H (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Vos,Lord Justice Tomlinson |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWCA Civ 989 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/0291 AND (A) AND (B) |
| Date | 17 July 2014 |
[2014] EWCA Civ 989
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Newcastle-upon-Tyne County Court
His Honour Judge Walton
NE13P01662
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice Ryder
and
Lord Justice Vos
Case No: B4/2014/0291 AND (A) AND (B)
Claire Brissenden (instructed by David Gray Solicitors) for the appellant father
Katherine Wood (instructed by Ben Hoare Bell Solicitors) for the respondent mother
Hearing date: 20 May 2014
On 6 January 2014 His Honour Judge Walton sitting in the Newcastle-upon-Tyne County Court granted a specific issue order permitting the mother of a three year old girl to take her to Iran for a holiday. The application had been opposed by the child's father who brings this appeal with the permission of Macur LJ. The parties have applied for permission to adduce additional evidence on the appeal.
The child concerned was born on 13 August 2010. Her parents share parental responsibility for her as a consequence of their marriage. Both parents have indefinite leave to remain in the United Kingdom, the father having obtained asylum as a political refugee. The mother has two daughters by a previous marriage who live with her in this jurisdiction. The child with whom the court is concerned has been the subject of private law children proceedings since before 11 July 2013 when by agreement a residence order was made in favour of the mother. The same order provided for unsupervised contact for the father but prohibited him from removing the child from this jurisdiction. It permitted the mother to temporarily remove the child from the jurisdiction except to Iran which was prohibited.
This court is told that the reason for that prohibition was the 'agreed' risk of travel to Iran for this family. At the time the order was made in July 2013 the apparent solution to the problem presented by the mother's wish to meet her own family with the child was that she could do so in Turkey. Such was the extent of the risk identified on that occasion that by agreement the court prohibited both parents from obtaining an Iranian passport for the child and the father surrendered an existing passport and his own passport which are held by solicitors to the order of the court. Before this court the mother explains that order by saying that she agreed to it as a 'package' not on the merits of the individual clauses.
In February 2014 the case proceeded on the evidence of the parties alone. The father was content to rely on the Foreign and Commonwealth Office (FCO) guidance and his own evidence as to how his own relatives and opponents of the regime in Iran had been treated. The mother relied on her own experience of free passage while travelling to and from Iran since she moved to this jurisdiction. There were background issues relating to whether the mother's family worked with or for the intelligence services in Iran but the judge was perhaps unsurprisingly unable to do other than comment on that claim given that it was unsubstantiated.
Father's case was that his child's safety would be at risk because of his previous political activity in Iran and that this was not a fanciful risk: his relatives from Sweden had already been detained for six months for no apparent reason while visiting Iran. He sought to substantiate that risk with evidence about the imprisonment of and restrictions upon his relatives in Iran. His subsidiary case was that there was also a possibility that the mother might remain in Iran with their daughter, removing her from the reach of anyone who could assist him.
The judge's findings and value judgments on the concessions made and the evidence heard were limited and are as follows:
a) father is a political refugee i.e. is at serious risk of harm if he returns to Iran;
b) there is advantage to the child in reinforcing her cultural ties with Iran and meeting her extended family;
c) mother owns two properties in Iran, one of which was or is being used as a school;
d) the likely motivation for the visit was one of the mother's other daughters suffering extreme homesickness for her own father and family in Iran; a genuine reason though not one that is directly relevant to the child in these proceedings;
e) the mother's ties to this jurisdiction are not the strongest (she has a fiancé, a tenancy and is enrolled on a training course);
f) the court is dependent on the mother's word that she does not intend to stay in Iran but it is improbable she would fight for leave to remain in the United Kingdom and then within a short time leave to live in Iran;
g) the father's political convictions and religious beliefs (or lack of them) are an unlikely foundation for actions against his child given that he is living in this jurisdiction and is not at present politically active in Iran.
The court accordingly assessed the risk of mother remaining in Iran or of the child being subjected to harm as sufficiently low not to require any safeguards. The FCO guidance which advises against all but essential travel to Iran was discounted on the basis that the mother would not herself be at risk and it was otherwise not thought to be...
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