RSS Feed

Tag Archives: holman j

That, frankly, hit me like a dart

 

This is an ancillary relief case, in which Holman J was dealing with a disputed application for enforcement of financial orders made by Baker J. The case had run up costs of around £2.2 million.  At the hearing, the wife had given her evidence, and the husband had completed almost all of his evidence in chief.

 

And then, something happened that led Holman J to say the title of this piece.

This morning, the husband was in the course of giving his oral evidence-in-chief. I happened to comment to him how regrettable it was that these parties had not been able to resolve their differences by agreement long ago, before so much costs were incurred, which neither of them can apparently afford to pay. The husband then observed that it was I who had conducted the FDR. That, frankly, hit me like a dart. 

 

Holman J stopped the evidence, to take stock

 

I do not know what the husband might have been planning on going on to say with regard to the course or content of the FDR, for, of course, I immediately stopped him from saying any more. I broke off his evidence altogether whilst I and Mr Chandler, in particular, could take stock of the situation.

 

It was nobody’s fault that this had not been spotted.  The wife was in person, and husband’s counsel had been recently engaged and had huge amounts to deal with. Holman J had not himself spotted it, explaining of course that he had dealt with a huge number of cases in the intervening period.

 

  1. If any of the counsel who had appeared at the FDR were still engaged and appearing at this hearing, I have no doubt that any one or more of them would have flagged up at once that I had conducted the FDR and, accordingly, that I could not conduct this hearing. It also goes without saying that if I, personally, had had the least recollection or appreciation before this case began yesterday morning or, indeed, in its early stages yesterday morning, that I had conducted the FDR, I would have said unhesitatingly and without more ado that I was disqualified from conducting the present hearing and that another judge would have to be identified.
  2. I do not accept any personal responsibility for what has happened. So far as I am aware, there is nothing in any of the highly selective documents that have been prepared for the present hearing which identifies me as having conducted the FDR. As I commented earlier today, in the 18 months or so between the FDR on 15 December 2017 and late July 2019, I have probably conducted hearings in at least 500 cases, some of them long, some of them very short, and not including in that figure the very large number of cases that I consider and adjudicate upon on paper, in particular when sitting in the Administrative Court. So it did not impact upon me for one moment when I embarked upon this hearing that I had conducted the FDR. Frankly, it did not occur to me to enquire whether I had done so, because one is so accustomed to the lawyers for the parties, or the court administration, ensuring, in advance, that cases are not listed before the judge who conducted the FDR.

 

Having taken stock, both the husband and wife were prepared for Holman J, who was nearly half-way through the case to continue and see it through, despite the usual provisions that a Judge who dealt with the FDR plays no part in the later case.

 

(For those who don’t do money cases, an FDR is a Financial Dispute Resolution hearing, and the Judge at that hearing basically gives a steer as to what he or she would do, being able to speak freely because they would not be the Judge at a contested hearing. Sometimes that steer leads to one side or another being willing to compromise and the case settle. Sometimes, as here, it doesn’t and the case still goes on to a fight.   It is a bit like a Settlement Conference. So imagine a Settlement Conference, not working, and then a Care Order is made by another Judge and then later there’s an application for a Recovery Order that accidentally goes before the Judge who does the settlement conference, but it is only mid way through the evidence that this gets discovered )

 

However, Holman J looked carefully at the rules and found that rather than it being the Judge “should” not be involved in any further decisions, the wording was ‘must not’ and that he could not find a basis for allowing it, even with consent, although there was skilful argument that the overriding objective in the Family Procedure Rules might allow such a thing where both sides consented.

