Re A (A Minor) (Fact Finding; Unrepresented Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 19 May 2017 |
| Neutral Citation | [2017] EWHC 1195 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD15P00103 |
| Date | 19 May 2017 |
[2017] EWHC 1195 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: FD15P00103
The applicant father appeared in person
Henry Setright QC and Brian Jubb (instructed by Maya solicitors) for the 1 st Respondent
David Williams QC and Jacqueline Renton (instructed by Freemans solicitors) for the 2 nd Respondent child
Hearing dates: 26 th, 27 th, 28 th April 2017 2 nd, 3 rd, 4 th May 2017
Judgment Approved
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This judgment must be read in conjunction with my earlier judgment reported at [2017] EWHC 949 (Fam). There I was dealing with preliminary legal and jurisdictional issues identified by Black LJ following an earlier and successful appeal, reported as Re H (child) [2016] EWCA Civ 988.
Having concluded that A (the subject child) could not be returned to Pakistan pursuant to any order of the Family Court, in the light of his 'refugee status' I made provision for this fact finding hearing to consider M's allegations against F in order to inform future welfare decisions. It is integral to the father's case that M's application for refugee status was predicated on false and / or exaggerated allegations. Recognising the parameters of this Court's authority, as analysed in my earlier judgment, the father wished to pursue his applications for both residence and contact (as an alternative). F's ambition, were I to conclude that A's best interests required him to live with his father, was to take my conclusions back to the SSHD in the hope that they identified a dishonest application by the mother or, more generally, to identify material which would cause the SSHD to revoke the grant of refugee status.
The allegations brought by the mother have been extensively pleaded and responded to voluminously. It had been submitted that, given my earlier decision, any application for residence by F was unarguable and should be prevented. I declined to follow that submission, in part, for pragmatic reasons. I was satisfied that whatever the nature of the order sought, the evidential material would be very much the same. More importantly however, I am resistant to denying any father a full opportunity to advance his case where the welfare of a child is in issue.
Background
The core background facts may be summarised from the earlier judgment. I incorporate them here merely for convenience. The Father (F) was born in Pakistan on 14 th April 1976. He is a Pakistan national. The mother (M) was born in Pakistan on 18 June 1977. She is also a Pakistan national. M and F married on 15 August 2002.
On 4 April 2006, A was born in Lahore, Pakistan. A's twin sadly died 3 hours after he was delivered by caesarean section. A lived with F and M in Pakistan until May 2012 when he moved with M to Saudi Arabia, F having already relocated to Riyadh, Saudi Arabia in October 2011 for the purposes of his employment.
On 19 August 2014, A arrived in this jurisdiction with M for a visit, which had been arranged with the consent of F. A return flight to Saudi Arabia had been booked for the M and A departing on 11 September 2014. M did not return to Pakistan as had been agreed between the parents. On 6 September 2014, F came to this jurisdiction and there was an argument between M and F. F was arrested but released without charge and returned to Saudi Arabia, alone, on 11 September 2014. M and A have remained in this jurisdiction since that date.
On 15 September 2014 M sought asylum in the UK. On 11 October 2014 F issued proceedings for divorce in Pakistan but they have lapsed now, due to passage of time. On 9 December 2014 A's visa to reside in Saudi Arabia expired. In December 2014, A commenced his schooling in this jurisdiction. On 6 February 2015 M and A's visitor visa for the UK expired.
On 10 March 2015, proceedings commenced in the High Court, on a without notice basis, seeking the summary return of A to Pakistan. A was made a Ward of Court. On 30 March 2015 M was served with the court documents. An inter partes hearing on 14 April 2015 and again on 15 May 2015 before Russell J who gave case management directions ( inter alia) directing that a CAFCASS report be prepared. On 24 June 2015 A had a meeting with a Cafcass officer, Mr McGavin.
Application for Asylum
On 26 June 2015, A applied for asylum in the United Kingdom to the Secretary of State for the Home Department ("SSHD"). On 8 July 2015, the final hearing took place in respect of F's application for what was said to be the 'summary return' of A to Pakistan. During the afternoon of that hearing, F and M entered into a Consent Order which provided for A's return to Pakistan by 5 August 2015. Both F and M gave undertakings to the court. M's included an undertaking to withdraw her asylum application and that of A.
