HH v UH

This is an application under Section 8 of the Children Act 1989 for the summary return of four children from England and Wales, where they are currently living, to Abu Dhabi, in the United Arab Emirates.

The application, which was issued on 16^th March 2023, is brought by the children’s father, HH. It is resisted by their mother, UH, with whom the children are currently living. The four children with whom I am concerned are A, a girl aged 13; J, a girl aged 11; G, who is a boy and will be eight in a couple of weeks’ time; and L, a girl, who is 18 months old.

The father is represented before me by Ms Jacqueline Renton; the mother by Mr Michael Gration KC. I am grateful to both counsel for their helpful submissions, both orally and in writing.

Some points were made by Mr Gration as to the father’s position and whether the father was conceding that substantive welfare decisions regarding the children should be taken in England and Wales pursuant to Section 2 of the Family Law Act 1986. It is clear from Ms Renton’s submissions that the letter in which that apparent concession was made was sent at a time when there was an incorrect understanding of the legal position under Abu Dhabi law. Ms Renton is clear that today she is seeking a summary return to Abu Dhabi so that substantive decisions regarding the children can be taken in that jurisdiction.

The parties have filed detailed evidence, supported by photographs, texts and WhatsApp messages and I have heard oral evidence from Mr Abed Awad, the single joint expert originally instructed by the parties, and from a further expert, Ms Diana Hamade, whom I gave the father permission to rely upon in the circumstances that I expand upon below. I also heard from Ms Cull-Fitzpatrick, the Cafcass officer who has met with both parents and with the children. I also permitted the parents to give oral evidence on some limited issues.

Both parents and all four children are British citizens. The father previously had dual UK and Pakistan nationality. He renounced his Pakistani citizenship in 2016, a matter which has assumed some importance to this case, as I describe below.

The father was born in the United Arab Emirates and grew up there, his parents having Pakistani nationality. He moved to the United Kingdom in 2004 to come to university here.

The mother has Bangladeshi heritage but was born in the UK and grew up in the West Midlands.

There is some dispute about how and when the parents first met, which I do not need to resolve. However, at some point between April and June 2006, they underwent an Islamic Nikah, (a religious marriage under Sharia law) in the UK, although this was not registered and they initially kept this a secret from their families. No steps were taken at that stage to effect a civil wedding.

When the mother’s parents found out about this marriage, they took the mother to Bangladesh. She returned to the United Kingdom later that year, following the intervention of the father and Foreign and Commonwealth Forced Marriage Office. On her return, the Nikah was formalised and the parties underwent a civil marriage ceremony in England and Wales in January 2007.

At this time, the father was working in London. There is a dispute about the extent to which the mother was living with the father at that point, or whether she was living with her parents in the West Midlands. However, it is common ground that she spent much of her time during the last few months of her first pregnancy with her parents. A was born in December 2009. The father says that thereafter he, the mother and A lived together as a family in London. The mother says that she spent most of her time with her parents. In any event, the father undertook a master’s degree at the London University and the mother became pregnant again and J was born early in 2012. Again, the mother spent the later stages of her pregnancy and the first few months of J’s life with her parents.

The father completed his master’s degree in September 2012 and in December 2012, the family moved to the United Arab Emirates, staying initially with the father’s parents. The father was seeking work and this took some time to obtain, a matter that caused some strain within the parties’ marriage.

In April 2013 the mother returned to the UK with the children for a few months, until the father found a job and rented property. This he finally did and in August 2013, some four months later, the mother and the two children returned to the UAE, setting up home with the father in Abu Dhabi. At this time, the father’s parents were both living in the UAE, as were a number of his siblings.

