QS v RS
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice MacDonald,Mr Justice MacDonald |
| Judgment Date | 15 October 2015 |
| Neutral Citation | [2015] EWHC 4050 (Fam) |
| Docket Number | Case No: FD12P01423 |
| Court | Family Division |
| Date | 15 October 2015 |
[2015] EWHC 4050 (Fam)
The Honourable Mr Justice MacDonald
Case No: FD12P01423
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A. Proctor (instructed by Lightfoot O'Brien Westcott) for the Applicant
Mr A.G. Perkins (instructed by Dawson Cornwell) for the Respondent
Hearing dates: 14 & 15 October 2015
Approved 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.
INTRODUCTION
In this matter I am concerned with T, a young girl born on the 15 th October 2005. The parents of T, certainly in a psychological sense, are QS, the applicant in this matter, and RS, the respondent. I say at this stage, "certainly in a psychological sense," in circumstances where, for reasons I will come to, there is, it transpires, a significant question mark as to the legal status of T vis-à-vis her parents. Both QS and RS are British citizens.
I am delivering this judgment ex tempore on the second day of a three day hearing. I shall in due course direct that a transcript of this judgment is obtained at public expense and I will at that stage correct any infelicitous phraseology, or other errors, before the transcript of the judgment is circulated in its final form.
BACKGROUND
The background of this matter must start with T. On the 13 th August 2005 T was found abandoned in a Temple, in the Federal Democratic Republic of Nepal. She was estimated to be 14 months old and upon being found she was moved to an orphanage. T's date of birth of the 15 th October 2005 is her official designated birth date. Subsequent to T's move to an orphanage in Kathmandu, the mother and the father (as I shall call them) were introduced to T on the 28 th July 2006. Thereafter there followed an adoption of T by the mother and father under Nepalese law. I have before me, in the bundle of documents prepared for this hearing, copies of the documentation which indicates that that adoption took place on 10 February 2008 and was completed under the law of the Federal Democratic Republic of Nepal. I have no reason to believe that under the law of that jurisdiction the adoption was anything other than properly constituted.
Following their adoption of T the parents moved with her to live in Dubai. When in Dubai T was granted British Citizenship. Again in the documents before me I have a Certificate of Registration dated the 16 th September 2008, registering T as a British citizen. The precise circumstances of that registration, and the need to examine further those circumstances, I shall, again, return to.
Sadly, following the return of the parents and T to Dubai, in due course the parents' marriage got into difficulties. For the purposes of this judgment I do not at this stage need to go into the precise nature of those difficulties. However, one relevant result of the breakdown of the parents' marriage was that they commenced litigation both in the jurisdiction of Dubai and in the jurisdiction of England and Wales. In Dubai that litigation has concentrated on T, with a case concerning her custody and contact moving all the way from the First Instance Court in Dubai finally to the Dubai Court of Cassation. In this jurisdiction the litigation has involved both divorce proceedings, matrimonial finance proceedings and wardship proceedings before the High Court of England and Wales.
The wardship proceedings arose in the following circumstances. On the 10 th November 2011, again for reasons that it is not at this point in time necessary to go into in detail, the mother was deported from Dubai. Notwithstanding that deportation, the proceedings in Dubai concerning T continued. On the 10 th May 2012 the first instance Dubai Court gave a ruling in those proceedings. Part of that ruling was that the custody of T was awarded to the mother. The father immediately appealed that decision. However the mother, now in England, and in light of the Dubai court's ruling, came before Pauffley J on the 21 st June 2012, without notice to the father, with an application to make T a ward of court.
The order that Pauffley J made on that day is set out in the bundle. Pauffley J, upon the basis of an understanding that it was the intention of the court in Dubai that T should live with her mother in England and Wales, made T a ward of court and made a further order that she should be in the care and control of her mother in this jurisdiction. Pauffley J further gave liberty to either parent to apply on notice in relation to that order. The father was served personally at an address in Dubai with those orders on the 10 th July 2012.
