Re Z

The court is concerned with an application made by the father in relation to Z, aged 7, seeking an order under the Inherent Jurisdiction for Z’s return to Egypt. That application is opposed by Z’s mother. Z is a party to these proceedings represented through his Children’s Guardian, Kay Demery.

Z has been in this jurisdiction with his mother since May 2022. The mother had a time limited 5 year work visa and Z came as her dependent. The father says this move was without his knowledge or consent, In January 2024 the mother applied for asylum. That application was refused in May. The mother has appealed. That appeal has not been determined and there is no fixed timetable for that. The Secretary of State for the Home Department (SSHD) is an intervenor.

This hearing was listed to consider the following matters:

In addition to the court bundle the court has heard the oral evidence of the mother and father, both of whom had the assistance of interpreters, and Kay Demery, the Children’s Guardian.

Of the issues listed in paragraph 3 above some can be dealt with quite shortly:

The issues for determination are fact finding, what orders can be made and whether it is possible to make final orders.

Both parents were born in Egypt. They married in 2016 and are both Christians of the Egyptian Coptic faith. Z was born in 2017 and they separated in November 2021 when the mother went to live with her parents with Z.

According to the mother the father was abusive towards her from early on in the marriage. She describes incidents of physical and sexual abuse which caused her to leave the family home with Z for a short period in October 2021 and then, finally, in November 2021. The mother describes behaviour by the father that she said is coercive and controlling, such as limiting the contact she could have with her parents and exerting financial control. The father denies all the behaviour alleged although accepts the parents did have arguments.

Both parents worked for the same company and Z attended nursery. The mother’s parents lived nearby, the father’s parents died prior to the marriage.

Following their separation it is accepted the mother and Z remained living with her parents. The father had some contact with Z but it was limited.

In December 2021 the mother applied for and secured a passport for Z. The father had no knowledge of this.

In early 2022 the parents started looking for a school for Z to attend in Cairo from September 2022.

Also, in early 2022 the mother said she returned to the family home to collect her belongings to find that the father had changed the locks.

In March 2022 the mother applied for a skilled worker visa to come to the UK with Z listed as a dependant.

The skilled worker visa was granted on 8 April 2022, valid from 1 May 2022 to 15 January 2028.

In early April 2022 the parents were jointly considering Egyptian school options for Z to attend from September 2022 although the mother states that the school in Egypt notified her that the father had unilaterally rejected the previously accepted school place. In late April 2024 the mother and Z’s UK residence permit was issued, which is valid until the end of 2024.

The mother and Z arrived in the UK. They stayed with the mother’s sister, the mother’s visa is based on working for her brother in law. Z started school.

The father states he had no knowledge of the mother’s plans, he sought to negotiate with the mother in June 2022 with the assistance of the church, when that failed he made contact with solicitors via Reunite and instructed his current solicitors in early 2023.

On 21 July 2022 the father sought a Notice of Obedience in Egypt against the mother for leaving the matrimonial home and not returning without expressing a legitimate reason. On 14 December 2022 there is a declaration that the father has proved the mother’s disobedience from this date. The practical implications of this is that the father does not have to provide any financial support for the mother.

In November 2022 the father contacted Z’s school seeking information about J’s progress. The mother provided the school with an Egyptian custody order purported to be made on 14 October 2020.

The father instigated these proceedings seeking a summary return of Z to Egypt in May 2023.

On 24 May 2023 Cobb J made without notice location and disclosure orders to secure Z’s whereabouts and enable effective service on the mother. The mother was served on 10 June 2023.

At the return date on 16 June 2023 the mother attended court assisted by her brother in law. Orders were made by Roberts J preventing the mother from removing Z from the jurisdiction or the home they reside in. The mother was directed to file a statement, she refused to agree any contact between Z and the father.

On 11 July 2023 the mother applied for maintenance for Z at the court in Egypt, an order was made on 3 October 2023.

On 20 July 2023 before MacDonald J the mother attended court with her brother in law. Directions were made for the father to have video contact each week, an extension of time for the mother’s statement and a Cafcass report.

In September 2023 aconsent order adjourned the two day hearing fixed for 12 and 13 September with directions for the father to file a statement.