Throughout the time that the parents have lived in the UAE, the mother and the children have made regular trips to the UK to stay with the maternal grandparents. The dates of those trips have been:

The Covid pandemic meant that it was not possible for the family to travel in 2020. However, the mother and the children returned to the UK between July 2021 and February 2022 (a period of around seven months) when the mother was pregnant with L. L, like her siblings, was born in the UK in December 2021. Continued Covid restrictions meant that the children were able to continue to attend their

The parents maintained their connection with the UK. They were registered to vote here. The mother purchased extra years of National Insurance contributions, as she was entitled to do, and the mother says that there was always a plan for the family to return to the UK in due course, so the children would qualify for home fees for university courses. In order to do so, the children would need to be living in the UK for three years before starting university. In his written evidence, the father does not accept there was an agreement along these lines, although in a WhatsApp message that I have seen that was sent on 20^th January 2023, he did appear to concede that there was an agreement to this effect. As I have mentioned, all four children and the parents all have British citizenship.

There have been difficulties in the parents’ marriage for some time. In 2022 the father sought to persuade the mother to accept him taking a second wife under Islamic law. The mother did not agree. Her evidence is that in her community, a second wife is both unacceptable and extremely unusual. The parties, at the father’s instigation, attended counselling in the UAE for a period, but this ended in November 2022 when the father told the mother he no longer desired a second wife. That statement was untrue.

On 6^th December 2022 the father returned home from what he had told the mother was a business trip to Bulgaria. However, the mother discovered two boarding passes for a flight to the Maldives and it came out that the father had in fact secretly married a second wife, a work colleague, some three years earlier and that he had not told anyone that he had done so. The counselling work that he had therefore undergone with the mother earlier in 2022 had therefore been conducted on a false premise.

In his oral evidence before me, the father confirmed that he was in a sexual relationship with his second wife and had been at the same time as he conceived L with the mother. The mother, of course, was wholly unaware of this.

The father requested that their fourth child was called L and it has subsequently transpired that that is the name of his second wife, a matter that has caused great upset to the mother. The father claims that he did not make that connection at the time. I do not accept that evidence. That simply seems to me to be wholly unbelievable.

Upon discovering the father’s second marriage, the mother immediately asked to go to the UK with the children. The father made it clear at the time that he did not agree to her relocating to England with the children permanently, but he agreed to book tickets for the mother and children, with a return due on 1^st January 2023 and the mother and the children left the UAE on 11^th December 2022. Immediately on passing through passport control in the UAE, the mother sent the father a WhatsApp message in which she said that she did not see herself coming back.

There then followed discussions by message, by telephone and in person after the father followed the mother and children to England on 16^th December 2022. Some of these messages are heated in tone and no doubt reflected upset and frustration on both sides. The mother, with the discovery about the second wife; the father in respect of

In her oral evidence, the mother conceded that she would in fact have been willing to return to Abu Dhabi with the children if the father divorced his second wife and that, from her perspective, a final decision to remain here was not taken until February of this year.

Matters have moved on since the children first arrived here. The mother and the children are still living with the maternal grandparents. The children have now been enrolled in school. The decisions about enrolment in the school appear to have been taken largely by the mother, with little attempt on her part to involve the father. The mother has other family living nearby and the children see cousins regularly.

Meanwhile, the father has resigned from his job in Abu Dhabi (a job that I understand was paying around £20,000 a month inclusive of benefits). His evidence was that this was a result of the stress and trauma of the removal of the children. However, I do not accept this explanation. Messages that were exchanged between the parents in January 2023 suggest that the father left his job because he felt he was not valued by his employers. Moreover, not only has he resigned from valuable employment, he has also given up the tenancy of the family’s home and sold, on the Abu Dhabi equivalent of Gumtree, most of the family’s possessions and has moved in with his brother. In his second witness statement the father describes the property that has now been given up as follows:

Thus, this property described by the father in his evidence in those terms, which had been decorated and furnished by the parents together, was given up unilaterally by the father with no consultation with the mother and the appliances and other possessions that had been chosen by the mother were sold on Gumtree, or the Abu Dhabi equivalent thereof.

