AB v CD & Ors

This matter is listed to determine the parties’ cross applications to summarily return one of their two children. The mother wants O, who is 8, returned to this jurisdiction from Egypt where she is with her father. The father wants P, who is 3, returned to Egypt from this jurisdiction where he is with his mother. He concedes that P’s return should be conditional on the parties reaching a settlement agreement (in terms which will be detailed below) which will be made a binding order of the Egyptian court (the mechanism of which will be considered below) before P travels.

The mother is represented by Nicholas Anderson and Katy Chokowry. The father is represented by Nick Goodwin KC. The children are represented through their guardian, Lilian Odze, by Henry Lamb.

The precipitating event which has led to these proceedings is the ‘flight’ of the mother with P (but not O) from Egypt where both parents and children were living on the 28 November 2024. P and the mother arrived in this jurisdiction on the 4 December via three other countries. En route he and the mother briefly stayed with his grandparents, the mother’s parents.

The mother’s application in Form C66 was made on the 12 December 2024. The father’s application, in C2, was made on the 30 December 2024.

The law governing my decisions will need to be explored. I will turn to it below.

The central factual issues between the parties, on which I have heard evidence, are:

There are further factual issues, which are raised and on which I have heard evidence that I consider less central to the decision I need to make (for reasons which will appear below) notwithstanding the headline descriptions of them. I refer to them here in deference to their inclusion in a composite schedule of allegations:

The position of the Guardian is that the issue of jurisdiction must come first. It is submitted by Mr Lamb that although not straightforward the evidence is that the children were and are habitually resident in this jurisdiction. Further it is submitted by Mr Lamb that in relation to forum issues England is to be preferred. As to welfare, in her oral evidence the Guardian reserved her position till I make findings of fact. I note that she did try and make broad either/or recommendations in her report, as I had directed, but she qualified the usefulness of that exercise for reasons that I will set out when I recount her evidence below. Mr Lamb similarly told me in his opening position statement that ‘findings of fact are needed to inform Ms Odze’s welfare analysis of the case’, and likewise in his closing submissions that ‘Resolution of these disputed allegations is considered central to Ms Odze in terms of determining how [the children’s] welfare needs will best be met in the future and in determining the competing applications for the return orders.’

Mr Lamb provided in his opening note a helpful factual summary which I have used in the subparagraphs that follow with some modifications and additions from a chronology prepared by Mr Anderson and Ms Chokowry and the evidence that I have read and heard:

Two other general points can usefully be made at this stage. First, the father is a man of considerable wealth. His wealth was not the subject of these proceedings, but it can be illustrated in two simple ways:

Second, the father has travelled a lot throughout the marriage. The parties have employed a nanny, but given he was working away from the home, which the mother was not, and that he was often travelling abroad, she was the primary carer of these children.

It is agreed that, if the children are habitually resident in this country, I have jurisdiction in relation to both of them by virtue of sections 2 (1) and (3) of the Family Law Act 1986 and Article 5 of the Hague Convention 1996. (I shall refer to the Family Law Act 1986 as the FLA 1986.) Egypt is not a contracting state to the Hague Convention 1996 but that is irrelevant so far as this consideration is concerned.

If the children are not habitually resident in this country, then:

Each of these routes comes with its own legal issues which require rehearsing.

Habitual Residence: there is a wealth of case law on what constitutes habitual residence. I note that Mr Lamb lists five key Supreme Court decision as follows:

I shall not endeavour to digest them here but confine myself (that job having already been done for me) to the summary of factors set out by Hayden J at paragraph 17 of Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam), as helpfully provided to me again by Mr Lamb:

These observations as to the meaning of habitual residence are not affected by the fact that Brussels IIA no longer applies. It is however relevant to note that the principle of perpetuatio fori (i.e. that the habitual residence at the date of application is what matters, not the date of hearing) does not apply under the 1996 Hague Convention as it did under Brussels IIA. No party however is inviting me to consider in the circumstances of this case, namely conflict between the parents since the applications were made, that there is a change in habitual residence of the children since the application, and I would resist that argument even if it were deployed given the importance of the parents’ intentions to the habitual residence of these children.

I note, having raised the matter of applicable date, that the position under the 1996 Hague Convention differs from that under the FLA 1986. By section 7(c)(i) the relevant date in relation to that act is the date of the making of the application. By section 7(c)(ii) if no application is made the relevant date is the date on which the court is considering making the order.

It is necessary to consider the phrase ‘in connection with matrimonial proceedings’ which is used in s. 2(1)(b)(i) FLA 1986 as part of the matrimonial proceedings jurisdiction. It has been considered in Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897. Moylan LJ concludes in wide terms that

Mr Goodwin tells me in terms that s. 2(1)(b)(i) FLA 1986 is not open to me because the mother has applied for orders under the inherent jurisdiction by her C66. For me to be able to use that power he says that the order made needs to be a section 8 order. That is right, but it does not deal with the point that I put to him at the pre-trial review, namely whether I could make an order for the return of O as a specific issue order, which would be a section 8 order. A similar (but in that case retrospective point) arose in the Supreme Court in In the matter of A (Children) (AP) [2013] UKSC 60. In that case the argument was taken (by Mr Setright KC) that the return order made should be considered as an order made under the Children Act and so it was not, on the facts of that case properly open to the judge. The response (by Mr Turner KC) was that the order made was under the inherent jurisdiction. Baroness Hale says this:

That then appears to leave open the question as to whether, notwithstanding the application is made for an order under the inherent jurisdiction, the court might make an order under section 8 of the Children Act to order O’s return. The possibility is assumed in the passage above.

The question however appears to have an answer in a later case of the Supreme Court. Lord Wilson, in Re NY [2019] UKSC 49, at paragraph 42 recalls the passage cited above from Baroness Hale and comments that she has observed ‘that there were many orders relating to children which could be made either under the 1989 Act or under the inherent jurisdiction’. In paragraph 44 he goes on to set out that orders for return can be applied for under the inherent jurisdiction even though they could be brought under the 1989 Act. He says this:

That passage puts it beyond doubt that a specific issue order can be used to order a return; the same order can be made under either the Children Act or the inherent jurisdiction. It will be necessary for me to consider however whether in circumstances of this case I should be using the power of the Children Act when proceedings were brought for an order under the inherent jurisdiction.