In the event M did not withdraw either asylum application, and A did not travel to Pakistan. On 6 August 2015, F applied to enforce the order dated 8 July 2015 on a without notice application. On 12 August 2015 the case was listed (inter partes) and M applied to set aside the order dated 8 July 2015, claiming that she had not validly consented to it. On 23 September 2015 the Home Office informed M's solicitors that the SSHD was not agreeable to disclose the details of M's asylum application (it having been sought by F) as she had made allegations against the F in her asylum claim.
On 27 October 2015, M and A were granted, separately, 'refugee status' in the United Kingdom, by the Secretary of State for the Home Department. This has been generally referred to by the parties as 'grant of asylum'. On 28 October 2015, Mr McGavin of Cafcass attempted to supervise a contact between F and A. That contact was unsuccessful as A refused to see F.
The terms of the order dated, 29 October 2015, invited Mr McGavin to consider whether A should be separately represented in the proceedings. Though the order does not record it, counsel before me have agreed that this measure was thought necessary in light of the terms of the order for A's return to Pakistan; the applications before the court to set aside that order; the grant of asylum to the child in his own right (my emphasis) and the lack of contact between the child and the father.
On 17 November 2015, again pursuant to the order dated 29 October 2015, Mr McGavin wrote to the Court stating that he could see no way in which the case could be satisfactorily resolved without the Court hearing evidence and making findings in relation to the serious allegations made against F. Further, Mr McGavin stated that the Cafcass High Court Team were in a position to appoint a Guardian for A, once a fact finding hearing had taken place.
On 2 February 2016, at a directions hearing, Her Honour Judge Jakens (sitting as a Deputy High Court Judge) refused M's application for A to be joined to the proceedings. On 26 February 2016, His Honour Judge Bromilow (also sitting as a Deputy High Court Judge) dismissed M's application to set aside the order dated 8 July 2015 and granted F's cross application to enforce the order. As a consequence, HHJ Bromilow went on to order A's return to Pakistan forthwith and by no later than 23.59 hrs on 5 April 2016. Mr McGavin was directed to meet with A to inform him of the decision. M applied to HHJ Bromilow for permission to appeal and also for a stay, which applications were refused and thereafter M applied to the Court of Appeal for the same relief.
On 10 March 2016, Mr McGavin emailed the parties' solicitors stating that he had spoken to A about HHJ Bromilow's decision. Mr McGavin noted that A continued to object to the decision the judge had made.
The Appeal
On 22 March 2016, McFarlane LJ granted M permission to appeal and a stay. On 20 June 2016, A met with Ms Laura Coyle of Freemans Solicitors. On 30 June 2016, A applied to become a party to the proceedings and for permission to appeal. On 6 July 2016, Black LJ granted A's applications. On 13 July 2016 – 14 July 2016, the Court of Appeal ( Moore-Bick, Longmore and Black LJJ's) heard the appeals of M and A, and a cross application by F for permission to appeal.
On 11 October 2016, the Court of Appeal handed down its judgment. M's and A's appeals were granted, and F was refused permission. The consequence of the Court of Appeal's judgment was that the orders of Her Honour Judge Finnerty, dated 8 July 2015 and the Order of HHJ Bromilow, dated 26 February 2016 were set aside and the proceedings were remitted to a High Court Judge for fresh consideration, in particular for consideration of the interplay between the wardship and immigration jurisdictions in light of the fact that M and A had both been granted asylum by SSHD.
The Jurisdictional question
Following three days of legal argument I handed down judgment on the 26 th April 2017.
Fact finding: the legal framework
Though the law may properly be described as settled in this area, its application frequently causes debate in the course of submissions. It is necessary therefore to repeat some key principles, not least in order that F, who has appeared in person at this stage of the case, may have an appreciation of the framework in which the allegations are considered.
In Re X (Children) (No.3) [2015] EWHC 3651 at paras. 20–24...
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