. There is a direct ferry route from Marseilles to Algiers. Whilst the magnitude of the risk of an abduction from France to Algiers may be less than the risk of a retention in Algeria were I to have granted permission for travel to a non-Convention country, it is a risk which cannot be eliminated on the evidence I have heard. In the event of an onward flight to Algeria, the magnitude of the risk for these children remains as I have described it above.

For these reasons alone, and conscious of all the factors which have to be considered in the balance, I am not persuaded that it is in their best interests at this stage in their lives to sanction even the more limited European travel which the father seeks. I regard the continuation of the prohibited steps order in respect of European travel to a Hague Convention country to be a proportionate exercise of the court’s powers given the three elements which I have to bear in mind throughout. The risk of onward flight exists, albeit that the risk is not great; the consequences in the event of a breach outweigh any possible benefits to these children in terms of the prejudice to their wellbeing; and the safeguards of the Hague Convention would not apply since a breach by the father is likely to involve onward travel to Algeria.

I know that these decisions will be a disappointment to the father and I wish him to know that I have reached these conclusions with the children’s interests at the forefront of my deliberations. These are not children who enjoy the benefits of extensive travel abroad with their mother. She cannot afford to offer them that benefit at the present time and I am therefore not imposing any restriction on this aspect of his parenting which does not apply through force of circumstance to hers. It may well be that, in time to come, as the children are older with independent voices of their own, the situation may change. However, for the foreseeable future, I am not prepared to sanction any travel outside the jurisdiction of England and Wales.

This is a separate issue and I look at it afresh, albeit that the children’s welfare remains my paramount consideration. Once again, I bear in mind all the factors which emerge from the welfare checklist in s. 1(3) of the 1989 Act. In this context, I must also consider s. 1(5) of that Act which requires me to make no order unless I reach a clear conclusion that to make the orders which the father seeks is not only in their best interests but is better than making no orders at all.

I have already rehearsed at some length the expert evidence which I heard about the central importance of circumcision as an essential part of Muslim life as well as the medical evidence in relation to the nature of the procedure and the inherent risks it carries. I have to look at this issue from the perspective of the children whose interests outweigh any particular position adopted by either one of their parents. I acknowledge that in so doing I am treading into the “deep waters” identified by the President in Re B and G (Children)(No 2) but the polarised positions of the parties make that course inevitable. I bear in mind that the mother is not set against circumcision as an option for these children in the future when they are old enough to consent to the procedure themselves but she does not agree to it now in circumstances where, if it is to go ahead, the court will have to consent (or give permission) on their behalves.

I accept that this is a genuine application on the part of the father. His motives are driven by his deep-seated religious convictions and his perception of his obligations as a devout Muslim father. The Guardian acknowledged the fundamental importance of circumcision as an “obligation” for a Muslim father. To an extent, his application to this court is a partial discharge of that obligation or duty. In the face of opposition from the mother, he has pursued an entirely legitimate application, albeit that it is one which will be decided in the context of English law. In accordance with Article 8 of the European Convention on Human Rights, incorporated into our domestic legislation by the Human Rights Act 1998, the right to respect for his and the children’s family life includes his freedom to practice his religion. If and insofar as the expression of that religion imposes on him an obligation to ensure that his children are circumcised, the law will only prevent that course if it does not coincide with their best interests.

The following factors appear to me to be relevant to the balancing exercise which I have to perform in this context.

First, these were children born to parents who were both exercising their Muslim faith at the time of their birth (the father through the incidence of his birth into a Muslim family, his nationality and his upbringing; the mother by choice). She accepts that, at a time when their elder son was an infant, she accepted that he would be circumcised in accordance with the wishes of the father. For so long as they shared a common home with the children, the expectation was that these children would be brought up as Muslim children. Their parents socialised with other Muslim families and the mother’s evidence is that she was aware that it was common practice for their friends’ children to undergo circumcision.