Even if I were to consider I might do so however, there is a further jurisdictional hurdle: FLA 1996 s. 2A (4)(b), raises a forum conveniens point; namely, whether ‘it would be more appropriate for Part 1 matters relating to the child to be determined outside England and Wales.’

As to the parens patriae jurisdiction: that might arise because both children have British nationality. Its use as a basis of jurisdiction is excluded by combination of the FLA ss. 2 (3), 3(1) and 1(1) d in relation to orders pertaining to care, contact, and education. It might, in certain circumstances be used to give jurisdiction for a return order. Again, this is an area where there has been assistance provided by higher courts as to the circumstances where the use of this jurisdiction might be justified. I shall explore them no further here than to repeat what Moylan LJ said in paragraph 105 to 107 ofRe M (A Child) [2020] 3 W.L.R. 1175:

This availability of this route in this case is doubted by Mr Lamb and not pursued by Mr Anderson and Ms Chokowry in their closing submissions (though it formed part of their opening submissions). In the light of the fact it is no longer pursued, I will deal with this route to jurisdiction quickly at this stage in the judgment. It is clear that the situation of O, is not sufficiently compelling to justify the use of the parens patriae jurisdiction.

If I have jurisdiction, it is agreed that I should exercise it, whichever way, in accordance with the child’s welfare. I note that habitual residence is not a determinative factor in considering welfare. In a recent decision of the Court of Appeal, Re O (Summary Return: Non-Convention Country) [2025] EWCA 660 Cobb J reminds us that the decision the court needs to make should be ‘swift and unsentimental’ and ‘rooted firmly in welfare’. The first instance judge in that case had considered ‘habitual residence’ as a factor which should inform the welfare decision, but should have considered instead the children’s ‘home country’. That is a reference to a passage of the judgment of Baroness Hale in Re J [33] that I repeat below (with Cobb J’s emphasis):

I further note that the effect of the decision upon the child’s primary carer is relevant to welfare issues, (Baroness Hale, para 40 Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40.)

Yet further I note that I should consider whether there needs to be a comparison of the respective legal systems in the competing countries and whether there is an effective relocation system in the other court. (Baroness Hale, para 63 Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40.)

I also need to record that this hearing, albeit it has consumed 4 days of court time and has generated a great volume of written evidence and written submissions, is listed as a summary hearing. It is open to me to say I need a full welfare hearing and decline to deal with matters in a ‘summary’ form. That is a point that has extra weight in the circumstances of this case where Ms Odze has found herself limited in her consideration of welfare issues before I have determined factual issues. There are however the normal factors in favour of prompt determination of the return applications.

At the beginning of the hearing before me I gave leave for the mother to produce a late statement. I shall not here repeat my reasons. This detailed an allegation of sexual abuse of her by the father, which has surfaced because of comments recorded by Ms Odze, in her report. The allegation in summary is that he coerced her into giving him oral sex, and that he on one occasion had sex with her to which she did not consent. That resulted in an adjournment for instructions to be taken and a statement in reply to be prepared.

That lost half a day of court time, and the oral evidence was necessarily expanded. Time for oral submissions was lost and I have received instead written submissions. This judgment is being primarily written on the fourth day of the hearing, the 3 June 2025 which was a few days after the rest of the hearing concluded. It was sent out in draft on the 9 June 2025.

I heard oral evidence from Mr Edge, the mother, the father, and Ms Odze. In the main part their evidence will be considered insofar as it relates to the particular issues I need to decide but I comment in general as follows.

Mr Edge, an expert on Egyptian law, I heard before the adjournment on the first day. He was a single joint expert. He had written a report and answered questions in writing already. He gave his evidence, as one would anticipate, in an entirely professional manner. The burden of the questions related to how one might bind the father in Egypt so that any agreement he entered into in this jurisdiction would be effective in Egypt. (His report had recorded that an English court order would be ineffective.) His answers were that it could be done (albeit with a risk) if the parties were prepared to enter into a consensual agreement which was recorded as an order before the Egyptian court. He suggested the process of getting an order would take between 3 and 6 months depending upon the level of co-operation between the parties. He was prepared to be the person who helped the parties draft such an agreement and got an order of the Egyptian court.

He had outlined in his report that the Egyptian system would normally provide for children under 16 to live with their mother (custody) but to be under the control of their father (guardianship). Egypt had ratified the UN Convention on the Rights of the Child and the Child Law Act of 1996 exhorts the Egyptian Courts to apply the principle of the best interests of the child in all cases concerning children. However, Egyptian judges consider that existing laws that relate to children are based upon a consideration of best interests so by and large it has not been thought necessary to refer to, or use, this statutory principle to create a new overriding legal principle in child cases.

There was he told us in his report no relocation jurisdiction to determine whether if the parents were in dispute the children might move to live in a different country, because this would be a matter for the father to determine, and it would only be in extreme cases where the court would intervene to override a father’s refusal. It was suggested to him by Mr Goodwin that the parties might agree to appoint an arbitrator to deal with the issue who was to consider only the best interests of the children. He agreed with that idea.

The idea of an arbitrator emerged around a discussion as to how the proposal that the father was then advancing would work, namely that he would consent to the Egyptian court determining any relocation case according to the children’s best interests, uninfluenced by the fact that he is the children’s guardian. I could not understand what law the Egyptian court would then be applying to determine the question, given that the decision would normally be a matter for the child’s guardian. I retain the same concern as to what would the relevant law be of the arbitration. Mr Goodwin advanced that the test should be the best interests of the children, but how is the arbitrator to determine that? Different legal systems, and different cultures might suggest that different matters would be in a child’s best interest. Mr Edge did not consider this problem, but, to be fair to him, this was an idea that was first advanced to him during oral examination and it is not really an issue of Egyptian law. I will need to consider it further if I am going to take this route.

In relation to the risks in the scheme he was suggesting he pointed to two particular concerns. One, that a party might allege that they were constrained to enter into the agreement which led to the order of the Egyptian court. This risk he thought could be all but eliminated by recording that they were entering into the Egyptian order embodying the agreement of their own free will. Second, that one party alleged circumstances had changed. If, for instance, the father were to allege that the mother was not of sound mind, or was immoral or irreligious, then the matter would revert to the Egyptian courts and their legal system. The best guard he could offer against this was a very long agreement which endeavours to map out and respond to every eventuality. Dr Edge had set out in his report that the success of the scheme to date in other cases might in part be because it was only in those cases where the courts had trusted the parties to honour the arrangements that this route was taken. He had written ‘The success of the process ultimately lies in the integrity of the parents and the parents’ families and the English court’s willingness to accept that all the relevant persons will comply with the agreement.’ His oral evidence, though positive, did not depart from that proposition.

