Re R (Children: temporary leave to remove from jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Judge Bellamy |
| Judgment Date | 03 March 2014 |
| Neutral Citation | [2014] EWHC 643 (Fam) |
| Court | Family Division |
| Date | 03 March 2014 |
| Docket Number | CASE No VO11PO0226 |
[2014] EWHC 643 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEICESTER DISTRICT REGISTRY
His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
CASE No VO11PO0226
Mr William Tyler for the Applicant mother
Mr Alex Verdan QC for the First Respondent father
Mr Martin Kingerley for the Children's Guardian
The applications before me relate to four children, TR, a boy aged 7, and his three younger sisters LR aged 6, BR aged 4 and JR aged 3. Their parents are CR ('the mother') and DR ('the father'). The mother applies for permission to take all four children on holiday to India for two weeks during the Easter school holidays. The father applies for an increase in his contact with the children.
Background
The mother is aged 26. The father is aged 35. They were married in India in 2005. It was an arranged marriage. The father has lived in England all his life. Until the marriage the mother had spent her life living with her family in India. After the marriage the mother took up residence with her parents-in-law in India whilst the father returned to England. A short while later the mother came to England. She and the father lived at an address in Birmingham which they shared with other members of the father's family.
Over the course of the next five years their four children were born. Sadly, by 2011 the marriage had become unhappy. In May 2011 the mother left the family home taking the children with her. Since their separation the father has continued to live in Birmingham. The mother now lives in Leicester.
Almost immediately after their separation the father made an application to the court for contact. Those proceedings have been ongoing for almost three years. It is unnecessary to chart the history of the litigation. It is sufficient to refer to key events.
The mother alleged that there had been domestic abuse. A direction was made for a finding of fact hearing. That hearing was conducted by His Honour Judge Brown in May 2012. Whilst all domestic abuse is serious, the findings made fall at the lower end of the spectrum of abuse. The judge's findings included findings that one of the father's sisters, G, was controlling, that she had intimidated, belittled and bullied the mother, that she had manhandled the mother, that during her third pregnancy G had pushed her, that LR had been overly chastised by the father, his mother and by G and that the father had also chastised TR.
Judge Brown went on to make residence orders in favour of the mother in respect of all four children. He ordered that the father should have contact with the children, initially at a contact centre but quickly moving to unsupervised contact away from the contact centre. He also ordered that neither parent should remove any of the children from the jurisdiction.
Since the date of that order the court has kept contact under review. Contact has gradually progressed. Contact currently takes place alternate weekends from 10.00am on Saturday until 4.00pm on Sunday and for half of all school holidays. Handover takes place outside a police station close to the mother's home. If this gives the impression that there is increasing trust and co-operation between these parents, that is a false impression. There remains a complete lack of trust. The progression of contact has been court led. There have been steps backward as well as steps forward.
In May 2013, two years after these proceedings began, Judge Brown made the children parties to the proceedings and pursuant to Family Procedure Rules 2010 rule 16.4 appointed an officer of CAFCASS as children's guardian. By then, it was not only contact that remained problematic. The mother had also indicated that she wished to be able to take the children to India to visit her family.
Initially, the mother wished to take the children to India for four weeks in December 2013. For reasons which will become apparent, it was not possible to determine the mother's application in time for that proposed trip. She now wishes to take the children to India for two weeks at Easter. Her application is opposed.
As for contact, the father wishes this to be extended. In particular, he wishes to be able to collect the children from school alternate Fridays and return them to their mother at 6.30pm on Sundays. The mother agrees to contact beginning on Fridays but says that this should be at 7.15pm, after the children have finished attending their madrassa. She does not agree to the children being returned at 6.30pm on Sundays. She says that they should continue to be returned at 4.00pm.
The resolution of the issue relating to contact is straightforward. Resolution of the mother's application to take the children to India is not. It was that application which led to these proceedings being transferred to the High Court.
Expert evidence
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 May 2013 the father received a letter from the Child Abduction Section of the Foreign & Commonwealth Office ('FCO') in London in these terms,
'Thank you for your telephone call today. I am writing to confirm the difficulties we have experienced in cases of parental child abduction to India.
India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The 1980 Hague Convention exists to allow children who have been abducted or wrongfully retained by a parent to be returned to the country where they normally live so that matters of residence and contact can be decided by the courts in that jurisdiction. In cases where a child has been removed from the UK to a country such as India, without such a mechanism in place, a left behind parent will usually have to go through lengthy and costly legal proceedings in the hope of getting their child/children returned to the UK.
The Child Abduction Section also sees many 'child retention' cases in countries without an effective mechanism in place to return children. These are cases in which a child is taken out of the jurisdiction of the UK for a temporary period of time, the dates of this period often incorporated in to a UK court order. The courts in India are under no obligation to uphold a UK court order, just as there is no obligation for the UK courts to uphold any court orders from foreign jurisdictions. With this in mind, a left behind parent would have to employ a legal representative in India to initiate legal proceedings, which can be both costly and distressing.'
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 Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.'
Efforts have been made to obtain expert evidence in this case. Those efforts have been considerable. They have been thwarted by the Legal Aid Agency. It is appropriate, therefore, to examine the history of this particular issue in a little detail.
The applications first came before me on 18 th July 2013. I gave the mother permission to obtain a report from an expert in Indian family law, in particular as to the legal remedies available should the children be retained in India at the end of an authorised visit. I ordered that the costs of the report be borne by the mother, limited to £2,500 plus VAT, and deemed those costs to be 'a reasonable, proportionate and legitimate expense' on the mother's public funding certificate.
The next hearing was on 2 nd September 2013. I was informed that the Legal Aid Agency had refused to grant authority for the instruction of an expert on the basis that the costs of the expert's report should be shared equally. I was invited to reconsider my order. I reaffirmed my earlier order expressly noting that this is properly a sole instruction by the mother, it being her application for permission to remove the children to India, and that the report is necessary in order for the court to determine the mother's application. I listed the application for contested hearing on 30 th October 2013.
By the date of that next hearing the Court of Appeal had handed down its judgment in Re R (A Child) to which I referred earlier. The final paragraph of the judgment makes the point that,
'28. Before leaving this case we wish to draw attention to a real difficulty that seems...
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