 

  1. I have, in the limited time available to me, given very careful and anxious consideration to whether, building upon what Lawrence Collins LJ had said at paragraph 35 and 36 and Goldring LJ had said at paragraph 61, I might hold that the requirement of the rule can be waived by the parties. Whilst in some circumstances at some future date it may be open to the Court of Appeal to develop the jurisprudence in that way, it currently seems to me that it is not open to me to do so. Those observations in those paragraphs are entirely obiter. As I have said, it seems to me that the policy as described by Thorpe LJ in paragraph 26 and his very clear statements in the last two sentences of paragraph 28 simply preclude waiver.
  2. For those reasons, and as it has now emerged (and has been checked and verified) that I did hear the FDR between these two parties on 15 December 2017, I conclude that the mandatory effect of rule 19.7(2) is simply that, as the rule says, I must have no further involvement with this matter at all. Judges have many powers and discretions under rules of court to relax, or even waive altogether, the impact of many rules upon a party or parties. But where a rule says, without discretion, that a judge must not do something, he must not do it. In a sentence, he must obey the law.
  3. For that reason, I propose to bring this hearing now to a complete halt. Anything that I have said during the course of the hearing, including indications that I gave as to the manner in which I intended to deal with some of the applications, are, in my view, complete nullities. This will have to go back to be heard from scratch before another judge on a date just as soon as it can be fixed.

 

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2135.html

 

Shokrollah-Babaee v Shokrollah-Babae [2019] EWHC 2135 (Fam) (25 July 2019)    

Knock knock knocking on Judges’ doors

 

This is a case involving surrogacy – yet another private surrogacy arrangement which unravelled and left a huge wake of ugly disaster behind it.

Re X (a child) no 2 (private surrogacy) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/55.html

 

There’s a part 1 here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/54.html

 

Where Holman J refuses the application of the birth mother to reopen the decision of Her Honour Judge Singleton that the child should remain with the commisioners of the surrogacy arrangement – permission to appeal already having been refused.

 

This case has interest for two reasons, really.  The first is that we hear bad things about MacKenzie Friends from time to time  (for example THIS guy, who acted as a MacKenzie Friend in family proceedings and got the partner in his business, who was also his girlfriend, to write a psychological assessment to benefit his client – said girlfriend was not actually a psychologist – not that it would have been okay if she was, but it compounded things. He’s now in prison.   https://www.lawgazette.co.uk/law/mckenzie-friend-jailed-for-deceit-in-family-court/5058352.article )

 

But I’ve met good, decent MacKenzie Friends, who work damn hard and give valuable assistance to parents who have nowhere else to turn, so it is nice when a High Court Judge gives a good news story about one

There was a strong objection on behalf of the father and mother to Mr Culshaw acting as McKenzie Friend since he, too, is undoubtedly a campaigner, who participated in several of the protests I have mentioned. But many people who are willing and motivated to act as McKenzie Friends are indeed campaigners, and if they were all prevented from doing so on that ground alone, many rather helpless litigants, like the sister in this case, might be left with no effective help or support at all. I wish to record that within the four walls of this courtroom, which is, of course, the extent of my observation of him, Mr Culshaw has acted impeccably and within the proper boundaries of a McKenzie Friend. He has shown respect and courtesy to the court. He has been a model of restraint. He has not sought to become an advocate and nor would I have permitted him to do so, but he has provided visible and obvious help and support to the sister, and he has helped her to formulate sensible and well judged questions.

 

 

The second point of interest is that the birth mother campaigned against Her Honour Judge Singleton’s decision, and did so in creative ways

 

 

  • In August 2015 Her Honour Judge Singleton decided that the child should move from living with the birth mother to living with the father and the mother, and she has done so ever since. The birth mother had changed her mind during the pregnancy and before the birth, and wished to keep and bring up the child herself. There is no doubt that she very bitterly opposed that decision and she has never, at least until this week, accepted that decision. She tried to appeal it. She very actively publicised and campaigned against it online and by protests at the homes of the former Prime Minister, David Cameron, the President of the Family Division, Sir James Munby, the Minister for Children, Edward Timpson, the previous guardian, Alexandra Sayer, and Her Honour Judge Singleton herself. She issued in May 2016 an application, which was before me this week, for the decision and order of August 2015 to be reversed so that the child returned to live with her. After hearing submissions from the birth mother, I summarily dismissed that application for reasons which I gave in my short judgment last Tuesday, 8 November 2016 at [2016] EWFC 54.

