Asfana Lachaux v Bruno Lachaux
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] EWHC 385 (Fam) |
| Docket Number | Case No: ZE16P00521 & FD1600059 |
| Court | Family Division |
| Date | 02 March 2017 |
[2017] EWHC 385 (Fam)
Mr Justice Mostyn
Case No: ZE16P00521 & FD1600059
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harrison QC and Jennifer Perrins (instructed by Freemans) for the Applicant (all acting pro bono)
Timothy Scott QC and Godwin Busuttil (instructed by James Berry Associates) for the Respondent
Hearing dates: 13–16 February 2017
Judgment Approved by the court
In this judgment I shall refer to Asfana Lachaux as "the mother" and to Bruno Lachaux as "the father".
This is my judgment on:
i) The mother's application under section 8 of the Children Act 1989 made in Form C100 dated 8 April 2016 (No. ZE16P00521, issued in the Family Court at East London) for an order for contact to the parties' son Louis Lachaux, who was born in Dubai on 4 April 2010, and who is therefore aged 6 3/41.
ii) The father's applications:
a) for a declaration recognising as valid an order of divorce dated 12 August 2012 granted by the Non-Muslim Personal Status Court of Dubai, UAE;
b) for an order setting aside the Decree Nisi pronounced by the Family Court at Bury St Edmunds in proceedings No. FD1600059 on 3 March
2016 together with the Decree Absolute made by that court on 18 April 2016; andc) for an order dismissing the mother's application under the Children Act 1989 on the ground that there is no jurisdiction to entertain it.
Although this case has already generated considerable publicity, and has already been the subject of (as yet uncompleted) defamation proceedings in the Queen's Bench Division 2 it must not be forgotten that as its very centre is a small child whose well-being is my first concern. The mother has not had direct face-to-face contact with her son since 29 October 2013 (when he was lawfully removed from her after he was located following his disappearance with her for 19 months). Until I made an order last year for twice weekly indirect contact by electronic means she had had no contact with him at all. Since the early part of this year the indirect contact has taken place without hitches (there were problems in setting it up) and it has been very beneficial and satisfactory for both mother and son. During the hearing the father has agreed that not only will the twice weekly indirect contact continue but also that he will bring Louis from Dubai to this country next month so that he can see his mother in a supported setting. He also agrees that thereafter he will bring Louis here for him to see his mother in a supported setting at least twice a year. Further, he will make Louis available for contact to his mother in Dubai, or, if the mother prefers, in Oman, whenever she reasonably seeks it. The mother however says that she will not contemplate under any circumstances returning to Dubai or, for that matter, to any other country in Arabia or the Middle East.
The father says that he will arrange to record his agreement as an order in the Personal Status Court of the UAE. For this purpose, the mother will need to instruct a lawyer in Dubai.
For the reasons set out below I will dismiss the mother's application and grant the father's applications. However, I do not want the father to misunderstand the seriousness of the promises which he has made to me. I find myself powerless to make final orders for contact in the mother's favour for legal reasons. However, the father has made his proposals for contact to me directly and I have had to treat him as acting with sincerity. The father may not recognise any qualities in the mother as mother (or indeed at all) and has not promoted Louis's relationship with his mother for years; and the mother certainly does not recognise any qualities in the father as father (or indeed at all). However, they are each parents of this small boy and, as we all know, the child is the father of the man. The man that he develops into depends on him having a relationship with each of his parents. This means that while he will grow
up in the primary care of his father, for the foreseeable future in Dubai, he must have a reasonable relationship with his mother. It would be psychologically damaging for him, in my opinion, were he to grow up without meaningful maternal influence.So I have taken the father at his word. He should understand that while I may not have any power to entertain an application for contact I do have a residual inherent power, to be exercised only in exceptional circumstances, to protect the welfare of a British citizen abroad who is a minor. That power includes making an order that such a child be brought to this jurisdiction. If the father breaks his promises to me then I will have to give serious consideration on a later date to making such an order.
I heard the case over four days. The mother and father gave oral evidence, as did a consultant psychiatrist instructed as an expert by the mother. Both the mother and father were extensively cross-examined. No stone was left unturned.
