B and C (Change of Names: Parental Responsibility: Evidence)

The applications before the Court concern two children, B (a boy, aged 13) and C (a girl, aged 8). They live with their mother in England. Their father is currently believed to be living in Iran. They are both wards of the English Court and have been so since November 2016.

The issues on which my ruling is sought are as follows:

The mother attended the final hearing, represented by solicitors and counsel. The children’s Guardian, Ms Toni Jolly was also present and represented. The father neither attended nor was he represented. I read the extensive documentation filed in the current proceedings, and in previous proceedings; among the statements filed in previous proceedings was one which was signed by the father (signed 2 October 2014). He has filed nothing in these proceedings. I received oral and written submissions from the represented parties. Neither represented party required oral evidence, and nor did I.

Before addressing these issues, and to provide a context for my decisions, it is important that I should set out the relevant background history.

The parents were both born and raised in the Islamic Republic of Iran. They married there in 2002; they lived in the city of Shiraz, and the mother describes the father as being from an influential tribe (Ghash Ghahaei) in that region of southern Iran. The family moved to England in or about 2003, and sought asylum here. They were granted asylum in 2009. The two children of the family, the subjects of these proceedings, were born to the marriage in England.

The mother describes the marriage as abusive from an early point, certainly from the moment the parties arrived in this country. She asserts that the father was constantly intimidating and bullying towards her, and in due course the children; she describes at length in her statements her own distress, and the upset and fear of the children, caused by his behaviour. On the written evidence of both parents (i.e. also taking account the October 2014 statement of the father) it appears to me that the marriage was volatile; on multiple occasions the police were called out to deal with incidents of alleged domestic abuse within the home. I have seen extensive police CRIS (Crime Reporting Information System) records which generally tend to support the mother’s account in her written evidence. At times the mother sought sanctuary with the children in a refuge, though invariably they returned to the father. The mother says that she developed symptoms of depression, which she felt only seemed to aggravate the father’s taunts and abuse. In 2013, the mother issued divorce proceedings, but discontinued the same, she maintains, on the father’s promise to modify his behaviour. The proceedings were revived in 2014. At or about that time, the parties travelled to Iran. There is a dispute as to the purpose and details of that trip. According to the mother, the father promised not to defend the divorce proceedings if she agreed to accompany him to Iran with the children; the father maintains that it was a routine holiday although separately (and inconsistently with this) states that in Iran his life was in danger as he had ‘illegally’ converted to Christianity

Once in Iran in 2014, the mother claims that the father removed the children from her care, and he attempted to prevent her from leaving the country. She asserts that she did in fact manage to leave covertly, with the children in tow. She said that she partly disguised herself in, and hid the children under, a chador to do so. The father followed the mother back to the UK; an inevitable confrontation ensued, and with the assistance of police and local authority the mother was once again relocated to a hostel. When interviewed by the police at that time (25 August 2014), the father is recorded as having asserted that: “in Iran it is easy for a man to get custody. All is needed is for them to go to a court and then confirm it with the police”. This is a point which he emphasised in his later witness statement in the Family Court; he denied, however, that he intended to do this.

The mother obtained injunctive relief against the father in the family court under the Family Law Act 1996, and on the return date the father gave undertakings as to his behaviour. The mother had also applied for, and obtained, a prohibited steps order to restrain the father from removing the children from her care and control and from the jurisdiction; the father gave undertakings in this regard too. The father issued proceedings under the Children Act 1989 for contact. In October 2014, the father filed a statement in which, materially, he said this:

“The children are not at risk of abduction…

I had no plans to remain in Iran [in 2014], I have a home, car, family and better life in the UK and I had no plans of moving to a third world country. My children are settled in the UK and it would have been detrimental to my children’s education to take them back [to live in Iran] as they would have had to begin learning the language from scratch.

I deny that I pose a threat to the children and I have never made threats to remove them from the jurisdiction. My children are settled in the UK and this is their home. They attend school here and have friends here and I would not wish to destroy that.”

A final child arrangements order was made in 2015 providing for the children to spend two nights per week with their father; the prohibited steps order, forbidding the removal of the children from the care of the mother and from the jurisdiction of England and Wales, was continued. Divorce proceedings were finalised.

The mother’s case is that abuse and harassment from the father persisted. She says that the father used the contact hand-overs to berate and maltreat her. When the non-molestation order expired in 2015, the mother complains that the father stepped up his campaign against her. The mother was referred to her local MARAC (Multi Agency Risk Assessment Conference), and was assessed as being at high risk.