 

She was actually convicted of harassing the Judge, which shows the extent of her behaviour, since Judges don’t make complaints to the police lightly.

Mr Justice Holman discussed that the original Judge had wanted there to be some direct contact between the child and the birth mother, and that he wanted to open the door to that, despite the campaigning, which had clearly crossed the line

 

    1. Like Judge Singleton in August 2015, Mr Sanders does consider that it is in the best interests of the child to have some direct contact with her birth mother and her sister, provided that can be done without destabilising the child or destabilising the father and the mother. I agree with Mr Sanders. He has generously offered to engage in a very active way in this case for at least a year under the provisions of a family assistance order, and with his help the very detailed provisions of the order have been negotiated.
    2. The birth mother has repeatedly said during this hearing that she now absolutely accepts that the child will live with the father and the mother. She has said that she will stop the protesting and campaigning, and will abide by all the detailed provisions of the order.
    3. The father and mother clearly remain very sceptical about that. They both said in evidence yesterday that they remain very scared of what the birth mother may do. They say that if she can campaign with the intensity that she has, including by placing so much material online and by protesting at the homes of so many people, several of them quite unconnected with the case, they cannot have any confidence that she will not carry the campaign to their own home or into the course and content of any contact.
    4. I perfectly understand their position, but I do believe that this hearing has offered an opportunity – albeit only a start – for each side to this dispute to begin to have a greater appreciation and acceptance of the other. All parties have expressed their confidence in Mr Sanders, and said that they will engage with him and move contact forward in line with his recommendations and plan, and with his assistance. In my view it would do a great disservice to the longer term needs and welfare of the child to cut out now any further direct contact with her birth family, for the reason only of the events, however destabilising, of the last year or so.
    5. For these reasons I will make an order in the very detailed terms and conditions which have been drafted, which essentially provides for two occasions of supervised direct contact each year between the child and her birth mother and, on quite separate occasions, her sister, together with forms of indirect contact in the intervening periods.
    6. There are very detailed terms and conditions and “rules” which all parties clearly understand and must adhere to. The birth mother in particular must understand that this is a last chance. She is, of course, entitled in a free society to campaign and to protest, provided she does not break the criminal law. But if she does do so again, the pressure that that puts upon the father and mother will be just too great, and inevitably all the contact which I have so painstakingly striven to promote this week will be jeopardised, probably for ever. I sincerely hope that these long, painful and rather exhausting few days can represent a new beginning, from which all parties can move forward and begin to work together in the best interests of this child whom they all undoubtedly love very dearly.

 

 

I hope it works out for all of them.

 

Woman kept in a cage

 

This case, involving an 18 year old woman who had lived in England until she was nearly 17 and then went to live with her father in Saudi Arabia, attracted a lot of press attention – the headline of this piece is how it was portrayed in a lot of the Press coverage. The story was that this woman was locked up by her father, to keep her away from men, and was locked up in a cage – the High Court made orders that she be released (although with an acknowledgment that there was nothing the English Court could do if the father didn’t comply)

 

The case is now reported, so we can see the facts.  Al Jeffery v Al Jeffery (Vulnerable Adult : British Citizen) 2016

 

Not "JEFFREY"  - Al-Jeffrey (But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don't use gavels)

Not “JEFFREY” – Al-Jeffrey
(But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don’t use gavels)

 

 

(Let’s be honest, when the other members of Rainbow zipped up Zippy’s mouth, it is hard not to see that as a deprivation of Zippy’s liberty)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2151.html

 

In a similar way to the “woman who sparkled” case, once again, the Press don’t come out of it too well – they had access to this information, and of course used it to doorstep the woman’s relatives. Stay classy, San Diego.