There are also four investment properties in the UK which have been rented out and the father’s reaction after the children had been brought to this jurisdiction by the mother was to place those properties on the market. He has now agreed not to sell

The father has been invited to contribute to the mother’s legal expenses, but has not done so, nor for the past two months has he paid the £1,500 maintenance that has been requested by the mother. A one-off payment of £32,000 was made by the father to the mother earlier in this year and was used primarily by the mother to purchase a car for herself and the children. However, there is a dispute about whether that money came from funds that originally belonged to the mother in any event.

Although the father is now pleading a lack of available funds as an explanation for why he has been unable to provide financial assistance to the mother, I note that he told Ms Cull-Fitzpatrick, the Cafcass officer in this case, that he was financially secure and would be able to live comfortably for three years, without the need to work, although I recognise this may have been an untruth on his part. He also told me that he would be able, in any event, to get a new job in the UAE in three to four months’ time. The father has pronounced an Islamic divorce against the mother for the first time on 10^th January this year. He revoked that 10 days later, on 20^th January, but pronounced it for a second time on 16^th February.

As I have mentioned, the father began these proceedings in March of this year. Since last December he has visited the UK four times and has had contact with the children, including overnight contact with the three elder children. He has not yet had overnight contact with L but, if the children are to remain here, then that is something that will need to take place in the future.

The mother has commenced divorce proceedings in England and Wales and is also bringing financial remedy proceedings. I understand that the father is not contesting the divorce and that a first appointment in the financial remedy proceedings has been listed for September.

At a directions hearing which took place on 14^th March 2023 I gave permission for the parties to instruct a single joint expert on aspects of Abu Dhabi family law. That report was due to be filed by 12^th May 2023. The parties had not, at that stage, identified a proposed single joint expert and I understand there were delays in identifying and instructing that expert. Eventually, Mr Abed Awad of Awad & Khoury Attorneys in New York and New Jersey in the United States was instructed, and he prepared an expert report dated 1^st June 2023. Mr Awad is a qualified attorney in New York and New Jersey in the USA and is an academic focusing on international legal systems and the laws of Muslim countries. He is not qualified to practice in either the UAE or Abu Dhabi, but states in his report:

In summary, his opinion set out in his report was that the matter would be governed by a UAE law, Law 28 of 2005 - which he refers to as the UAE Personal Status Code

On 20^th June (in advance of a PTR that had been listed in front of me on 23^rd June) the father issued an application to adduce and rely on an expert report from a further expert, Ms Diana Hamade. Ms Hamade is the managing partner of Diana Hamade Attorneys in Dubai. She is a UAE qualified lawyer with rights of audience in all UAE courts, including Abu Dhabi, and is a registered practitioner of the Dubai International Family Courts. She is an expert in civil and Sharia law, specialising in family law, and has acted as an expert witness before foreign courts, including in Canada, England, France, Australia, Switzerland, the Isle of Man, New Zealand, and the US, in family law, including divorce, child custody, child relocation / abduction and financial remedies. I note Ms Hamade acted as an expert witness in the case of Re A and B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam), a case which I will refer to later on in this judgment.

The father’s application to adduce Ms Hamade’s evidence was made on the basis that Mr Awad’s conclusion that the UAE Personal Status Code and Sharia principles would apply was wrong. I was told by counsel who was representing the father on that occasion, that Ms Hamade was of the view that two different and new statutes, Law 14 of 2021 (as amended) and Resolution 8 of 2022, applied on the facts of this case. The application to adduce further expert evidence was said to be made in accordance with the principles that have been set out by the Court of Appeal in Daniels v Walker [2000] EWCA Civ 508. However, the father had not, as Daniels v Walker anticipated, asked questions of Mr Awad as to whether he agreed with aspects of Ms Hamade’s report or whether he agreed that these two statutes applied. In these circumstances, I declined to permit the father to rely upon Ms Hamade’s report until this had been done and it was clear whether there was a dispute between the two experts and, if so, where that dispute lay.