A question was put to him about the mother’s right to reside in Egypt. She had been residing as a wife of an Egyptian. She was in the process of getting a residence permit (in controversial circumstances which will be touched on below) before she left Egypt. Dr Edge said he was not an expert in Egyptian immigration law, but he did not demur (nor did anyone else) from the position advanced that as a mother of Egyptian children, particularly with the consent of their father, the mother would be able to reside in Egypt.

The mother, I heard for all of the second day of the trial. She spent most of the trial behind a screen, but during her evidence the father agreed to sit behind the screen so she did not need to look at him. She was clear that if I found that P should be returned to Egypt and O should stay there she would go to Egypt too, but she told me she would be terrified of what would happen when she was there. She told me she can only see three outcomes if she goes back: she will go to prison, she will be accused of being mentally unfit to care for the children, and the father will be able to control travel (which I take to mean the children’s travel).

On questioning about the circumstances surrounding her leaving O, when she left with P, she appeared to be in pain. When talking about the sexual abuse she alleged she appeared upset and mortified. The impression she gave was primarily one of anxiety. I did, as will be seen below, on occasions find her case unconvincing, overstated for effect, and on occasions wrong, but I consider her anxiety as to what would have been her situation if she had remained in Egypt, and what would happen if she were to return a significant factor in her actions and her presentation of her case.

The father, I heard for much of the third day of the trial. (Ms Odze was intervened to allow her to leave by 4 pm on that day.) He was clear he would not return to live in this country, whatever I ordered in relation to the children. It had been tax reasons which had led him to leave and they remained. When I asked whether he could live elsewhere and the mother and children could live here (one of the possibilities the parties had discussed before they moved to Egypt) and provision could be made for him to have time with the children, he rejected the suggestion. His first reason was again tax, which I did not understand but he said was to do with the tax that would be payable when he died, he then explained that circumstances had changed following the mother abandoning O.

My primary impression of the father was that he was irritated. He resented, understandably if they are false or exaggerated, the allegations that were made against him. But more than that, during the marriage he gave the impression of having found the mother’s anxiety annoying. There were occasions when I consider he was not truthful, or only partially truthful with me. I give here one example of each.

In a moment when I felt I was receiving unvarnished evidence (which here was combined with real insight as to what had gone wrong in the parties’ relationship), he responded to questions put to him about a series of messages the mother had sent him saying she needed help dealing with her anxiety and managing after the birth of P, by saying he was not very good at dealing with those sorts of things (emotional things I understood) but he did set about organising a Norland Nanny, to help practically.

He accepted that he tended to be the one who made the important decisions in the marriage, but said that he regretted that the mother was not more ‘empowered’ and ‘independent’. He said he tried to encourage and push her to be a strong and independent woman. I consider that his pushing and encouragement was perceived by her as controlling and critical. And sadly, the more he pushed, the more nervous she got, and consequently the more irritated he became.

Ms Odze, the children’s guardian, was keen to make clear to me that it was very difficult for her to make welfare recommendations while there were important issues of fact outstanding. She urged on me that I should use this hearing to make findings of fact and she might then make recommendations as to what work needed to be done with the parents and the children before the court made substantive decision. She said that no either/or recommendation would work in circumstances where I may find somethings and not others, or partially accept an allegation. It was raised with her by Mr Goodwin, that, in effect, that was a counsel of perfection. The court is being asked to make a summary decision by both parents. It is not helpful to think of what work is to be done, until we have thought as to which country will be dealing with the case. There is force in his line of questioning but there was also weight in her position that her welfare recommendations are dependent on my findings. I need to hold in mind that I am without her assistance that I would hope to have had by not having those recommendations.

She did tell me that both children were charming and a credit to their parents. O is a sensitive girl, who now has a damaged relationship with the mother, which will need to be repaired by therapy. She is receiving counselling at her school in Egypt and she now appears to be better settled there. She was concerned about the short-term effect of uprooting her (again) and bringing her back to England but said she would seek help to support her if that happened. She agreed with Mr Goodwin that O’s relationship with the mother needed to be restored. She did however say in her report that O had told her she would be fine coming to live here if this was what the Judge ordered. And she went on to say that O would be returning to a familiar environment (assuming she could get a place back at her old school) and would be returning to her primary carer. P, she told me, had settled into nursery in the UK. He, because of his age, was less aware of the disruption that had taken place than O was.

Ms Odze was concerned about the impact on the mother of going back to Egypt, and she was concerned that she would not have appropriate support.

Habitual residence: It is accepted by all parties that the children were habitually resident in the UK before the 6 July 2024 move to Egypt. Mr Goodwin advances the following arguments of substance in support of his client’s case that both children now habitually reside in Egypt:

Against this it is urged on me:

I remind myself that the factual enquiry that I engage in must be centred on the circumstances of the child’s life.

Considering the points raised above, I conclude that the children’s habitual residence had changed by the date of the applications (and has not changed thereafter) from England to Egypt. The reasons I do so are that this was a planned and packaged move of the whole of the immediate family to a place they knew well and to which they had already strong connections. It was meant to be a change as to where they lived, and in broad terms that corresponds with the factors I need to consider for habitual residence. I see little force in the argument that O was unhappy at the school at first. That is to be expected and in fact is an expression of the fact that she had moved, and wanted to move back. I do see some force in the fact that O was not told that she was finishing school in England until August, but by November, let alone December she well knew of the change. I do not see that the process of the change of habitual residence for the children would be thrown into reverse by them (O really) becoming aware that her mother was unhappy and wanted a divorce and that she wanted a return to England. The fact that the English school and nanny and GP were not told of the move seems to me no more than a marker of the way these parties behave than any drag on the change of habitual residence. The fact that the children speak English as their first language has weight but does not come near to turning the balance of the scales. The arguments apply with slight modification as much to P as they do to O. As a younger child I see his habitual residence more caught up with the parents’ plans and intentions, and he did not have the connections to a school in this country. His habitual residence will have changed as the parents’ would have done, promptly upon their move to Egypt.