Secondly, the children’s circumstances changed as a result of their parents’ separation and the disintegration of their shared family existence. L was then 2 years old and B had only recently celebrated his first birthday. Whilst there is some issue as to the precise point at which the mother abandoned her Muslim faith (Footnote: ³), the children are now living in a home where they are receiving an essentially secular upbringing. That is likely to remain the case throughout their respective minorities. Their exposure to Muslim circles and socialising within those circles are likely to be confined to those periods of time which are spent in their father’s care.

Thirdly, since his separation from the children’s mother, he has ensured that, whilst in his care, they are fully involved in the Muslim faith, or as fully involved as it is appropriate for them to be at this age and stage of their lives. With his encouragement, they attend classes at the mosque where they pray with their father. They observe prayers appropriately at his home. They are receiving instruction in the Arabic language and can already recognise some words and phrases in religious texts. They will become aware, if they are not already, that their father has been circumcised. However, they will not grow up in an environment within their mother’s home where circumcision or the observance of daily prayers is part and parcel of family life in that household. They are already aware that their mother does not espouse the Muslim religion and that there is a difference between them and their younger half-sister in this regard. Whether or not with the encouragement of the father, I accept that there has been some spontaneous reference by the boys at their mother’s home to C being different from them in this respect.

Fourthly, the likelihood is that they will continue to spend time attending the mosque with their father as they develop into more independent young boys and, if they are not circumcised, there is a risk that they may feel alienated from that religion or from their peers who have been circumcised. It is not unreasonable in these circumstances to envisage that they may be the subject of either teasing or some gentle, if well-meaning, pressure. In this event, there is a risk of further litigation because the mother made it quite clear to me that, whilst she will not seek to influence the children one way or the other, she will not hesitate to bring the matter back to court if she perceives the father, or others at his behest, to be applying inappropriate pressure to the children.

In this context, I believe this risk is a real one. The father told me that he was as certain as he could be that these children would indeed be circumcised during their childhood. In my judgment, consciously or not, he would find it almost impossible not to convey to these children the strength of his own convictions that circumcision is not only the inevitable result of the discharge of his parental obligations, but a perfectly normal incidence of Muslim life and devotion to Allah. This lack of insight on the father’s part placing, as it will do, a burden on the shoulders of these children, is not a positive indicator in favour of circumcision but it is nonetheless a factor which I have to balance with all the others.

Thus, in the light of the factors I have mentioned above, circumcision would confirm the identity of these children as part of the Muslim community. It would eliminate the father’s anxieties and would remove the likelihood of the children being the subject of any further attempts to influence them one way or the other by either parent. The procedure is irreversible: once it is done it is done. The father would have no further reason to complain and the mother would no longer be in a position to object.

Those factors must be weighed in the balance against the fifth, and important factor, that, just as the father is passionate in his cause and the reasons for circumcision, the mother is resolutely opposed to it at this point in time. As the authorities make clear, it is a strong thing indeed to impose a medically unnecessary surgical procedure on a parent who has primary care of young children who opposes it. An inevitable consequence of granting the father’s application would be the emotional pressure on the children caused by the mother’s distress. However hard she tried to contain her emotions, I do not believe she would be able to shield the children entirely from her sense of distress on their behalves. The strength of her convictions was all too obvious from the witness box. There is a rational basis for the mother’s opposition and, if the court sanctions the procedure, it is something which she is going to have to live with on a daily basis as a constant reminder of the parental conflict which exists between her and the father.

I remind myself, too, that as a result of that parental conflict these children have been the subject of litigation for the majority of their young lives. That is not good for any child and it makes them vulnerable to adult tensions to which they should not be exposed. I believe that this mother would find it difficult to present the issue of circumcision to the children in a positive light and they, in turn, are unlikely to understand why they are being put in a position of pain and discomfort – if only for a short period of time – if there is no genuine medical need for the operation to be carried out.

So, too, as they spend time within their non-Muslim circle of friends and their local non-denominational school community, they may feel different and slightly isolated if they are the only ones to have been circumcised.

A further factor is that the expert evidence which I heard from Professor Haleem suggests that there is no overriding imperative to circumcise these children before the age of puberty. The father’s evidence was that, whilst his parents would find the whole situation very strange, he did not anticipate that they would discriminate in any way in respect of their grandchildren whether or not they were circumcised. There is already evidence that the local and London mosques which the children attend would continue to allow them to participate in religious community life regardless of their state of knowledge as to whether or not the children were circumcised.