A neutral account of the undisputed relevant background is given in paras 104 – 107 of the judgment of Mr Justice Warby which I now set out:
104. The claimant was born in 1974 in Muret, France and went to Lycee in Toulouse. In 1996 he graduated in Aerospace Mechanical Systems Design from the University Paul Sabatier in Toulouse. In 1998 he obtained a Master of Sciences degree in Aerospace Testing in France. In February 1998 the claimant undertook an internship with Honeywell International Inc, in Arizona, initially. Over the next five years, whilst working with Honeywell, he obtained an MBA degree from a graduate school in Arizona.
105. In September 2003 he left Honeywell and in October of that year he moved to Switzerland, where he spent a year working for Pilatus Aircraft Ltd. His employment was terminated by Pilatus in August 2004. Towards the end of that year he began work for Panasonic Avionics Corporation, based in Dubai. He has lived in the UAE ever since. He held a senior management position with Panasonic until mid-2011.
106. The claimant met [the mother] in February 2008 in New Delhi, where he was then working. She is a British citizen of Bangladeshi origin who was then married to her second husband. She was unemployed at the time, but had been a senior civil servant in this country. Between December 2008 and September 2009 the two went on a series of vacations together in Paris, USA, Turkey, Qatar, Dubai, and Cuba. From about February 2009 they were in a relationship, and from about March/April 2009 discussed getting married. In September of 2009 the claimant learned that the mother was pregnant with their son. She accepted his proposal in January 2010, and on 26 February 2010 they were married at The Old Marylebone Town Hall, London. There was a wedding lunch afterwards at a restaurant, attended by a dozen people. The couple then made their way to Dubai separately after that. Louis was born in Dubai on 4 April 2010.
107. The marriage soured soon after Louis was born, and before the wedding reception took place at the Manoir Au Quat' Saisons in Oxfordshire on 28 August 2010. The reception went ahead, however, with some 40 guests. In due course the marital relationship deteriorated to such an extent that in April 2011 the claimant petitioned for divorce in Dubai. In mid-2011 he was dismissed by Panasonic Aviation Inc, in circumstances that led to a successful employment claim by him against them. …
The mother seeks findings of fact against the father. These are set out in a schedule to Mr Harrison QC's skeleton argument which reads thus:
"1. M was a victim of abuse/threats/violence from F.
Findings are sought in relation to the following incidents in particular:
(a) 14 Jan 11: assault and threat with a knife;
(b) 13 June 11: threat at police station;
(c) 6 Jan 12: removing child from M's care;
(d) Jan 12: assault during contact;
(e) Feb 12: attending refuge and threatening M;
(f) 19 Feb 12: threat after court.
2. M was fearful of F.
3. M had no adequate support.
4. M's complaints were not investigated or taken seriously by the police and the court.
5. M was mistreated by the police.
6. From April 2011 M and Louis were excluded by F from the FMH and had no suitable accommodation.
7. F provided M no financial support and she was impoverished. She was unable to work and survived on charitable handouts and money sent by her family.
8. M lived in hiding as she was fearful of F and the authorities.
9. M was trapped in Dubai as a result of travel bans / confiscation of passport.
10. M was not served with the divorce petition and had no notice of a number of hearings.
11. M did not have adequate representation and did not have the means to secure adequate representation.
12. The proceedings were unfair:
(a) No or inadequate notice of hearings;
(b) No equality of arms;
(c) Inadequate representation;
(d) No interpretation;
(e) No translation of documents;
(f) Exclusion from court during evidence;
(g) Failure to ensure M given proper notice;
(h) No consideration of M's case;
(i) No opportunity for adequate participation;
(j) No allowance made for M's mental state or her circumstances;
(k) Decisions made on discriminatory basis;
(l) No consideration of Louis' perspective/ voice and no independent welfare investigation.
(m) Breach of Art 6.
13. M is suffering from severe depression and PTSD resulting from her experiences in Dubai.
14. F has failed to promote the relationship between M and Louis."
During the oral evidence the disputed facts were exhaustively analysed. The father denied almost everything alleged against him and indeed made some strong allegations against the mother. I am doubtful that in order to determine the applications set out above I need to resolve every disputed fact. However, the mother seeks...
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