AB v EM
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 12 March 2020 |
| Neutral Citation | [2020] EWHC 549 (Fam) |
| Date | 12 March 2020 |
| Court | Family Division |
| Docket Number | Case No: ZW19P00598 |
[2020] EWHC 549 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice MacDonald
Case No: ZW19P00598
Ms Charlotte Baker (instructed by Anthony Louca Solicitors) for the Applicant
Ms Clare Renton (instructed by Gulbenkian Andonian Solicitors) for the Respondent
Hearing dates: 2 March 2020
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.
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
In this matter the following issues fall to be determined by the court in respect of M, born in 2015 and now aged 4:
i) At the time M was taken to Egypt on 30 April 2019 was she habitually resident in the jurisdiction of England and Wales for the purposes of Art 10 of Council Regulation (EC) 2201/2003 (hereafter BIIa) and was that removal wrongful for the purposes of Art 10?
ii) At the time the mother issued her application under the inherent jurisdiction of the High Court on 26 November 2019 was M habitually resident in the jurisdiction of England and Wales?
iii) If this court does not have jurisdiction in respect of M pursuant to Art 10 of BIIa based on a wrongful removal at a time she was habitually resident in England and Wales, or under the inherent jurisdiction of the High Court based on her habitual residence in England and Wales at the time proceedings were issued, should this court in any event exercise its parens patriae jurisdiction in respect of M based on her British citizenship?
iv) If the court determines that it has jurisdiction in respect of M on one or more of the foregoing bases, is England and Wales the convenient forum for determining the dispute between the parties as to M's welfare?
v) If the court determines that it has jurisdiction in respect of M on one or more of the foregoing bases, and that England and Wales is the convenient forum, is it M's best interests to order her summary return to the jurisdiction of England and Wales for the purposes of determining the dispute between the parties as to M's welfare?
vi) Is the order made by the Sunnite Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating and approving an agreement between the parties to these proceedings regarding custody and access with respect to M, capable of recognition in this jurisdiction and, if so, what impact should this have on the courts welfare determination?
The applicant, AB, is the mother of M. She is represented by Ms Charlotte Baker of counsel. The mother is a Lebanese national. She has permanent leave to remain in the United Kingdom. On behalf of the mother, Ms Baker asserted that it is the mother's intention to remain living in the United Kingdom, although at present she does not have secure accommodation or employment. The mother contends that this court has substantive jurisdiction in respect of M by reason of Art 10 of BIIa or in the alternative under the inherent jurisdiction of the High Court or in the further alternative under the parens patriae jurisdiction of the High Court based on M's British Citizenship (the mother arguing that this is a case in which the exercise of this jurisdiction is required to protect M in circumstances where the mother alleges she has been the victim of domestic abuse, M has been removed to Egypt, her circumstances in Egypt are unclear, there is no one in Egypt with parental responsibility for her and where she is being prevented from having any relationship with her mother). If the English court accepts it has jurisdiction, the mother further contends that the jurisdiction of England and Wales is the most convenient forum for determining the welfare issues in respect of M and that the court should order the summary return of M from Egypt to this jurisdiction. The mother submits that the English court the order of the Beirut court of 6 February 2019 is not capable of recognition by this court and should not prevent the court making the orders sought.
The respondent, EM, is the father of M. He is represented by Ms Claire Renton of counsel. The father is also a Lebanese national. He has permanent leave to remain in the United Kingdom and intends to apply for British Citizenship when he becomes entitled to do so in May of this year. Ms Renton confirmed that as part of the good character declaration on that application the father will be required to declare his breach of a location order in these proceedings and his subsequent arrest. Through Ms Renton, the father informed the court that upon gaining British Citizenship it is his intention to reside in Egypt with M. The father submits that this court does not have jurisdiction in respect of M on any of the jurisdictional bases identified by the mother or otherwise. In the alternative, the father contends that if the English court does have jurisdiction then it should stay these proceedings as the Lebanese courts are the most convenient forum. Finally, were this court to determine that it has jurisdiction in respect of M and that this jurisdiction is the most convenient forum, the father submits that it is not in M's best interests to order her summary return from Egypt. The father submits that the English court can and should recognise the order made by the Beirut court on 6 February 2019.
M is a British Citizen. She is currently in Egypt having been taken to that jurisdiction by the father on 30 April 2019, and is said by the father to be in the care of her paternal relatives. The father contends that this step was entirely lawful, having been taken pursuant to the terms of the order of the Beirut court dated 6 February 2019. As I have alluded to, the mother contends that this removal from the jurisdiction of England and Wales took place without her consent and was wrongful for the purposes of Art 10 of BIIa. At the present time, whilst M is said to be in the care of family members, there is no one in Egypt who has parental responsibility for her in that jurisdiction, both of her parents being in England.
BACKGROUND
For the purpose of answering the questions set out above, the elements of the background to this matter which are central to the court's determination concern the factual situation of M prior to her removal from the jurisdiction of England and Wales on 30 April 2019, including the course of the proceedings commenced by the mother in Lebanon, and M's circumstances following that removal. It is those elements of the background on which I intend to concentrate in this judgment. Ms Renton makes clear in her Skeleton Argument that the dates of travel by the mother and M to and from the jurisdiction of Lebanon prior to M's removal from this jurisdiction to the jurisdiction of Egypt on 30 April 2019 are not in dispute.
It is right to note that the parents allegations against each other range far more widely than this. The mother makes extensive allegations of domestic abuse and controlling behaviour against the husband, alleging that he has beaten her, monitored he electronic devices, accompanied her to the GP and attempted to remove M from her life entirely as punishment for ending the marriage. The father, in a five hundred and seventy seven page statement filed well out of time, accuses the mother of fabricating allegations of domestic abuse to disguise a number of affairs during the course of the marriage. Given the nature of the issues before the court, it is not necessary for me to adjudicate at this stage on the parents' numerous competing allegations against each other for the purposes of determining the legal question of jurisdiction and, if applicable, summary return. Most regrettably however, it is right to note that the father stooped to including as exhibits to his statement naked pictures of the mother taken from a video, albeit with her breasts and genitals blocked out. Whilst Ms Renton sought to contend that those pictures, (which have, by reason of the father's actions, now been seen by the father's legal team, the mother's legal team, this court and court staff, in addition to the lawyers in Beirut in December 2018), are somehow relevant to the mother's “credibility”, I received no adequate explanation of how such deeply personal material was relevant to the legal and welfare issues before the court. I deprecate in the strongest terms the father's conduct in exhibiting to his statement the private images to which I have referred.
Finally, the mother also asserts that the agreement she entered into with the father in Lebanon regarding custody and access in respect of M, and approved by the Lebanese court and embodied into the Lebanese court order dated 6 February 2019, was obtained by means of duress. Ms Baker submitted that, given what she contends are the manifest barriers to the court recognising the order made by the court in Beirut, it was not necessary for the court to hear oral evidence in respect of the allegation of duress, the mother relying on her statement as evidence of the same and...
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