Z (A Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALL,LORD JUSTICE WILSON |
| Judgment Date | 14 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1219 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 August 2006 |
| Docket Number | B4/2006/1754 |
[2006] EWCA Civ 1219
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION, PRINCIPAL REGISTRY
(MR JUSTICE BENNETT)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Wall
Lord Justice Wilson
B4/2006/1754
MS J BAZLEY (instructed by Messrs Bindman & Partners, London WC1X 8QB) appeared on behalf of the Appellant child.
MR M SCOTT-MANDERSON (instructed by Messrs Reynolds Porter Chamberlain, London E1W 1AA) appeared on behalf of the First Respondent father.
MR D HOUSTON (instructed by Messrs Kingsley Napley, London EC1M 4AJ) appeared on behalf of the Second Respondent mother.
Judgement
1. This is an application by M for permission to appeal against an order made by Bennett J on 4 August 2006 in proceedings between her parents, Mr Z and Ms M, to which M was joined by order of the judge made two days earlier on 2 August. The judge's order, which of course was made summarily and at some speed, provided that M should be returned forthwith to Pakistan in the company of her father. However, the judge directed that the return order should not be enforced until 2.00pm on 7 August, which was the date and time at which M was to be handed over to her father. She absented herself from that appointment, and on the same day Sedley LJ directed on the papers that her application for permission to appeal against Bennett J's order (he having refused permission) should be adjourned to today to be heard by the full court, and would in the meantime be stayed. The application is of course unusual because it is made by M herself, albeit that it is supported by her mother.
M is one of three children born to her parents. She has an older sister, H, born on 19 January 1991, she being thus 15. M herself was born on 22 January 1993, so she is 13, and she has a younger brother, A, who was born on 15 March 1997 and is thus 9. This is an international family. The mother, who is 40, is French by origin. The father, who is I think the same age, is a citizen of Pakistan and resident in Pakistan. The parents met in France and they married in France in April 1987. They then continued to live in France for some years and indeed both H and M were born in France. In 1995 the family went to Pakistan, where A was born in 1997. In 1999 the mother converted to Islam, and in September of that year the family came to England. Sadly, the relationship between the parents did not last. There were divorce proceedings in 2000 and 2001. A decree absolute was pronounced in May 2001. The father remarried shortly afterwards to a Pakistani national, and in October the mother married a Sudanese national who was identified by the judge simply by the first name M.
In September 2000 there had been an order in the Slough County Court that the children should live with their mother and have regular contact with father, but in November 2001 the parties reached an agreement, which was endorsed by the Sharia Council in England, that H and M would live with their father, then of course in England, but if he relocated they were to live with him in Pakistan. A was to live with the mother until the age of eight, and thereafter was to be given into the father's care. Arrangements were made for contact. The parents did not use that agreement to govern their future affairs entirely, because in the beginning of 2002 the matter was back before the English High Court. By that stage the mother was planning to relocate to Sudan with her new husband, and indeed she visited Sudan in April 2002 to investigate the circumstances for living and schooling there. She had a child by her husband, H, born on 23 September 2002; but sadly that relationship did not endure either, and the mother and her second husband, M, have subsequently been divorced.
In November 2002 an order was made in the High Court by Mrs Sally Bradley QC, sitting as a Deputy High Court Judge, in which it was agreed as before that A should go into his father's care when he attained the age of eight, and the father should give undertakings to keep mother informed of his whereabouts and to return A after periods of contact. At that stage it appears there was suspicion, so often arising in these cases, that if children were taken out of the jurisdiction they would not be returned or contact given. But the essence of the order made by Mrs Bradley was that the mother could take A to Sudan. The father was given a general permission to take H and M out of the jurisdiction. He was given care and control of those two children and the mother was given care and control of A, and there was of course provision for contact.
The mother relocated to the Sudan in December 2002 but, as I have indicated, it was not a success. In April 2003, in circumstances which I understand to be controversial and which the judge did not investigate, the mother sent A, who was then six, to live with his father in England. Her relationship with her husband broke down shortly after that and was dissolved in July. The mother came back to England in August 2003, but in the same month the father relocated to Pakistan with all three children and that is where he and they have lived ever since.
In January 2004 the mother travelled to Pakistan with H to see the children. She appears to have been there for a little under a month. That, however, was still not the end of the English proceedings, because – I think it may not matter, but the mother I think was concerned about the father having care of A, and she took proceedings in England in September 2004. There was much procedural toing and froing but the outcome, which is of some significance and is recorded in some detail by the judge, was an order made by Pauffley J on 24 June 2005 after all three of the children had been interviewed by the CAFCAS reporting officer. This order, I think, is of some significance in view of the positions taken by the respective parties in relation to it. The children were de-warded. The judge directed that they should live with their father in Pakistan. She made contact orders that the children should come to England to see their mother for a period of six weeks in each year, and those orders were made, as the judge recorded, on the basis of an agreement between the parents that the English court had jurisdiction to make those final orders, that the children would live with their father in Pakistan, that there would be a mirror order, the father should use his best endeavours to obtain such an order and in any event should do so by 24 October 2005. The parents agreed that the children were habitually resident in Pakistan, including during any period of contact with the mother outside Pakistan, and the mother undertook to the judge to return the children to the care of their father at the end of any period of contact. And, pursuant to the protocol between the United Kingdom and Pakistan, the consensus on child abduction, the liaison judge, Thorpe LJ, was to request the assistance of the Pakistani courts to secure the making of residence and contact orders in turn ordered by the English court. That indeed happened, and on 4 May 2006 residence and contact orders were made in the District Court of Lahore in Pakistan which reflect the terms of the orders made by Pauffley J. The District Court in Lahore also directed, as the judge again recorded, that the parties were directed to abide by the order dated 24 June 2005 passed by the judge in the Royal Courts of Justice, Strand, and in case of violation of the set order the affected party:
"shall have right to invoke jurisdiction of this court regarding provisions exclusively falling within the jurisdiction of this court".
There the matter rested until June of this year, when the father came to England with the children for the purposes of contact. He returned to Pakistan, having delivered the children, and it subsequently became apparent that M was expressing a wish to remain in England and not to return to Pakistan with her father at the end of her contact with her mother. The judge records that there were brief telephone discussions between the father and M. Each gave a different version of what had occurred. The mother had not overheard the conversation, and was therefore dependent upon what M had told her. But most importantly, M went to see a well-known London family solicitor, Lady Kathleen Gieve of the equally well-known firm of Bindmans & Co, and as a result of interviews between M and Lady Gieve M applied to be joined to the proceedings already taken by her mother, who was seeking effectively a prohibited steps order enabling her to keep M in the jurisdiction whereas the father was seeking an immediate order that M be returned with him to Pakistan.
Those, then, were the applications which came before the judge. Having joined M to the proceedings, he adjourned the matter for a few days to enable her lawyers to prepare her case, and when the case came before him on 4 August, M was represented by counsel and of course by Lady Gieve. There was in the grounds of appeal a suggestion that M had not been fully or properly heard but, in my judgment very properly, Miss Janet Bazely who appears this afternoon for M has not pursued that argument; and indeed it was not one which in my view would have been sustainable.
So how did the judge approach the task which he had? First of all he dealt with the immediate history from 24 June 2005 onwards. He then went back in time to the history of the family and the movements which they had undertaken, as I have already somewhat crudely summarised. He set out in full the case which M had put to Lady Gieve and which Lady Gieve had set...
To continue reading
Request your trial