As a result of my directions, questions were put to Mr Awad and in a further report dated 25^th June, Mr Awad stated that he remained of the view that the UAE Personal Status Code continued to apply in this case because the father was a joint Pakistani and UK dual national. This was wrong. The father had renounced his Pakistani citizenship in 2016.

Following further clarification of this factual matter, Mr Awad then accepted that the Personal Status Code did not apply and that he agreed with Ms Hamade that the situation would indeed be governed by Law 14 of 2021 (as amended) and by

Given that Mr Awad’s initial report was wrong, or at least proceeded on a fundamental misunderstanding of the factual position (and one that ought not to have arisen, given that the certificate of the father’s renunciation of Pakistani citizenship had been included in the documents provided to Mr Awad) I gave permission for the father to rely on Ms Hamade’s report and both experts gave oral evidence. It was not possible in the time remaining for the experts to meet. However, they were both able to comment on each other’s report and, to some extent, to identify the differences between them.

I pause there to note the importance of parties adhering to deadlines set in court orders for the preparation and filing of expert reports. Failure to do so here meant that the deficiencies in Mr Awad’s original report were only spotted relatively shortly before the final hearing and had to be dealt with under a very foreshortened timetable. That was only possible because the case had been reserved to me and I was available to deal with the developing situation and both experts were available and willing to carry out further significant work at very little notice. I emphasise that if a party is dissatisfied with a single joint expert report, the first step, as identified in Daniels v Walker should be to ask questions of that expert as soon as possible. The failure to do so here made the timetable even shorter than it needed to have been.

Although there remain some points of difference between the experts, there was a fair degree of consensus between them and I take the following points from their evidence:

Mr Awad and Ms Hamade were agreed that under these new laws (as I will collectively call Law 14 of 2021 and Resolution 8 of 2022) best interests is the thread that runs through the court’s decision making. They were agreed also that the court would have jurisdiction to determine a relocation application brought by the mother. However, they were unclear on precisely which article of the new law would govern a relocation application and whether, if it were Article 33 that applied (which appeared to be Mr Awad’s position) one of the ten grounds mentioned there needed to be made out as a precondition to relocation.

A further point upon which the experts were agreed was that there was very little certainty as to how these provisions would operate in practice. There was, however, a difference in view between them as to how the court might approach this exercise. Ms Hamade considered that relocation might be addressed under 8/2022 Articles 35 and 36, and she emphasised that provisions of the new laws were intended to cater for expatriate residents in Abu Dhabi and were therefore not intended to result in the application of Sharia law. She referred to foreign lawyers, from the United States and United Kingdom, being engaged as case managers but recognised that there were, as yet, no foreign judges, or indeed non-Islamic judges, appointed to the Abu Dhabi Family Court. Given the novelty of this jurisdiction, she was not yet aware of any relocation decisions that had been made after a contested hearing.

For his part, Mr Awad was more cautious in his view as to the approach the court would take. He considered that relocation was probably a facet of an application for removal of joint custody under 8/2022 Article 33 and that in the absence of any precedent, the judges of the court would determine best interests in the context of their familiar rules and cultural background and, for example, in relation to relocation, may have regard to the previous personal status law, which may mean they would be unwilling to grant any relocation in circumstances where the father did not consent.

If I am required to choose between two experts on this point, I am minded to follow Ms Hamade. She is the practitioner with real day to day experience of how the court is operating in practice. However, I am not sure that it is in fact necessary for me to do so. Both experts are agreed the position is uncertain. There have been no relevant published decisions under the new law as yet and it is an area of law in practice that will have to be developed by the Abu Dhabi court. At the moment, all I think that I can conclude is that a relocation jurisdiction exists, but there are also doubts as to how that jurisdiction will operate in practice.

In terms of timescale, Ms Hamade took the view that each stage of the court hearing could take between three to six months. There are two levels of appeal, and there is no requirement for permission to appeal, so it could take up to 18 months for a case to work its way through the various appellate stages to become a final and unimpeachable judgment.