 

I am aware that this has led to considerable publicity in print and online, much of it under a headline “Woman kept in a cage” or words to that effect, the accuracy of which I will later address. I was told (and if it is true, I regret it) that this led in turn to press harassing members of the family in Wales

 

The ‘cage’ element is obviously the major motif of the story,  but there is perhaps more to that than one might think from the Press coverage

 

 

The “cage”

 

  • I refer under a discrete heading to the issue of a “cage” because I am aware that this has given rise to some rather sensational headlines in the media. Further, in two national newspapers last Saturday (it may have been in more) I myself saw large colour pictures of the photograph now at bundle p.C84. It is the case that Amina herself has referred to her being kept “in a cage” or “in a massive cage”. This may have led headline writers and/or their readers to visualise that she was being kept actually in a cuboid cage of the type that an animal might be kept in with some form of bars all around and on top of it. That is not what happened; and the purpose of this section of this judgment is to create some objectivity and proportionality, and to describe as best I can what appears actually to have happened. I stress, however, that I have not heard any oral evidence and I have only seen the two photographs at pp.C84 and 85.
  • Within the father’s flat there were two vertical barred panels. One, now seen at p.84, is yellow. It is a large metal framework of bars upon which is affixed, probably by welding, a metal diamond shaped lattice grille. Each diamond shape in the lattice is smaller than an adult hand. It is the sort of security structure that could be fixed over windows or doors to prevent entry, or could be used as a security partition in, for instance, a store room. It is a form of caging, but not itself a cage. The other, now seen at p.C85, is, in the photograph, a mid-brown colour. It is roughly the size and shape of a full height vertical door. It consists of a hinged metal frame with metal vertical bars through which an adult could not squeeze. It is the sort of security structure that is occasionally seen as an added security door or gate outside a front door, or could be used as a security door or gate in a corridor. It, too, is caging, but not itself a cage.
  • The father admits that both these structures were affixed within his flat. He says through Mr. Scott-Manderson that the yellow lattice grille is simply affixed over external windows to prevent Amina from shouting out to the street below, the flat being on the fourth floor. From the appearance in the photograph at p.84 I am sceptical about this. Amina herself is in the foreground, with the grille beyond her, so the windows could not be in the foreground but off the photograph. Beyond the grille there does, indeed, appear to be a wooden framework which appears to contain glass panes, but they do not have the appearance of external windows. They do have the appearance of an internal glazed screen or partition, like a “room divider”. I say that, because it appears from the photograph that in part of the area beyond the grille there is a hanging cupboard or something similar, and above that the appearance of artificial electric light shining through from beyond. The father says that the glass panes are, indeed, external windows and that the light is merely a reflection from a light within the room. The father says that the purpose of the brown barred door or gate seen at p.C85 was, indeed, to restrict Amina’s access to parts of the flat, including the front door, but that it was removed several months ago. He describes it as a “barrier partition”.
  • On the father’s own account, the purpose of both these structures was to restrict Amina, whether from access to parts of the flat and the front door, or from simply looking or calling out of the window. Further, the father does admit that when he himself leaves the flat to go to his part time work he does lock her in. I conclude that Amina was not literally in a cage, but that her freedom of movement was, and is, admittedly constrained in a way that I would regard as severe, having regard to her age and full capacity. She was, and, so far as I am aware, still is, deprived of her liberty and could be described as “caged”, although not “in a cage”.

