P (Discharge of Passport Order) (Rev 2)

This case concerns one child, aged 2½ years, who, for the purposes of this judgment, I shall call Maria. She is the only child of the Applicant mother (“the mother”) and the Respondent father (“father”); the parties are married but separated. The mother is a Bulgarian national, with indefinite leave to remain in this country; the father has dual Bulgarian and British nationality. Both parents have lived in England for many years. The mother and Maria are currently in Bulgaria, while the father is in London.

There are believed to be no fewer eight applications before the English Courts currently concerning this family and its breakdown, brought variously under the inherent jurisdiction of the High Court, the Family Law Act 1996 (‘FLA 1996’) and the Children Act 1989, in at least three different courts. There are also at least two applications (for divorce and ancillary – children and finance – issues) before the Bulgarian Courts. When the case was listed before me earlier this week, there was a high degree of confusion caused by an unhappy combination of factors –

The confusion, and lack of discipline and focus, in the case was illustrated, indeed compounded, by counsel appearing before me on 3 November who filed position statements which addressed principally (indeed the document prepared by Mr Russell Steadman, who was then acting for the mother, exclusively) an application for the father’s committal to prison for breach of earlier orders; this was not in fact the application which had been listed for hearing. Moreover, although Ms Villarosa had filed a position statement for the hearing on 3 November on behalf of the father (focusing on the proposed committal but dealing with other matters), very shortly before the hearing was due to begin, the father personally filed and served a second lengthy and detailed ‘Position Statement’ of his own, replete with new matters of evidence. Given the significance of its contents, I permitted the document to be filed; Mr Steadman understandably applied for an adjournment for the mother to file a response, which was opposed by Ms Villarosa. Given this further unfortunate twist, but recognising the need to grapple with the issues in this case, I granted a very short adjournment, restoring the matter before me today (6 November 2020) for further submissions and decisions.

The central issue before the Court is whether a passport order made on 16 March 2020 should be discharged. But in order to get the case back on track, I indicated at the outset of the hearing that I would endeavour also to deal in part at least with the following:

The parties met in 2014 and were married in September 2016 in Bulgaria. Maria is their only child, born in the spring of 2018 in London. The mother works, I believe, for her family business in Bulgaria, and the father works in a senior position for the National Health Service in a hospital in London. The parties own a property in London which they bought in 2016; the father is currently living there.

The relationship of the parties appears to have been a difficult one; the relevant local authority Children’s Services Department have been involved with the couple since before Maria’s birth; issues of domestic abuse, and questions over the mother’s mental health, prevailed. Children’s Services remained involved periodically during the relevant period up to December 2019.

In March 2018, shortly after Maria’s birth, the mother travelled to Bulgaria to receive support from her own family; she remained there until January 2019, when she returned to London to be with the father. The mother and Maria travelled back to Bulgaria for an extended period in the summer of 2019.

The marriage deteriorated during 2018 and 2019, with alleged domestic abuse on both sides, occasioning the involvement of the police at times. The parties effectively separated at the end of the year. On 18 December 2019, the father travelled to Bulgaria; it had originally been planned that the mother and Maria would travel with them, but they did not, and followed on 29 December 2019. Shortly before the mother travelled, she saw a social worker who reported:

“Referral from Health Visitor raising concern that [the mother] was experiencing on-going psychological and financial abuse from the father. MASH duty social worker explored the concerns with [the mother] who confirmed that she was experiencing emotional and financial abuse from the father as well as controlling behaviour. She denied that any further physical assault had occurred since the summer. [The mother] declined support from Safecore and also asked that the father not be contacted as she felt that this would put her at risk of further domestic abuse. [The mother] advised that the couple planned to visit Bulgaria the following week and she and [Maria] were not planning on returning to the UK. The duty social worker provided the relevant advice and alerted the Health visitor of the plans. The duty social worker observed that should [the mother] return to the UK then further support and intervention may need to be considered”. (emphasis by underlining added).

The mother’s case now (contrary to the impression given to the social worker – see [8] above) is that this trip to Bulgaria was only ever intended to be a holiday, and she expected that she and the father would return to London together on 5 January 2020. Shortly before the due date for the return, it is agreed that the father revoked his authority for Maria to travel, and he filed this revocation with the Bulgarian border police. The mother believes that the father took this step in order to oblige the mother and Maria to remain in Bulgaria, and thereby strengthen his case that the Bulgarian courts should deal with the divorce proceedings which by then he intended to launch; she believes that he saw a financial advantage to himself in the Bulgarian courts dealing with the divorce. The father’s case is that the mother chose not to return, having planned to base herself in Bulgaria; further, or alternatively, he felt that the mother was emotionally unstable and revoked his agreement for her to travel in order that the mother would engage with the court process in Bulgaria.