The experts were agreed that in terms of hearing the voice of the child, the Abu Dhabi law only made provision for hearing from children from the age of 12 upwards, which in this case would mean A alone. Ms Hamade considered the possibility that there may be some mechanism to obtain views of younger children, but it is fair to say she was unclear how this actually could be achieved in practice.

I have also received a report from Ms Kathleen Cull-Fitzpatrick, the appointed Cafcass officer in this case. Her report dated 13^th June 2023 was prepared after interviews via MS Teams with both parents and a meeting with the children, in the course of which she had an opportunity to observe a video call between the children and their father. I will describe aspects of her report in more detail in a moment. However, it is important to note that the report was prepared having had sight of Mr Awad’s original report (which indicated that Sharia law would apply and that it would not be possible for the mother to obtain permission from the courts in Abu Dhabi to relocate with the children without the father’s consent).

Ms Cull-Fitzpatrick’s conclusion in her report was that another move would create further change and instability and there remained significant uncertainty about what the children’s future care and living arrangements would entail if they were to return to the UAE. It is clear that Mr Awad’s initial conclusions on the applicable law raised significant doubts in Ms Cull-Fitzpatrick’s mind as to the children’s ability to maintain a relationship with their mother and she respectfully recommended to the court that the father’s application for a return should be refused.

Ms Cull-Fitzpatrick was subsequently provided with copies of Ms Hamade’s report and Mr Awad’s further reports and with the father’s later witness statement, setting out his

For the father, Ms Renton, sought to criticise Ms Cull-Fitzpatrick’s conclusions, arguing that the views as expressed in her oral evidence must be seen as having been infected by the initial and erroneous report of Mr Awad. I do not accept this. Ms Cull-Fitzpatrick has clearly had an opportunity to read the additional documents. She sat in court and listened very carefully to the expert evidence that was presented on Monday and I am entirely satisfied that she reconsidered matters and approached her conclusions in the light of that additional evidence. I do, however, accept the submission made by Ms Renton, that the Cafcass evidence is, of course, simply part of the evidence that I must consider and that the final decision rests with me.

Some key points I took from Ms Cull-Fitzpatrick’s evidence were as follows:

Cross-examined on behalf of the father, Ms Cull-Fitzpatrick agreed with Ms Renton that she would feel more comfortable with a summary return if:

Cross-examined by Mr Gration, Ms Cull-Fitzpatrick agreed that there was an unusual amount of uncertainty here as to the circumstances to which it was being proposed that the children would return. She was also surprised by the father’s apparent debts, given what he had previously told her about him being comfortable to manage for three years without working. She confirmed that if the mother was distressed by a return, this would be likely to also have an impact on the children and on the mother’s ability to parent them. She confirmed that the children were relatively settled in England and Wales and she had no concerns about their living with the grandparents.

I have heard limited oral evidence from both parents. Although the cross-examination perhaps did not shed very much more light on the factual disputes between the parties, it provided me with an opportunity to view both parents and to form impressions of them as witnesses.

So far as the father is concerned, I formed the view that he primarily blames the mother for the breakdown in the family unit. Although he made reference to his own behaviour in the taking of a second wife, I did not consider that he had any real insight into how his actions had fundamentally and irreversibly altered the family dynamic. Although he made repeated references in his evidence to wanting to have discussions and negotiations with the mother, I was left with the impression that these discussions were to be with the view to converting her to his point of view, rather than seeking to find any middle common ground. I also found his explanation as to his behaviour in relation to his job, the family home and property and finances more generally to be unconvincing and I am concerned that he may have sought to use the disparity in their respective financial positions to apply pressure to the mother. Nonetheless, I am clear that he loves his children dearly and wishes to have a close relationship with them.