In 2013 the mother travelled to Dubai to see T. Her last direct contact with T was on the 1 st June 2013. On the 16 th October 2013 the wardship proceedings again came before this court without notice to the father. On that date Bodey J continued the wardship in relation to T, directed that the Passport Office in this jurisdiction issue to the mother a British passport for T and continued the care and control order made by Pauffley J on the 22 nd June 2012.
Meanwhile the proceedings that the father had instituted in Dubai in relation to T were continuing. On the 26 th January 2014 the Dubai Court of Appeal handed down a provisional judgment having heard evidence from both the mother and the father. In relation to the issue of the custody of T the Dubai Court of Appeal upheld the judgment of the first instance Court in relation to the order conferring custody of T on the mother. The father again appealed, this time to the Dubai Court of Cassation; that court being the highest court in the United Arab Emirates. On the 28 th April 2014 the Court of Cassation allowed the father's appeal and gave custody of T to the father. The mother sought to appeal this decision but her appeal was dismissed.
It is important at this point to make clear what the effect of the judgment of the Court of Cassation in Dubai has been in this case. The effect of that judgment and the orders made by the Court of Cassation has been considered in this case by an expert in Islamic law and the law of the United Arab Emirates, instructed jointly to provide an opinion to the court in these proceedings. The expert in question is Dr Dawoud Sudqi El-Alami. He is a member of the Egyptian Bar Association qualified before the Court of Cassation. He has a PhD in Islamic Law from the University of Glasgow and is a Senior Teaching Fellow and Reader in Islamic Law at the University of Aberdeen.
In relation to the effect of the judgment of the Court of Cassation in Dubai, Dr. Sudqi El-Alami makes clear as follows, and I quote (including the emphasis added by Dr El-Alami):
" In this case it appears, however, that the courts have chosen to treat the case as if the S's were not the parents of the child and have ruled accordingly.
The status of T as an adopted child: Islamic law does not allow legal adoption of children in the sense understood in the United Kingdom, as great importance is placed on the establishment of blood lineage. UAE nationals and Muslims of other nationalities are therefore not permitted to adopt, nor are foreign nationals permitted to adopt children who are UAE nationals. While adoption is not dealt with in the Personal Status Law, the UAE has expressed its position in the form of a reservation to Article 21 (regarding adoption) of the UN Convention on the Rights of the Child."
Dr. Sudqi El Alami goes on to say, within the foregoing context, this:
"Evidence from the proceedings to date indicates that whilst the courts have recognised the relation of T to the S's as their ward in accordance with the foreign adoption and Mr. S's sponsorship of the child and of Mrs. S, they have nevertheless emphasised at several points that she is not their biological child. As T's sponsor with legal and financial responsibility for her in the UAE he is the first choice as her guardian, provided he meets the conditions for guardianship specified in the aforementioned Articles 180 and 181 of the Personal Status Law. Whilst this is not affected by the position that T is an adopted child, the opinion that she has no natural parents has an impact on the entitlement to custody in accordance with the Shari'a, and consequently the Personal Status Law."
The expert goes on in relation to the judgment of the Court of Cassation to conclude as follows:
" In the Appeal Number 38/2014 Cassation (of which there are in the case file a draft and final ruling) the Court of Cassation has overturned the earlier rulings and awarded custody of the child to Mr. S. It bases this position primarily on Article 147 of the Personal Status Law asserting that this Article allows that "Should there be no party fit for custody, or no party accepting custody, the judge shall choose a male or female trusted relative of the minor under custody or others or may place the minor in a qualified institution." [c168, para1] It goes on to say that Article 147 does not differentiate between male and female and claims that this quote leaves no room for the application of Article 144(2)(b). [C171]
Article 147 does not explicitly state that the person appointed as custodian may be male or female, but provides that: 'If there are no parents and custody is refused by those entitled to it the judge shall choose whomsoever he considers suitable from the relatives of the child, or non relatives, or one of the institutions...
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