MB v KB & Ors

This is an application brought under the inherent jurisdiction of the High Court seeking the return of two children from England and Wales to Qatar.

The application which was issued on 1 August 2023 is brought by the children’s father MB. It is resisted by the mother KB, with whom the children are currently living.

The eldest child is a girl, AB. She is currently 15 years old and will be 16 next summer. Her younger brother BB is currently aged 12 but will be 13 next month.

The father is represented by Mr Mani Singh Basi. The mother by Ms Jane Hayford. The children have been joined as parties to the application and are represented by Ms Cliona Papazian instructed by the Children’s Guardian, Mrs Lillian Odze.

The parties have filed a significant volume of evidence. I have three witness statements from the father and two from the mother addressing the substantive issues in the case together with a third statement from the mother dealing with certain costs issues. I heard oral evidence from both parents and from Ms Odze, the Children’s Guardian. The parties also adduced as expert evidence, a report on Qatari law from Mashael Alsulaiti Law firm, a firm of Qatari lawyers and I heard oral evidence from one of the authors of that report, a Ms Kamsha Mohapatra. As I explain, below I consider that this expert evidence was highly unsatisfactory, and I have treated it with considerable caution.

Both parents are Egyptian citizens and were married in that country in 2005. Both have an engineering background and work in that field. In April 2008, shortly before the birth of AB, the father obtained a job in Qatar and moved there. The mother and AB followed around six months later. Thereafter the family lived in Qatar, although the mother returned to Egypt for a few months in 2011 for the birth of BB. In around 2012 when BB started to attend nursery, the mother also found work in Qatar.

The parents paint very different pictures of their marriage. The father describes their life in Qatar as calm, with both parents being focussed on work and bringing up the children. By contrast the mother describes a relationship characterised by verbal, emotional and physical abuse, something denied by the father. I will return to this later in this judgment.

The marriage broke down and the parents divorced in Qatar in April 2017. The parties agreed that the children would remain living with the mother and the children should spend time with the father every weekend and during the holidays. The father agreed to provide maintenance, although the mother’s case is that the father did not provide the full amount that he had promised to pay.

The mother and children remained in the former matrimonial home for some months, but then moved to a new rental apartment closer to the children’s school. The father lived elsewhere in Qatar, but within a 20 minute drive of the mother and children.

It is common ground that the amount of time that the children spent with the father diminished as time progressed and the children grew older. The Guardian has been told by the children that they did not enjoy spending time with the father and that they had to be cajoled into doing so by the mother, and they have provided accounts to the Guardian of being shouted at and hit by the father. On the other hand, the father has exhibited photographs of him together with the children on various occasions in which the children appear to be enjoying themselves.

In September 2020, during the covid pandemic, the mother and children travelled to Egypt to visit family. Whilst there they were caught up in a national lockdown and had to remain in Egypt until April 2021. During this time, they had no direct contact with the father, but had regular indirect contact with him by phone and video calls.

The children attended school in Qatar. Initially they attended a French language school, but following their absence from school during the covid pandemic, they began to struggle with their studies and in March 2022 the mother transferred the children to an English language school. Although she had informed the father of the children’s struggles with the French school and their wish to change schools, the transfer took place without the father’s consent. However, the father ultimately took no steps to prevent the move.

The father remarried in November 2021. Neither parent has any other children.

The father’s visa that permits him to live in Qatar is linked to his work. The children are entitled to live in Qatar pursuant to that visa as dependants of the father. The mother was also formerly a dependant on the father’s visa, but since their divorce she has had a separate visa linked to her own employer.

From around 2021 it appears that AB began expressing a wish to study in England or the USA. The mother sought to raise this idea with the father, although he rejected it. The father’s case is that the issue was not then raised again with him until February 2023 when the children approached him with a plan for them and the mother to move abroad to settle and secure residence elsewhere. At this stage no specific country was mentioned. The father described himself as being taken back by this conversation. He told the children that they would discuss university when the time was closer, but until then they should stay together in the same country.

The mother provided a different account. Her evidence was that towards the end of 2022 AB reopened the subject of where she wanted to go to college and told her that she wanted to go to the UK to study and did not want to go to college in either Qatar or Egypt. By this time the mother was no longer in direct telephone contact with the father (previous arguments had meant that all contact between them was conducted by email). Instead, the mother approached the father’s brother and explained the situation and told him that she wanted to plan to move to the UK with the father’s approval, and subsequently told him that she had obtained a visa to do so. However, she received no substantive response to this proposal and the father’s brother stopped answering her calls. She also asked AB to speak directly to her father who responded as I set out above.