On 18 October 2023 the mother attended court and was legally represented. Keehan J’s order recites that the parties agreed to attend mediation with Reunite and directions were made listing the father’s application for a two day hearing on 29 January 2024, with expert evidence from Mr Edge regarding the legal position in Egypt to be filed by 12 December 2023. The directions included for Cafcass to assist in supporting contact. Weekly video contact was ordered with contact at a contact centre if the father is granted a visa to travel to the UK.

In November 2023 the mother was dismissed from her employment with her brother in law.

On 21 December 2023 the mother and Z left her sister’s home but remained living in the local area until 25 January 2024.

On 5 January 2024 the father’s application for a UK visa was refused.

The mother emailed the father’s solicitor on 9 January 2024 stating that she intended to return to Egypt with Z due to her changed circumstances, and that she planned to do that before 20 January 2024. She therefore requested the return of hers and Z’s passports. The mother later said this was due to the enormous pressure she was under at the time when she didn’t have any solicitors.

The expert report from Mr Edge was received on 15 January 2024.

The mother attended Lunar House on 25 January 2024 and claimed asylum. The mother and Z were housed in hotel pending outcome of that application.

The final hearing on 29 January 2024 was adjourned. The mother attended court unrepresented and sought an adjournment. The hearing was adjourned, the SSHD was invited to intervene and Cafcass was directed to provide views on whether Z should be joined as a party.

On 13 February 2024 the father declared to the Cairo Ministry of Justice that Z should live with his mother until he is 15 years old.

At hearings before me on 20 and 22 March 2024 and 26 April 2024 further directions were made including filing further statements, schedule of allegations and the child was joined as a party.

The mother’s asylum interview was on 22 April 2024 and her asylum application was refused on 2 May 2024. The mother launched an appeal against that refusal on 7 May 2024.

The order on 26 June 2024 listed the matter for a hearing on 26 July 2024 when directions were made leading to this hearing.

On 24 October 2024 the mother’s solicitors were informed that the SSHD had made an application to expedite the asylum appeal, which had been granted. The appellant’s bundle and skeleton argument were directed to be filed by 28 November 2024.

The findings sought by the mother are set out in the schedule filed by her dated 26 April 2024.

They include allegations of coercive and controlling behaviour, sexual, physical, emotional and financial abuse.

In her first statement, which did not have an interpreters declaration (the mother states it was interpreted to her by her brother in law) she describes verbally abusive and demeaning behaviour by the father from an early stage in their marriage which escalated when she was pregnant to an argument when she said ‘I thought he was almost going to kick me in the stomach, but I ran to the kitchen…’. The sexual abuse she described in that first statement was described in more detail in her second statement when she had the benefit of an interpreter that clarified incidents described in her first statement, correcting some matters and providing more detail, with more information in her later statement and her asylum interviews. The mother alleged occasions when the father would return home late after drinking and would insist on them having sex which the mother said she made clear she didn’t want yet the father continued to insist on having sex with her, physically assaulting her at the same time.

After Z’s birth her statement describes escalating verbal and physically abusive behaviour by the father.

In October 2021 the mother described an early morning argument when the father was complaining about the noise Z was making whilst they were getting ready. Her first statement alleges ‘He shouted at both of us and started to hit and kick [Z], so I took [Z] and ran to my parents’. In her oral evidence the mother described the father spitting at her on this occasion. According to the mother they stayed away for two nights with her parents and then returned home.

The mother describes during ‘the first week of November 2021 [the father] told me that he did not want [Z] or me visiting or seeing my parents’ stating that he would deprive them from seeing them.

On 24 November 2021 the mother describes another argument between the parents when they were driving Z to nursery. According to the mother the argument was about a forthcoming tonsil operation for Z, whether she had told her parents about it and whether they were going to attend the operation. The mother states the father ‘started to angrily hit the car saying ‘yes, it is the right time, and you will obey what I am saying. I will force you to do what I am saying’. He continued shouting and asked me to stop the car so he could get out. He slapped me in front of [Z] and then got out of the car and slammed the car door aggressively causing damage to the door and left me alone in the middle of the street…’. She went on to describe them attending a priest to try and resolve the issue of whether her parents should attend the hospital when Z had his operation. According to the mother the priest advised for the grandparents to attend and the father was not obliged to speak to them. When they left the priest’s office the mother said the father was verbally abusive and threatening in front of Z and when they got home the father ‘dragged me by the hair, slapped my face and hit me everywhere’ saying if she called her father he would not want to see them again. The mother said ‘I replied that I would go to my parents’ and leave him forever and that I would even go to my sister’s in England and take [Z] with me..’ The mother said she left the home early the following morning and went to her parents with Z. She went that day with her father to the police station and asked the police to issue an undertaking against the father not to expose her or Z to any kind of assault or abuse. The document records the mother reporting the father ‘assaulted and threatened me with cursing and physical abuse’. She gave her parents’ address, rather than the father’s in that document.