The mother is clearly very concerned about her return to Abu Dhabi, something she describes as a “terrible predicament” in her witness statement. When asked if she would return with the children if a summary return was ordered, she accepted she would but she became emotional and I was left in no doubt that she would find such a return distressing and very difficult to manage. I do not consider that she would be able to hide her feelings on this point from the children. I note also that she was willing to give answers in cross-examination that were potentially adverse to her case and overall I formed the impression that she was a truthful witness. She accepted that the children had a positive relationship with the father and a strong bond with him.

The parties are agreed on the applicable legal principles and, like Poole J in the case of Re A and B (Children: Return Order: UAE) [2022] EWHC 2120 (Fam), I can do no better than rely upon the analysis of the legal principles that were set out by Cobb J in the case of J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam):

To this passage, Poole J in Re A and B also added the remainder of paragraph [39] of the judgment of Baroness Hale in Re J:

Because this is a welfare decision, I am required to have regard to the welfare checklist set out in Section 1(3) of the Children Act 1989:

I am also required by Section 1(2A) of the Children Act 1989 to presume involvement of a parent in the life of the child concerned will further child’s welfare.

Taking into account all of the evidence and submissions that have been raised by either party, I turn now to draw the threads together.

I am in no doubt that the children were habitually resident in Abu Dhabi prior to being brought to England and Wales by the mother.

At the time the mother brought the children to this country, she had not formed an intention not to return. I accept that she was in two minds at that stage. Her decision

I have no doubt that the breakdown in the parents’ relationship was triggered by the mother’s discovery of the father’s second marriage and the fact that he had hidden this from her for over three years. This is a clear and important deceit on his part that I have no doubt has been aggravated in the mother’s mind by the fact the father also chose his second wife’s name for their youngest daughter. In my view, it provides an important context for the mother’s subsequent conduct and for the criticisms that are now made of it by the father.

Abu Dhabi is the children’s home country. They have lived there most of their lives. However, even prior to December of last year, all four children had close links to the United Kingdom. They were British citizens, they were all born here and they had all spent significant periods of time here. They speak English. The maternal relatives were well known to them and indeed, because they were previously here between July 2021 and February 2022, over the past two years, they have spent a greater part of the time living in the UK than they have in Abu Dhabi (14 months in the UK as against 10 months in Abu Dhabi).

Since December 2022, they have started putting down settled roots here. The three elder children have started school, where I understand they are doing well, and they have spent time with relatives, in particular, with their cousins.

I recognise from the case law that it may be useful to start from the proposition that it is likely to be better for a child to return to their home country for disputes to be resolved there. A return to Abu Dhabi would be a return to the children’s home country in that it is the country where, until December 2022, they had spent the majority of their time and attended school. However, on the facts of this case, I do not consider it would be a return home in any meaningful sense. Certainly, it would not be a return home to what they previously knew.

For a start, the parents’ relationship is now clearly at an end and if a return is ordered, the parents will be living separately. Importantly, they will not be returning to a familiar home or indeed even to familiar possessions. Inexplicably (and as I have already said I do not accept the father’s explanation that this was because of stress or trauma) the father has given up his job, given up the family home and sold or given away the bulk of the family’s possessions. He did so within a couple of months.

This seems to me to be inconsistent with his express wish for the family live in Abu Dhabi. I do not accept his explanation that he was required to give up the job through the stress of events. Nor do I accept the explanation that has been provided in relation to the giving up of the home or possessions. I note that on 10^th February 2023, he sent a message to the mother which can only be described as a threat, in which he said:

I do not understand why the family’s possessions needed to be sold rather than stored if return proceedings were contemplated. At best, this behaviour on behalf of the father was a fit of impetuous pique. At worst, it was the start of a bonfire of the family’s finances. When coupled with attempts to put all the UK properties on the market at once, this is a matter that causes me significant concern. Whilst I recognise that the father is now seeking to take a more constructive approach to finances, it seems to me that his actions in this regard have contributed greatly to the instability that the children would now face if I were to order a return.