Parties’ allegations in relation to the other’s behaviour: I have been provided with a schedule of allegation. It runs to 21 pages, and does not include the recent allegations of sexual abuse. I do not intend to work through it here. Instead, I will work through the allegations that I consider important to the decisions I need to make.

A) Is the mother the victim of domestic abuse, coercive and controlling behaviour, and sexual abuse? I shall break this down into the following sections:

Stranding: It is said by the mother that the father duped her into agreeing to move to Egypt. His true motivation, she says, was to allow him to continue his new relationship and he wanted her in Egypt to better manage any breakdown in their relationship – both as to financial and children issues. This allegation is not sustainable in the light of the mother’s oral evidence that they had discussed moving to two other countries, but she chose a move to Egypt given that would make it easier for her to see her parents in a different middle Eastern country. Further, she said another possibility that the father proposed to her was that she and the children could live in this country while he moved abroad. She rejected that possibility because she wanted them to be together. The father says he had not met the person with whom he had a relationship until after they moved and the relationship was not immediately romantic. I do not need to determine that point. On the mother’s own evidence there were already difficulties in their marriage at the time they moved; that was why she wanted to move with the father. She accepted that she had taken legal advice on what she might receive if the marriage broke down before the move. She went knowing of relationship difficulties: no doubt she would have preferred it if the relationship had worked out, but it cannot be a matter of complete surprise that the problems got worse. It is clear to me that the mother agreed to move to Egypt. There were alternatives offered which would not have been offered if this was a duping for advantage. This move was not part of a planned and calculated scheme to do her down.

The mother says that when she was in Egypt she was stranded there by the father. I make clear that (i) I do not treat ‘stranding’ as a term of art and (ii) I can understand that the mother felt caught in Egypt because she did not want to leave without the children. I hold in mind while considering her case as to being stranded that it is accepted that she always retained her own passports (both British and her third country passport). She travelled from Egypt to see her parents in the third country in July. She had some £54,000 in a bank account in November 2024.

The mother’s case is put on the basis that the father said to her when she said that there needed to be a divorce on the 3 October 2024 that she had three choices: (i) get divorced and carry on living with the children in the apartment with him paying the bills; (ii) stay married and accept he had a girlfriend, or (iii) get divorced and not tell the children. The father denies that he said this. On the balance of probabilities, I prefer the mother’s evidence on this and consider he did say it, or something similar. It sounds like the sort of thing he would say. As far as this goes this is an argument as to how to progress the divorce, not stranding.

Further the mother says that the father said she could not leave the country or take the children out of the country before the divorce was finalised. He denies that he said this. I listened carefully to both parties’ evidence on this. I am not persuaded that he did make the threat to the mother that she could not leave. I think he did say the children should not leave. That is consistent with the agreed argument on the 7 October 2024 about the location of the children’s passports, but there is no suggestion that he tried to take the mother’s passport. I think this is an occasion when the mother overstates her case, but even if I am wrong, the threat that she could not leave is no more than a threat when she continues to hold her passports and has some money.

There is a dispute between the parties as to whether the father took the children’s UK passports on the 7 October 2024 so he could keep them from the mother or whether he just put them in his laptop bag where they were normally stored. I find that he deliberately took them with the intention of keeping them from her, at least while he was travelling abroad. My reason for finding this is that is what he said to her brother he had done as recorded in the transcript referred to above. His account that he had just put the passports in his computer bag because that was where they were usually kept has partial truth, in that his laptop bag is where they were normally kept, but at this time putting them there was done deliberately to stop the mother having access to them. Nonetheless it is entirely common where there is a relationship breakdown (including in this jurisdiction) and one party wants to remove the children from the jurisdiction contrary to the will of the other for steps to be taken to prevent the children’s removal. That cannot be considered stranding. It is maintaining the status quo as to the children’s location.

It is also worth noting that the mother was as engaged as the father in manipulating the parties’ ability to travel with the children. On the 10 November 2024 she reported to the British authorities that the children’s passports were lost, thereby causing them to be cancelled. It is an irony of this case that the passports that the father took to keep them from the mother, and about which she complains, had been rendered useless by her before the trip he made to England on the 26 November 2024. I note, in passing, that the mother explained her reporting the passports as lost by asserting that she was afraid the father was planning to cause the children to live in another European country. There had been some years ago discussion of a school in this country, and there might have been conversation about the father and children going there on holiday but it was difficult to understand her reason for thinking that the father planned an abduction to that country. I do not think her explanation plausible.

The mother says that the father threatened a ‘no fly zone’ when the parties were arguing about the passports. The father denies that he did. I consider that on the balance of probabilities he did, but again this was with reference to the children rather than the mother.

Considering this allegation in the round I do not consider that the father forced the mother to stay in Egypt. He did insist on the children staying, and took practical steps to try and make that happen. I can entirely understand how that put pressure on the mother to stay, but I do not consider requiring the children to stay in Egypt a matter for which he can properly be criticised.

Sexual Abuse: the mother alleged in her statement filed on the first day of the hearing that the father coerced her to perform oral sex on him, and, in August 2023 at the beach house in Egypt, he had sex with her to which she said ‘no’, that he has a porn addiction and masturbated when he was sharing a bed with P.

These allegations were made after an unparticularised reference to sexual abuse was made to Ms Odze by the mother, and was referenced in Ms Odze’s report.

The father made a statement in reply, which got to me the next day, in which he said that the mother did give him oral sex, but he did not coerce her to do so, and she would send him sexual messages referencing oral sex to entice him back from work, that he did not have non-consensual sex with the mother and has no memory of the occasion which she refers to in August 2023, that he does watch porn on occasions, but is not addicted, and that he does masturbate but he would never do so while sharing a bed with P.

The father says that the mother is making these allegations in a desperate attempt to shore up her case.

I do bear in mind how late these allegations surface. I do not consider that makes them any less likely to be true but it does affect the father’s ability to fairly respond to them.

The mother said that she had no idea what oral sex was before the marriage. She was completely sexually inexperienced. The father said that she had not had sexual intercourse before the marriage, but, in a striking way, he was not prepared to accept that she was sexually inexperienced because she had a cold sore before their wedding. That he told me was an STD. We had no medical evidence on the point, but I put to him that the mother’s account that she had caught the virus from a shared lipstick was plausible. He did not deny that was possible, but it appeared that he had strongly held views in relation to the cold sore. The father’s presentation during this exchange gave me cause to reflect that the father’s irritability could easily shift to anger.