The father accepts there was an argument on 24 November 2021. In his statement he said the mother spoke to him ‘in a very irritating manner; I was very upset and agitated. But I didn’t hit her or say any bad words. All I did was ask her to stop the car (a habit when I am upset), and I closed the car door firmly but never to the extent of breaking it’. In his statement he denied the mother’s account of any assistance by the priest, although in his oral evidence he accepted that had taken place but it had been his idea. He did not accept he was antagonistic towards her parents in his statement stating ‘I treated her parents as if they were my own mother and father’. In his oral evidence he was very critical of the way he was treated by the mother’s father. He denied the incident in October 2021 or physically or sexually assaulting the mother stating he loved her ‘But in some situations, I got upset by her actions and the way she treated me badly sometimes….I was just upset’.

Z had his tonsil operation on 4 December 2021 which was arranged by the mother who states in her statement that despite being scared the father would cancel it she was ‘keen to inform [the father] about the operation time and date as a respect to him as a father who has the right to attend his son’s operation’. The mother said the father came 15 minutes before the operation started and left the hospital without purchasing the prescribed medicine. In her statement the mother says ‘In the evening I called him and told him he was not a responsible father contributing or engaging positively in his son’s life’. During Z’s recovery at her parents home the mother complains the father never ‘called to ask about [Z].’ The mother said she was contacted three times by the priest who is the father’s ‘spiritual father’ in the church, twice in January 2022 and once in March 2022 she said ‘Each time, I explained my worries, offered an open discussion to discuss our issues and I invited the priest and George to visit me at my parents home…’.

In February 2022 the mother went back to the flat to collect belongings and was surprised the locks had been changed. In subsequent messages to the father asking for a new key he responded asking what else she needed the mother said ‘I eventually decided not to go to the flat as I was scared he would find a way to kill me and my father’. Both parties attached to their statements the message exchanges around this time which do not support the fear the mother describes. She continues in her statement ‘I spent almost 6 months in Egypt at my parents’ before moving to England. [The father] refused to come to my parents’ during the time to visit [Z] and knew that I was preparing my documents to travel to England’.

In her statement the mother says that she was informed by the school they had applied for Z to attend that the father was rejecting the place they had offered for Z ‘For me, this was the final straw and proof that [the father] did not care about [Z] and we needed to leave’. The mother maintains in her first statement that the father ‘knew where I was going right from the beginning…We had been separated since November 2021 and I was fully responsible for [Z].[The father] did not prevent me from leaving Egypt. My understanding of Egyptian law is that I did not need [the father’s] consent to relocate to England although he could have applied to the court for an order preventing me from travelling’.

In her subsequent statements and oral evidence the mother accepts the father did not know she and Z were leaving Egypt to travel to England other than what she says she said when they separated that she may do that. She accepted that the father did not know about the passport application for Z and that she had not resigned from her job until after they had left. At the same time as the mother was engaging with the father about schools for Z in Egypt she was registering Z, unknown to the father, for a school in England.

As regards the arrangements for the visa application to come here the mother’s written and oral evidence is that she relied entirely on either the agent she employed and/or her lawyer, XY. When pressed about some of the information in her application, such as her marital status being described as divorced and that she had sole parental responsibility for Z, her response remained that it was in the hands of others. The same applied to the purported Egyptian custody order dated 14 October 2020, which the mother now accepts is not valid. She puts the responsibility for it down to the agent, yet her evidence is that she relied on it to deflect the request by the father to Z’s school in England for information about his progress. In her statements she said she sent the order to the school, yet in her oral evidence she sought to place responsibility on her brother in law who she said went with her when she took it to the school. She continued to seek to maintain that she hadn’t read it which simply makes no sense as all the other evidence points to her knowing it’s terms.

In his statements and oral evidence the father maintains that he did not know about the mother’s plans to travel to England. There is no credible evidence to suggest he did; all the evidence points the other way such as engaging with the mother in planning for schooling for Z in Egypt to start in September 2022 and the messages sent to the mother after she had travelled to England which support him having no advance knowledge of her plans.

