Maryam Allami v Ali Fakher
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Andrews,Lord Justice Nugee |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWCA Civ 532 |
| Docket Number | Case No: CA-2023-000667 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 532
Lord Justice Baker
Lady Justice Andrews
and
Lord Justice Nugee
Case No: CA-2023-000667
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice MacDonald
FD22P00491
Royal Courts of Justice
Strand, London, WC2A 2LL
Arfan Khan (instructed by CV Brooks) for the Appellant
Mani Basi (instructed by Dawson Cornwell LLP) for the Respondent
Hearing date: 3 May 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 19 May 2023
This is an appeal against an order made by MacDonald J committing the appellant to prison for six months for contempt of court for breach of a series of orders made in the Family Division in proceedings concerning his two children.
At the conclusion of the hearing, we informed the parties that the appeal would be dismissed. This judgment sets out my reasons for agreeing with that decision.
The background can be summarised as follows.
The appellant, hereafter referred to as the father, and the children's mother both hold dual Iranian and British citizenship. They married under Sharia law in this country in 2007 and underwent a civil marriage ceremony in 2008. The two children were born in 2008 and 2012. Each has dual Iranian and British citizenship. It is the mother's case, denied by the father, that he was emotionally and psychologically abusive to her throughout their relationship and violent to the children.
Following the death of his own mother in 2015, the father spent increasing periods of time in Iran. In July 2021, when the father was in Iran, the mother travelled there with the children from the United Kingdom on return tickets. At that point, the father applied to register the marriage with the Iranian authorities. The mother's case is that, because she was worried about the consequences of this for her and the children, she decided to cut the trip short and booked earlier flights back to the UK for herself and the children. On 3 August 2021, when she tried to leave Iran with the children, she was told by the authorities that the father had withdrawn his permission for the children to leave the country. She says that, fearing she herself would not be able to leave Iran, she left the children with their maternal grandparents and returned to the UK to seek the children's return to her. The father's case is that the Iranian authorities required his consent for the mother to remove the children from that jurisdiction and that she made no attempts to obtain it. He asserts that the mother was apprehended trying to leave without his consent and abandoned the children at Tehran Airport, as a result of which the father was forced to take custody of them by default.
It is the mother's case that she initially tried to secure the return of the children to the UK by negotiation with the father. Having failed in these efforts, on 21 July 2022, she filed an application in the Family Division of the High Court in this jurisdiction seeking an order for the return of the children. At a without notice hearing on the following day, Judd J made a passport order authorising the Tipstaff to seize the father's passport. A few weeks later, the father travelled to the UK and on arrival his passport was duly seized and has been retained by the Tipstaff ever since.
At a further hearing before Newton J on 18 November 2022, the children were made wards of court and a series of orders were made with the aim of securing their return to this jurisdiction. In particular, the order required the father to cause the children to be (a) returned here forthwith for the purposes of attending the final hearing then listed for 8 and 9 December 2022 and (b) placed in the care of the maternal family in Iran pending their return to this jurisdiction. The order included recitals that the father had agreed to execute a notarised agreement permitting the children to leave Iran and travel to this country to attend the hearing; and that he had informed the court that he retained an English driving licence which he required for the purposes of obtaining the notarised consent and which he would lodge with the Tipstaff by 4pm on 22 November 2022. The order further required the father to send a copy of the notarised consent “immediately upon completion of the same”.
Immediately following the hearing before Newton J on 18 November, the father surrendered his driving licence to the Tipstaff. It was the mother's case at the later hearing before MacDonald J that he had done so deliberately in order to disable himself from obtaining the notarised agreement. The father asserted that it had been more convenient for him to surrender it to the Tipstaff whilst at court.
The children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction for the listed final hearing. They remained living with the paternal grandfather.
The hearing on 8. 9 and 12 December went ahead before ICC Judge Mullen. By the order dated 12 December made at the conclusion of that hearing, the judge ordered the father to cause the children to be returned to this jurisdiction by midnight on 15 December 2022 and to complete a notarised document by 13 December in terms set out in the order to the effect that he unequivocally consented to the children travelling from Iran to England by 16 December and being accompanied by their maternal grandmother. Upon their return, the children were to be placed in the care of their mother pending further order. By a separate order made at the same time, the judge ordered that the father be subject to electronic tagging. It was alleged that he was a flight risk because, according to the mother, he had some 18 aliases, had convictions for offences of dishonesty, had changed his name by deed poll following the passport order and subsequently obtained a driving licence under that name.
Once again, the children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Subsequently, the father alleged that the tagging company failed to attend at the appointed time to fit the tag and that as a result he was unable to collect his driving licence from the Tipstaff (as had been agreed but not specifically ordered) and therefore unable to execute the notarised agreement. On a subsequent occasion when the tagging company attended, the father had to be taken to hospital because he was suffering chest pains
On 16 December 2022, a further hearing took place before Moor J. The judge made a further order that the father return the children to the jurisdiction by 6 January 2023 and a further order that he execute a notarised agreement in the same terms as prescribed by ICC Judge Mullen with the additional provision that he unequivocally consented to the maternal grandparents obtaining replacement Iranian passports for the children. The order further provided that, to enable the father to notarise the document, the Tipstaff should return his driving licence; that upon execution of the document, the father should deliver the notarised document to the children's solicitor; and that the father should not leave his home between 10pm and 6am. In addition, Moor J made a further tagging order, providing for the tag to be fitted on 16 December at any time before the start of the curfew.
As before, the children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Once again, the father subsequently contended that the tagging company had prevented him complying with the order to execute the notarised agreement because they had failed to attend before the start of the curfew.
On 9 January 2023, a further hearing took place before Mr Simon Colton KC sitting as a deputy High Court judge. The deputy judge made a further order that the father return the children to the jurisdiction by 19 January 2023 and a further order that he execute a notarised agreement (in the same terms as prescribed by Moor J) and send a copy to the children's solicitor. He directed that, to facilitate the execution of the notarised document, the driving licence be returned to the father by the Tipstaff (but only after it had been confirmed that he was subject to electronic monitoring under the tagging order which was renewed) and returned to the Tipstaff once notarisation had taken place. The order made by the deputy judge recorded that the father confirmed to the court that he understood the orders that were being made but had no intention of complying with them.
As on previous occasions, the father did not comply with the order. The children were neither placed in the care of the maternal grandparents in Iran nor returned to this jurisdiction by the date prescribed in the order. They remained living with the paternal grandfather. Once again, the father subsequently contended that the tagging company had prevented him complying with the order to execute the notarised agreement because they had failed to attend before the start of the curfew.
On 24 January 2023, a further hearing took place before Theis J. The father again stated that he did not intend to execute the notarised agreement nor cause the children to be returned from Iran. The judge made a further order for the return of the children and for the execution of a notarised document but did not renew the tagging or curfew orders. By this point,...
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