 

 

It reads more as being in a room that had a barred window and that she was not permitted to leave the home and had very restricted access to the outside world – as Holman J says, she was deprived of her liberty and could be described as being caged, but she was not ‘in a cage’

 

[Google image has let me down here – I really wanted a picture of Andromeda from Clash of the Titans (1981) in her gilded cage that Calibos was keeping her in.  With a vulture jailer, no less, who would pick up the cage in his beak and carry her off… But no joy. Bah. Anyway, here’s a picture of her as she is awaiting for Poseidon to “UNLEASH THE KRAKEN”  and her liberty is definitely being deprived]

 

There was no doubt in my mind aged 11 that I wanted to rescue this lady

There was no doubt in my mind aged 11 that I wanted to rescue this lady

 

The Judge had made as part of his order that the father must allow his daughter to speak to her solicitor in confidence to provide instructions. That did not happen

 

 

  • Notwithstanding the father’s position as recited in the order and summarised above, the order made three orders, each qualified as being “without prejudice to the issue of jurisdiction”: [i] continuing forced marriage protection orders; [ii] for the immediate return of Amina to England and Wales; and [iii] directing the father to make Amina available for an interview at the British Consulate prior to the fact finding hearing. By the time of the next directions hearing on 5 July 2016, Amina and the father were represented respectively by Mr. Henry Setright QC and Mr. Marcus Scott-Manderson QC who represent them again at this hearing. The order recited that the court had determined that “arrangements must be made for [Amina] to give instructions without fetter or any perception of fetter to her solicitors privately and confidentially” at the British Consulate in Jeddah. Paragraph 15 of the order itself ordered the father to facilitate the attendance of Amina at the consulate “… in order to enable her to speak privately and confidentially to her solicitors from those premises, for the purpose of giving instructions for, and approving, the statement” which another part of the same order ordered Amina to file and serve. I will for convenience refer to that particular provision of the order with regard to attendance at the consulate as “the paragraph 15 order”. Overarchingly, the order of 5 July repeated by reference the order to cause the immediate return of Amina to England and Wales.
  • The father has not returned Amina to England and Wales and has not complied with the paragraph 15 order. As a result, Miss Hutchinson has not been able to speak privately and confidentially and without fetter or any perception of fetter to Amina, and she has not in fact been able to communicate at all with Amina since June 2016. As to the father’s non-compliance, Mr. Scott-Manderson said at the hearing that:

 

“The father consciously decided in breach of paragraph 15 not to take her to, or make her available at, the consulate, although he knew all the detailed arrangements which had been made and no excuse or explanation (e.g. ill health, car breakdown etc.) is put forward. There is an impasse.”

The result was that the fact finding element of the hearing which had been fixed for last week was completely ineffective. Mr. Setright and Miss Hutchinson have no recent instructions from their client. They have no “proof of evidence” from her. They have been unable to take her through, or seek her instructions upon, the several statements and exhibits filed by or on behalf of the father. And, of course, they have been unable to prepare any statement from her. The father did, as required by another paragraph of the order of 5 July 2016, take Amina to the Hilton Hotel in Jeddah last Monday at the start of the hearing, from which evidence was to be given by each of them by video link (or, as I was told on the day, by Skype) to the Royal Courts of Justice. However, Mr. Setright was, in my view quite rightly, unwilling to embark on any consideration of oral evidence in those circumstances. It is elementary that a client is not, as it were, put into the witness box blind. It is elementary that an advocate does not cross-examine without having his own client’s instructions as to what the case is. There were in any event no safeguards of any kind as to the circumstances of Amina in the hotel or what pressures, influence or “fetter” she might be under. For these reasons, too, I myself would in any event have been quite unwilling to embark upon the projected “fact finding” exercise.

 

  • I wish, therefore, to make crystal clear that the reason I did not, and could not, embark upon the “fact finding” that had been scheduled for this hearing was, and is, entirely because of the conscious decision of the father not to comply with the paragraph 15 order. It is his responsibility, not mine, that I am impelled to decide the outcome of this hearing on a consideration of the documents, untested and un-supplemented by any oral evidence. Precisely because that evidence is lacking, I do not by this judgment make any considered judicial finding as to any of the disputed facts. I merely record them, although I must comment upon them.
  • Although the father consciously did not comply with the paragraph 15 order, with its more rigorous terms and safeguards and the express purpose of enabling unfettered communication with Miss Hutchinson, he had complied with the earlier order of 12 May to the extent of permitting Amina to have a meeting at the Hilton Hotel in Jeddah with a British consular representative, Amna Ghulam. The father personally was not in the room. However, he insisted on a lady being present who has been described during the hearing as “the father’s representative”. That lady made a note, which has since been typed up in English and is now at bundle p.C165, and she has made a statement that her note is accurate. In view of para.6(b) of the order of 5 July 2016, I will omit parts which make or include allegations against individuals other than the father who is now the sole respondent to these proceedings, but the note requires to be read in full by any court subsequently engaged in this case.