In February 2016, B reported to his mother that on a contact visit he had overheard his father talking on the phone about a passport. The mother, fearful that this represented a further plan to remove the children from her care, reported her concern to the Hammersmith police. The police took no action. A few days later the mother received a telephone call from the children’s school to inform her that the father had not brought the children into school that day, nor on the previous day.

It transpired that in breach of the earlier prohibited steps order, the father had left London with the children, and travelled to southern Iran, taking a convoluted route almost certainly to avoid detection in transit – via Liverpool, Dublin, Dubai, and Tehran (not initially at least to his home city of Shiraz). The mother reported the children as missing to the Hammersmith police, and promptly made an application (albeit without the benefit of legal aid, while the Legal Aid Agency equivocated over the merits of her case) to the court for a location order. Moylan J (as he then was) granted this order, though regrettably it was, of course, too late; the children were already in Iran by the time the case was heard, and they remained there, without contact with their mother, for the next seven months. The children’s British passports were still in the custody of the mother’s previous solicitors following the earlier court process; the mother made the reasonable assumption based in part on what B had reported (confirmed later by the Iranian Embassy) that the father had obtained Iranian substitutes without her knowledge or consent.

The mother was enabled, with assistance, to locate the children in Iran, and in early November 2016, the mother travelled there herself, surreptitiously collected the children from school, and over the course of several days she returned with them back to this country, clandestinely, making at least part of this arduous journey on foot. In this endeavour, she was assisted by the abduction team of the Foreign and Commonwealth office, and by the British Embassy in Turkey.

Immediately following their return, the mother states that she received increasingly frightening telephone calls and messages from the father, in which he threatened to trace her, to kill her, to have acid thrown into her face, and to snatch the children (by himself or through agents) and take them back to Iran. He appears determined, according to the mother, that she be punished for removing the children from his care and from Iran. The father has contacted the school which the children used to attend in London seeking information about their whereabouts.

The father instigated proceedings in both the family court and the criminal court in Iran; he has alleged in both sets of proceedings that the mother has kidnapped the children. Documentation served on the mother’s family in Iran and forwarded to the mother, so available to me, shows that in December 2016 the 27^th Branch of the Family Court of the City of Shiraz made a custody order in the father’s favour, awarding him ‘care and control’. The mother has been summoned to attend court; she has been threatened with arrest for failing to do so.

The mother is extremely fearful that the father will now travel to England and remove the children again, in purported enforcement of an order or orders which he has obtained in Iran.

Since returning to this country a little over a year ago, the relevant local authority has assisted the mother to safeguard the children, and keep their whereabouts secret. The children have been interviewed by the police using the Achieving Best Evidence Guidelines. I extract a summary of part of those interviews from the relevant CRIS report:

“[B] stated that over the last 8 months he has been through a lot and said that it was the worst time of his life … he said it was awful in Iran … his father used to hit them and tried to make them lie to the police … [C] said that her dad had hit her because when they went to the police station to see their nan (mother’s mum) she was supposed to tell them horrible things about her mum but she didn’t and because of that her father beat her.”

The children have further spoken to their General Practitioner of being physically abused in Iran, and placed in school to learn in a language which they did not fully understand, being punished when they fell behind in their studies.

Late in November 2016, the children were warded by Order of the High Court, and the contact order in favour of the father was suspended. On 26 May 2017, the mother issued the applications before me: (i) for an order permitting her to change the children’s names, and (ii) for a specific issue order – for the court to limit the ways in which the father can exercise parental responsibility for the children.

At a hearing in June 2017, Roberts J joined the children as parties to the litigation, and reinforced the protective cordon around the mother and children with a range of orders designed to ensure that the father would not be able to locate them. The mother moved from city in England to another. Having been there for some weeks, B was approached by a man in the street whom B recognised and associated with the father. B was said to be deeply traumatised by this. The mother and children moved again.

Underlying both applications before the court is the mother’s very considerable fear, shared in significant measure by the children, that the father is making efforts to trace them, and if successful in locating them, will try to seize the children and transport them back once again to Iran. If this happens, it is a near-certainty that the mother’s relationship with the children would cease, and she would never be able to retrieve them again. By her actions in rescuing the children in the way she did in 2016, the mother has essentially forfeited her right ever to try to enter Iran again. As earlier indicated (see [15] above), the father is believed to have obtained a custody order in Iran, he is actively pursuing criminal proceedings against the mother for the offence of kidnap, and there is an outstanding warrant for her arrest there.

The mother describes both children as being “severely traumatised” by their experiences in the care of their father in 2016. Neither child will talk in Farsi for fear that they are identified as Iranian; the mother and children have been placed into self-imposed purdah for fear of revealing to any third party any features of their history or, more particularly, their Iranian heritage.

