Re AB (A Child: temporary leave to remove from jurisdiction: expert evidence)

JurisdictionEngland & Wales
JudgeJudge Bellamy
Judgment Date04 August 2014
Neutral Citation[2014] EWFC 2758
Date04 August 2014
CourtFamily Court
Docket NumberCASE No LK12PO0217

[2014] EWFC 2758

IN THE FAMILY COURT AT LEICESTER

Before:

His Honour Judge Clifford Bellamy

sitting as a Judge of the High Court

CASE No LK12PO0217

Re AB (A Child: temporary leave to remove from jurisdiction: expert evidence)

The Applicant Father Appeared In Person

Miss Dewinder Birk appeared for the Respondent Mother

Judge Bellamy
1

These proceedings concern a little boy, AB. AB is now 6 years old. His parents are RK ('the mother') and DS ('the father'). On 8 th May 2012 the father issued an application for a residence order or, alternatively, a contact order in respect of AB. The proceedings are ongoing. Until May 2014 the case had been proceeding before lay Justices. The proceedings were transferred to me as a result of an application by the mother to take AB on holiday to India for three weeks. The application is opposed by the father. This judgment deals only with that application.

The background

2

The father is 36 years old. He was born in Leicester. Though of Indian parentage, he has lived in England all his life. He is a British citizen with a British passport. He lives with his parents. He has family living in India. His parents own land in India. Although he has never lived in India he has visited from time to time. It was during one such visit in 2004 that he was introduced to the mother.

3

The mother is 32 years old. Until her marriage to the father she had spent her whole life living in India. Her parents, her younger sister and her wider family all live in India. She has no family living in England.

4

The parents underwent an arranged marriage, in India, on 22 nd February 2005. The mother came to live in England in May 2005. Apart from a three week holiday to India in November 2010, since May 2005 she has lived continuously in England. Since separating from the father she has obtained British citizenship. She now has a British passport.

5

AB was born in England in May 2008. He is a British citizen. He has a British passport. Save for accompanying his parents on their visit to India in November 2010 he has spent his entire life living in England. He is habitually resident in England.

6

The parents' marriage became unhappy. They separated in March 2011. Since their separation the father's contact with AB has been problematic. It was in the hope of resolving that issue that he made an application to the court. As a result of work undertaken by Cafcass the father now has contact with AB for four hours once a fortnight. The Cafcass officer supports in principle the continuation and development of contact. The father hopes that contact will become more frequent and that at some point it may move on to include overnight contact. That is an ongoing issue.

The mother's evidence

7

The mother has not been to India since November 2010. She wishes to be able to go to see her family. She wants AB to have the chance to spend time with her family and to be able to explore his cultural roots. She says that she no longer considers India to be her home. She wants AB to live and be educated in England. In her written statement she says,

'I would not want to reside in India due to the cultural implications arising from my divorce…There is a disapproval of women who separate or divorce from their husbands and who are single mothers. There is a lack of understanding and insight into the plight of women who have suffered as a result of a marriage breakdown. It would not be culturally appropriate for me to go and live with my parents in their village and further it would simply cause more difficulties for my family in India. My sister…is not married and this would also have an impact upon finding a suitable partner for her to marry due to the cultural implications.'

She ends her statement by saying, 'I wish to make it very clear that I have absolutely no intention whatsoever [of] remaining in India with AB'.

8

The mother and AB live in rented accommodation in Leicester. The mother does not work. She is dependent upon state benefits for their support.

9

Although the mother has been living in England for more than nine years, her English is poor. At this hearing she required the help of an interpreter. She says that she would like to take a course to improve her English.

10

Both parents are Sikhs. The mother says that she attends two local Gurdwaras. AB sometimes goes with her. It did not appear that the practice of her religion has enabled her to develop a close support network through the Gurdwara. She says that she only has three close friends in Leicester. They do not live nearby.

11

The mother has been in a new relationship since early 2013. The existence of that relationship only came to light as a result of a question I put to her. Prior to this hearing neither the father nor the Cafcass officer was aware of the relationship. The information provided about this relationship is scant. Her boyfriend is also of Indian origin and is a Sikh. He has been living in England for around fifteen years. He works as a machinist. He has his own home. He does not have any children. He lives alone. It is not intended that he should accompany the mother and AB on their proposed holiday to India.

12

The mother remains in close contact with her parents. She speaks to them by telephone and Skype on a regular basis. They live in Nagra. Nagra is small remote village (population around 500 people) located in the Indian state of Punjab.

13

The maternal grandfather has provided the mother with £900 for to meet the cost of airfares to India for herself and AB. The mother was asked how much she expected the flights to cost. She said that she has not checked recently but on the basis of previous enquiries believed a return ticket for herself would cost around £600 and for AB around £550. If those figures are correct then it is clear that the money provided by her father will not be sufficient to cover the cost. The mother says that her father will make up any shortfall.

14

The mother says that her parents are aware of the fact that she is in a new relationship and have raised no objections. When asked whether her parents may seek to arrange a further marriage for her if she returns to India, she was adamant that that will not happen. Her parents have arranged one marriage for her and that marriage failed. They will not arrange a second marriage for her.

15

The mother seeks to reassure the court and the father that if she is allowed take AB on holiday to India she will return him to England. In her written evidence the mother says,

'9 …I am prepared to give whatever reassurances the Court requires…I would agree to give an Undertaking to use my best endeavours to lodge with an advocate in India, any Court Order made here and to obtain a Mirror Order to reassure the Court that we will return.

10. Whilst in India I would be agreeable to lodging my passport and AB's passport with the British Embassy, either in Jalandhar or in Delhi.

11. Neither myself nor any members of my family are in a financial position to offer the Court a surerity (sic) nor can we offer to lodge the title deeds of any property with the Court as we do not own any property.'

16

The mother exhibits to her written statement two affidavits, one by her parents and another by KSN. Her father is the 'Sarpanch' (which she described as an elected mayor) of Nagra. In their affidavit her parents say that they 'undertake and assure that both RK and AB will return back to UK before expiry of their visa period'. KSN is a 'Lambardar'. According to the mother this as a position of some status and authority. In his affidavit KSN says,

'That above RK and AB are going to visit India shortly and I…undertake and take guarantee that both of them shall return back to UK within the period of their Visa and is no case they shall over stay here in India.'

17

The mother says that her life and ties are now in the UK. She has been living here since 2005. AB was born here. His father lives here. The facilities available to AB in England are better than those available in India. If allowed to take AB on holiday to India, she will return him to England at the end of her holiday.

The father's evidence

18

The father does not trust the mother to return AB to England if allowed to take him to India. He fears that once in India AB could be used by the mother's family as a bargaining tool in support of an attempt to claim some of his family's land in India. He opposes the mother's application. If she wishes to go and see her family then he and his parents would very gladly care for AB whilst she makes her trip.

Foreign and Commonwealth Office

19

The Foreign and Commonwealth Office ('FCO') website contains guidance to travellers in respect of 225 countries and territories around the world. With respect to India, the guidance advises against travel to certain named areas. The mother confirms that travelling to her home village of Nagra does not require her to travel through any area identified by the FCO as presenting a particular risk to travellers.

Expert evidence

20

India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction concluded at The Hague on 25 th October 1980. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

'23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the...

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