Nonetheless, despite the fact that the father had plainly not agreed to a relocation, the mother pursued the idea. She applied for a visa for herself in the UK which was granted in around early February 2023. Having obtained a visa for herself she then applied for UK entry visas for the children. The documents that she produced in support of the visa application presented her as being solely responsible for her children’s care, apparently to explain the absence of the father’s consent to the grant of the visa. In April 2023 the mother and children travelled to the UK for an initial trip of a few days. The father was not aware that this visit had taken place and did not consent to it.

On 7 July 2023 the mother and children flew from Qatar to London for what was intended by the mother to be a permanent move. It is clear that the father was not aware that the mother and children were travelling to the UK on that date, and he had not consented to their going. The following day the mother sent an email to the father in the following terms:

On their arrival in the UK the mother and children initially stayed with a friend of the mother, but moved into rental accommodation in late August. The children have been attending school in the UK since the start of the autumn term. The mother has found a job in the UK, commencing her employment at the start of October. On 21 November 2023 she was granted a 5 year skilled worker visa by the Home Office.

The mother has given up the furnished rental property that she shared with the children in Qatar. Their possessions there have either been brought to the UK or disposed of. She has resigned from her employment in Qatar. This means that her visa to live in Qatar (which was sponsored by her erstwhile employer) will now come to an end. I understand that although it has not yet been cancelled, this is likely to happen in the near future.

On 23 July 2023 the father issued proceedings in the Qatari courts. Those proceedings sought an order permitting the father to have contact with the children in Qatar.

On 1 August 2023 the father issued these proceedings in the High Court seeking the return of the children. Location and disclosure orders were granted by Roberts J on 3 August 2023 and the proceedings were served on the mother on 23 August 2023. There were inter partes hearings before Judd J on 29 August 2023 and before Russell J on 9 November 2023.

On 14 November 2023 the Qatar court issued a ruling rejecting the father’s application for contact with the children in Qatar. The judgment (which was in evidence before me) states:

An appeal against this decision was issued by the father on 21 November 2023 and hearings in that appeal took place on 26 November and on 3 December. None of the parties sought to persuade me that my decision should await the outcome of that appeal. In any event, shortly before I circulated a draft of this judgment to the parties, I was informed that the father’s appeal had been dismissed. I understand that the effect of this decision is that the Qatari court (which is aware of the removal of the children and the circumstances surrounding the same) is content for the children to remain in the UK, in that it has not issued any order requiring the mother to return the children to Qatar, either permanently or for the purpose of allowing the father to have contact with them in that jurisdiction.

The mother’s position at the start of the hearing appeared to be that she would not be willing to return to Qatar with the children if a return was ordered. She had therefore not set out any protective measures that she would require. In her oral evidence her position became more nuanced, and she accepted that if a return was ordered she would ultimately return to be with the children. However, she indicated that it would take between 6 and 12 months before she would be in a position to return. Her visa position in Qatar is linked to employment there. She has resigned from her previous employment in Qatar and although her existing visa has not yet been cancelled it is likely to be. She would therefore need to find a new job in Qatar which could provide her with a new work visa. The mother considered that it would be likely to take some time for her to find a suitable job in Qatar as, following the end of the football world cup in late 2022, there has been a downturn in construction work in that country and many companies in that field have let go significant portions of their staff.

For his part, the father has offered a number of protective measures if the mother returns with the children including the payment of a month’s maintenance in advance (including reasonable rental costs); seeking and funding an expert social worker or psychiatric support (as instructed by the court) to assist with reconciliation; paying for the children’s return flights and schooling; to only seek contact as ordered by the Qatari courts; not to contact the mother or attend the airport on her return.

I heard oral evidence from both parents. In my view both were largely truthful in their evidence, although I also considered that both significantly sought to minimise actions and conduct on their behalf which are likely to have adversely affected the children. Indeed both, in different ways, demonstrated that they do not have a full insight into how their own actions are likely to have affected the children.

There is a significant dispute between the parents about the extent to which the father (both during the subsistence of the marriage and thereafter) subjected the mother and children to domestic abuse, including emotional and coercive control. Although the possibility of a fact-finding hearing on these issues was originally mooted by the Guardian in her report and by the mother, the point was not pursued, and no party asked me to follow this course of action. I therefore approach this issue with some caution as any conclusions that I draw are based on the limited evidence which I have heard, much of which has been focussed on the immediate circumstances surrounding the children’s move from Qatar to the UK.

However, having heard evidence the parents, and taking into account admissions made by the father, I consider that I am in a position to make the following findings:

The mother’s behaviour is not beyond criticism either. It is clear that she undertook the move to the UK (and indeed the earlier trip in April 2023) without the father’s consent. The mother sought to suggest that the father was aware that she was planning to move to the UK with the children and knew everything apart from the exact date of the move. I cannot accept this evidence, which I consider to be at odds with the explanatory email of 8 July 2023 that she sent to the father after arriving in the UK. Whilst the mother may have tried to communicate a general intention to move abroad via the father’s brother, she clearly did not tell the father in any detail what she was proposing let alone take steps to obtain his unequivocal consent. I consider that her likely reason for this was that she knew that if the father was aware what she was planning to do, he would have taken steps via the Qatari courts to prevent her from leaving.

