Al Habtoor v Fotheringham
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE |
| Judgment Date | 15 February 2001 |
| Neutral Citation | [2001] EWCA Civ 186 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2000/3145 |
| Date | 15 February 2001 |
[2001] EWCA Civ 186
Lord Justice Thorpe
Lord Justice Law and
Justice Penry-davey
B1/2000/3145
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MRS JUSTICE BRACEWELL)
Royal Courts of Justice
Strand, London WC2A 2LL
MARK EVERALL QC and HENRY SETRIGHT (instructed by Messrs Dawson Cornwell of London WC1R 4QT) appeared on behalf of the appellant father
LIONEL SWIFT QC and JEREMY ROSENBLATT (instructed by the Family Law Consortium of London WC2E 8PS) appeared on behalf of the respondent mother.
The central issue raised by this appeal is whether at the date of issue of the mother's summons in wardship, 10 February 2000, this court had jurisdiction to make orders in respect of her son Tariq born in England on 13 April 199The background is complex but important. Mrs Justice Bracewell, who in a reserved judgment of 15 September 2000 decided that she had jurisdiction, reached that conclusion on affidavit evidence alone. Despite the considerable conflict of evidence that developed as the affidavits were filed the trial proceeded on a direction given on 18 April 2000 for determination without oral evidence of the question of whether or not this court had jurisdiction. Therefore in the fact finding exercise the court of trial holds no particular advantage over this court and in setting out the relevant facts I prefer to rely primarily on such contemporaneous documents as are available rather than on the contentions of the parties which are plainly influenced by the strong emotions that the case has engendered.
Sara Fotheringham, who I will call the mother, is British. In 1990 whilst working as a air hostess she met Rashid Al Habtoor, who I will call the father, in Dubai, which is his country of origin. They had an affair which ended after she discovered her pregnancy. Having given birth without the father's involvement she registered her son in the names of Tariq Rashid Fitz-Gibbon. The following year she met Neil Fotheringham, who for simplicity I will call Neil. In 1994 they married and in the following year their first son was born. On 26 June 1995 the mother and Neil joined in Tariq's adoption without any notice of application to the father. In 1997 their second child was born. In the summer of 1998 the mother decided to approach the natural father. In a letter posted in September she explained that the time had come to inform Tariq of his background. She asked whether the father would be prepared to have contact with him. The father responded positively and solicitors were instructed to discuss arrangements for contact and financial support. The father belongs to an extremely affluent Dubai family and would plainly have been in a position to provide material benefits that neither the mother nor Neil could afford. Terms were readily agreed subject to DNA testing to prove paternity. Tariq's first meeting with his father took place in May 1999 shortly before paternity was confirmed by the DNA test result. In the father's family it is clear that his own father, Khalaf, exercises overall financial control. He has a luxurious home in this jurisdiction and during the summer the mother, Neil and Tariq spent a number of weekends as his guests. An agreement developed for the Fotheringham family to relocate to Dubai under Khalaf's auspices and at his expense. He would provide a house, a car, a job for Neil, schooling for the children and medical expenses. In preparation for the move the mother and Neil executed a change of name deed substituting Tariq Rashid Al Habtoor for the adoptive names of Tariq Tristan Fotheringham. Shortly thereafter a British passport was issued to Tariq in his new names and Neil signed an employment contract as a PE teacher in Dubai. It was on 5 September that the family arrived in Dubai on visitors visas to commence the new life. In order to secure a position in Dubai as a working expatriate family both entry and residence permits were necessary. Tariq was granted a residence visa on 28 September. No doubt as the son of a national that process was easily achieved. At a later stage the father obtained a United Arab Emirates passport for Tariq. On the same day an entry permit was issued to Neil by the United Arab Emirates Ministry of Interior. On 10 October, the mother, at the father's request, visited the local court and executed a power of attorney to enable land to be purchased in Dubai in Tariq's name. It is not open to expatriates to own real property in the Emirates but Tariq's status as an Emirati could be used to enable a home to be acquired in his name. In the same week an employment contract was given to Neil at an hotel owned by the Al Habtoor family. The teaching job had not materialised and his post at the hotel was designated administrative supervisor although it seems that he was to act as assistant recreation manager. The duration of the agreement was said to be 'unlimited as from 2.10.1999'. The hotel then applied for his residence permit which was issued on 17 October expiring 16.10.0Neil immediately sponsored an entry permit for the mother and their two children leading to the grant of residence visas to the mother and their two children in the following month. In the interim there was an exchange of e-mails between Neil and the maternal grandparents. Neil's e-mail gives the family news. He said:
"Everything is plodding along fine and we are back to some sort of normality. Tariq is being a bit of a problem as he is listening to his cousins too much and saying that I'm not his daddy but I've just been promoted to being his second daddy."