It is a finely balanced decision but one in respect of which I have reached a clear conclusion. First and foremost, this is a once and for all, irreversible procedure. There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father although that may very well be their choice. They are still very young and there is no way of anticipating at this stage how the different influences in their respective parental homes will shape and guide their development over the coming years. There are risks, albeit small, associated with the surgery regardless of the expertise with which the operation is performed. There must be clear benefits which outweigh these risks which point towards circumcision at this point in time being in their best interests before I can sanction it as an appropriate course at this stage of their young lives.

Taking all these matters into account, my conclusion is that it would be better for the children that the court make no order at this stage in relation to circumcision than to make the order which the father seeks. I am not dismissing his application on the basis that they must develop into adulthood as uncircumcised Muslim males. I am simply deferring that decision to the point where each of the boys themselves will make their individual choices once they have the maturity and insight to appreciate the consequences and longer term effects of the decisions which they reach. Part of that consideration will be any increase in the risks of surgery by the time they have reached puberty. I do not regard the delay between now and that point in time significantly to increase those risks. The safest point in time to have carried out the procedure, according to Mr Muir, has long since passed.

In his final submissions, Mr Chapman on the father’s behalf made it plain that he was not seeking a prescriptive outcome on behalf of his client. What he seeks to achieve is a promotion of time he spends with the children which he would like to extend to an additional overnight stay in alternate weeks. He accepts the need for a period of calm where there is no change in the children’s routines. It is agreed that holidays and half terms will be divided on an equal basis. He is willing to adopt the Guardian’s final proposals if I am not minded to extend staying contact as he seeks.

This area is the least contentious aspect of the case which I have to decide. The Guardian accepts that the father’s motivation for increased time with the children is soundly based on his wish to build on their relationship as they grow older. The parties and the children will now have had more than the three months which the Guardian recommended as the minimum period for quiet reflection for all concerned. The children will have had a further term of regular school routine. In my judgment, the Guardian’s recommendation that these children will be ready to move on to an extra night of staying contact with their father during the week is well judged. I share his view despite the mother’s opposition to any increase in overnight staying contact. I think these children are well able to cope now with an additional overnight stay at a midweek point if that is combined with some form of activity which does not detract from the family time they would otherwise be spending at home with C. I shall leave the parties to agree upon the most suitable week night in the alternate week when they do not spend weekends with their father. That new regime should commence with effect from the beginning of their new summer school term.

In all other respects, the current child arrangements order will remain in place with a suitable modification for the additional overnight stay in alternate weeks. The order will continue to provide for such further or additional contact as they parties may agree. I am not proposing to provide now for any further incremental changes to contact. I have confidence in these parents to continue the preliminary steps of the dialogue which they have started in this respect. The prohibited steps order will remain in place preventing the removal of either child from the jurisdiction of England and Wales. I shall dismiss the father’s application in respect of circumcision and I propose to include a declaratory recital in my order recording my view that it is not in the children’s best interests to undergo the procedure at this point in time and, in any event, until they are competent in terms of their age and maturity to make the decision for themselves.

In conclusion, I would say only this to the parties. I recognise that my decision will be a hard one for the father to accept but I hope and expect that he will understand the reasons which I have endeavoured to set out in clear and full terms. I have given much thought to this case and I have read and listened carefully to all that has been said on his behalf. The mother, for her part, may well feel anxiety about the increase in the children’s contact with their father which I have sanctioned but I am confident that she, too, will do what she can to ensure that the transition is an easy one for the boys. Both these parents love their children. But the time has now come for this litigation to end. It has run its course and they, together, must find the means to communicate effectively so as to ensure that it is they, as parents, who shape their children’s futures together rather than any future intervention by the court.

I shall leave it to counsel to draw the appropriate order which should include provision for the cost of the video conferencing facilities used by Professor Haleem to be apportioned as between the public funding certificates of the father and the Guardian as a legitimate and proper expense.