In her evidence the mother also sought to place the responsibility for the decision to move onto the children, referring to AB as her “boss”. Whilst I accept that AB was (and remains) keen to study in the UK, I considered that the mother was seeking to minimise her own fundamental role in giving concrete expression to that desire and effecting the relocation here. The move has only been possible because the mother was prepared to give effect to it, to surrender her tenancy of her property in Qatar, to give up her job there and seek employment in the UK. At times the mother seemed to be denying that she had an independent agency beyond giving effect to the children’s wishes. I do not accept that this is the case; but for the mother’s own decisions and actions, the move could not have occurred. The mother too appeared to have little insight into how her own conduct could have affected the children; for example she appeared to have expected the children to raise the question of the move with the father and obtain his consent to the move; something which in my view was clearly inappropriate.

By an order of Russell J dated 9 November 2023 the parties were given permission to obtain a joint report from an expert in Qatari law. The order did not identify the expert chosen but directed the father’s solicitors to take the lead in the instruction. The firm of Mashael Alsulaiti were identified and instructed. The letter of instruction dated 13 November 2023 posed 17 questions to be answered. The letter also identified the relevant provisions of FPR Part 25 and the statement that is required at the end of any expert’s report.

The document provided in response to this letter of instruction is dated 20 November 2023. It is far from satisfactory. It does not address all of the questions posed in the letter of instruction and has reformulated a number of the other questions. The document also fails to comply with FPR Part 25 in a number of important ways:

Some (but not all) of these deficiencies were remedied by Ms Mohapatra, a junior counsel in Mashael Alsulaiti, when she gave oral evidence about this report. She told me that she had jointly prepared the report with senior counsel Mr Abbelraruf Gribeh; that she herself was qualified in Qatar law; she had been qualified for three years and family law formed part of her practice and she had provided expert evidence on other occasions. She also confirmed that the contents of the report were true to the best of her knowledge and belief.

Ms Mohapatra, however, proved to be an extremely disappointing witness. I found her oral evidence to be confusing and at times contradictory. Moreover, under cross-examination she appeared to be very much focussed on advising how the father could achieve a return of the children to Qatar rather than providing an impartial expert view of the position under Qatari law. I therefore approach her evidence (and in particular her oral evidence) with great caution. However, it is my only source of evidence of Qatar law and none of the parties seek to argue that I should reject it in its entirety. Giving greater weight to the written report than to her oral explanations I draw the following conclusions:

Mrs Odze, the children’s guardian in these proceedings had prepared a report for the court dated 30 October 2023 and gave oral evidence and was cross-examined by Ms Hayford and Mr Basi on behalf of the parents. She describes AB as “an articulate and intelligent young person who made direct eye contact with me throughout the interview and at times came across as quite confident”. BB was described as “a delightful adolescent boy … I found him to be polite and articulate” although Mrs Odze considered his maturity to be slightly below his chronological age and she perceived a “certain vulnerability” about him.

Both children spoke negatively about both Qatar and their father. AB explained that she had wanted to leave Qatar for some time, did not want to be in the same country as her father and did not want to have contact with him. She recounted incidents in which he had smashed and thrown her possessions and described him hitting her hands hard, so as to leave a mark. She felt that he belittled her and denied enjoying the time that she spent with him.

BB was also negative about his father, describing the father hitting and shouting at him. His description of his father to Mrs Odze was largely consistent with that provided by AB. He too explained that he did not want to spend time with the father but had been encouraged to do so by the mother. He described the father hitting him and breaking his toys. He told Mrs Odze that he ignored his father’s calls as he did not want to speak to him and that were a return order to be made he would “feel sad”. He said that “I would do anything not to go back to Qatar to my Dad” and “I would like to stay here in the UK far away from my Dad in Qatar”.

Mrs Odze sought to explore generally whether AB was being influenced in her views of her father by her mother. AB denied this and said that the mother had always told her not to say bad things about the father and that she had always pushed the children to see him and spend time with him. However, Mrs Odze told me that she had not been able to apply the CAFCASS tool for assessing whether there had been any alienating behaviours by the mother as this could not be applied in cases where there have been allegations of domestic abuse.

In her recommendations Mrs Odze concluded that the father’s style of parenting had had a psychological and emotional impact on the children and on BB in particular. She recognised that it was evident that the children did not want to go back to Qatar, and that leaving that country had been a long-standing wish of theirs (particularly AB). Although they have only been in England for a few months, they have made friends here and like their school.