On 17 January 2020, the Bulgarian court is said to have issued an order

“… wherein the prohibition for the Applicant to leave the country with the Child without the Respondent’s consent has been extended until the Child is 18 years old”.

Maria has been in Bulgaria since 29 December 2019, in the joint care of the mother and the maternal grandparents.

The mother has periodically travelled to London in the course of this year (2020), without Maria. In February 2020, the father visited Bulgaria for a short break; the mother tried to return to the UK with him and with Maria, but she maintains that he prevented her from doing so by advising the border authorities again that he did not consent to Maria’s removal from that country.

Litigation between these parties began in earnest in early January 2020, when the mother applied (on-line) for a divorce in the Court in England; her petition was issued on 29 January 2020. On 4 February 2020, the father applied for a divorce (and child arrangements and financial relief) through the Bulgarian Court. Confusingly, on 21 February the English Court issued a second divorce petition on the mother’s application (bearing the same case number). The mother claims that the Bulgarian divorce proceedings have not been served on her, a fact disputed by the father who points out that the mother applied successfully on 16 March 2020 within the Bulgarian proceedings for those proceedings to be transferred to her local court. The father has confirmed, by an Answer filed in England on 16 March, his intention to defend the English divorce proceedings on the basis of the divorce proceedings in Bulgaria; the English divorce proceedings have therefore currently been stayed.

On 16 March 2020, the mother issued proceedings in wardship; she sought the following orders:

In relation to [14](b) above, in her statement in support of the application the mother repeated that the passport order was necessary “to force him to engage in these proceedings and prevent him from moving to Germany until the proceedings are determined”.

The application came before Judd J on 16 March 2020 sitting in the urgent applications court. The mother was unrepresented, and the father had not been given notice. The judge took the provisional view on the information provided that Maria was habitually resident in England. The judge made the following orders:

Judd J made a separate tipstaff ‘Passport Order’ (bearing a penal notice in the proper form) which contained the following requirements:

On 21 March, the Tipstaff served the passport order on the father, who surrendered his British passport, and his Bulgarian ID documents, which remain in the safe keeping of the Tipstaff. The father has subsequently:

On 24 March 2020, the mother issued an application for a non-molestation and occupation order in the Central Family Court. This was adjourned, at a without notice hearing, to await the outcome of the wardship.

On 26 March 2020, and following alleged “episodes of recent unreasonable and abusive behaviour from [the mother]” while she was staying in London to launch these proceedings, the father issued an application for a non-molestation order against the mother and sought a further order prohibiting her from entering within a defined zone around their home; these orders were granted, without notice to the mother, by HHJ Sapnara at the Family Court sitting in East London.

These proceedings under the inherent jurisdiction were restored (this time as a remote hearing) before Judd J again on 27 March; the father attended and was represented by counsel. The order made on that day reflected that the father disputed:

Following that hearing, the father’s counsel sought clarification from Judd J about the terms/effect of the order. By e-mail on 1 April 2020 from the judge’s clerk, the Judge sent the following message:

“I have not ordered the father to provide for the child to be brought back to the jurisdiction as yet, but made directions last week. Equally, I am not prohibiting the mother from bringing the child to the jurisdiction, however, should she be able to do so with or without the father’s permission.”

The father has wrongly interpreted this message as countermanding paragraph 6 of the 16 March 2020 order (see [16](ii) above).

Pursuant to Judd J’s order, the father filed a witness statement on 16 April 2020, challenging the court’s jurisdiction, and laying out his case for the return of his passport. The mother did not comply with the direction, and did not file a statement.

On 10 August 2020, the father followed up his statement with a formal application to ‘set aside’ the passport order on the basis that:

“… it defies the clearly established in practice purposes of Passport Orders as legal tool (sic.). This is mainly so because it is the Applicant who has been abusing me and has taken the child away without my consent”.

He incorporated a detailed narrative submission within his application, making the following points:

The application was, regrettably, not restored before Judd J.; judicial continuity would have been highly desirable in this case, as in other international cases. It was next listed before Mr Howe QC, sitting as a Deputy High Court Judge during vacation on 25 August 2020. On this occasion, the mother was represented for the first time, but the father was not. In a position statement prepared for that hearing, it is reported (I have not seen the document) that the mother’s then-instructed counsel said this:

“The applicant opposes the discharge of the passport order as the father has not provided his unequivocal consent for the mother to travel with the child back to the UK. The purpose for making the passport order was to incentivise the father in assisting their return to the jurisdiction. He has singularly failed to do so, and the mother would say that until he does both his British and Bulgarian passports and his Bulgarian ID remain with the tipstaff.” (emphasis by underlining added).