In her first statement she said she called the father on 7 June 2022 and ‘explained how she felt and that I left on his request. He was the one who kicked me and his son out of his life from 25 November 2021. Since that time, [the father] has never called me directly…He had all my contact details as well as my family’s contact details in England’. The mother rejected an approach from a priest based in Leeds at the instigation of the father in July 2022 stating that the father should ‘reach out to me or my father directly’. There was a further similar approach described by the mother in August 2022 and she said Z was surprised not to receive a birthday call from his father in February 2023 stating ‘At this point it was clear that [the father’s] objective was just to gather evidence and build a case against me. Since November 2021, he has not called me,[Z] nor any member of my family directly although he knew where [Z] and I were. I responded to all the mediators he sent me and tried to find a way to fix our relationship despite the abuse’. The mother outlines her fear if she returned to Egypt as she considers the father would take revenge on her and Z.

If she was ordered to return to Egypt the mother says she fears she would be arrested and due to the Notice of Obedience she would be taken to a place which the father believes would be suitable for their marriage to continue.

There is an expert report from Ian Edge, a recognised expert on the cross jurisdiction legal issues in this case. In his report, having set out the relevant custody/guardianship framework relating to children he is clear there is no system in place in Egypt for mirror orders to be made, in effect recognising an order made in this jurisdiction. What he advises should be considered is if the parties were agreed regarding the order they could seek an agreed order in similar terms in the Egyptian courts. That suggestion is made in the context of a child going to Egypt for a holiday. What may need to be investigated in this case is if it would be possible in the event this court orders Z’s return to Egypt on the agreed basis that the child remains in the full time care of the mother whether the parties could secure an order in the Egyptian courts to that effect. He recognises in his report that this course is not entirely risk free but has been used in the cases he sets out.

Mr Edge’s report makes clear (i) the mother required the father’s consent as guardian to remove Z from Egypt; (ii) any undertakings given by the father here are not enforceable without more in Egypt.

He sets out the effect of the Notice of Obedience issued by the father in July 2022. It is focused on finance, if the wife can be shown to be disobedient and the court makes such a declaration the husband is then released from the payment of any maintenance for the wife. Mr Edge’s view is that such a notice could be withdrawn or discharged and the father acknowledged in his oral evidence he could do that.

As regards the effect of the abduction report filed by the father with the police in Egypt Mr Edge’s view is ‘It may have the effect by being a ground for removal of the Mother’s right of custody of the child’. In his view ‘the father may cancel/withdraw the report at any time’.

Mr Edge concludes his main report in the following way ‘If the Mother returns to Egypt with the Child then in my opinion there are the following possibilities: (i) The Mother may lose custody of the Child by being castigated by the Father as disobedient; 9ii) the Mother may lose custody on the basis that the Child will be 7 years of age; or (iii) the Coptic Church Councils will bring pressure to seek to seek to persuade the Mother to return to the matrimonial home’.

In his first supplemental report he sets out the effect of the Egyptian court documents he has been sent, the likely process if the parties submitted a consent order to the Egyptian court and confirms there is no law against domestic violence in Egypt with the only route for protection being to make a complaint to the police with medical evidence to support it. Mr Edge notes this is rarely done as it would be viewed as a shameful act noting that ‘All the relevant state agencies will be in favour of persuading the victim to reconcile rather than go to law’.

In his second supplemental report he considers the implications of any findings that the child was removed without the father’s consent and/or there was any deceit in producing the October custody order stating even if the parties agree ‘it cannot be said with certainty that the mother will be awarded custody by an Egyptian court although the court would start from the presumption in favour of awarding custody’.

There is a letter from Barry O’Leary, an experienced immigration solicitor with Wesley Gryk Solicitors LLP setting out his opinion regarding the mother’s current immigration position. As regards her skilled worker visa as neither the mother nor her brother in law, as her employer, have notified the Home Office of her employment ceasing the visa remains valid until May 2028. If the mother’s asylum appeal is unsuccessful, provided her visa is not curtailed the mother could remain in the UK until May 2028 but she would not be permitted to work other than with her sponsor and would not be able to leave and return to the UK or have recourse to public funds.

All parties have set out the relevant consideration for the court when undertaking a fact finding hearing, in particular the relevant provisions of PD12J Family Procedure Rules 2010.

