AB v CD
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 11 August 2022 |
| Neutral Citation | [2022] EWHC 2134 (Fam) |
| Court | Family Division |
and
[2022] EWHC 2134 (Fam)
Mrs Justice Knowles
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Harrison QC and Miss Samantha Ridley (instructed by Lyons Davidson Solicitors) for the father.
Mr Teertha Gupta QC and Miss Fitzrene Headley (instructed by Duncan Lewis Solicitors) for the mother.
Mr Michael Gration QC and Mr Christopher Osborne (instructed by CAFCASS Legal) for G through his Children's Guardian
Hearing dates: 1–2 August 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
These proceedings concern the Applicant father's application (“the father”), pursuant to the inherent jurisdiction, for an order for the return of the parties' son, G, now aged 11 years, to the jurisdiction of country X. The First Respondent to the proceedings is the mother (“the mother”) and the Second Respondent is G himself, through his Children's Guardian. The father is represented by Mr Richard Harrison QC and Miss Samantha Ridley; the mother by Mr Teertha Gupta QC and Miss Fitzrene Headley; and G by Mr Michael Gration QC and Mr Christopher Osborne of Cafcass Legal.
This judgment concerns itself with the father's application for disclosure and inspection of documentation from the successful asylum claims of the mother and of G. The Secretary of State for the Home Department (“SSHD”) was invited to intervene and filed some limited written submissions but was not represented at the hearing. The issue of disclosure and inspection of the asylum documentation arose in the context of a listed fact-finding hearing later this year when the court will be invited to determine allegations made by the mother of physical and emotional abuse in the context of a coercive and controlling marital relationship and allegations of sexual assault of G by the father and/or a paternal uncle. For his part, the father alleges that the mother frustrated his relationship with G after the parties' divorce in 2012 and that she was physically abusive towards G both during and after the parties' relationship. He also alleges that the mother abducted G from country X in the latter part of 2020 and lied to the court about how she and G arrived in this jurisdiction. In essence, his case is one of wholesale deception and fabrication by the mother in order to inhibit any relationship he might have with G. The court's findings of fact on these issues will form a foundation for the assessment of G's welfare at a hearing listed early in 2023.
In deciding whether, and, if so, which documents from the asylum process should be disclosed into these proceedings, I was provided with a copy of the asylum file and scrutinised it very carefully before the start of the hearing. Adopting, in part, the procedure described by MacDonald J in paragraphs 77 and 82 of R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam) subsequently endorsed by the Court of Appeal in paragraph 58 of Re H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001, I first heard submissions on the applicable legal principles and on the merits in general from all the parties. I then heard briefly from the mother and the child in the father's absence before, once more, hearing from all parties. All parties had the opportunity of speaking to each other's skeleton arguments though, at my direction, the mother and the child had also provided skeleton arguments addressing the contents of the asylum documentation which were not disclosed to the father and which I considered in the short, closed hearing. I note that both the mother and the child had access to the documents in the asylum claim, though these were necessarily withheld from the father. The child had access in accordance with my directions, adopting the suggestion made by the Supreme Court in paragraph 167(c) of G v G [2021] UKSC 9. I make some observations about this at the conclusion of this judgment.
At the conclusion of the hearing, I informed the parties of my decision and explained that my reasons for disclosing a limited number of the asylum documents, all redacted in the manner I describe in paragraph 38 below, would be set out in a reserved judgment.
Background: Summary
The parties married in 2009 in country X and G was born in 2011. The marriage broke down in 2012 when the parties were divorced according to the Islamic faith. In 2014, the parties were divorced legally. After his parents' separation, G lived with his mother and visited his father from time to time, including staying overnight. According to the father, G began to live with him from the age of 7 in 2018, this being in accordance with the family law of country X. By agreement with the father, G is said to have spent Thursdays to Saturdays each week staying with his mother. There is a dispute between the mother and the father about the arrangements for G prior to October 2020 as, for example, the mother asserted that she was forced to surrender custody of G to his father in spring 2020. By September 2020, G visited his mother from Thursdays to Saturdays each week.
The circumstances in which G was removed from country X are bitterly contested. The father said that, on a date in the latter part of 2020, he went to collect G from the mother's home but discovered that no one was in the property and no one in the mother's family had any information about her whereabouts. Later that day the father received a text message from the mother that she and G were in a safe place. The following day, the father said he received a phone call from the mother's brother, informing him that the mother and G would arrive in this jurisdiction by plane later that day. The day after that, the father contacted security staff at the alleged departure airport and asked them to investigate. Those investigations suggested that, shortly before the departure date suggested by the father, the mother had allegedly travelled from country X to country Y for a few days, but had then returned to country X. Following the mother's departure with G, the father also commenced legal proceedings in country X and a judgment from the court provided that the mother should return G to his care.
Following an investigation by the authorities in country X, the father was eventually provided with surveillance camera videos from the alleged departure airport, showing the mother, G, and one of the mother's sisters leaving country X. The investigation conducted by the authorities in country X concluded that the mother and G had travelled to England by aeroplane via two other countries and had arrived at an airport on a date in the latter part of 2020. Some of the material garnered during the investigation by the authorities in country X, including the surveillance camera videos, was disclosed to the father and forms part of his evidence in these proceedings.
It was the mother's case that she and G did not leave country X in the manner suggested by the father. Both the mother and G entered this jurisdiction as illegal immigrants and the mother maintained that she claimed asylum immediately on their arrival.
The Proceedings
On 5 November 2021, the father issued proceedings for the return of G to country X. A location order was made on 18 November 2021 and the mother and G were found on 22 November 2021. At a hearing on 20 December 2021, both parties were represented by counsel and the mother indicated that she intended to defend the father's application on a number of grounds, namely: (a) that the father did not have the right to determine the child's place of residence and/or did not have rights of custody; (b) that there was a grave risk of physical or psychological harm to G if he were to be returned to country X; (c) that G objected to a return and was of an age and degree of maturity where his view should be taken into account; and (d) that both the mother and G were seeking asylum in this jurisdiction. In addition to a variety of directions securing G's presence in this jurisdiction, the court joined G as a party to these proceedings by a children's Guardian and listed a hearing before me on 21 February 2022.
On 21 February 2022, I directed that form EX660 be completed and lodged with the court by the SSHD. I also sought confirmation that the mother and G's claim for asylum had been allocated to the expedited team set up to deal with claims for asylum associated with either Hague Convention proceedings or proceedings for return orders pursuant to the inherent jurisdiction. I invited the SSHD to intervene and participate in the proceedings as an intervenor and to attend the next hearing via counsel to assist the court with (amongst other things) disclosure and inspection of documentation from the asylum process. I made a variety of other directions for the filing of evidence by the parties and for a brief report by G's Guardian with respect to interim contact with the father.
Prior to the next hearing on 8 April 2022, the mother's solicitors confirmed that both she and G had been granted asylum and had five years permission to stay in this jurisdiction until 24 March 2027....
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