Both children have been referred by their GP to relevant local adolescent mental health services. I have read evidence from a Clinical Psychologist, who has described the family as having “significant mental health needs requiring support”. The psychologist describes B as experiencing nightmares of his father hurting him, and is unable to sleep alone; he is further described as “hyper-vigilant”, is constantly on the look-out for someone abducting him, and presents with “a number of trauma symptoms”. B separately (but consistently) told his Guardian that he had had “a big part of his life ripped out because of what his father did”. C also is reported to have nightmares, and presents with challenging behaviour, acting out aggressively at home. The mother is not in a strong emotional state to support the children; she herself is diagnosed as suffering from post-traumatic stress disorder, anxiety and depression, for which she is prescribed a range of antidepressant and associated medications.

The Guardian has described the consequences of any further abduction to Iran as “catastrophic” for the children. She rightly describes how abduction would lead to “the loss of their relationship with their mother, and the stability she is striving to re-establish for them.” Ms Jolly speaks with understandable concern of the long-term adverse consequences for the children arising from their current state of anxiety and confusion.

As I indicated above ([1]) it is believed that the father is living in Iran. He has not attended for any hearing in the case since November 2016. He has not participated in the proceedings in any other way.

On 15 May 2017, Parker J directed that the father could be served with the court process by airmail, e-mail and by WhatsApp. That order was confirmed by Roberts J on 16 June 2017.

The e-mail address to which court documentation has been sent is, I am satisfied, that which the father used in April 2017 to communicate with C, and the address which he more recently (25 May 2017: N.B. since the order made by Parker J: see above) gave to a school in England, believing the children to be attending there; I am therefore satisfied that it is sufficiently current. Dr. George tells me that all the relevant information and documentation has been sent to the father by e-mail, and that an automatic delivery memo has been returned; none of the e-mails have bounced back as they would, had they been delivered to a defunct address. The mother’s solicitors have used all identified forms of communication for service. I have seen the relevant correspondence, including the clip of materials sent by e-mail on the day before the hearing. I am satisfied that the father has been served with all the relevant material, and that he has been given proper notice of this hearing in accordance with rule 6.19 FPR 2010.

The father has been given the opportunity to communicate with the court by sending his views in writing to the dedicated family High Court e-mail address (all of the details are contained in the order of 16 June which I am satisfied was served on him by no later than 21 June 2017). There is no record of him having communicated with the High Court office.

Rule 27.4(2) empowers me to proceed in the absence of the father, provided that I am satisfied that he has had reasonable notice of the application, and specifically of this hearing, and that the circumstances of the case justify proceeding in his absence (rule 27.4(3)(a) and (b)). I am under an obligation to try this case justly and proportionately, and while this includes a duty to ensure that the parties are on an equal footing (rule 1.1(2)(c) FPR 2010), I am equally obliged to save expense and to deal with the case expeditiously and fairly (rule 1.1(2)(d)/(a) ibid.).

In the circumstances, I indicated to the parties that I would conduct this final hearing in his absence.

The mother wishes to withhold her fourth and final statement of evidence, signed shortly before the hearing, from the father. This contains more detailed information about the current situation of herself and the children.

The limited circumstances in which relevant evidence may be withheld from a party to proceedings has been considered in a number of cases. Most notable is Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 at 615D, sub nom Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687), in which it was said that:

“The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling”.

This view was amplified by Munby J (as he then was) in circumstances not dissimilar to this, in Re B (Disclosure to the Other Parties) [2001] 2 FLR 1017 in which he said at [67]:

“… the decision-making process, although it must be fair to R [i.e. the party to whom it was said the documents should not be disclosed] (and to all the other parties), must also, so far as is compatible with that overriding requirement, be such as to afford due respect to the interests of the children, the other parties and the witnesses safeguarded by Art 8. So, a limited qualification of R's right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective – in other words, if directed to the pursuit of the legitimate aim of respecting some other person's rights under Art 8 – and if it represents no greater a qualification of R's rights than the situation calls for. There may accordingly be circumstances in which, balancing a party's prima facie Art 6 right to see all the relevant documents and the Art 8 rights of others, the balance can compatibly with the Convention be struck in such a way as to permit the withholding from a party of some at least of the documents. The balance is to be struck in a way which is fair, and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved”. (emphasis by underlining added).