 

“Note: Amina appears dishevelled, strangely unlike her sister covered with a niqab. She appears to have written ‘kill’ or ‘killing’ on her right wrist with blue ink and red or pink ink.

When asked what were her (Amina’s) future plans, if she wanted to stay in Saudi Arabia or if she wanted to leave the country, Amina responded that she would like to leave the country but her family are not allowing her to leave.

Amina stated that she has been locked up in her room for over a year.

Amina stated whilst the British court case is continuing in the UK her family have informed her that she will only get her freedom (study and work) only after the case in the UK closes.

… Since [she dropped the last case] Amina stated she was abused and locked up, which is why she would like to return to the UK.

When asked why is her older sister allowed to have a phone and she is dressed well and not covered, Amina responded that two years ago she kissed a guy (in KAUST [a university in Saudi Arabia]) who proposed to her twice but her family refused him.

Amina stated her family manipulated her younger sister even before she came to Saudi Arabia that Amina is an evil girl and that she should not speak to Amina. Amina continued to say that when her younger sister came to Saudi she already had a bad image of [Amina] but when she came to Saudi Arabia she found a locked up girl with a shaved head.

… [Her father] is the one who locks me up. And the reason for that is because she had kissed a guy two years ago.

Amina was asked if she is still locked up. She responded that the metal bars are no longer in her room but she is still locked up in the house and she is not allowed to use the phone or internet.

… Amina confirmed that the reason why she ran away and build a case … is because she wants to study, work and get married.

When asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible …

When asked why she chose to come back and live with her family after running away and not choose the shelter, Amina responded that she did not have the choice, the police threatened her with jail if she did not return to her father. She continued to say that her father has the choice to take her to prison and that he always threatens her with it, she also added that the Saudi police advised her father to take her to prison after hearing what she did.

Amina stated that she would like to inform the judge that she is put in a difficult situation because she will get in trouble with her family if the case does not end. But at the same time she does not trust her family.

When asked to clarify what she wanted, Amina responded that her family wants her to say that she lied about her accusations. She stated that it is not true. And that the judge should know that she is not lying. Amina is afraid that if the case continues her father will continue to hit her.

When asked if her father still hits her Amina responded yes. She stated that her father recently threatened her that if she decides to leave he would take action against her.

Amina continued to say that her father pretends to be cooperative with the Saudi authorities, she stated that he once informed a Saudi judge that if she wanted to complain about him he would take her to the police himself. Amina stated that she had asked her father to take her to the police station after he hit her and strangled her, but he refused.

When asked again if her father hits her, Amina responded yes …

Amina is afraid for her safety if she cannot leave Saudi Arabia. She asked that the court would allow the British Embassy to check up on her every month … She also stated that [she was] prevented from going to the bathroom for one month, she was forced to urinate in a cup. She stated that she would get punished when she used her room as a toilet.

Amina requested to speak with her lawyer.

By the end of the meeting Amina had a phone conversation with her lawyer in the UK.

A note was passed under the table to the British representative.”

