S v A
| Jurisdiction | England & Wales |
| Judge | Mr Paul Hopkins |
| Judgment Date | 07 September 2022 |
| Neutral Citation | [2022] EWHC 2300 (Fam) |
| Docket Number | Case No: FD21P00817 |
| Court | Family Division |
[2022] EWHC 2300 (Fam)
Mr Paul Hopkins QC
(sitting as a Deputy High Court Judge)
Case No: FD21P00817
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Roshi Amiraftabi for the Applicant
Mr Amar Alyas for the Respondent
Hearing dates:
–20; July 2022; 29 July 2022;
August 2022;
September 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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INTRODUCTION
These proceedings concern one child, namely S (a girl), born on 31 January 2018, who is therefore aged 4 1/2 years old. I shall refer to G as “the child” in this judgment.
G is the child's father and the applicant in these proceedings. A is the child's mother and the respondent. I shall refer to them as “the father” and “the mother” respectively, or collectively as “the parents”, in the course of this judgment.
The father seeks by his application dated 21 October 2021 the child S's summary return to Pakistan pursuant to the Court's Inherent Jurisdiction. There is also a potential ancillary issue as to direct contact between the child and father in the event that the father's application fails.
This has been a fully remote final hearing. The father has joined the hearing via ‘Teams’ link from his home in Pakistan. The mother has joined the hearing from her solicitor's offices.
The main part of the final hearing took place between 18 and 20 July 2022. Unfortunately, there were various technical problems during that hearing, including the father's repeated loss of connection to the hearing or with his interpreter. There were also a number of power cuts in Pakistan, which again led to the father losing connection with the hearing. I emphasise that these problems were not the fault of either party. However, the net effect was that considerable court time was lost. It became necessary for the court to find further time to conclude the case. Whilst a proposed follow up remote hearing was arranged for 29 July 2022, due to a failure on the court's part to arrange interpreters for the parents, that hearing was abandoned. A further follow up remote hearing did take on 15 August 2022.
The court took remote oral evidence from the following witnesses during the hearing between 18 and 20 July2022: (a) Mr A. K, Senior Partner at K & Co, Barristers-at-Law, Sindh, Pakistan (i.e. the court appointed joint expert in Pakistani child law); (b) Mrs O (the High Court Cafcass Officer); (c) father (via an interpreter) and (d) mother (via an interpreter). At the further hearing on 15 August 2022, due to late reference to further documentary evidence at the hearing on 20 July 2022, I acceded to an application for both parents to give further short oral evidence at that later hearing.
The oral evidence from the parents was intended to be limited to the following areas: (a) The circumstances underpinning the child's arrival in England in September 2020 and (b) The proposed practical arrangements for the child in the event that she is returned to Pakistan. In the event, the breadth of the parties' evidence did at times exceed these tight parameters.
THE PARTIES' POSITIONS Father
The father's case, in outline, is that the child, who had been living with him and the mother in Pakistan, was removed from Italy to England in September 2020 without his knowledge and agreement. It is his case that the removal to England amounted to an abduction. If this had been a Hague Convention case, it would have been his submission that the removal to England was wrongful and that the child's habitual residence had not changed from Pakistan at the time of his subsequent application. He seeks the child's summary return to Pakistan. In the event that his primary application fails, he would continue to seek an order for the child's return to Pakistan following a full welfare evaluation in this jurisdiction. As part of that contingent case, he seeks an order for interim direct contact with the child in the hope that he can obtain a visa to travel to the UK.
Mother
The mother's case in response, in outline, is that the father agreed to the child's move to England from Italy. Once again, if this had been a Hague Convention case, it would have been her submission that the removal to England was not wrongful. Furthermore, it would also have been her submission that the child's habitual residence had changed from Italy to England at the time of the father's application. She disputes that the child has ever been habitually resident in Pakistan. She opposes the child's summary return to Pakistan. In the event that her primary case fails, she has confirmed that she would return to Pakistan with the child. By contrast, if her primary case succeeds, she agrees, in principle, that there should be an order for interim direct contact between the father and the child in this jurisdiction if father is able to travel here. Further to that aspect of her case, she also asserts that she would assist the father in any application he may make for a visa to come to the UK.
RELEVANT LAW
In terms of first principles, any party who makes an allegation bears the burden of proving that allegation. The standard of proof in these proceedings is the civil standard.
It is agreed by the parties that the court has jurisdiction to make an order for the summary return of child to Pakistan pursuant to the inherent jurisdiction in accordance with paragraph 1.2(e) PD 12D FPR 2010. The availability of an alternative appropriate order pursuant to section 8 of the Children Act 1989 (“CA89”) does not preclude the court opting to use the inherent jurisdiction if it is appropriate to do so, see Re NY (A Child) [2019] UKSC 49. I digress to note that, there having been no contra argument, I am satisfied that it is appropriate to use the court's inherent jurisdiction in this case.
In Re NY Lord Wilson identified between paragraphs 56 and 63 of the judgment eight matters that the court should address at the outset when considering an application for a summary return: (a) Whether the evidence in the case is sufficiently up to date and addresses issues of welfare (paragraph 56); (b) Are the court's findings sufficient to make an order for summary return. Further, in the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, is there need for inquiry into the child's habitual residence at the relevant date (paragraph 57). I return to this aspect of the judgment later in my judgment; (c) In order to sufficiently identify the child's welfare in such an application, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) CA89 and a determination as to how extensive that inquiry should be (paragraph 58); (d) If allegations of domestic abuse are raised, engaging PD 12J, does there need to be an enquiry into these allegations, and, if so, how extensive should that enquiry be (paragraph 59); (e) What are the details of the proposed arrangements for the return of the child (paragraph 60); (f) Is oral evidence from any of the parties required and, if so, on what aspects of the case (paragraph 61); (g) Whether a Cafcass Officer should report (paragraph 62) and (h) Consideration of the nature of the powers in the court in the country to which it is proposed the child should be returned, with particular review as to whether that court has the power to order the child's return to this jurisdiction (paragraph 63).
The earlier leading authority on the return of children to non-Convention countries is the House of Lords decision in Re J (A Child) (Return to a Foreign Jurisdiction: Convention Rights) [2005] UKHL 40. In Re J, Baroness Hale set out the principles which apply to the applications for a summary return under the inherent jurisdiction: In outline, the principles may be summarised as follows: (a) Any court which is determining any question with respect to the upbringing of a child has a statutory duty to have regard to the welfare of the child as its paramount consideration. In non-convention cases the court must act in accordance with the welfare needs of the particular child (paragraph 18); (b) There is no basis for the principles of the Hague Convention to be extended to countries which are not parties to that convention (paragraph 22); (c) A power did remain in accordance with the welfare principle to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits (paragraph 26); (d) A trial judge had to make a choice, having regard to the welfare principle, between a summary return or a more detailed consideration of the merits of the parties' dispute in this jurisdiction (paragraph 26–28); (e) In making the above choice, the focus must be on the individual child and the particular circumstances of the case (paragraph 29); (f) It is wrong to say that there should be a ‘strong presumption’ that it is ‘highly likely’ to be in the best interests of a child subject to an unauthorised removal or retention to be returned to his country of habitual residence so that any issues which remain can be decided there. The most that can be said is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. However, the weight to be given to that proposition will vary enormously from case to case. What may be best for the child in the long-term may be different from what will be best for that child the...
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