In my judgment, the father has no immediate and obvious need to have the information contained in the fourth statement in order for him to participate fully in the proceedings (should he choose to do so), and to respond to the essential allegations against him. There is a “compelling” case to protect the children from a repeat of the abduction, and it is in the circumstances in my view ‘fair and proportionate’ that this document is not served on him at least at this stage. I am satisfied that the mother and children are extremely fearful of the father, and would be likely to experience significant emotional trauma if they believed he had access to the information about where they currently are living. Should the father at any point engage with court process here, and apply for access to the statement, this decision could of course be reviewed in the light of prevailing circumstances.

A surname defines, and is defined by, familial heritage and genealogy. A person’s forename invariably identifies gender, and often personifies culture, religion, ethnicity, class, social or political ideology. A forename and surname together represent a person’s essential identity. From very earliest childhood, one’s name is an intrinsic part of who you are, and who you become. Thus, the naming of a child “is not a trivial matter but an important matter”, and any change in the name “is not a question to be resolved without regard to the child's welfare” (Dawson v Wearmouth [1999] UKHL 18; [1999] 2 AC 309; [1999] 2 All ER 353; [1999] 2 WLR 960; [1999] 1 FCR 625; [1999] 1 FLR 1167) per Lord MacKay). Where two or more people have parental responsibility for a child then one of those people can only lawfully cause a change of surname if all other people having parental responsibility consent or agree, or the court otherwise orders.

The issue of change of surname was debated by the House of Lords in the leading case on this topic, Dawson v Wearmouth (above), where Lord Jauncey stated:

“A surname which is given to a child at birth is not simply a name plucked out of the air. Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is thus a biological label which tells the world at large that the blood of the name flows in its veins. To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has obtained more mature years ignores the importance of initially applying an appropriate label to that child”.

Adding:

“… the changing of a child's surname is a matter of importance and that in determining whether or not a change should take place the court must first and foremost have regard to the welfare of the child. There are many factors which must be taken into account, not only those pertaining to the present situation but also those which are likely to affect the child in the future.”

Re W, Re A, Re B (Change of Name) [1999] 3 FCR 337, [1999] 2 FLR 930 followed Dawson v Wearmouth and at [9] Butler Sloss LJ set out a list of factors which would be relevant to any determination of change of surname, including:

There is a growing recognition that a forename or given name is no less significant. In Re C [2016] EWCA 374 at [40], contrasting the position taken by Thorpe LJ in Re H (Child’s Name: First Name) [2002] EWCA Civ 190, [2002] 1 FLR 973 (CA). King LJ described it thus:

“The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of 'belonging' which will be invaluable throughout his or her life.”

Plainly the longer the child has carried, and been associated with, that forename the stronger the connection with it, and the more powerful the reasons required to change it. As King LJ went on to say in Re C at [51]:

“… given the fact that in the 21^st century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname”.

In Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339 Butler Sloss LJ said (at 346) that:

“To change a child's name is to take a significant step in a child's life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons…  Having said that, one has to recognise, in reality, that names do change. Children acquire nicknames and even nicknames sometimes take over from the name that they were given as their chosen name. Children do have diminutives and they may themselves, as they get older, prefer their third name to their first name and choose to be called by it.”

The father was married to the mother at the time of the children’s births, thus he has parental responsibility for B and C as a matter of law.

Section 3(1) of the Children Act 1989 defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property". Under section 2(8) CA 1989, "the fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made in respect to the child under this Act". The court has power to restrict the exercise of parental responsibility by making a prohibited steps order, defined in section 8(1) CA 1989 as "an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court". Even if revocation or withdrawal of his parental responsibility were justified on the facts, it is not permissible to revoke or withdraw a father’s parental responsibility in these circumstances, save in the vanishingly rare circumstances where a mother may apply for a sole adoption order in respect of her own children (a course which is not advocated in the instant case; see Re B (Adoption: Natural Parent) [2001] UKHL 70). In P v D & others [2014] EWHC 2355, Baker J contemplated that the power to limit the exercise of parental responsibility:

“… extends, in very exceptional cases, to making an order prohibiting a parent from taking any steps in the exercise of parental responsibility” [109] (emphasis by underlining added).

In the case of Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315, [2015] 1 FLR 166, the Court of Appeal considered the circumstances in which parental responsibility would be circumscribed. The following principles can usefully be drawn from the judgment:

As the mother applies in this case for a prohibited steps order, section 1(3) does in fact apply

The orders sought by the mother in this application are both far-reaching, and exceptional, or to use the language of Re D (Withdrawal of Parental Responsibility) (at [40](i)/(ix)) above, “draconian” and “rare”. The mother seeks, by her applications, to disenfranchise the father in practice as a holder of responsibility for the children, and to create for the children wholly new identities which are deliberately to be secret from the father. Orders of this gravity should plainly only be made by a court if there is a solid and secure evidential and factual basis for doing so, and where the orders are palpably in the best interests of the children concerned.