I have been referred to the relevant principles listed most recently by Knowles J at [39 - 41] in Re P (Inherent Jurisdiction Return: Allegations of Female Genital Mutilation and Domestic Abuse: Fact Finding) [2022] EWHC 1722. I do not propose to set those matters in full but they should be read into this judgment.

Without over burdening this judgment with the route by which the parties reach their agreed position, it is accepted that the principles in G v G [2022] AC 544 providing for protection from refoulement are applicable in summary return applications as they are in 1980 Hague Convention cases. The effect of that is that, in the event of the court making a return order it cannot be implemented until the determination of the mother’s asylum claim, including any rights of appeal.

Ms Guha emphasis the observations made in G v G of the need to avoid delay which is inimical to the welfare needs of the child.

All parties have provided detailed written submissions for which the court is very grateful.

Mr Gration KC and Ms Chokowry recognise the burden of proof is on them to establish the findings they seek. Their overall submission is that the court cannot rely on the father’s evidence as it is inconsistent and paints an unrealistic and idealised picture of the parties’ relationship. He acknowledges they had arguments and he had made mistakes but was unable to provide any details about that when pressed. They submit his limited admissions about what took place on 24 November 2021 is revealing and provides an important indicator of the true nature of the parents’ relationship and the inability of the father to control his temper when angry.

As regards welfare they recognise this will be influenced by the court’s findings but invite the court to refuse the father’s application or, in the alternative, having determined the facts adjourn consideration of whether or not to make a return order until the determination of the mother’s asylum appeal.

Ms Guha KC and Mr Slater rely on the many inconsistencies in the mother’s account, the significant delay in her raising any detailed issues about domestic abuse and the circumstances surrounding the period from November 2021 to April 2022 are inconsistent with the mother’s account. There is no evidence that she was put at risk of harm from the father during that period, on the contrary, as set out in the evidence, she complained that the father had not taken much interest in Z during that period, which she would have welcomed. During that period they were able to communicate about matters concerning Z, such as his future schooling in Egypt even if though they give differing accounts about the precise details. They submit even after the mother came here she was still in intermittent communication with the father with no credible evidence that she was in fear. The context of timing when the mother makes her detailed allegations, they submit is important, only after the father has issued proceedings here and since then the mother has sought to delay these proceedings at every stage, including making the application for asylum.

In relation to welfare they too accept much will depend on the court’s findings but they seek Z’s return to Egypt and rely on the undertakings the father has offered and the declaration he made in February 2024 agreeing to Z remaining in the mother’s care.

Mr Powell on behalf of the Children’s Guardian helpfully draws the court’s attention to the key features of the evidence. He submits both parents were evasive in their oral evidence, deflecting their answers to questions of any detail. In relation to the mother there were inconsistencies regarding the allegations of abuse, a general abdication of accountability or responsibility for the steps that had been taken by her, in particular how they impacted on Z. The mother acknowledged she was able to safeguard Z’s interests during the six months she stayed with her parents and attributed blame to the father for causing harm by bringing this application demonstrating a lack of insight into her role as to why these proceedings were necessary. As regards the father there was a minimisation by him in respect of his admitted behaviour and a lack of real understanding of the impact on Z of any return to Egypt having been away for so long.

Mr Powell helpfully summarised the key considerations that the Guardian considered relevant to any welfare decision, in particular Z’s current unsettled circumstances, the inherent risks for Z in the various options making it clear that whatever the outcome it was vitally important he remained in his mother’s care.

This is a complex case that has not been helped by the way the statements have been prepared, particularly by the mother’s former solicitors. It remains unclear why an independent interpreter wasn’t used for her first statement.

In assessing the evidence in this case I have borne in mind the obvious stress to both parties in giving oral evidence. This case has been going on a long time. Both parties gave their evidence via an interpreter, which has to be factored in. Special measures were put in place so that the mother could not see the father on the screen when she gave her oral evidence and when the father gave his oral evidence arrangements were in place so she could hear his evidence but was not looking at him on the screen.

I agree with Mr Powell’s assessment that both parents were evasive in many aspects of their answers.

The mother often gave long answers, often repeating what she had said earlier and frequently unrelated to the question she was being asked. A feature of her evidence was the responsibility she placed on others for significant events, such as the agent for the answers in the UK visa application form and the agent or lawyer for the custody order which it is now accepted is not a genuine Egyptian order. She maintained she had not read it which is simply not credible, particularly bearing in mind she took it to the school in Brighton to prevent information about Z being sent to his father. She also sought to maintain that the father knew and/or consented to Z coming to the UK with her. All the evidence points the other way, in particular the joint endeavours by the parties in April 2022 to secure a place for Z in a school in Egypt starting in September 2022, the way the mother left her employment by resigning after she had left Egypt and the messages from the father to the mother once she was in England.