More normally the mother was questioned about her knowledge of what oral sex might be from her time at university, and her friends. She was about 30 when she married. She said she did not know what it was. That struck me as an implausible answer.

She said that the was pressed into giving oral sex by the father and he applied pressure to her to give him oral sex by saying he would only agree to them trying for a child if she did. The father says that is not true at all. She gave him oral sex, which he enjoyed, voluntarily on their wedding night and on many occasions throughout the marriage. As just mentioned he provided, in the short time available to him, as exhibits to his statement, various images of the mother pouting which she had sent to him as invitations to have sex, one of which included clear reference to her wanting to give him oral sex.

The mother said she would send these messages to him to try and make him come home. She was wanting to save the marriage, and he would sometimes sleep away from home, as there was a bedroom at his office.

In cross examination she asserted that the parties had a good sex life until 2022, and then said the father was abusive since 2016. She also said that their relationship was good until 2022. This did not make a great deal of sense, or fit with her account of him coercing her to give him oral sex from the beginning of their relationship.

Doing the best I can with this evidence I have formed the view that the way oral sex occurred between these parties cannot bear the label ‘sexual abuse’. I am wary in going beyond a finding that the mother has not discharged the burden of proof. My tentative further conclusions are that oral sex was something that the mother knew that the father liked. As their relationship deteriorated, she became internally resentful and started to dislike it, particularly if he asked for it, but she was keen to keep their marriage going and so would perform it on the father. The father can be criticised as insensitive but not labelled as abusive.

In relation to the allegation of non-consensual sex in 2023, I should record that the mother’s case expanded in cross-examination. She added a detail that she had crossed her legs to stop sex. The father’s response that he has no memory of any such incident is perhaps not surprising if it didn’t happen, but it might equally be a simple block on cross examination. Mr Goodwin says that it is inherently unlikely that the father would have forced himself on the mother against her will when his parents and the children were downstairs, and awake. There is some weight in that argument, but it could be met by a response that the mother just did what the father wanted. He also says that it is an allegation made to stop me ordering O’s return to Egypt. That may be true, but so may the allegation. I am forced back on the legal analysis that the burden of proof is the balance of probabilities, and the mother has failed to discharge it so I reject the allegation.

I reject the allegation that the father masturbated while in bed with P. It is based on no more than the mother seeing no used tissues before a rest period and seeing a used tissue after. I have no good reason to consider that the father is addicted to pornography rather than is someone who uses pornography.

Coercive and controlling behaviour. I record that the mother accepts that the father has never been violent towards her, or made threats of violence, save in the recorded phone call with her brother to which I will return.

The mother’s allegation are: that she was blamed for everything, that the father was not supportive, told her that she would not succeed, called her a terrorist, undermined her parenting and her relationship with O, and was difficult about her work in multiple ways – e.g. sacked her (twice), and cancelled her business phone contract.

In broad measure the father claims that he was supportive, denies that he undermined her parenting, and that despite his best effort to support her, she was no good at her work – which as it was in his business led to problems.

It is clearly the case (and the mother’s brother makes a similar observation in the recorded phone call) that there were problems with the mother working for the father’s business. One can see how the situation arose: she wanted to work and to have an independent income, he was able to provide her with a position. He says that she did not do promptly what was asked of her by her managers, who were other employees of his. I am not able to descend into the detail of whether the demands were always reasonable. I can see that there were requests made of the mother shortly after P’s birth which appears unreasonable, but I am told that the mother did not want to take maternity leave, which is presumably why the requests were made. All I can remark is that when the marriage is in difficulties having one party working for the other is likely to present problems. The father could have recognised this and just paid a stipend to the mother. The mother could have recognised it and suggested a change. In relation to the sackings, the second (which led to the loss of the business phone – more strictly the phone contract) is understandable in the family context: it occurred after the mother took P from Egypt. I do note however that on cross examination on this point the father was not up front. He denied that he was involved in the cessation of the phone contract but subsequently conceded that he was consulted before she was sacked, and knew that the phone would be lost when she was sacked. In relation to the first sacking he related that senior managers in the business had sacked her because she did not do her job properly, and he in fact helped her get her job back. I am confident that this is not the whole story. It does seem odd that the boss’s wife would be sacked without consulting the boss. Whether or not she was adequately doing the job I cannot say, but it would have been more appropriate at this point to say that the arrangement was not working and to consider an alternative arrangement.

In relation to the more general allegations, it is my view that this was part of the unhealthy dynamic of the parties’ relationship as I have already expressed in my general account of the parties’ evidence. The father is irritable and I consider on occasions bad tempered. The mother is anxious. This made their relationship difficult. I have no doubt on occasions he was short with the mother and rude to her. I have no doubt he on occasions tried to support her in his practical way when what she wanted was emotion and him to listen to her. This I consider was the downward trajectory of an unhappy marriage rather than something which can fairly be described as coercive and controlling behaviour.

As to the undermining of the mother’s relationship with O, her allegation is that he said to O that ‘we don’t need Mummy in the family’ and that she was ‘useless’. The father denies this. He on the other hand says that the mother said to O, before they moved to Egypt, when he was away on business that he had ‘another family’. My conclusion having heard the oral evidence of the parties and listened to the manner in which they conducted their arguments is, while I cannot determine precisely what was said to O, both parents have involved her in their adult arguments, and have probably done so for some time. Neither should have done it.

In an allegation which logically contradicts the mother’s stranding argument the mother alleges that the father took no steps to secure her immigration status in Egypt, such that she would be deported from Egypt. The father denies this. First he says that there was no problem in the mother’s residence, as his wife, and even if they divorced as the mother of Egyptian children. Second he says that he had proposed hiring lawyers to assist the mother. She did not want that: she wanted him to do it. Further he said, and this is partially accepted, that he did go with her to the immigration office in Cairo shortly before the mother left the country, and that the reason that everything could not then be sorted out is that the mother had failed to get a document from the Embassy of the country of her birth. Matters were left on the basis the mother would get the relevant document to progress the application. The mother agrees that they did go to the office together, but says they went late in the day and the interaction was just with a security guard. Her underlying fear she said was that she would be deported and the children would remain in Egypt.