I set out the mother’s account of the background history to this application reasonably extensively above (at [5] to [19]) in order to provide the context for my decision, but I am very conscious that the father’s non-participation has left me without any challenge to, or test of, the mother’s narrative. This is all the more troubling as I note that in his October 2014 witness statement, the father took significant issue with the mother’s account of the history up to that point, and ascribed responsibility for the marital discord and dysfunction in the family to her. In those circumstances, I proceed with caution.

Among the indisputable facts which I collect from the history are the following:

I am further satisfied on the evidence which I have read (and to which the mother has sworn as to the accuracy), that she has been the victim of domestic abuse over an extended period from the father; this is borne out by the contemporaneous police records, and the reports of the MARAC (see [10] above). The detail of the incidents is less important than the overwhelming impression from the papers that the mother felt overborne by the father’s abusive behaviours towards her. It is not necessary for me to make any findings about precisely what happened in 2014 in Iran, and whether (and if so in what circumstances) the father removed the children from the mother’s care. I note that the father made no secret of the fact that he possessed superior familial rights in Iran.

Since their return to this country, I am satisfied that the mother and children have lived a life constantly watchful for risks of detection by the father or his associates. Their lives have become itinerant, to avoid being traced; the family have had little chance to settle. I was struck by Ms Jolly’s report of a recent visit to the mother and children’s home:

“… whilst clean and comfortable, [the home] was noticeably sparse of personal effects. The extra security measures provided also is a grim reflection of the everyday sense of threat they experience. [C] told me how many times they have had to move home and change schools in order to keep safe. She has had to leave some of her favourite possessions behind.”

Ms Jolly described both children as presenting:

“… with severe stress of the abduction added to the pre-stressors they had already experienced – parental separation and family breakdown, concerns relating to domestic abuse which led to them, and [their mother] being accommodated in a refuge, and retention in Iran following a holiday”

Based on these core findings, there is good reason to conclude that the children are at very real risk of further abduction if their father were to locate them; if taken back to Iran, there is equally good reason to conclude that there is no realistic prospect of the children having any future relationship with their mother, with whom they are closely and securely attached; the mother would not be able to risk visiting Iran to retrieve them. Back in Iran, there is every prospect that the children would be subjected to physical and emotional abuse which they ostensibly reliably claim they experienced in 2016; they would return to an education system which they found to be inaccessible by reason of language and culture. Quite apart from abduction, while the family remain in this country, they (particularly the mother) remains in my view highly vulnerable to attack from the father and in a state of hypervigilance and stress.

As I have alluded to in [42] above, I am conscious that the remedies sought by the mother represent significant infringements to the father’s and the children’s rights; parental responsibility is an important status of the adults and child concerned (see [40](i) above). The change of the children’s surname and forenames will equally represent a significant and total severance with their past: “the blood of the name” will cease to flow in their veins (per Lord Jauncey: see [34] above); it will deliberately expunge traces of their father’s familial line. But in my judgment both remedies, while extreme, are necessary and proportionate to achieve the objective of ensuring the mother and children’s safety and emotional and physical well-being. Relying on no more than the indisputable facts set out at [44] above, it is reasonably evident that the father has brought about this exceptional situation by his own misconduct. Roberts J has already imposed orders which are binding on the current and former schools, and on the local education authority prohibiting them from disclosing any information about the children to the father; my order will enlarge this restriction on the exercise of parental right very considerably.

The children themselves have indicated that they are content with the proposal that their names are changed (both children “readily agreed it is important to change their name to keep them safe”). C added, thoughtfully:

“… she would miss her name because she has had it her whole life. She also knows that a name is important in helping people know a little bit about who you are. However, she would like to have it changed for her safety. She does not mind losing her dad’s name and reflected that she even dislikes their physical resemblance.”

Even if the children were not so content, the risk of harm to them, objectively assessed, is so significant in my view that this would have been likely to weigh heavier in the overall evaluation. I am acutely conscious that this outcome essentially deprives these children of the benefits of a relationship with both of their parents; the significance of this cannot be under-estimated (see [40](vii) above). But that is not a relationship which can be safely conducted now; and it would be contrary to the emotional interests of the children for the possibility of it to remain open. The children’s Article 8 rights to respect for their private and family life must take precedence over those held by their father (per Yousef v The Netherlands [2003] 1 FLR 210).

In light of the analysis set out above, I propose to make the following orders:

That is my judgment.