The order made on that day records the following recital:

“AND UPON it being accepted on behalf of the mother that the passport order was sought to influence the father’s conduct concerning [Maria’s] continued presence in Bulgaria and the father’s failure to agree to her relocating to England, rather than to protect [Maria] from abduction”.

Mr Steadman advised me at the hearing on 3 November that this recital had not been included on the draft submitted to the Judge by counsel but was added by the Judge himself; given the comments in the position statement (see [26] above), I am not surprised. In any event, there was apparently insufficient time on 25 August 2020 for the court to deal with the application, and the application was adjourned to a date to be fixed.

At that hearing, the mother intimated her intention to issue an application to have the father committed to prison for breach of (a) paragraph 6 of the substantive order of the 16 March 2020, and (b) those provisions within the passport order which required him to lodge his Bulgarian passport and Maria’s British passport. The Deputy Judge directed that if such an application was made, it should be listed for directions on the same occasion as the application for ‘setting aside’ of the passport order.

On 1 September 2020, the mother filed her notice seeking the father’s committal. She alleged that the father had failed:

On 21 September, the father apparently (though I have not seen it) issued an application for the discharge of the wardship order.

A Tipstaff passport order is a useful tool in the judicial armoury, particularly in circumstances where: (i) a court needs to take urgent action to try to prevent a parent from removing a child out of the country (see Wilson J as he then was in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148 remarked at p.153: ‘B v B [1997]’); (ii) where there is an assessed risk that a foreign parent may misuse a period of contact in England in order to remove a child overseas (again, B v B [1997] at p.153); (iii) where (as here) the court wishes to ensure the attendance of a person at a court hearing within the jurisdiction, and there is a risk that, absent such an order, the person may flee the country before doing so (see for instance Thorpe J as he then was in Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148); and (iv) where without such an order the execution of an interlocutory order may be stymied (B v B [1997] at p.154).

But a passport order is a potent order, with significant implications, whose use it seems to me should be tightly controlled; thus:

For a more general discussion about passport orders and their use, it is instructive to reference Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 19, in which the Court of Appeal considered the issue thus at [67]:

“… an open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely. In all other cases, the court should impose a time limit when making such orders. The time limit will vary from case-to-case and, like all other elements, be a bespoke provision imposing a restriction only in so far as that is justified on the facts as found. Unless the court can see with clarity that there will be no need for any continuing order after a particular date, for example when it is clear that the circumstances will change so that the risk is removed, the appropriate course will be for the court to list the matter for further review a short time before the passport and/or travel ban will otherwise expire”

And at [77]:

“A travel ban and a Passport Order are highly intrusive in terms of their impact upon the private life and freedom of movement of the individual concerned”

On the particular facts of this case, on the father’s application to discharge the passport order, I have reached the following conclusions.

First, the father has rightly and properly argued that a passport order is the draconian measure to which I have referred, which should be imposed only in limited circumstances. While I fully understand that, on the evidence presented by the mother at the without notice hearing on 16 March 2020, it may well have been in Judd J’s mind that, absent such an order, the father may not engage in, or attend court for, these proceedings, I am satisfied that the father has now shown that he is actively engaging and participating in the proceedings, and that such an order is no longer necessary to secure the father’s active engagement.

Secondly, while Judd J was provisionally persuaded, albeit on the very limited information presented by the mother only, that the father was a ‘flight risk’, on the totality of the evidence now available, I am satisfied that this assertion is not now made out. The father has lived in the UK for over 10 years; he became a citizen in 2016. The father co-owns a property in London, he has a career in the UK in a secure and senior position on a permanent full-time contract with the National Health Service. His employer has confirmed that he has not given notice to terminate his employment. The assertion that the father has told the mother that he wishes to work and/or establish a new family in Germany is not supported (unlike many other allegations in this case) by any corroborative evidence.

Thirdly I do not regard it as appropriate to order the continued retention of the father’s passport in an attempt to secure his compliance with the requirement to execute the necessary documents to facilitate the mother in leaving Bulgaria with Maria, as argued by counsel for the mother at the earlier hearing (see [26] above). A more effective and legitimate form of compulsion will be the renewal of the order made by Judd J requiring him to execute the necessary documents, buttressed by an effective penal notice, and a time-limit for compliance (see [46] below). If the father does not comply with the obligation to execute the necessary document within the required time, the mother may apply to have him committed for contempt, and if such an application is made, I shall list it before me if I am available.

Fourthly, eight months have already passed since this order was made; it is unclear how much longer these proceedings may last. It would be disproportionate to continue the order simply to await the ultimate outcome of the case when the future of the proceedings is so uncertain.

For the reasons given above, I shall therefore direct that the father’s British passport and Bulgarian ID card shall be returned to him forthwith.

