AA v BB
| Jurisdiction | England & Wales |
| Judge | Mr Richard Harrison |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] EWHC 2509 (Fam) |
| Date | 18 September 2020 |
| Docket Number | CASE NO: FD20P00328 |
| Court | Family Division |
[2020] EWHC 2509 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF J, K and L (Children)
The Royal Courts of Justice
The Strand
London
Mr Richard Harrison QC
Sitting as a Deputy High Court Judge
CASE NO: FD20P00328
Ms Katy Chokowry (instructed by Dawson Cornwell Solicitors) appeared on behalf of the Applicant.
Mr Amiot Vollenweider (instructed by Duncan Lewis solicitors) appeared on behalf of the Respondent
Hearing dates: 8, 9, 10 and 11 September 2020
Introduction
These are wardship proceedings. They concern three children, a girl and two boys, to whom I shall refer in this judgment as J, K and L. The children are aged 8, 4 and 3.
The applicant is the children's mother (‘the mother’). She is represented by Ms Katy Chokowry. The respondent is the children's father (‘the father’). For the first two days of the hearing he was represented by counsel who then had to withdraw through illness; since the morning of 10 September 2020 he has been represented by Mr Amiot Vollenweider. I am grateful to all counsel for the way in which they have presented their clients' cases in the difficult circumstances which I shall describe below. I am especially grateful to Mr Vollenweider for taking over the father's case at very short notice.
The mother issued these proceedings on 2 June 2020 at a time when the children had been in the jurisdiction of the Islamic Republic of Pakistan (‘Pakistan’) for more than a year.
It is the father's contention that the courts of England and Wales do not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction on the basis that welfare decisions should more conveniently be made by the courts in Pakistan.
At the heart of this case is an allegation by the mother that she and the children have been victims of transnational abandonment. This is denied by the father. His case is that the parties made a consensual decision to relocate as family to Pakistan and did so in March 2020.
This hearing
On 22 July 2020 Mr David Rees QC, sitting as Deputy High Court Judge, directed that the proceedings be listed for a three-day hearing commencing on 8 September 2020 to determine the following issues:
i. Whether the court has jurisdiction in respect of the children;
ii. Whether this jurisdiction is the appropriate forum for matters relating to the children to be determined;
iii. In the event that the court has jurisdiction and this jurisdiction is the appropriate forum, whether the return of the children to this jurisdiction should be ordered.
He made various other directions, including for the filing of evidence by the parties, which were intended to ensure that this would be a fully effective hearing. It was envisaged by the parties and the court that at this hearing, various issues of fact – relevant to the substantive issues set out above – would be determined after hearing oral evidence from each of the parties. Directions were given for Scott Schedules to be prepared encapsulating the parties' cases in relation to allegations they contended it was relevant for the court to determine (they were limited to five allegations each).
In the event, this hearing has not proceeded as was envisaged. To say that it has been beset by difficulties is an understatement. Some of the problems which occurred included a considerable amount of evidence being served very late by the father, the absence of an interpreter and the father's barrister having to withdraw through illness when the mother was in the middle of being cross examined.
The difficulties to which I have referred above are trivial compared with the tragic event which occurred on the second day of the hearing. During a short break at about 3.45pm, the mother was informed that earlier in the day a child had died in a drowning accident in Pakistan. She initially understood that the deceased child was one of the parties' children. It transpired that he was the father's fourteen-year old nephew (‘C’). C had been living in the paternal family home in the village in Northern Pakistan where the extended families on both sides reside. The children of the parties have also been living in that home since March 2020; prior to that they were living in the maternal family home, a short distance away. I have no doubt that the children will have been close to their cousin. The news was extremely shocking and upsetting for both parties, but especially the father. Neither party felt able to continue and I stood the matter over to the start of day 3.
At the start of day 3, Mr Vollenweider, as well as explaining that his predecessor had had to withdraw, informed me that his client continued to be in a state of considerable distress and did not feel able to continue to participate in the hearing.
Mr Vollenweider applied for an adjournment. He told me, and I accept, that having only just been instructed and being without papers he was not in a position to represent his client. In answer to an enquiry from me as to the possibility of resuming the evidence on day 4 (my other listed case having gone short), he told me that he did not consider that it would be professionally proper for him to take over the cross examination started by his predecessor. I accept this, in the particular circumstances of this case, and given all of the difficulties I have described. He initially expressed some surprise that oral evidence was being heard at all, his view being that ‘cases of this type’ would normally be dealt with on submissions. On further reflection, he later submitted to me that in circumstances where the court had begun to hear oral evidence it would not be appropriate to make any determination of the issues on the basis of submissions alone.
Mr Vollenweider invited me to adjourn the case for 21 days. As I had previously communicated to the parties, the earliest date upon which another three day hearing could be accommodated was 11 November 2020; if for any reason this date was unsuitable the next earliest date was in December.
I acceded to the application for an adjournment. Put simply, I did not consider it fair to the father to proceed to make a final determination of the serious issues that arise in these proceedings in circumstances where, through no fault of his own, he could not be properly represented or participate effectively in the hearing.
The interim situation
My decision to adjourn the case requires me to deal with the interim situation. I consider the present situation to be one in which the children are likely to be suffering from emotional harm, in that:
(a) In March 2020 they experienced a sudden separation from their mother, who until that point had been their primary carer; indeed for lengthy periods of time she has cared for them in the absence of the father. The fact that, as the father alleges, the mother may be to blame for abandoning the children does not ameliorate the situation from their perspective (indeed he refers to them in his written evidence as having been in an ‘ emotional state’ after she left Pakistan).
(b) Since the 7 July 2020, when the father came to England from Pakistan, they have been separated from both their parents. They are being cared for by other family members who do not have parental responsibility.
(c) Since the children's separation from the mother, the indirect contact they have had with her has been sporadic. I make no findings, without having heard from the father, about where the responsibility for this lies. During the course of her oral evidence the mother said that she has been able to speak to one out of three children on an approximately weekly basis; but not with more than one child on any given occasion of telephone contact. She also stated that the calls were frequently cut short. It was not put to her that these factual matters were incorrect. On behalf of the father, it was instead suggested that the reasons as to the unavailability of the children at various times (matters such as being in another room or eating a meal) were likely to be genuine, a point disputed by the mother. Whatever the reasons for this unsatisfactory contact, it seems to me that it is likely to be compounding the emotional harm from which the children will have suffered since being separated from the mother.
In the context of the matters set out at paragraph 14 (a) to (c) above, the children have now experienced the death of their cousin. They are living in a household which is likely to be consumed by grief and shock. The degree of upset felt by the father was such that he felt unable to continue with the case and wishes urgently to be reunited with his family. The level of distress felt by C's parents will inevitably be far worse; I can also imagine that C's grandparents will be feeling a terrible sense of loss, as will other members of the paternal household. I consider the children are likely to be feeling a mixture of shock, distress, confusion and fear.
In the present circumstances, I do not consider it tolerable for the children to continue to be separated from their parents. They need urgently to experience the love and comfort of the two most...
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