In her oral evidence Mrs Odze (who is a highly experienced CAFCASS officer) told me that the children came across as genuine in their views and very much wanting their voices to be heard. She considered the case was an unusual one in that the children (and AB in particular) were expressing very clear opposition to a return. On behalf of the Guardian, Ms Papazian opposed the return of the children to Qatar.

The parties are agreed on the applicable legal principles and I have been referred to the analysis of these set out by Cobb J in J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam) and by MacDonald J in D v T [2023] EWHC 1247 (Fam). The following passage is taken from the latter decision from para [29].

Because the decision as to whether the children should be returned to Qatar is a welfare decision I am required to have regard to welfare checklist set out at section 1(3) of the Children Act 1989:

I have concluded that I should dismiss this application and refuse to return the children to Qatar.

I start from the proposition identified by Baroness Hale in Re J (A child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 that it is likely to be better for a child to return to him or her home country for any disputes about their future to be decided there. I also recognise that there are a number of factors in this case which point towards a summary return. Until July of this year, these children had effectively lived their whole lives in Qatar (save for the period when they were stuck in Egypt during a covid lockdown). They had been attending school there, they were familiar with its culture and both parents were living there. They clearly had a very close connection with Qatar, and until July of this year had little connection with the UK.

However, here I consider that these factors are outweighed by a number of other factors. First, although the children have only been living in the UK for a relatively short period of time, they are now clearly settled here and have quickly integrated into life here. They are attending school and making friends. Their mother has acquired work and now has a 5 year skilled worker visa. A summary return to Qatar at this stage would clearly be a very disruptive event for the children.

Second, a return to Qatar will not be a return to the status quo ante. Their tenancy of their previous home in Qatar has been given up. Although the mother has softened her position and has indicated that she would ultimately intend to follow the children to Qatar if I order their return, she is unlikely to be able to move within the timescale of a summary return, even if the six to 12 month timetable she sought to suggest in her evidence is unrealistically lengthy. As such there may be a period, if I order a summary return, where the children would be required to live in Qatar with the father before the mother could join them.

A further factor is the that in the light of the extremely unsatisfactory evidence that I have received of Qatari law, I am concerned that that the voices of these children will not be fully heard if they are returned to Qatar. AB is now 15; BB will shortly also become a teenager. They are clearly both of an age where their views need to be fully taken into account in any judicial assessment of their welfare. As Mrs Odze has identified both children have strong views on where, and with whom, they should live, and I accept Ms Papazian’s submissions that these need to be properly heard in any consideration of their welfare. Having only Ms Mohapatra’s evidence to guide me on the circumstances under which the Qatari courts will investigate and receive the views of the children I am not confident that these views will receive the prominence that they require. The children will not be parties to any proceedings in Qatar, and I remain unclear (despite Ms Mohapatra’s oral evidence) as to the circumstances under which a report into the children’s views might be ordered from the Family Counselling Centre or the status that such a report might have in the Qatari proceedings.

Indeed, it is the views of the children which I consider are the factor of magnetic importance here. Both have expressed the firm view that they do not wish to return to Qatar or to the father and AB, in particular, appears particularly vehement in her views. In the light of the factual findings that I have reached as to (a) the previous relationship between the father and the children and (b) the father’s own actions immediately after the move in seeking to place blame on AB for the impact of the move on him, the children’s views do not surprise me. As Mrs Odze identified in her evidence, to rebuild his relationship with the children, the father will need to reflect on his past actions with a view to gaining an insight as to how his behaviour has affected the children. I was particularly struck by the reaction of the children to the news that the father had travelled to England for the court hearing (see para 29(3) above).

The reality in this case is that I am looking at the welfare of two intelligent and articulate children, one of whom is approaching her 16^th birthday, who are expressing strong, clear and consistent views that they do not wish to return to Qatar. Those views are, in the light of the limited factual findings that I have made perfectly understandable, and I consider that they must be given great weight in the balance that I have to strike. To order a summary return of these children to Qatar in the face of such views would in my judgment be wholly contrary to the children’s welfare.

Finally, I note that the Qatar court, both in its initial decision and in its dismissal of the father’s appeal has been willing for the children to remain in the UK with the mother. The approach taken by the Qatari court therefore aligns with my own conclusions as to the welfare of these children.

Overall, taking all the evidence into account, I consider that the welfare of these children requires me to dismiss the father’s application. In reaching this decision I wish to be clear that I am not necessarily determining where the children should live in the long term. I am dealing today with the father’s application for a summary return, and I have decided that on the facts of this case a “swift and unsentimental” return to Qatar would not be in the best interests of these particular children.

For the reasons set out above this application is dismissed. I will make arrangements with counsel to deal with any ancillary matters arising from my decision.