The father’s evidence maintained his denials but when pressed by Mr Gration to give examples of the mistakes he had made which he referred to in his statement he struggled to provide any detail. The picture he sought to paint of limited difficulties in the marriage did not match his evidence about what took place on 24 November 2021 which was not an isolated occasion in terms of the parties arguing or the father leaving the car in the way that he did, making it more likely that there had been other serious arguments between the parties where the father had been unable to contain his temper and, in my judgment, is likely to have physically assaulted the mother in the way she has described.

I accept the mother’s evidence that she and Z had left to go to her parents’ home in October due to an argument between the parents and returned two days later following the argument described by the mother. There is no issue that she and Z left on 25 November 2021 and didn’t return to the family home. The father doesn’t suggest she left for any reason save to look after her mother, but her cancer diagnosis was not until later. There is a level of acceptance by the father that the parents argued but, in my judgment, his evidence underplays the extent of those arguments and his tendency to lose his temper in the way that happened on 24 November 2021 happened more frequently than he was prepared to acknowledge. I consider it more likely than not that the mother left due to the father’s verbal and physically abusive behaviour towards her set out in the schedule at 3 and 4 (save that the incident at (a) is limited to the mother thinking the father was going to hit her) but I am not satisfied to the required standard that the allegations of sexual abuse are established to the required standard due to the lack of consistency in the mother’s accounts, the delay in the allegations being made, being raised for the first time in August 2023 in response to the father’s application which she vehemently opposed. I fully recognise, due to the difficult sensitive issues in such allegations, there can be delays in them being made. However, even making all due allowance for those matters, including the mother’s wish for the family not to be broken up and the cultural pressures around that, she remained open to the parties reconciling during the six months she was with her parents, was critical of the father in not remaining in touch more either with herself or Z. Her position in relation to that continued when she came to the UK and whilst I accept she may have felt more protected due to the distance her attitude and behaviour was inconsistent with all the serious sexual allegations she had made.

Looking at the evidence as a whole I consider it more likely than not that Z witnessed either directly or indirectly (if he was not in the same room) the arguments between the parties and the physical abuse by the father to the mother. On any view that was deeply damaging to his emotional welfare. I do not accept the mother’s evidence about the father shaking Z, the allegation lacks any real detail or context and is inconsistent with her wanting to promote the father seeing Z after they separated.

I do not find the allegations of coercion and control or financial abuse established to the required standard. There is no credible evidence that the mother was unable to seek the assistance of her parents when she needed it, she went there in October and in November. The allegation regarding the purpose and circumstances of the sale of the gold and the purchase of the property lacks any supporting evidence. The mother remained working during the relevant period.

Having made those findings I need to consider what orders meet the welfare needs of Z, which is the court’s paramount consideration.

In considering his welfare needs the court has the benefit of the two Cafcass reports undertaken by experienced Guardians. The earlier report by Ms Cull Fitzpatrick provides an important welfare context for Z. At that time Z was relatively settled, benefitting from staying with the wider maternal family and the close relationship he had with his cousin and was well supported at school. That situation changed significantly in late December when the mother and Z had to leave her sister’s home. After staying with friends for a few weeks both Z and his mother are now accommodated in a hotel pending the determination of her asylum application. In her written report and oral evidence Ms Demery painted a bleak picture of the realities for Z since January 2024. He shares a relatively small room with his mother and they have very limited financial resources. Although Z spoke positively about his new school to Ms Demery the support he requires at school, as detailed in her report, reflects the position more accurately.

Z is closely aligned to the mother who has been his main carer and Ms Demery’s evidence was clear about how important that relationship is for Z and the need for Z to be able to feel that position in being cared for by his mother is not put at risk. He wants to be able to remain living with her and is closely aligned to her wishes to remain living here. Although there is no medical report there is some evidence of the stress the mother is under and she is currently prescribed medication for depression. Any impact on her mental health is bound to impact on Z.

I agree with Ms Demery that Z’s current situation is sub-optimal. There is no certainty as to how long they will be able to stay in their current accommodation, if they had to move that might involve a move of school and further uncertainty for Z.