I find that as the parties’ marriage was falling apart they struggled to co-operate about sorting out independent immigration status for the mother in Egypt. I do not find the father was deliberately blocking it. I consider he in fact wanted the mother to stay in Egypt. I think it is likely that a relevant form had not been obtained and I consider that the mother’s account that the only interaction they had at the immigration office was with a security guard is unlikely, and I therefore reject it. I suspect they met with an official, but it was a public facing official who as a preliminary step went through the documents they needed, noted one was missing and sent them on their way. I do not consider this a form of coercive and controlling behaviour.

Conversation between the father and the mother’s brother: I have already set out that the father and the mother’s brother spoke on the phone after the mother took P from Egypt and that I have a transcript of the conversation, which in fact occurred over two calls. During the course of that conversation the mother alleges that the father makes threats of violence to the mother. They are as follows (from the certified translation):

The father says these calls are made in the context of him just discovering his son had been taken, his daughter abandoned, and him not knowing where his son and the mother were. He says there is no threat of physical violence, the phrase ‘scruff of the neck’ which the mother had translated as ‘drag her by her hair’, is an Arabic phrase and not a real threat of violence. He says that even in the heat of the moment what he is proposing is legal remedies. He says that the mother, who first produced her own translations of excerpts has over-egged the translation and not shown the full context of what he said.

There is much in this response. I accept that the context of these call must be held in mind. He was bound to be in an emotional state at this time. I accept that the threat of violence was metaphorical rather than an actual envisaged assault. I accept that the mother’s translation makes the threat appear more immediate than the certified translation. I accept that the destruction he is talking about is legal destruction.

I do not consider that this is a phone conversation that can be relied on as evidence of coercive and controlling behaviour, arising, as it does, following her taking P. I do however need to bear in mind in my determination of this case that the father has made threats (in the heat of the moment) to legally destroy the mother.

B) Was the father physically abusive to the children and controlling of O? I will take this allegation more quickly. The allegation is that the father slapped O on her thigh leaving a handprint, which was photographed by the mother, in July 2020. The father denied this at first and blamed the mother’s brother. The mother responded with an uncropped photograph, which showed the date, and said that it could not have been her brother both because Covid restrictions on movement meant he was not with them and because the imprint shows a wedding ring, and he was not married. The father then conceded that it must have been him. His evidence was that he had blacked the incident out but having been forced to reconsider it he did recall it. He had tried to control O, who was having a tantrum, and failed. He struck her in a moment of stress and despair. He had not meant to use that much force. He was horrified by what he had done. He tells me that it was a one-off incident.

The mother says that in summer 2024 the father slapped O on the cheek for not talking nicely and sent her to her room for 4 hours for punishment. The father denies this. He would not have struck O. He would be the parent who effect punishments for misbehaviour but he has no recognition of this incident.

The mother says that in summer 2024 the father hit P’s hand leaving him with a red hand and crying. There is a video of P with a red hand and crying. The father says the mark was not caused by him. He was not present in the house at the time.

The cross examination of the parties did not illuminate these incidents for me. I do note that the mother left the children in the care of the father when she went to the country where her parents live at the beginning of the summer and left O in his care when she left Egypt. That is a factor against concluding that the father poses a physical threat to the children. I do consider that he is a man who can slip easily from irritation to bad temper, and he himself accepts that he has done it once, but on the evidence before me I decline to make a finding on the other incidents. I consider that though any loss of temper with a young child is to be deplored, the behaviour of the father should not be labelled physical abuse such as to dictate the decisions I am to make.

The mother further alleges that the father would lock O in the laundry if she kept crying or had a tantrum. The father accepted that he would issue time outs. He said he was the parent who was the more disciplinarian. He said that time outs were a useful way to regulate behaviour. He said he did not lock the door. I again do not consider this issue is one that I can make a finding on, or that the difference between the parties is important to the decision I need to make.

(C)Was the mother emotionally and psychologically abusive of O? This allegation is based on the mother leaving O when she left Egypt. The father was out of the country. The mother according to the father left O with a cleaner; the mother says that O was with the parties’ driver and the driver was to take O to her grandmother’s house, and the mother had checked the grandmother was in.

There is an issue here, which needs to be considered from both sides. It is unquestionably the case that O was distressed being left without her mother and her brother, while her father was away. That situation was made worse by the mother turning off her mobile phone – as the mother thought the father might try and locate her through it. It took the father till the next day to get back to Egypt and he relates entirely credibly O’s fraught emotion at seeing him.

The mother says that she panicked in the light of her situation in Egypt. She recognised that leaving O would hurt her, but that things were so bad in Egypt she needed to get out. She thought that by coming to this country she would in the long term be better able to help O. It is notable in this regard that O said to Ms Odze, ‘she [M] left me in Egypt in my grandma’s house. She said I am going to leave you here so I can take you.’

The father says the mother was in no panic. That this was a calculated decision, after legal advice, with the quantum of a divorce claim in her mind – hence she photographed his financial documents before she left. The mother had indeed taken legal advice from London lawyers by this time (as had the father). It is clear that she had formed the plan to leave not in a moment but over a period of time. That however does not mean that she was not in a panic. I find that she was. It was not the panic of the moment but a crisis: she had been painfully hurt by the discovery of the affair, she regretted her decision to move to Egypt, she was scared as to what her position in Egypt would be, she had lost all trust in the father, and she felt it necessary for her and the children’s good (even O’s in the long run) to get out and come back here - a country she should not have left.

There has been harm done to O. It was clear from the way the mother gave her evidence that she was aware of that. It is not helpful to label it as abuse but it is right to acknowledge that the mother took actions which have caused harm to O.

Further, it should be noted that part of the mother pushing her evidence beyond what can fairly be put in these proceedings, is a desire to have made that harm worthwhile – that is by getting O out of Egypt. That this is what she wants so vehemently, I record, is not of itself, a matter that should sway me.

(D) Has the mother given deliberately fraudulent and misleading evidence? I shall not here engage with the details of the allegations that the mother misled the father over the presentation of her removal of P and the events shortly after that. It is clear that in general terms she took P without the father’s consent knowing that he did not want her to and took steps to prevent her departure and immediate destination being apparent to him.

