Za and Pa v Na
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Rimer,Lord Justice Patten |
| Judgment Date | 26 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1396 |
| Docket Number | Case No: 2012/0825 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 2012 |
[2012] EWCA Civ 1396
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE FAMILY DIVISION
MRS JUSTICE PARKER
FD11P01347
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Rimer
and
Lord Justice Patten
Case No: 2012/0825
Henry Setright QC & Edward Devereux (instructed by Thompson & Co) for the Appellants
Alistair Perkins (instructed by Dawson Cornwell) for the Respondent
Hearing date : 6th July 2012
ZA is the father of four children. He and the children are in Pakistan. PA, his brother, is the second appellant. He is in this jurisdiction and appears to manage the interests of his brother in the London litigation. The respondent to the appeal is their mother, NA, who is also here. The order appealed is that of Mrs Justice Parker dated 20 th February 2012.
The children are A, born 28 th July 2001, I, born 23 rd December 2002, Aq, born 27 th April 2005 and H, born 20 th October 2010.
Family History
The parents are cousins. Their's was an arranged marriage celebrated in Pakistan on the 15 th April 1999. On the 24 th August 2000 the mother arrived in this jurisdiction on a visa. The first three children were born in this jurisdiction. After Aqeel's birth problems in the marriage commenced.
Between 2006 and 2008 the parties lived apart. The husband was in Pakistan where apparently he had an affair. On his return to the marital home the mother asserts that he was verbally and physically abusive to her.
Accordingly, she sought police protection. The husband was arrested but the wife dropped charges under pressure from her family. In the circumstances she sought protection in a refuge until finding accommodation for herself and the children in South East London. Contact arrangements were set up.
On the 13 th October 2009 the wife took the three children to Pakistan for a holiday. They were booked to return on the 3 rd November 2009. However, in Pakistan not only the paternal family but her own pressurised her to reconcile. She did so on the basis that the family would return to England.
Her stay in Pakistan soon became involuntary. The children were entered into local schools against her wishes and her husband removed her passport and the children's passports. The battle for survival intensified when in February 2010 she discovered she was pregnant. She resisted pressure for an abortion. She was threatened with death if she attempted to escape and was repeatedly beaten, threatened and abused by the husband and his family. Her telephone was confiscated and she was not allowed out of the house unaccompanied.
Following the birth of H, the maternal grandfather commenced proceedings to secure the wife's release. The husband commenced custody proceedings. Both sets of proceedings were subsequently withdrawn or dismissed.
On the 15 th May the wife was able to visit her father through the intervention of a group of elders. She recovered her passport and on the 17 th May 2011 she flew to England and returned to the refuge. On the 24 th May 2011, unknown to the wife, the father issued custody proceedings in Pakistan which were not served.
The Proceedings
On the 20 th May 2011 the wife obtained an order on a without notice application from Peter Jackson J for the immediate return of the children. The order was made in wardship beneath a declaration that all four children were habitually resident in this jurisdiction. The order was served on the husband on the 3 rd August 2011.
On the 20 th June 2011 the wife issued an application for a freezing order. Her prospects of enforcement lay in the husband's ownership of two properties in this jurisdiction, one of them co-owned with his brother. On the same day Her Honour Judge Coates repeated the order for immediate return of the children and gave directions in the application for a freezing order. That application was listed before Mrs Justice Eleanor King on the 31 st October 2011 when she made a freezing injunction in relation to the husband's assets within the jurisdiction.
On the 28 th November 2011 directions were given by Her Honour Judge Cahill QC. She continued the freezing injunction and gave directions for a four day hearing to commence on the 14 th February 2012 in order to determine a challenge to jurisdiction raised by solicitors who said that they were instructed on behalf of the husband and seven other members of the paternal family.
Thereafter there have been a number of strategic interventions by the paternal family, their acts of commission or omission being heavily criticised by Mrs Justice Parker in several judgments on various dates in February 2012. This conduct is exemplified by an application made apparently without notice to a District Judge who adjourned the four day fixture commencing before Parker J on the 14 th February.
As to omissions, after the paternal contingent absented themselves on the 15 th February, Parker J directed attendance and when that failed, issued a bench warrant. These machinations were the subject of the judgment delivered by Parker J on the 16 th February.
By her judgment of the 20 th February, Parker J yet again repeated the order for the return of the children. In the course of the hearing she had received the oral evidence of the mother which she had herself tested by strong questioning. In her judgment she made clear findings in support of the order for return.
The paternal family then instructed fresh solicitors who, in turn, instructed Mr Henry Setright QC. They also instructed juniors who shared the preparation of the appellant's notice, one replacing the other before the filing of the notice out of time on the 5 th April 2012.
The wife is pursuing enforcement through sequestration proceedings with which we have not been concerned. We were informed that they are listed for hearing on 13 th July 2012.
It is unnecessary to record applications for permission to appeal earlier orders, all of which were dismissed. The appellant's notice of the 5 th April 2012 supported by a skeleton argument written by Mr Edward Devereux, was ordered to be listed for oral hearing on notice with appeal to follow.
Submissions
Mr Setright and Mr Devereux have mounted a powerful attack on the order of Parker J. Their principal contentions are:—
i) That the judge was wrong in law to hold that H was habitually resident in this jurisdiction. He was conceived and born elsewhere and the first two years of his life had been spent entirely in Pakistan.
ii) The proceedings in Pakistan were first in time. Under principles of comity, alternatively under the lis alibi pendens rule, London should not have claimed and exercised jurisdiction.
iii) The judge disregarded the rule expressed in paragraph five of the Pakistan Protocol.
iv) The judge failed to recognise that the question of jurisdiction was governed by Regulation Brussels II revised. She should have applied not the English concept of habitual residence but the European concept as established in the judgments of the Court of Justice of the EU: Re A (Area of Freedom, Security and Justice) ( C-523/07) (2009) 2 FLR 1 and Mercredi v Chaffe ( C-497/10) (2011) 1 FLR 1293.
Mr Perkins, in presenting the respondent's case, was handicapped by the fact that at a crucial stage public funding was either suspended or withdrawn. Fortunately it was restored in time for Mr Perkins to settle his comprehensive skeleton argument and amplify it with oral submissions. Naturally, Mr Perkins relied strongly on the history and the findings below.
As to the law he submits that this case on its facts is on all fours with the facts in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388 and Parker J rightly followed the path of that authority.
Conclusions
Parker J, having recorded and accepted the mother's story, concluded:—
"The mother's account has been given consistently and it is internally consistent. She was retained against her will, the children were retained against her will and when her son was born in Pakistan this was against her wishes. She wanted to be back in England. Her case is supported by the Pakistan Court documents of 8 th December and is supported by the email from the refuge which summarises the account that she has given me.
I reject entirely the father's account that the mother abandoned the children. Her actions upon arriving in this country are wholly inconsistent with that. She applied to the court very soon after she arrived. Her reaction and demeanour when asked about why she had left the children was wholly inconsistent with abandonment. She explained to me that she had had to get out while she could and then make an application in respect of the children in this jurisdiction. Her case makes absolute sense."
The judge's findings establish that the father is an abductor. By force, threats and coercion he prevented the mother from returning with the three children of the family at the conclusion of the holiday on 3 rd November 2009. The mother was powerless to remedy the situation until she could escape from the prison that the father and his family had created for her.
Were Pakistan a signatory to the 1980 Hague Abduction Convention, on arrival in this jurisdiction she would have been able to initiate an application for a summary return order. As things are her only remedy was the application in wardship within the jurisdiction of habitual residence. Given her vulnerability it would not be realistic to suppose that she could have secured the return of the...
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