Re AB (A Child: Temporary Leave to Remove From Jurisdiction: Expert Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 2014 |
| Neutral Citation | [2014] EWHC 2758 (Fam) |
| Date | 2014 |
| Year | 2014 |
| Court | Family Division |
Children – Permission to remove child temporarily to non-Hague Convention state – Risk of abduction – Safeguards – Parents separating and private law proceedings ongoing – Mother applying for permission to temporarily remove child to India for holiday and undertaking to return child after three weeks – Father objecting – Whether safeguards offered by mother sufficient – Approach of court to application – Children Act 1989, s 1 – Human Rights Act 1998, Sch 1, Pt I, art 8.
The father and mother had a six-year-old son (AB), born in England and a British citizen. The father, of Indian parentage, had lived in England all his life and was a British citizen. Until her marriage to the father the mother had spent her whole life living in India. The parents separated and there were ongoing proceedings concerning residence and contact. The proceedings were transferred to the High Court as a result of the mother’s application for permission to take AB on holiday to India. In seeking to reassure the court and the father, the mother stated that if she was permitted to take AB to India she would return him to England at the end of the holiday. She offered to obtain mirror orders in India, lodge a copy of the order with an advocate in India and lodge her passport and AB’s passport with the British Embassy once in India. The father did not trust the mother to return the child and opposed the application. At an earlier hearing permission had been given to the mother to obtain expert evidence from K, a dual qualified solicitor and advocate in India and England who specialised in Indian law. The judge had decided that the cost of the expert was to be borne entirely by the mother, who was publicly funded. However, the Legal Aid Agency refused to grant prior authority for the cost of the expert report. Nevertheless, the mother did submit, with the necessary consents, redacted copies of K’s report that had been submitted in a similar case in which K had been instructed. That report indicated, inter alia, that if the mother failed to return to the UK with the child, the father could face between one to two years pursuing a legal remedy in India, that pre-existing English orders in relation to the return of the child would only be one of the factors that would be considered and that the court would draw up independent judgment on merits having regard to the welfare of the child,
and that courts in India would not pass mirror orders. Of relevance was the fact that India was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Convention). Consideration was given to the right to private and family life in art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998).
Held – In determining an application for temporary removal to a non-Convention country, the child’s welfare was paramount pursuant to s 1 of the Children Act 1989, regard being had to the welfare checklist in s 1(3) of the 1989 Act as well as the art 8 rights of AB and both parents. The correct approach involved consideration of three related elements: (a) the magnitude of the risk of breach of the order if permission was given, (b) the magnitude of the consequence of breach if it occurred, and (c) the level of security that might be achieved by building in to the arrangements all of the available safeguards. It was necessary for the judge to ensure that all three elements were in focus at all times when making the ultimate determination of whether or not to grant leave. In the instant case, there was a low to medium risk that the mother might not return AB to England at the end of the proposed holiday. The magnitude of the consequence of breach if it occurred would be profound for the father. The expert evidence spelt out very clearly the challenge the father would face in trying to secure AB’s return to England. Further, it would be detrimental to AB’s welfare interests were the mother to fail to return AB since, in the opinion of the Cafcass officer, it was in his best interests developmentally, culturally and emotionally for contact with the father and paternal family to develop. The safeguards proposed by the mother were not capable of having any real and tangible effect in India. In weighing the competing factors to arrive at a conclusion that was both proportionate and in AB’s welfare interests, the balance came down against granting the mother’s application. Accordingly, the application would be refused (see [25]–[27], [29], [32]–[35], [38], [39], [41], below); Re R (a child) (prohibited steps order)[2014] 1 FCR 113 applied, Re H (A Child)[2014] EWCA Civ 989 considered.
Per curiam. It is unsurprising that the 2013 Standard Civil Contract does not define ‘expert’. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness is ‘qualified to give expert evidence’ within s 3(1) of the Civil Evidence Act 1972 Act are issues for determination by the court and not the Legal Aid Agency (the LAA). It is not been open to the LAA to disregard a decision by the court that an individual is an expert. The Standard Terms of the 2013 Standard Civil Contract define the term ‘Approved Third Party’ as someone engaged by a party to the Contract ‘to undertake non-legal work ancillary to Contract Work, including experts’. The expression ‘non-legal work’ is not defined but includes giving expert advice on the law of any country or territory outside the United Kingdom. Whether the ‘expert’ is an
academic specialising in that area or a person who is a practitioner in that foreign state is immaterial. It is equally immaterial if such a practitioner happens to have dual qualification enabling him also to practice law in England and Wales. The Civil Legal Aid (Remuneration) Regulations 2013, SI 2013/422 do not define the word ‘expert’. It is clear from Sch 5, para 3 that the list of experts in the Table is not intended to be either an exhaustive list of the categories of experts for which fees will be paid by the LAA or an indicative list of the categories of expertise in which expert evidence will be funded (see [63]–[66], below); JG (a child) v Legal Services Commission[2014] 3 FCR 567 considered.
Cases referred toH (A Child), Re[2014] EWCA Civ 989.
JG (a child) v Legal Services Commission [2013] EWHC 804 (Admin), [2013] 2 FLR 1174, rvsd[2014] EWCA Civ 656, [2014] 3 FCR 567, [2014] 2 FLR 1218.
K (removal from jurisdiction: practice), Re[1999] 3 FCR 673, [1999] 2 FLR 1084, CA.
M (Removal from Jurisdiction: Adjournment), Re[2010] EWCA Civ 888, [2011] 1 FLR 1943.
R (a child) (prohibited steps order), Re[2013] EWCA Civ 1115, [2014] 1 FCR 113, [2014] 1 FLR 643.
R (Children: Temporary Leave to Remove From Jurisdiction), Re[2014] EWHC 643 (Fam), [2014] 2 FLR 1402.
ApplicationIn ongoing private law proceedings, the mother applied for permission to temporarily remove the child to India for a holiday. The father opposed the application on the ground that there was a risk the mother may not return the child to the UK. The facts are set out in the judgment.
The father appeared in person.
Dewinder Birk for the mother.
4 August 2014. The following judgment was delivered.
JUDGE BELLAMY.[1] These proceedings concern a little boy, AB. AB is now six years old. His parents are RK (‘the mother’) and DS (‘the father’). On 8 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 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...
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