It was put to her that she fraudulently cancelled the children’s British passports. She denied that, but it is clear that they were not lost at the time she reported them as lost – she knew they were with the father – and she made up a date as to when they had been lost which she knew was not true.

It is said that she produced strategically cropped recordings of the conversations between her brother and the father and it took repeated challenges to produce the full transcript. The mother says that she produced the relevant parts and she did when challenged produced the whole recording. It is clear that the ‘relevant’ parts in her mind are the threats and the whole recording does provide balance and context. This though is not a point of any particular significance.

Having rejected the mother’s case (and Guardian’s case) as to habitual residence, and having rejected the parens patriae jurisdiction the two jurisdictions that I need to consider are the matrimonial proceedings jurisdiction and the Hague Convention article 11 jurisdiction (although this only covers decisions in relation to P). If I am to go down the matrimonial proceedings jurisdiction route, I need to consider forum conveniens, and in both cases if I am to make an order I need to think about the children’s welfare.

Matrimonial Proceedings Jurisdiction: There is no issue but that if I do not consider this jurisdiction barred by the fact that the mother applied for an inherent jurisdiction order on a C66 and subject to a forum argument this jurisdiction is open to me. That is following the decision of Moylan LJ in Re S.

I have set out above why it is that the court can make a specific issue order for the return of a child, which has the same effect as an inherent jurisdiction order, and by reference to the judgment of Baroness Hale in In the matter of A (Children) (AP) it is apparent that the court can make such an order of its own motion in proceedings such as these.

I had left open above the issue as to whether it is appropriate for me to do so. I record again that Mr Goodwin KC simply tells me I should not. Mr Anderson and Ms Chokowry say that I can do it because each party has, in addition to the application for orders under the inherent jurisdiction also made applications for section 8 orders.

They are said to be these:

I reflect, however, on the fact that I raised this very point, namely that I could make return orders as specific issue orders, with Mr Goodwin at the pre-trial review in this case (having required issues of jurisdiction to be addressed in writing in advance of that hearing). The pre-trial review was on the 28 March 2025 so it cannot be said that the father, or Mr Goodwin were taken by surprise by the point.

I consider further that it would be inappropriate of me to require this matter to be reheard simply so that the mother can issue a fresh application. I consider further whether a different procedure should have been adopted were this a Children Act application rather than an Inherent Jurisdiction application. I can see that normally Children Act proceedings do progress in a different way to inherent jurisdiction applications, but procedure is always something that the court can control, and there must be scope for the court to deal with a summary specific issue order in the same way as it deals with a summary inherent jurisdiction order.

I therefore consider that it is open to me to use the matrimonial proceedings jurisdiction.

Before I depart from this point, I do need to briefly consider the impact of s2(1)(a)of the FLA 1986, namely whether I have jurisdiction under the Hague Convention. I do in relation to P have jurisdiction to make an order for his return to Egypt under article 11 of the 1996 Hague Convention. That allows me to take necessary measures of protection in cases of emergency. It is the jurisdiction relied on by the father for me to return P to Egypt. It does not however give me jurisdiction to make a Children Act section 8 order, a section 1(1)(a) order in the terms of the FLA 1986. I therefore consider it irrelevant to the application of s. 2(1) of the FLA 1986 which I am here considering. Even if I am wrong on that it will make no difference to the outcome of my considerations because the same welfare exercise that I carry out when considering whether I shall or shall not order a return will apply under whichever route I take.

Forum conveniens: it is uncontroversial between the parties that the relevant law is to be found in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, and De Dampierre v De Dampierre [1988] AC 92. Lord Goff, delivering the unanimous judgment in Spiliada, stated the following in respect of the principle of forum conveniens under the inherent jurisdiction:

I consider that it is right to remind myself that I am not making a decision under the inherent jurisdiction as Lord Goff was describing but in the terms of the FLA 1986 section 2A(4) that where the court has the matrimonial proceedings jurisdiction but ‘considers that it would be more appropriate for Part 1 matters relating to the child to be determined outside England and Wales, the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court by virtue of section 2(1)(b)(i) of this Act.’ That is, if it would be more appropriate for Part 1 matters (which include section 8 orders) to be determined outside England and Wales, then the court may direct a stay.

Mr Anderson and Ms Chokowry make the point that the burden here will be on the father to establish a stay should be granted, so that he needs to show that Egypt is a more appropriate forum.

Mr Anderson and Ms Chokowry advance the following arguments (modelling their submissions on the factors set out by Williams J in Re K (A Child) (Stranding: Forum Conveniens: Anti Suit injunction) [2019] EWHC 468.

Further, it is asserted by Mr Anderson and Ms Chokowry that a forum better placed cannot include international arbitration. After receipt of the draft judgment they pointed out to me that their rationale for this assertion was that Lord Wilson had said in Re B [2016] UKSC 4 that a child’s habitual residence was the international threshold to the vesting of jurisdiction in ‘courts’. That is to over read his words and apply them in a context to which they were not intended. It does not withstand the wording of the Act which is simply a question of whether it would be appropriate to determine matters outside England and Wales. A determination can include arbitration.

Mr Lamb adds to this list that the welfare interests of the children are better protected here.

Mr Goodwin makes in his opening note reference to the same authority of Williams J. On the basis of that authority he makes the following observations:

At this stage I need to set out the most recent soft landing provisions. I say most recent because these have changed from those first proposed in the father’s first statement of the 14 February 2025, to more extensive ones in the third statement of the 12 May 2025, increased further in the course of the hearing to include arbitration on the issue of relocation, to be determined on the basis of the children’s best interests.

It will be recalled that the mechanism is that the parties are to reach an agreement in terms to be agreed and they are then to seek a consent order from the Egyptian court in the same terms. The father’s terms are as follows, in the latest iteration:

To which needs to be added that the parties are (under the father’s proposal) to agree to an arbitrator being appointed in Egypt who will apply the welfare principle. In addition to the financial matters set out above the arbitrator is to determine long term custody issues, any relocation application and contact. And both parents will be bound by the result of the arbitration.

I resolve that many of the reasons advanced by the parties in relation to forum conveniens that I have recorded above carry only marginal weight because of counter balancing factors so:

In essence the real balance I need to reach on this forum point is between:

There are very forcible arguments advanced on both sides of this balance. I consider that O will struggle with another school change. The optimism that Ms Odze has that she will be able to return to her old life in her English school might be misplaced. No enquiries have been made of the school. The mother is not currently living in her old home. Given the father’s wealth I have no doubt proper accommodation could be provided for her here and a school could be found. So ultimately I do accept Ms Odze’s evidence that O could cope with a move back but it will be disruptive for her.

