XM v XF
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 13 May 2021 |
| Neutral Citation | [2021] EWHC 1279 (Fam) |
| Date | 13 May 2021 |
| Docket Number | Case No: FD20F00017 & FD20P00160 |
| Court | Family Division |
[2021] EWHC 1279 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: FD20F00017 & FD20P00160
Ms Hannah Markham QC (instructed by Expatriate Law) for the applicant mother
Ms Katherine Kelsey (instructed by Birketts Solicitors) for the respondent father
Hearing dates: 29 and 30 March 2021
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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.
The court is concerned with the arrangements for two small children in relation the time they will spend between their two parents' homes in circumstances where those parents are now living separately and apart following the breakdown of their marriage in March last year. On 16 March 2020 the mother, XM, issued an application seeking a number of private law orders. The focus of this hearing has been on the children's living arrangements going forwards. XF, the children's father, is fully engaged in those arrangements. He, too, accepts that court intervention is now necessary because of their inability to agree how to chart an independent way forward. At the centre of the current dispute are two delightful children, L and S, who are now respectively 6 and 3 years old. They are much-loved children and, in turn, it is clear to me that each of the girls has a close and loving relationship with each of their mother and father. The last twelve months have presented particular challenges for each of these parents. The children's passage into their new experience of their parents' separation has undoubtedly impacted upon their emotional wellbeing and sense of security.
I accept what each of the parties told me in terms of their collective wish to resolve these issues in order that they can together move on with their lives on the basis of a structured arrangement which recognises and reflects the needs of their children as they grow and develop over the months and years ahead.
In order to protect the parties', and the family's anonymity, I propose to refer to them in this judgment as “the father” and “the mother”. I do so only for those purposes and not in any way to dilute or obscure their individual personalities which came through clearly as I observed them and listened to their evidence. Each has a great deal to give these children and they clearly take enormous delight from their respective roles as parents.
Background
The family is based in Dubai in the United Arab Emirates. That will remain the position for the foreseeable future since the parties are working parents with careers in that jurisdiction. The father is now 40 years old; the mother is 33. The father told me that they have been in a relationship for some sixteen years. They married in England in July 2012. The father was a serving officer in the British Army at the time. At the end of 2013, they moved to Dubai where the father had found employment in the field of private security services. L was born in 2015 and S three years later in 2018. The mother works in an important role locally as an operations manager. Whilst she took some maternity leave around the births of the children, she is now working full-time. The family is fortunate to have retained their live-out nanny who has been a constant presence in the children's lives.
Difficulties surfaced in the marriage at the end of 2019. It was a difficult time for each of them. The mother suffered a miscarriage in October that year. I accept that was a traumatic loss for both of them. Shortly thereafter, the father became aware of matters which caused him to believe, rightly or wrongly, that she may have been involved in an inappropriate relationship with another man. The first few weeks of 2020 were a significant challenge in terms of the developing dynamic between them as they contemplated a formal separation. In March 2020 the mother issued a petition seeking the dissolution of their marriage. The father accepts that he behaved badly during much of this period and indeed beyond and threatened to expose what he believed to be her infidelity to the local authorities in Dubai. I am satisfied both that he used these implied threats to hurt her and that she was genuinely afraid that any such action on his part might result in the fracture of her relationship with, and ability to care for, their children. The father now admits that his distress at the breakdown of his marriage and its impact on their family life had taken him to a very dark place. He accepts, and I find, that many of his actions were inappropriate at the time. In circumstances where Dubai was also in a state of lockdown, he required the mother to stay overnight in a local hotel. She left the family home after the children had been put to bed and returned in the morning before they awoke. Whether or not they believed that this façade would somehow protect their children from the consequences of what was going on in the home, I accept that their description of the atmosphere within the home as “toxic” was accurate. There is no doubt in my mind that these children will have been affected by the significant tensions between their parents. They were very young children at the time.
The litigation in this jurisdiction was triggered by the issue of the mother's divorce petition. On the same date, she issued proceedings for a raft of orders including a prohibited steps order which prevented the children's removal from Dubai, a non-molestation injunction, and an anti-suit injunction to prevent the father from issuing parallel proceedings in relation to the children in the local courts in Dubai.
Jurisdiction
In terms of jurisdiction, it is agreed that the English court has jurisdiction to deal with all these matters on the following basis:
(i) in relation to the Children Act 1989 from sections 1(1)(a), 2(1)(b)(i) and 2A of the Family Law Act 1986, as interpreted by section 42(2) and the interpretation of those provisions by Moylan LJ in Lachaux v Lachaux [2019] EWCA Civ 738 at paras 97–105, 185 and 187;
(ii) in relation to the Matrimonial Causes Act 1973 on the basis of the parties' domicile; and
(iii) in relation to the Family Law Act 1996 from section 42(2)(b) and section 33(1).
On 16 and 17 March 2020, Judd J made the orders which the mother sought. She was represented on that occasion by Ms Hannah Markham QC who continues to represent her at this hearing. The father was then in person. There is a clear preamble to that order, recorded as a recital, in these terms:
“AND UPON the court recording that the Applicant mother has made it plain through her Counsel that she values the father's relationship with the children, and that nothing in this order is designed to remove him from the family home, or to prevent him from having care of the children.”
That was an important caveat since it recognised that, notwithstanding the complete collapse of their personal relationship, the mother recognised the importance to these children of their relationship with their father. The order which was produced at the conclusion of the second day of that hearing recorded the fact that further discussion between the parties had served to narrow the issues, including the joint appointment of an independent social worker who was to be instructed to assist with the ongoing living arrangements for the children. By that stage, it had been agreed that the mother would move to her own rented property. Recorded on the face of the order is the court's indication that, following that move, it would be beneficial for the children to spend more frequent time with each parent for at least the first month after the move. The “steer” from the court on that occasion was a staged plan which involved a rotation between the two homes “possibly 3/4 then 5/2”.
The mother moved to her current accommodation with the children on 27 April 2020.
The matter was back before the court on 11 May 2020. Orders were made on that occasion by Cohen J. By this stage, the father had instructed Ms Katherine Kelsey of counsel. She has appeared on his behalf for the purposes of this hearing. Mrs Debbie Gaskin, the jointly appointed ISW, was also present. As the order records, the father had already engaged various counselling services in order to address his emotional reaction to the breakdown of the marriage. The court made interim orders under the Children Act 1989 which provided that the children should live with their mother and spend time with their father on the basis of a two-weekly cycle. The “school week” in Dubai runs from Sunday to Thursday. The children's “weekend” started on Thursday afternoon and ended on Saturday evening. The court order provided that in week one, they were to spend three nights on Thursday, Friday and Saturday with their father. In week two, they would spend one night each alternating week on a Wednesday. Handovers were to take place at school with assistance, where necessary, from the children's nanny. Indirect contact through FaceTime or similar was to take place daily between the children and whichever parent they were not with at the time.
That order provided the structure for regular and frequent contact between the children and both parents for the next six months until the...
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