Re M (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Baker,Lord Justice Henderson |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] EWCA Civ 922 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/0471 |
| Date | 17 July 2020 |
[2020] EWCA Civ 922
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISON
OF THE HIGH COURT
HHJ MORADIFAR SITTING AS A
DEPUTY HIGH COURT JUDGE
[2020] EWHC 451 (FAM)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
Lord Justice Moylan
and
Lord Justice Baker
Case No: B4/2020/0471
Mr T Gupta QC and Miss C Papazian (instructed by Freemans Solicitors) for the Appellant
Miss Ruth Kirby and Mr M Edwards (instructed by Dawson Cornwell Solicitors) for the Respondent
Hearing date: 28 th April 2020
Approved Judgment
This appeal concerns the exercise by the court of its inherent jurisdiction in respect of a child who is a British national, historically called the parens patriae jurisdiction. The principal question is whether His Honour Judge Moradifar, sitting as a Deputy High Court Judge, was right to order that a child aged 13, who has been living in Algeria for just over 12 years, should be brought to England so that, as set out in a recital (7) to the order dated 27 th February 2020, “an assessment can be made in a place of safety as to her best interests and living arrangements”.
A was born in England but was taken to Algeria by her mother in March 2008. The mother has remained living in England. She visited Algeria on a few occasions after March 2008 but has not been there at all since November 2009. A has not been to England since March 2008 and has been living with her father and/or his family in Algeria.
The father appeals from the order that A be brought to England and from the continuation, until A's return to this jurisdiction, of a passport order made on 4 th July 2019. The judge expressly made no “determination about the duration of A's visit to the UK” but gave directions so that a decision could be made about arrangements for her care in England at a hearing which was listed to take place prior to A's arrival in England. These included directing a local authority to prepare a report pursuant to s.37 of the Children Act 1989 (“the 1989 Act”) and requiring each of the parents to set out their respective proposals for A's care. The passport order provided for the father's passports to continue to be held by the court until A's “return to this jurisdiction in accordance with this order”. The judge refused to make a Forced Marriage Protection Order (“FMPO”) and there is no appeal from this part of his decision.
The father is represented by Mr Gupta QC (who did not appear below) and Ms Papazian; the mother is represented by Ms Kirby and Mr Edwards (who did not appear below).
It is not disputed that the inherent jurisdiction was potentially available in this case because A is a British national. The father's overarching contentions are that the judge was wrong to exercise the jurisdiction in the circumstances of this case and was wrong to make the order which he did. A number of grounds are advanced in support of these arguments including that the judge failed to apply the law correctly because the circumstances of this case do not justify the exercise of the inherent jurisdiction; that the judge's order was an improper use of the inherent jurisdiction both because it effectively conflicted with the provisions of the Family Law Act 1986 and more generally; that the judge's findings were not supported by the evidence; that the order was not justified; that the judge was wrong to order that A be removed from her home and brought to England when he had, what he considered to be, “little evidence” of her wishes and feelings and with the prospect of her being placed in the care of the Local Authority.
I will adopt the same initials used for the children by the judge, namely in order of their age, X, Y, Z and A.
Background
The judgment below is reported as Re A (A Child) (Inherent Jurisdiction: Parens Patriae, FMPO and Passport Orders) [2020] EWHC 451 (Fam). The background circumstances are, briefly, as follows.
The mother is a British national. The father is a British and an Algerian national. The parties married in England in 1990 and made their home here. They divorced in 1997 but subsequently reconciled. They have four children of whom A is the youngest.
Shortly before care proceedings were commenced, the mother took the two youngest children to Algeria in March 2008. A was then less than 12 months old. As set out in the judgment below, at [24], the mother accepted in her oral evidence, having said in her statement that it had been for a holiday, that she “and the father made a joint decision to take A and Z to Algeria in 2008. This was to avoid any applications by the local authority in respect of these children.” The mother returned after about seven weeks, leaving the children in the care of the paternal grandparents. The father then also went to Algeria in May 2008, in breach of an order prohibiting him from leaving the jurisdiction, and remained there, it appears, until August 2018. He has remarried in Algeria and has three children by his present wife.
Care proceedings were commenced in respect of the three youngest children in April 2008. The proceedings were transferred to the High Court. The two youngest children were made wards of court and they were ordered to be returned to England. The care proceedings in respect of Z and A were not pursued and the wardship orders were discharged on 26 th January 2009.
It appears from a judgment given in the care proceedings by Her Honour Judge Cox in June 2009 that the local authority had “considerable involvement with [the] family over a number of years”. There had been “periodic domestic abuse and extreme household rules and controls”; the mother's “were seemingly informal and flexible and [the] father's impressed as harsh and rigid”. The children had been “exposed to matrimonial tension and difficulties”. Among the agreed threshold findings (made at a hearing which the father did not attend and at which he was not represented) were that Y had suffered “physical and verbal abuse by the father” and had been assaulted by him on two specific occasions. It was also agreed that there had been “physical altercations between the mother” and Y.
The care proceedings concluded in January 2010 with a care order being made in respect of Y with the care plan providing that she would remain in residential care. HHJ Cox decided that the harm which the child had suffered had had “a lasting impact” on her development and that the mother was not able to meet the child's needs. Additionally, in the course of her judgment, HHJ Cox set out that it had “proved impossible for the moment to secure the return [of the two youngest children] to this jurisdiction, although [the mother] is still engaged in strenuous attempts to do so and has instructed a specialist firm of international lawyers to assist her in this very difficult task”.
The mother visited Algeria for about three days in May 2008; for about three weeks in March 2009; and for about 10 weeks between August and November 2009. The last visit, as described by HHJ Cox, was because “she is still pursuing … her wish to reunite her family and to bring [the two youngest children] back from Algeria”.
As set out in the judgment below, at [20]:
“The mother has not seen A and, until recently, Z since November 2009. Her contact has been limited to some infrequent contact via text and social media apps. The father asserts that the mother has had the means to contact the children and to visit them but has chosen not to. The mother complains that she has been prevented by the father from having a meaningful relationship with her children who have been retained in Algeria without her agreement.”
The judge then sets out the more recent history:
“[21] In 2018 the parents began discussions about A and Z visiting the mother in the UK and agreed that both should obtain British passports. In January 2018, the father sent the mother an invitation to assist her with gaining a visa to enter Algeria. The father's ambition had been and continued to be to move his family to the UK. However, he was faced with difficulties with his wife's immigration issues. After obtaining their British passports, the father had a change of heart about A travelling to see her mother but allowed Z to come to the UK. Z came to the UK in August 2018. Regrettably, Z's reunification with his mother has been less than successful. His behaviour has been challenging and this has at points culminated in physical assaults upon his mother with the last being on the 22 November 2019. The father came to the UK within days of Z's arrival. Save for living with his mother initially and later a very short period living with his father in February or March 2019, Z has been voluntarily accommodated by the local authority.”
Proceedings and Judgment
On 25 th June 2019 the mother commenced the current proceedings. Her application sought simply a wardship order and stated that A was being wrongfully retained in Algeria. The mother's statement in support was more specific in that she said that she was very worried about A's safety and well-being and wanted her “returned to my care”.
At a without notice hearing on 4 th July 2019, the court made, among other orders, a passport order, namely an order requiring the father to give his passport(s) to the Tipstaff. This order was activated on 28 th September 2019 when the father came to England from Algeria. He was subsequently arrested for failing to comply with the order following which it was discovered that he had failed to hand over his Algerian...
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