For the time being I propose to direct that Maria’s passport shall remain in the possession of the Tipstaff. At present I do not consider that the mother needs this passport to travel with Maria. If a compelling case can be made that Maria’s travel

As I have earlier indicated (see [16](ii) above), Judd J required the father to execute “all necessary documents and travel consents to ensure that [the mother] is forthwith able to return [Maria] to the jurisdiction of England and Wales.” He has not done so.

At the hearing today, the father has raised the following objections to the continuation of this order, which I summarise below:

There is, it seems to me, some irony in the father arguing vigorously for the discharge of the passport order which currently binds him, thus giving him once again the freedom to travel, while seeking significantly to curtail the mother’s own freedom to return to England, where she has lived for the majority of the last six or more years, accompanied by her daughter in whose care there is no doubt she should remain.

There is no real doubt that Maria is currently thriving in her mother’s care, but I am not persuaded that she will be any less well cared for by her mother in England than she is in Bulgaria. I consider that, on her return, the mother should self-refer to the Children’s Services department of the local authority which had supported the family previously (see [6] above), so that they may be aware of the new family situation. While I am conscious of the travel history in 2018/2019, I am not satisfied that this constitutes ‘yo-yoing’ between the two jurisdictions; nor is reason to believe that Maria will ‘yo-yo’ between the two jurisdictions now. The father has not previously mentioned Maria’s heart condition notwithstanding his lengthy and detailed statements. Maria travelled between England and Bulgaria five times in the first two years of her life without health incident; I cannot help but feel that if this had been a real and genuine concern, he would have raised it in one of his documents – indeed, I consider that it would have been a point of importance for him.

The father has now not seen Maria himself for about nine months. Shortly before announcing my decision and giving judgment, the father disclosed a further document: a statement in Bulgarian (with translation) dated 12 March 2020 which he

I propose therefore to direct that by 4pm (GMT) on 16 November 2020 the father shall execute “all necessary documents and travel consents to ensure that [the mother] is forthwith able to return [Maria] to the jurisdiction of England and Wales.” These documents are to be lodged with the mother’s solicitors (Hudgell & Partners) at their Woolwich office. I shall attach an effective penal notice to this order. This order replaces the order made by Judd J. As I have said earlier should there then be an application to commit the father for breach of this order, I direct that such application shall be listed before me if I am available.

At the outset of the hearing on 6 November, I discussed with Mr Clark the difficulties which I had identified on the documents in the mother pursuing her application to commit the father to prison for breach of the orders made on 16 March 2020. I gave the mother an opportunity to consider withdrawing her application; Mr Clark recognised the difficulties his client faced in pursuing the committal application, and indicated that he was not instructed actively to pursue it. I propose to dismiss the application. I do so for the following reasons:

Arguments arise on the facts of this case about lis pendens, complicated by the fact that in England two petitions have been issued (bearing the same number) one before and one after the issue of divorce proceedings in Bulgaria. The father appears to have issued child arrangements proceedings in Bulgaria in early February 2020 with the petition, whereas the mother issued wardship proceedings only on 16 March 2020. There is also plainly a dispute between these parents as to where Maria is habitually resident. The father’s case is that the mother and Maria have been permanently, and habitually, resident in Bulgaria since March 2018, visiting this country only sporadically in that period. He refers to the fact that the mother last left this country on 29 December 2019 with “five heavy bags of luggage” having told the local social services department that she was “not planning on returning to the UK” (see [8] above).

The mother’s case, in summary, is that England is the court first seised of the divorce, and that Maria is habitually resident in England, and has been all of her life. Her absences from this country have been occasioned by the need to obtain family support during Maria’s early infancy, and to offer respite from the alleged abuse from the father. In computing her periods of actual residence in England, she invites the court to ignore the period since January 2020, given that she has been unable to leave Bulgaria without the father’s permission.

As I have mentioned above, there is concurrent family litigation in the two jurisdictions; I regard it as necessary to clarify precisely what applications and issues are before the Bulgarian Court, when they were issued, and how far they have proceeded. I am keen to avoid duplication of judicial decision-making, and to achieve clarity vis-à-vis the Bulgarian courts on the issue of habitual residence and/or primary jurisdiction. In this regard, during the course of the hearing, I made contact with the International Family Justice Office (IFJO) to establish whether the Hague Network Judges could possibly liaise over these issues in accordance with the guidance 'Direct Judicial Communications' ('DJC') published by the Hague Conference on Private

Subject to the views of our Network Judges here, it will be necessary for any request for judicial liaison to be accompanied by: (a) a (preferably agreed) concise case summary; and (b) a set of questions to be put to the Bulgarian Network Judge which request information of a practical and emphatically non-legal nature.

Drawing together the conclusions discussed above, I confirm that I propose to make the following orders:

That is my judgment.