An immediate practical effect for these children is that if I order a return to Abu Dhabi, they are now going to be living in a different property, surrounded by different possessions. There will have to be different routines. They will be returning to their former school but in many other ways their lives will have changed significantly from the life that they were living up until December last year. So far as the return to school is concerned, I note from the father’s second witness statement that the UAE did not resume “in person” lessons until the second half, or indeed the third quarter, of 2022. So in fact, it appears that the children may have attended for perhaps one or two terms in person in their last three years at this school.

Very little information has now been provided by the father about the situation that he proposes the children should return to. At the pre-trial review on 23^rd June, I gave permission for the father to put in a witness statement setting out his proposed protective measures but that provided little detail on financial matters. This was only clarified further in a statement that was put in overnight, after the first day of the final hearing, in which the father proposes to pay £1,250 per month for the mother and children to rent an apartment. However, he has not provided any particulars of available properties and I am not in a position to assess the adequacy or otherwise of the arrangement that he proposes and the sorts of properties which he proposes that the mother should move into.

What is clear to me, though, is that although the mother has agreed to accompany the children, she will do so at some cost to herself. When asked by Ms Renton if she intended to return with the children if I made an order for their return, she came close to tears and had to take some time to compose herself. I have not the slightest doubt that this was a wholly genuine reaction on her part and although she would accompany the children in those circumstances, she would find this an upsetting and difficult step to take. The mother has not filed psychiatric evidence of any condition and I am not asked to find that this is such an extreme case. Nonetheless, I consider I am entitled to take into account, in my overall assessment of the children’s welfare, the likely effect on the children’s primary carer and it seems to me self-evident from the mother’s reaction that she will find a return to the UAE and to Abu Dhabi very difficult.

In her evidence to me, Ms Cull-Fitzpatrick confirmed to me that if the mother was distressed, then this would have an impact on the children and on the mother’s parenting capacity. The mother is, and always has been, the children’s primary carer and I have no doubt that if I order a return to Abu Dhabi, the mother will not only find this distressing but that distress will be picked up on by the children and it will bring further instability into their lives.

In England and Wales, the mother has a support network available to her through her parents and other siblings who live nearby. No such support network exists for her in the UAE. There are paternal relatives living in that jurisdiction, but no one has suggested that the mother has a wider circle of friends that she could rely on and, effectively, if I make a return order, it seems likely she will be very much alone. The father says he will undertake joint care of the children, although it is not wholly clear how that arrangement would fit with the new job for which he is seeking.

In contrast Ms Cull-Fitzpatrick confirmed in her report the children are relatively settled here, that they have stability, and that the two older girls, in particular, are integrating well at school.

I am very conscious that a refusal to order a summary return would mean that there would be a reduction in the ability of the father to have contact with the children and I fully recognise the importance of the father maintaining a close and loving relationship with all four children. Nonetheless, I note that it has been possible for the father to maintain contact with the children here, both through regular video contact and indeed through trips as well and if the father gets a job soon (as he suggests that he will), then he will be likely to have access to funds to continue to visit the children in this country; although I accept that would not be of the frequency of every six weeks suggested at one point by Mr Gration in cross-examination.

In her submissions, Ms Renton made repeated references to the mother’s conduct in abducting the children and went so far as to refer to public policy reasons for ordering the return. I am clear that this is not a Hague case and I should not seek to import Hague concepts into my assessment of the welfare of these children. I have firmly in mind, though, the comments of Lord Justice Buckley referred to above in Re L (Minors) that:

Also the comments of Baroness Hale in Re J that:

I have already mentioned that I have found when the mother took the children to the UK she did not have, at that point in time, a permanent intention to relocate. Indeed, she has accepted she would have returned to Abu Dhabi if the father gave up his second wife. It only crystalised into a firm intention on her part in February of this year.

