NH v NH and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan |
| Judgment Date | 26 February 2015 |
| Neutral Citation | [2015] EWFC 43 |
| Court | Family Court |
| Docket Number | Case No: FD 13 P 00793 |
| Date | 26 February 2015 |
[2015] EWFC 43
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Keehan
(IN PRIVATE)
Case No: FD 13 P 00793
Ms Laura McMullan (Counsel) (instructed by Williamsons Solicitors) for the Applicant Mother
Ms Clare Renton (Counsel) (instructed by Blavo & Co. Solicitors) for the First Respondent Father
THE THIRD RESPONDENT appeared in Person
THE SECOND AND FOURTH RESPONDENTS were not present or represented
In this matter I am concerned with three children: RU, who was born on 15 September 2005 and so is nine years of age; Sa, who was born on 31 December 2009 and is five years of age; and Ar, who was born on 3 February 2013 and so is two years of age. The mother of all three children is NH. Their father is JH.
There are three other parties to these proceedings: first, the paternal aunt, SuH, who has taken no part whatsoever, either at this hearing or at previous directions hearings; and two paternal uncles, AH, and HH. HH has, like his sister, played no active role in these proceedings. AH has attended previous hearings and this hearing and has given evidence and taken a full role.
Before me at this hearing are competing applications. The first is an application by the mother to discharge the existing wardship proceedings in respect of the children and for a child arrangements order to be made to provide for the children to live with her. She invites the court to make an order for no contact between the children and the father. She urges the court to continue a raft of protective orders that have been made, in particular since the children returned to this jurisdiction, and she invites me to make a section 91(14) order prohibiting the father from making any further applications without the permission of the court.
The father seeks a child arrangements order in his favour so that he may have, in the first instance, direct, but, if not direct, indirect contact with his children. He seeks a variation of the protective orders, in particular the order which prevents him from entering within the East Riding of Yorkshire, and he opposes the making of the section 91(14) order.
AH makes an application on his own part for a child arrangements order so that he may have contact with the children.
Background
The background to this matter may be stated shortly. The parties met in 2000. They married in 2001. On 25 February 2013 the father told the mother to leave the former matrimonial home which was then in London. The following day he drove the mother to her parents' home in East Yorkshire and left her there. On 8 March 2013 the mother applied for a without notice residence order, prohibited steps order, specific issue order and non-molestation order at the Kingston-upon-Hull County Court. On that day District Judge Besford made an order preventing the father from removing the children from the jurisdiction of England and Wales and transferring the case to be heard at Willesden County Court. The following day, on 9 March, the father was personally served with those orders.
On 14 March the matter was listed for a first hearing at Willesden County Court for 3 April. On 3 April both parties attended court. They were represented by counsel, and on that day the district judge in Willesden made an interim residence order in favour of the father in respect of RU and Sa, and an interim residence order in favour of the mother in respect of Ar. The father was required to make the children available for contact and the matter was to be listed for a further directions hearing on 21 May.
On 4 April the father purported to appeal the order made by Willesden County Court. On 9 April, unbeknownst to the mother, the father removed all three children to Afghanistan, the paternal family home, assisted by his sister, SH; and also assisted by his brother, AH, who was present at the airport when the children departed the country. On 10 April the father sent a text message to the mother saying that he would not bring the children to see the mother and that the judge's decision was unfair and unlawful.
Thereafter the mother's solicitors made various applications to the court. On 16 April the mother contacted RU's school to be informed that he had not been at school for the last two days. On 17 April the mother called the police because of her concerns in respect of the whereabouts of the children and the father. On the same day District Judge Kumrai in Willesden County Court made an order under section 34 of the Family Law Act 1986 for the whereabouts of the children to be found.
On 19 April the father attended Kilburn Police Station saying that he had taken the children to Afghanistan. The father was arrested, having returned to the country the previous day, and was charged with child abduction. On 21 April, on an out-of-hours application, Cobb J made the children wards of this court and made orders for the father to disclose the whereabouts of the children and made orders for the return of the children to the jurisdiction forthwith. On the following day, 22 April, Cobb J confirmed the wardship and repeated the return orders.
On 24 April the father was produced and appeared before Cobb J. He gave sworn evidence. He did not disclose the names of those people caring for the children. On 8 May the matter came before Singer J. The father refused to receive service of a location order made by the court. On 17 May, before Cobb J, the father and his brother, AH, gave oral evidence to the judge. The judge made further orders for the return of the children to this jurisdiction.
On 19 July the matter came before me on a committal application of the father for breach of the orders previously made by the High Court. I found that he was in breach of those orders and I sentenced him to 12 months' imprisonment for each breach to be served concurrently. Thereafter, in August 2013 the father, who denied abducting the children, stood trial at the Crown Court at Harrow. On 22 August he was found guilty on all three counts of child abduction. The trial judge adjourned sentence to 25 September in order to give the father time to return the children to the jurisdiction, stating that this would be his best mitigation.
On 25 September His Honour Judge Donne QC sentenced the father to five and a half years' imprisonment. In sentencing, he said the father was "a manipulative and devious man whose actions had deprived his children of their mother". The father is still currently serving that term of imprisonment and is not due for release until March 2016.
Between July and October 2013 the father sent a number of letters to the mother's solicitors for the mother in which he variously stated that the children had been adopted.
There followed a series of orders made by me and other judges of the division seeking to secure the return of the children to this jurisdiction, and respectfully requesting the Afghan authorities to cooperate with the return of the children. In August of last year Mrs Motley, at the request of the court, travelled to Afghanistan. The children were handed into her care and she returned the children to the jurisdiction on 14 August 2014.
On 3 November 2014 during the course of a directions hearing, I directed that a report be filed in relation to the children and issues of contact by the East Riding of Yorkshire County Council and a report was filed and served by Mr Lawry. On 16 February I began this hearing.
The Law
In considering the applications before me, I bear in mind that my paramount concern is the welfare best interests of all three children as provided by section 1(1) of the Children Act 1989. I take account of all those matters set out in the welfare checklist of section 1(3) of the 1989 Act in coming to a decision about the best interests of these children. I bear in mind the Article 6 and Article 8 Convention rights of the children, the mother, the father and AH, but I also take account that, where there is a tension between the Article 6 or Article 8 rights of the children on the one hand and of adults on the other, the rights of the children prevail ( Yousef v. The Netherlands [2003] 1 FLR 210).
In relation to the making of a section 91(14) order, I bear in mind that it is an order to be made in the most exceptional of circumstances, and I have taken account of those cases and the principles enunciated in them set out in the Family Court Practice for 2014 between pages 695 and 697.
In relation to the principles to be applied in considering applications for contact, counsel for the father has helpfully referred me to two decisions of the Court of Appeal, the first being Re C (Direct Contact: Suspension) [2011] EWCA Civ 521. In giving the judgment of the Court of Appeal, Munby LJ (as he then was) said that case law from the European Court of Human Rights and domestic laws have established that a child's welfare must have precedence over any other consideration. This included ensuring the child grew up in a healthy environment, free from harm to health and development, but it also meant maintaining links between the child and her family, except in wholly exceptional circumstances.
She also referred me to the case of Re W (Direct Contact) [2012] EWCA Civ 999. In that case McFarlane LJ said the following at paragraphs 74 to 78:
"74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I...
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