EN (mother) v AH (father) Re H (A Child) (Temporary Leave to Remove: Turkey) (Enforcement of Child Arrangements Order)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,The Honourable Mr Justice Cobb |
| Judgment Date | 07 May 2015 |
| Neutral Citation | [2015] EWFC 39 |
| Court | Family Court |
| Docket Number | Case No: NE13P01662 |
| Date | 07 May 2015 |
[2015] EWFC 39 (Fam)
IN THE FAMILY COURT
SITTING AT NEWCASTLE UPON TYNE
Law Courts
Quayside
Newcastle Upon Tyne NE1 3LA
Mr Justice Cobb
Case No: NE13P01662
Miss Katherine Wood (instructed by Ben Hoare Bell, solicitors) for the Applicant (mother)
Miss Claire Brissenden (instructed by David Gray, solicitors) for the Respondent (father)
Hearing dates: 6 & 7 May 2015
Approved Note of Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
These proceedings concern one child, AH. She was born on 13.8.2010, and is therefore four years old. Her mother is EN (hereafter "the mother"), represented before me by Miss Katherine Wood. Her father is AH ("father"), represented by Miss Claire Brissenden. Both parents are Iranian nationals.
AH is the youngest of 3 children born to the mother, though the only child born to the relationship of the mother and father. AH's older half-siblings are PO (14) and PA (12); PO and PA's father lives in Iran.
AH has been the subject of almost continuous litigation between her parents for nearly three years.
At this hearing, which commenced yesterday (6 May 2015), three issues were placed before me for consideration, namely:
a. Whether I should permit the mother to have temporary leave to remove AH to Iran for the purposes of a holiday and to visit maternal (and possibly paternal) relatives; this application was made in October 2013. This is a re-hearing of this issue, as directed by the Court of Appeal ( Re H [2014] EWCA Civ 989);
b. Whether I should permit the mother to have temporary leave to remove AH to Turkey for the purposes of a holiday; there is no formal application for this relief, and the application was signalled to the father only shortly before this hearing, but it is agreed that I should deal with it;
c. What, if any, order or directions I should make on the father's application (dated 12 February 2015) to enforce a Child Arrangements Order which had been made last year.
For the purposes of considering this application, I have read:
a. The statements and supporting evidence submitted by and on behalf of the parties;
b. The judgment of the Court of Appeal in this case (reference Re H [2014] EWCA Civ 989), by which the father's appeal against the decision of HHJ Walton (6 January 2014) granting temporary leave to the mother to remove AH to Iran was allowed (the Court of Appeal's judgment is dated 17 July 2014);
c. Extracts of the transcript of the oral evidence of the father at the hearing before HHJ Walton;
d. The expert report of Mrs Anna Enayat, Senior Common Room Member, St. Anthony's College, Oxford University, and an expert in Iranian law and custom, dated 15 February 2015;
e. Correspondence between the parties and Durham County Council children's services.
I first heard oral evidence from Mrs Enayat, and then from the mother and father. For reasons set out in the following paragraph ([7]), I do not propose to rehearse the evidence of Mrs Enayat in this judgment; I would like to record, nonetheless, that it was clear, and forensically helpful. In summary, it underlined the difficulties which would be encountered by the mother in leaving Iran with AH if the State authorities (or the father) sought to prevent her from doing so, and/or if the father was unco-operative or frankly unable, to secure the necessary travel papers to assist a safe return to this jurisdiction. Mrs Enayat was unable to offer much comfort the mother, or the court, in moderating the concerns outlined by the FCO, referred to by the Court of Appeal at [12] of [2014] EWCA Civ 989; specifically, security forces in Iran are suspicious of people with British connections, and there are particular reasons why the forces may be particularly interested in members of this family.
At the conclusion of the expert evidence yesterday afternoon (6 May 2015), and before giving her own evidence, the mother indicated through counsel that given the absence of any degree of co-operation from the father (let alone the genuine and wholehearted co-operation which she sought), and the risks to her and AH if she was unable to achieve a swift and safe return, she recognised that such a plan was not "sustainable", and she no longer pursued it. This left only those issues identified in [4](b) and (c) above for determination.
Background
The essential background to this case is set out in the judgment of the Court of Appeal ( [2014] EWCA Civ 989), the salient parts of which (paragraphs [2]–[6] inclusive), for convenience, I reproduce below:
2. 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.
3. … 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.
4. 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.
5. 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.
6. 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.
I would like to supplement this history by adding the following facts:
a. The mother spent an extensive period in Iran during the marriage; she says that during one of her visits shortly after AH's birth (when she was attempting to arrange the emigration of PO and PA to this country), the father took steps to prevent the mother from leaving that country; during that period, AH was in the care of the father in England (this is relevant to my consideration of the application for temporary leave to remove to Turkey);
b. There has been a troubled history of contact between AH and her father; the mother has suspended...
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