Afsana Lachaux v Bruno Lachaux
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Baker |
| Judgment Date | 01 May 2019 |
| Neutral Citation | [2019] EWCA Civ 738 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2017/0778 |
| Date | 01 May 2019 |
[2019] EWCA Civ 738
Lord Justice Moylan
and
Lord Justice Baker
Case No: B6/2017/0778
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MOSTYN
BV15D12659
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R Harrison QC and Ms J Perrins (instructed by Freeman Solicitors) for the Appellant
Mr T Scott QC (instructed by Family Law Solicitors UAE) for the Respondent
Hearing dates: 10 th and 11 th October 2018
Approved Judgment
Introduction:
Although the legal issue at the centre of this appeal concerns the recognition of an overseas divorce, the real issue from the perspective of, at least, the Appellant and possibly both parties is whether the courts of England and Wales have jurisdiction to make orders under the Children Act 1989 (“the 1989 Act”) in respect of their child (“L”). I will, therefore, follow the judge below and refer to the Appellant as the mother and the Respondent as the father.
The substantive legal issue is whether the court should refuse to recognise a divorce obtained by the father by means of proceedings in Dubai on 12 th August 2012. The grounds (in so far as relevant to this case) on which a divorce, otherwise entitled to be recognised as valid under the Family Law Act 1986 (“the 1986 Act”), may be refused recognition are set out in s. 51(3) of the 1986 Act.
On 2 nd March 2017 Mostyn J determined that the divorce should be recognised because none of the grounds on which recognition might be refused were established and made a declaration to that effect. The mother appeals from this decision and from the judge's dismissal of her application for a child arrangements order under s. 8 of the 1989 Act.
The mother challenges the recognition of the divorce, not because she does not want to be divorced from the father, but because, as described above, she seeks to vest the courts of England and Wales with jurisdiction to make orders in respect of the parties' child who lives with the father in Dubai.
I am very grateful to counsel for their submissions but particularly to Mr Harrison QC, Ms Perrins (who both appeared below) and Ms Ridley, and their Solicitors, who have acted pro bono on behalf of the mother.
The grounds of appeal challenge the judge's evaluation of the evidence and his determination that the Dubai divorce should be recognised. The grounds can be summarised as follows:
(i) the judge's evaluation of the evidence was flawed and his findings are wrong;
(ii) the judge should have found that the decision of the Paris Court of Appeal, that the Dubai divorce was contrary to French public policy, created issue estoppels in respect of the underlying findings made by that court;
(iii) the judge wrongly conducted his own research into Dubai law and reached conclusions as to the effect of Dubai law which were not open to him on the evidence;
(iv) the judge should have refused recognition of the Dubai divorce either under s. 51(3)(a)(ii) and/or as being manifestly contrary to public policy under s. 51(3)(c);
(v) the judge should not have dismissed the mother's English petition and should have decided that the English court has jurisdiction to determine her application under the 1989 Act pursuant to s. 2(1)(b)(i) of the 1986 Act.
When I gave permission to appeal in this case, I suggested that the case might raise important issues as to the circumstances in which the court can set aside a Decree Absolute. However, this was not pursued at the hearing by either party.
I would also make the following observation about the circumstances of this case. The mother and L had no contact from 29 th October 2013 until Mostyn J made an order providing for video and other contact on 2 nd August 2016. In the course of his judgment Mostyn J was critical of the way in which both the mother and the father had behaved in having failed to promote, and in having acted to the detriment of, their child's welfare needs. I would strongly endorse what he said in his judgment, at [5] and [151], in particular about L's need to have a good, meaningful relationship with each of his parents. I also note that Mostyn J referred to the English court's inherent power “in exceptional circumstances, to protect the welfare of a British citizen abroad who is a minor”.