I need to bear in mind however that given the return would only be a summary order I would anticipate that the father would want to make a relocation application for her (and P I assume if I were to take this path) from this jurisdiction, much as the mother would want to make such an application in Egypt, and there would of course also be the issue of appropriate child arrangements to be determined by the court if they could not be agreed by the parties. It would clearly be easier for O to stay as she is at the moment in Egypt and at school while these issues are sorted out. It would be terrible for O to move back here only to be moved back again to Egypt after a full relocation hearing (should that be the outcome of that hearing – which of course I am not predicting). Further, I accept Mr Goodwin’s point that P could move back to Egypt with less difficulty than O could move here. He is just at nursery and there is no reason to believe that he is fragile. There would however still be disruption for him to make him move to Egypt, where a relocation hearing would take place, which might then cause him to be moved back here.

An answer on the double move issue is that it should be possible to have that adjudication while leaving the children where they currently are and then move them in accordance with that determination.

I take the view that the soft landing provisions are broadly sensible but I am troubled by the two big points raised above. In saying that they are broadly sensible I am not intending to say that the soft landing provisions are absolutely right. There may be, for instance, a good case that the mother should have more maintenance, and the terms will need to ensure she has the right to make an application should it be necessary to the court as well as to the arbitrator, and the amount of the security bond will need to be considered, but I expect that with the assistance of Dr Edge and if necessary this court those points could be resolved. What troubles me is trust in the father and the creation of a new forum. As to trust I have concerns given:

As to the point that we are in fact being invited by Mr Goodwin to create a forum based on nothing more than the general assertion of the child’s best interests, I acknowledge that the parties could endeavour to create a scheme, which deals with points such as giving a voice to the child, assessing the child’s welfare in the way that a Cafcass officer does, and considering how to weigh the different views of the two parents. In reality however it is likely either there will be disagreement between the parties, or we will be replicating the English system. That gives rise to the question, why go abroad to do that, why not just deal with the matter here?

On balance I conclude that the father has not shown that Egypt is an appropriate alternative jurisdiction on the facts of this case. I reach this conclusion by weighing on the one side the possibility that the father will not honour the soft landing provisions he proposes and the negative consequences of what will happen if he does not honour it, and the problems in the creation of the rules governing the proposed arbitration, and assessing that the weight on the other side of the balance, namely the disadvantage of relocating O while the full relocation hearing takes place, is less and can in fact be substantially reduced by using this jurisdiction to litigate the issues here without ordering a summary return of O but leaving her at school in Egypt till the matter has been fully considered.

I record here that I am not concluding that the father can never be trusted to honour the soft landing provisions. What I am doing is conducting a balancing exercise. If, for instance at the end of a full relocation hearing the arbitration proposals were more fully formulated, a meaningful bond was proposed, and I concluded that O should remain at her school in Egypt for the long term, then I might no longer consider the risk of the soft landing provisions not being honoured would be outweighed by the advantages of a return.

Welfare: As I have already indicated there is a very significant overlap between the forum conveniens considerations and the welfare considerations.

I do however want to make some points which on the facts of this case are particular to welfare issues:

I accept that if I were to take the route that I have considered above that is to make no summary return but consider this matter at a full relocation and child arrangements hearing, with a proper welfare assessment from Ms Odze, that would delay the children being together. Further it will mean the children will each have to wait longer until they are able to enjoy a normal relationship with the other parent, because they will be in different countries. It can readily be seen, that delay in coming to a final conclusion is contrary to the children’s interests. I have had 4 days to consider the situation it might be said, why provide more time to rehash the same arguments? These proceedings are after all meant to be ‘swift and unsentimental’.

In part the answer to this, is that a full hearing on relocation and child arrangements appears to be what both parents are expecting as the next step. The father wants it to take place in Egypt, before the arbitrator, with P back in Egypt. The mother wants it to take place here, with O back in this country. It is appropriate for there to be a full hearing. The welfare issues and the evidence on those issues are such that a summary determination as to return should not be the final determination as to where hereafter the children should live.

In part the answer is that this hearing has taken 4 days because a thorny issue of jurisdiction needed to be considered, and findings needed to be made on significant factual points. The jurisdiction has now been determined; the findings have been made.

In part the answer is that advanced by the Guardian from the start: that she needed the fact finding before she could consider welfare. I have recorded at the beginning what Mr Lamb said to me in his opening note and closing position statement on this point. Indeed, at one stage during the course of the hearing he apologised if he sounded like a stuck record so frequently did he re-iterate the point. Insofar as he felt he was pushing against the court he is to be praised for his persistence; he was pushing against a desire to make a summary determination.

But the biggest part of the answer to this question, is that the harm to O of a move here, when there might be another move back to Egypt is such that I am not prepared to direct it on a summary basis. This case presents particular problems: there are two countries which can be called ‘home’; the parties are asking for cross applications; and the ultimate welfare assessment of where the children should live (after a non-summary hearing) is not obvious.

I am going to consider this issue another way as a cross check. The various orders open to me are:

I do note that the delay in holding the full hearing is likely to be not much greater than the father’s proposed delay while the soft landing provisions and the consent order are sorted out.

I acknowledge that given I am exercising jurisdiction under the Children Act I need to consider the matters set out in section 1(3) of that Act. I do. I consider that nothing is to be gained by going through those matters one by one. I do note that section 1 (2) tells me that delay in determining a question is likely to prejudice the welfare of the child. I have considered that point. I do further note that section 1(3)(g) reminds me to consider the range of powers. I have done so.

For the reasons expressed above, I conclude that

I anticipate that those directions will be in broad terms as follows:

I invite the parties to endeavour to agree directions along these lines (or otherwise if they think appropriate – and can explain why to me). In the event that they are not able to agree I will try and deal with the disagreements on paper but it may be a hearing is needed.

In the meantime I anticipate that the father will need to make financial provision for the mother and P as, to his credit, he has done voluntarily to date, and I would encourage the parents to continue to make the arrangements which they have been making so far to allow the children to see each other and the other parent.