J (A Child) (2004)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Thorpe
Judgment Date02 March 2004
Neutral Citation[2004] EWCA Civ 417
Date02 March 2004
Docket NumberCase No: B/2003/2378/2378A

[2004] EWCA Civ 417

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

Mr Justice Hughes

FD03D03022

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Thorpe

Lord Justice Wall

Mr Justice Gage

Case No: B/2003/2378/2378A

Between
Jamal Abdul Rahim Habib Allah Jomah
Appellant
and
Shawnim Dleir Attar
Respondent
J (a Child)

Mr H Setright QC & Mr I Lewis (instructed by Dawson Cornwell) for the Appellant

Mr M Everall QC & Miss C Murfitt (instructed by Boodle Hatfield) for the Respondent

Lord Justice Thorpe
1

This is an Appeal from the order of Mr Justice Hughes dated 31st October 2003 refusing the father's application under Section 8 of the Children Act 1989 for a specific issue order for the return of his four year old son F (born 5th April 2000) to the Kingdom of Saudi Arabia. This is the judgment of the Court to which we have all contributed.

2

Hughes J refused permission to appeal and an application was made to this Court on the 6th November by Counsel and solicitors who did not appear below. The skeleton argument in support settled by Mr Henry Setright QC and Mr Ian Lewis was sufficiently persuasive to lead to the grant of permission on the 4th December 2003. A direction was given for expedition. In response to the grant of permission the mother's solicitors instructed Mr Mark Everall QC to advise and to settle a respondent's notice. Under the rules the notice should have been filed by 24th December. It was in fact filed on the 17th February. Even allowing for the intervention of the Christmas vacation that is unacceptable delay in an international children's case. In anticipation that the respondent's time might be extended each side prepared further expert evidence relating to issues raised by the respondent's notice. All this was done in the knowledge that the appeal was fixed for 8th March, a date fixed for Counsel's convenience. Where expedition is directed in international child cases the Court's expectation is that the appeal will be listed within approximately six weeks of the direction. In future Counsel should not expect that their convenience will result in deviation from that timetable.

3

Given that the refusal of the extension would have emasculated Mr Everall's case, the Court had little option but to grant it and to rely on Counsel to compress the expanded case within the time estimate of one day allowed for the determination of the issues raised by the Appellant's Notice. In those circumstances we indicated to Mr Setright at the outset that we did not need oral argument in support of his skeleton. We proceeded to hear Mr Everall in response to the father's appeal and in support of the issues raised by the Respondent's Notice. We did not call on Mr Setright to reply on the Appeal but only to respond to Mr Everall's submissions seeking to support the Judge on alternative grounds. Finally we heard Mr Everall in reply.

4

This account of the course of the Appeal demonstrates that the ultimate question is whether Mr Everall can succeed in supporting the Judge's conclusions on grounds raised in his Respondent's Notice. Before coming to that essential question it is necessary first to give a brief account of the history and background, and then to explain shortly why we reject the Judge's reasoning for his conclusion.

5

First we would pay tribute to the clear and concise way in which the Judge recorded the background and the relevant facts in the course of his extempore judgment. His account is interspersed with his findings on issues that had been disputed. It is important to emphasise at the outset that the Judge had not only the written evidence but also oral evidence from the parties, the mother's uncle and from Mr Ian Edge, an expert in Islamic Law called on the mother's behalf. We could not improve on the Judge's narrative and accordingly we borrow from his judgment paragraphs 5 – 32 which read as follows:

"5. Father is 42. He is of Saudi Arabian nationality. Although he was born in Egypt, he lived in Saudi Arabia from the age of seven onwards. His own father was a servicing army officer in the Saudi Arabian army. The paternal grandparents live in Saudi Arabia though at some distance from Riyadh which has been the home of the parties. Father has brothers and sisters who have their own families. They also live in Saudi Arabia. Father is himself a consultant plastic surgeon. He practices at a hospital and other clinics in Riyadh. At present he is a doctor serving as an officer in the army, but he is on what amounts to demobilisation leave as he is, within the next month or so, to leave the army. He will continue in private practice, in exactly what capacity he does not yet know. Father's postgraduate training was done in Canada and he was there for seven years. He holds an honorary fellowship of the Royal College of Surgeons in Edinburgh through a connection between the Riyadh hospital and Edinburgh, which was forged by mother's father. It is an honour but it is no indication of any intention to practice in the United Kingdom. Father is experience in international travel. He clearly could work abroad but he has no plans to do so. He is firmly based in Saudi Arabia.