This judgment has been delayed because it seemed appropriate to give at least some time to allow for the French Cour de Cassation to determine the father's appeal from the decision of the Paris Court of Appeal given the mother's reliance on the question of issue estoppel. However, although a date for the hearing of the father's appeal has now been given, there remains considerable uncertainty as to when any decision might be given. It might, apparently, not be for many more months. In these circumstances, and having regard to our determination in respect of the question of issue estoppel, this judgment is now being given without the yet further delay which would be caused by waiting for the French court's decision.
Background
Mostyn J's judgment is reported: Lachaux v Lachaux [2017] EWHC 385 (Fam), [2018] 1 FLR 380. Because the relevant factual background is set out in considerable detail in that judgment, I propose only to give a selective, although reasonably extensive, summary of the background history. The references are all to paragraphs in the judgment below.
The mother is a British national. The father is a French national. They met in 2008 and married in London in February 2010. The father was living in Dubai and the parties lived there after their marriage. Their only child, L, was born in April 2010. He has always lived in Dubai.
The marriage broke down in early 2011. The parties separated finally in April 2011 when, as the judge found, the father excluded the mother and L from the marital home. The judge also found that the father “provided the mother with no financial support; that she was impoverished; and that she was unable to work and survived on charitable handouts and money sent by her family”, at [123]. He also found that the mother “has suffered from depression for a long time and also PTSD resulting from her experiences in Dubai”, at [123].
I deal with the history between April 2011 and April 2014, when the mother left Dubai and returned to England, below (under the heading Dubai Proceedings).
The mother has lived in England since April 2014. The father and L have remained living in Dubai.
I set out more elements of the history when dealing with the proceedings between the parties in, respectively, Dubai, France and England.
Dubai Proceedings
On about 11 th April 2011, the father commenced the divorce process in Dubai. A reconciliation session was scheduled for 26 th April 2011.
On 13 th April 2011 the mother sent the father an email purportedly from London but when she was, in fact, in Dubai. She said she was missing L and protested that the father was preventing her from seeing him; she had tried to reason with the father but he had “refused even to discuss matters with me”. In her view the “situation cannot continue”. She then said:
“You have left me with no option but to pursue actions through the Dubai courts. I have seen a sharia lawyer in Dubai who has advised me that our marriage is illegal under sharia law and that any child of the marriage … born to a Muslim parent will be awarded to that parent. Court action has serious consequences for both of us which will ultimately result in jail and deportation for us both. The law is very clear on this matter.”
She further informed the father that if she did not hear from him by 14 th April she would “instruct my lawyers to make an application to court”.
On 17 th April 2011 the mother, with the assistance of the police, took L from the father's parents where he had been staying whilst the father was away on business. The judge found that, following this, the “mother disappeared with L”, at [70]. The father was unaware of where she and the child were although the mother asserted that the father knew how to get in contact with her.
It appears that formal divorce proceedings were issued by the father on 2 nd May 2011. Hearings in those proceedings, in the Non-Muslim Personal Status Court, took place in May and June 2011. The mother did not attend and she was not represented. The proceedings were adjourned save that on 12 th June 2011 the court ordered that the father should have contact with L for two hours each Friday at a contact centre.
At this stage of the chronology, I set out an important finding made by the judge later in his judgment. He found that the mother's contention that the “divorce application was not served on her … (was) not a tenable complaint since … she attended one hearing in the proceedings and was legally represented at seven out of 18 hearings”, at [70]. The judge also found that the mother was “fully aware of the proceedings”, at [78].
On 26 th May 2011 the father sent an email to the mother's lawyer seeking contact.
On 10 th June 2011 the father placed the mother and L on the missing persons register in Dubai.
On 13 th June 2011 the mother was arrested by the police and she and L were taken to a police station.
At a hearing on 17 th July 2011, which the mother again did not attend and at which she was not represented, the proceedings were adjourned to 18 th September 2011. The court ordered the publication of its order in an Arabic and in an English language newspaper. The judge was satisfied that the mother “must have been well aware of these hearings”, at [79].
The mother did not appear at the hearing on 18 th September 2011 and the proceedings were again adjourned to 20 th October 2011. Publication of the order was again ordered.
On 27 th...
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