He reported on the mother's condition, she having conceived another child. In their response the maternal grandfather reported:
"I am seeing a letting agent and an estate agent tomorrow one for how much rent the other as to the value of the property."
This advanced the plan to rent, if not to sell, the family home in England. As part of the relocation package the Al Habtoor's had paid between ??0,000 to meet the cost of refurbishing the property for letting. They had also paid the sum of ?,000 to kit out the new home in Dubai.
On 20 November the mother wrote to Khalaf's PA seeking reimbursement of medical expenses and clarification of the arrangement for the provision of return tickets to enable the maternal grandparents to visit Dubai annually. Finally the letter referred to the outstanding claim against shippers for damage to their possessions whilst in transit. There are three documents that throw light on how much of their household and personal possessions accompanied the family to Dubai. First there is the list of items on the damages claim against shippers. It is an extensive list including many items that were clearly precious to the couple. By contrast there is an inventory taken on 3 December of the items left behind and a list of the items put into store shortly before the taking of the inventory. A comparison of these three lists suggests that more was shipped than was left behind.
On 13 December the mother began a letter to her own mother. On the same day she sent a letter to Khalaf. On the following day Khalaf responded and the mother completed her letter home. These letters are important and revealing. I quote the first four paragraphs of the letter home, which were of course written on 13 December:
"Well I'm finally putting pen to paper so to speak. I hope that Daddy has now updated you with all our gossip but this letter will cover some of the same ground anyway.
Primarily we are composing a letter to forward to Khalaf to illustrate our dissatisfaction at the way we are being treated. It will be interesting to see how he reacts. My personal feeling is that he will say lump it or leave it as he feels he's invested quite enough in us already. In which case we will look to repatriate, as there is not enough incentive to stay here away from our families whom we miss terribly. The timing of repatriation would all depend on if I could sort out having the baby in Dubai. So we shall see.
Of course he may be very gracious and offer us what we want or alternatively very angry and want us to leave immediately!! It's a bit of an anxious time, I'm half tempted to wait until after Christmas to approach Khalaf but Neil hates not knowing the outcome and wants to be able to plan accordingly which I do understand.
I think I should warn you that if we do repatriate within the next year then we would have to get down on bended knees and ask if we can stop with you for a while. We know it can work and it would be the most financially sound option for us to consider. With Neil's salary and the rental money we would be able to pay off some debts and get our finances more manageable before taking on the outgoings of our own home again. We would get out of your hair on Neil's long weekends and I would do all your housework!! Anyway I hope the idea is not too awful for you to consider. Obviously this option will be discussed at length depending on the outcome of our discussion with Khalaf."
It is then necessary to set out the mother's letter to Khalaf and his response in full:
"Dear Khalaf
Ramadan Mubarak. We apologise for writing to you but we feel it is the best way to express our concern over certain issues that have arisen since arriving in Dubai. While we appreciate what has been provided for us, in our opinion there are still areas that need to be addressed.
You have kindly made available to us a villa, job, schooling and car. However this is what we already have in England and therefore only natural that we should have...
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