Z’s video contact with his father appears to be taking place and on occasions last longer than the time provided for in the order. In her oral evidence the mother did not oppose that, if it works for Z, and recognised the need for Z to know his father. If Z does not go back to Egypt there is little prospect of him seeing his father in person as the father is unlikely to be eligible to apply for a visa for a number of years.

Z has been in the UK for over two and a half years. Bearing in mind his age that is a significant period of his life. In his meeting with Ms Demery he had some memories of living in Egypt and clearly missed the wider maternal family. The circumstances around the mother and Z leaving her sister’s home and the lack of any continuing contact remain far from clear. Z feels the loss of his relationship with his cousin and is unlikely to see him, if he remains living here, until the summer of 2025.

Whilst the father may have assisted with the care of Z when the parties lived together the evidence demonstrates that for the six months Z was living with his grandparents there was limited contact between the father and Z, even though the mother appeared to support it. Like much of this case the reasons why the father did not regularly see Z remain wholly unclear but it showed a lack of commitment to Z. There was then a gap from May 2022 to July 2023 before video contact started, so for reasons beyond Z’s control due the action of his parents he has had an interrupted relationship with his father and the wider maternal family.

Although the mother’s primary position is to dismiss the father’s application, her more realistic position is to adjourn making a final welfare decision due to the uncertainty of the mother’s position pending the outcome of her asylum appeal. It is agreed the court can’t enforce any return order in accordance with the principles in G v G. The outcome of the asylum appeal will have a significant impact on the mother’s position and, by definition, Z’s too.

The father urges the court to make a decision now, in effect granting the father’s application for Z to be returned to Egypt. Ms Guha submits the situation is so uncertain here whatever the outcome of the asylum application as the mother is unlikely to be able to support herself and Z, if Z remains here there is the significant loss of Z’s relationship with his father, the wider maternal and paternal family, Z’s heritage and the detrimental impact for Z of lingering uncertainty. The father has set out a raft of undertakings he is prepared to provide that will ensure Z remains living with his mother and he will provide financial support. He relies on a declaration he made in February 2024 that confirms he supports Z remaining in his mother’s care. He seeks to suggest the Notice of Obedience has no effect now, although that is not a view shared by Mr Edge.

Ms Demery was unable to make a recommendation as it hinged on what findings the court makes. Mr Powell helpfully summarised the relevant considerations in his written submissions. Subject to the findings she considered there appeared to be more unknowns than knowns here when compared to Egypt but the court would need to balance the impact of that on the mother and Z.

I have found the welfare decision particularly difficult in this case. Whilst the mother has maintained her opposition to a return to Egypt, in the end she may have little choice in the event of her asylum appeal being unsuccessful. One of the difficulties the court has is the lack of any realistic timetable for that appeal. This court has remained in contact with the FTT. There is recent evidence that the SSHD has applied for an expedited hearing and the appellant’s documents are due to be lodged with the FTT by 28 November 2024. Z’s current circumstances are clearly fragile and uncertain but he remains in his mother’s care and does have regular contact with his father, albeit by video.

It is inevitable that due to their close living circumstances Z will be very aware of his mother’s views about whether they should return to Egypt. Between May 2022 and July 2023 there had been a significant period when Z did not have consistent regular indirect contact with his father which the mother should have taken steps to put in place. The way the mother took the unilateral steps to bring Z to this country in May 2022 will have caused uncertainty for Z, the extent to which it has caused any long term emotional or developmental harm will be a matter to be addressed at the welfare hearing.

The difficulty with the position advocated by the father, in effect, asking the court to make a significant welfare decision in a vacuum, as there may be a further delay in the asylum appeal being determined when the welfare landscape may be different. It also seeks to put pressure on the mother in the way outlined by Ms Guha as to whether to pursue her asylum appeal.

Having balanced all the relevant considerations I have concluded, at this stage, the court is not in a position to make a final welfare decision due the uncertainties in the mother’s position. However, I am clear that any further delay should be productively used to provide the necessary steps to secure a return to Egypt if that is what the final decision for Z is. Those steps should include the father taking the necessary steps for withdrawal of the Notice of Obedience and implementation of the package of measures outlined in Mr Edge’s report. I will hear submissions on precisely what steps should be taken but the guiding welfare consideration for Z will be, whatever the welfare decision, to secure his position to ensure he remains in his mother’s primary care.