6. Mother is 31. She comes from medical family. Her parents were Kurdish refugees who came to England from Iraq in 1972. They lived for a few years in England and very early on in that period mother was born. It is accepted, accordingly, that mother has, by birth and through her father's then domicile, an English domicile of origin. Mother's family then went to Saudi Arabia in 1979, and both her parents practised there as doctors, in her mother's case part-time. Mother and her parents all have dual Saudi Arabian and British nationality. Mother's parents own land in Saudi Arabia. They have also kept a flat in London and it has been their practice to visit it for a number of weeks each year. Mother lived in England until she was nearly seven and then in Saudi Arabia until she was about 16. Her education in Saudi Arabia was at a Saudi Arabian school but she was entered for English Ordinary Level examinations, having studied at that school. She then spent the academic year, 1988 / 89, the lower sixth year, at two English boarding schools, and in the second A-level year she studied at a private London college, living at her parents' flat. A statement in a recent job application made in Saudi Arabia to the effect that she had studied for her A-levels at the Saudi Arabian school is simply wrong. It is not easy to se how she could have forgotten that her sixth form studies had been in England. The probable explanation is that for the purposes of the application she felt the need to emphasise her Saudi Arabian background. After A-levels she went to Kings College London in October 1990 or perhaps 1991 it matters not – and she was there until 1997 when she emerged with a degree in nutrition and dietetics. After that she has worked, comparatively unusually for a woman in Saudi Arabia, without significant interruption since then except for no more than six or seven months during her pregnancy and immediately after F's birth. F was born in 5th April 2000. He was born in America for medical reasons. Accordingly he was entitled to American nationality. The parents took steps to undertake the necessary paperwork before they left. There is no reason to read into that the least intention to make their home anywhere other than Saudi Arabia. Mother continued to work in Saudi Arabia until she left for England at the end of July 2002.

7. The parent's matrimonial history is a little unusual because they have been married to each other twice. They met at the hospital where they both worked. There were discussions between father on the one hand and mother's parents on the other to determine his suitability. At one point mother intervened on father's behalf. It is clear that it was a love match and not an arranged marriage. I find that father must have been told that mother had dual nationality as well as that she had lived in London for some years as a student. I do not accept his evidence to the contrary.

8. They were betrothed at a social ceremony in London in December 1998 and married in Saudi Arabia in April 1999. They lived in a house in Riyadh which was made available through the good offices and influence of mother's parents.

9. Unhappily, by April 2001 they had separated. There had been a very unfortunate row a few days before the separation. Mother received a small cut to her forehead from a videotape. Father had lost his temper and either thrown it at her or hit her with it. Mother did not sustain any serious injury and the assertion of mild concussion is over-stated. The injury, which was undoubtedly present, does not show up on a photograph taken next day. Father did not take mother to hospital, no doubt partly because he did not want what he had done to become public knowledge. Her parents did. She was treated in casualty and she returned home. Mother says that this was the most serious of several other occasions when father lost his temper and that he had slapped or punched her in the past. To anticipate, she says that since April 2001 he has also one or twice raised his hand to her, although not struck her. The incident with the videotape was not pleasant; no incident of domestic violence is to be brushed off. However, the losses of temper alleged by mother, which otherwise father denies, are, taken at their highest, not such as to weigh significantly on the question of whether F should be returned to Saudi Arabia or not.

10. After the videotape incident, the parties lived apart. About two months later, on 10th June 2001,...

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