In my view, any assessment of the mother’s conduct cannot be divorced from the context. That is to say, the betrayal, as she saw it, by the father in taking a second wife, having sexual relationships with her for three years and lying to the mother about this. I take the view, therefore, that there are elements of each parent’s conduct that could be criticised and that here, in balancing where the children’s welfare lies, I give considerably greater weight to the situation on the ground than to any conduct of either party.

I am conscious also that in reaching a decision in this case, I am not making final orders as to where the children should live. Rather, my task is to determine where it is in the best interests of children for further disputes about where they should live to be determined. Ms Renton, in her submissions, suggests that my decision will be effectively determinative of the matter. However, I note that as Baroness Hale observed at paragraph [41] in Re J that:

I accept in the light of the evidence of Mr Awad and Ms Hamade that there is, in theory, a relocation jurisdiction available under Abu Dhabi law. Nonetheless, the evidence from both experts is that this is untested and there is some uncertainty as to how it will operate in practice, in particular where relocation is opposed by one parent. To the extent I need to do so, I prefer Ms Hamade’s evidence as to how the Abu Dhabi court would be likely to fill in the blanks, as it were, as to how its best interests jurisdiction should operate. I prefer her approach as she is a practitioner with day to day experience of the Abu Dhabi courts while Mr Awad is primarily a US academic.

Mr Gration argues that it is not in the best interests of these children to become a test case, to be returned to Abu Dhabi to find out what principles will apply to such a relocation application and that is an argument I have some sympathy with. Nonetheless, I recognise that the summary return jurisdiction does require the court to have a proper respect for other countries’ legal systems and I recognise the approach of the English courts is not the only way of doing things.

Thus, although I am concerned that there is less clarity than I would like as to how an Abu Dhabi court would address the making of a relocation decision, I must recognise that there is evidence before me that there is a relocation jurisdiction and that decisions in that jurisdiction are to be taken on a best interests basis. Although there is a lingering uncertainty over the manner in which this jurisdiction will impact the exercise, if that were my only concern in this case, I would have been minded to order a summary return. However, it is not.

As I have already explained, a summary return, far from returning the children to a familiar environment, will instead introduce yet more instability into their lives and significantly affect the ability of the primary care to provide them with emotional support and stability. The protective measures that the father proposes, in my view, do not and cannot address this key point. Although there is an offer to provide a property, that offer was made at the last minute. Such a proposal should have been

Another point taken by the father in his proposed protective measures is that he has offered not to take any point in civil proceedings regarding the abduction, and possibly other allegations about the mother. In practice, I am unclear how this proposal would work. The fact that the mother has retained the children in England and Wales, contrary to the father’s wishes, seems to me a relevant factor in a best interests decision, which could be considered by the court of its own motion in Abu Dhabi, irrespective of whether or not the father sought to rely on it.

I understand why the father has offered this protective measure, because the expert evidence, as I have already recounted, is that it is a factor which may lie heavy in the Abu Dhabi court’s best interests balance. However, if the Abu Dhabi court is effectively going to be prevented from dealing with, or reviewing all of the circumstances when assessing best interests, it does raise the question as to whether the children’s best interests are served by a hearing before an English court which can look at all of the evidence.

I accept that many of the other undertakings that have been provided by the father would provide some protection and that they could be enforced by way of a settlement agreement or a mirror order in Abu Dhabi and I note also that the father has assets in England and Wales, to which this court could have recourse in the event he were to breach his undertakings.

Ultimately, though, the focus of my decision is a welfare one and as Baroness said in Re J, needs to be looked at in the circumstances of the individual child in the particular circumstances of the case. Taking all of the factors into account, and in particular the fact the children have spent the greater part of the last two years in the UK; the fact that the father’s precipitive actions mean the children cannot now be returned to familiar surroundings and if they do now return, it would be an unfamiliar home; and the likely impact of a return on the mother (and given her status as the children’s primary carer, upon the children as well), I am clear that the welfare of the children requires that I should refuse this application for summary return. Further decisions regarding the children’s welfare should now be matters for the courts in England and Wales.