 

  • The conversation with the lawyer in the UK was not with Miss Hutchinson but with her assistant, Mrs. Wendy Ramus. I do not know what was said, being privileged, but in any event it was not the private, confidential and lengthy opportunity to take instructions without fetter which the later paragraph 15 order required. The consular representative, Amna Ghulam, with whom the meeting took place, has supplied to Miss Hutchinson by email her own account of the meeting. The existence of the email has been disclosed to the court and to the father’s lawyers but the contents are stated by Mr. Setright to be privileged, as the intended purpose of the meeting (thwarted by the presence of the father’s representative) had been to provide a conduit for information and instructions from Amina to her solicitor, and her lawyers here (who cannot obtain her instructions) do not consider that they can, or should, waive the privilege. As the father’s representative’s note was, of course, prepared in the first instance for the father, I do not know what else may have been said which the father’s representative decided not to record. Mr. Setright indicated in veiled terms, but in open court, that Amina’s team consider that Amina could be at heightened risk if her father saw the consular representative’s own email. The note of the father’s representative refers at the end to “a note was passed under the table to the British representative”. As I understand it, that note has not itself been transmitted here to London. Photo shots of it made by a mobile phone have been. They are apparently hard to decipher, but in any event Mr. Setright asserts that similar considerations apply to it as to the consular representative’s own email record and they claim privilege. I have not seen it and I do not know what it says.

 

 

Far from what was needed, which was the chance for this woman to talk in private with her lawyers, to be able to speak freely and to obtain advice.

 

It was a very difficult scenario. On the one hand, the Court was looking at someone who was an adult living in another country – a country where rules and law and customs are not exactly the same as ours and the potential of interfering with that sovereign state, and on the other there was a British citizen crying out for help and no prospect of it arriving if the English Courts did not intervene.

 

Discretion

 

  • The question now is whether, in my judicial discretion, I should actually exercise jurisdiction and make an order and, if so, what order. I have, indeed, approached this case with very great caution and circumspection. I have had firmly in mind from first to last the risk of exorbitance. Caution and circumspection obviously do not depend on the length of hearing alone, but I did hear this case over four long days, during which I heard sustained argument from very experienced leading counsel. I have had very considerable “thinking time”, both during the hearing and since, while preparing this judgment. I have in fact moved during the course of the hearing from a starting position in which I openly expressed extreme doubt and reservation whether I should actually exercise a discretion to make an order, to the position (which, anticipating the outcome, I now disclose) that I should do so. In my view, the admitted or core facts of this case all point to Amina being under a constraint from her father which, having regard to her age, is severe. Her father admits to locking her in the flat for several hours when he goes out. He admits that until recently the barred door in the photograph at p.C85 was in position, restricting her access to parts of the flat, including the kitchen. He admits that the yellow grille at p.C84 is still in place, and although he says that its purpose is only to prevent her from shouting out of the window, that in itself is a constraint upon her means of communication with the outside world. As I explained at para.33 above, I am sceptical that that grille is not in fact restricting her movement within the flat as well.
  • I agree with Mr. Setright that the terms of the document of the Saudi Arabian court dated 12 April 2016 at bundle p.D12 themselves indicate a person under severe constraint. Although now aged 21, she undertakes not to challenge her father’s authority over all her affairs and not to leave the house without his permission. The father’s own evidence in para.15 of his statement dated 16 June 2016 is that if she were to run away, the police, far from offering her protection from her father, would put her in prison. The very recent events in this case, and the father’s refusal to comply with para.15 and to allow Amina even to have unrestricted confidential and secure access to her consul and her own solicitor, vividly illustrate and underline the degree of continuing control and constraint being exercised. Overarchingly, she is under constraint if, at the age of 21, she wishes to leave Saudi Arabia, whether to travel to Britain or anywhere else, and is being prevented by her father from doing so.
  • In all these ways, Amina is disabled from functioning as an independent adult, not merely just out of childhood at the age of 18, but already aged 21. Amina is a citizen of Saudi Arabia. These constraints may be acceptable and even the norm under the law and culture of Saudi Arabia. But she is also a British citizen, and under the law and culture of Britain they are not. They are, indeed, totally unacceptable, and do represent in the words of Munby J in Re SA “… some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do”. If Amina chooses voluntarily to remain in Saudi Arabia, of which she is a citizen, she must, of course, respect and adhere to the law and culture of that society. But the current constraint is denying to her the right to choose to be British and to live in Britain and to respect, adhere to and be regulated by the law and culture of British society. It is true that she is currently present and habitually resident in Saudi Arabia, but that results from her obedience to the will of her father in 2012. It is accepted that she did not travel there voluntarily and of her own free will.
  • In my view, the current circumstances are such that this British person does require protection, in the language of Lady Hale and Lord Toulson in Re B at para.60; and she is currently in a peril from which she requires to be “rescued”, in the language of Lord Sumption in that case at para.87. Nevertheless, I must exercise great caution and not be exorbitant. There are other factors which weigh in favour of exercising jurisdiction. They include that not only is she British, but she was born and brought up and educated in Britain until the age of almost 17. This is a very significant factor. I would take a very different view of this case if Amina had been born and lived her whole life in Saudi Arabia but happened to be British by descent. Her mother and several of her siblings currently still live in Britain and, although she may be estranged from them, their presence here still indicates the continuing connections between this family and Britain.
  • However, there are also powerful factors which militate against exercising jurisdiction. Her father is Saudi and Saudi alone. She herself has dual nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws done at the Hague on 12 April 1930 provides at Article 4 that “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. Britain is a signatory to that Convention, although Saudi Arabia is not. The view of the British Government, expressed in para.3.2 of its Home Office Nationality Instructions, is that:

 

“Commonly known as the ‘Master Nationality Rule’, the practical effect of this Article [viz Article 4] is that where a person is a national of, for example, two States (A and B), and is in the territory of State A, then State B has no right to claim that person as its national or to intervene on that person’s behalf …”

This may in part explain the position taken by the Foreign and Commonwealth Office in their letter of 14 December 2015 that “Amina is a dual national … there is little that we can do to assist her”. But I am being asked to make an order against the father personally. I am not being asked to “afford diplomatic protection” or in any way to act “against” the State of Saudi Arabia in the language of Article 4, and there is no question of my doing so. In any event, in Re A the child concerned had dual British and Pakistani nationality and that was not suggested by the judgment of Baroness Hale to represent an obstacle to the exercise of jurisdiction, save to the extent that dual nationality was one of the considerations which had been raised by Mr. Setright and referred to in para.64.

 

  • The fact that Amina is present and habitually resident in Saudi Arabia undoubtedly militates against the exercise of jurisdiction, but is tempered in this case by the circumstances in which she came to be there: her father’s insistence and command, from which she has since been unable to escape. In Re B at para.59 Lady Hale and Lord Toulson identified “three main reasons” for caution when deciding whether to exercise jurisdiction. First, that to do so may conflict with the jurisdictional scheme applicable between the countries in question. There is no jurisdictional scheme between Britain, or Wales and England and Saudi Arabia. Second, that it may result in conflicting decisions in the two countries. In view of the proceedings in Saudi Arabia in April 2016, this is, of course, a weighty consideration in the present case. As I understand it, however, the “decision” in the Saudi court in April was not so much a decision imposed by the court in the exercise of its own judgment; rather, it was that court expressing its approval of that which the parties themselves had agreed. Whilst Mr. Scott-Manderson argues that Amina’s more appropriate remedy is to make some application of her own to that court, her ability freely to gain access to that court may itself be limited by the constraints, and she certainly has no means with which to fund a lawyer. Further, I regret that I lack confidence that that court would permit and enforce against the father that she is able to return to Britain, since Saudi Arabia does not recognise dual nationality. The court might not, therefore, recognise what might be the fundamental basis of her application, namely her British nationality.
  • The third reason identified by Lady Hale and Lord Toulson is that it may result in unenforceable orders. In relation to that reason, they said on the facts of that case that “it is possible that there are steps which an English court could take to persuade the respondent to obey the order”, although, so far as I am aware, those steps were not further identified. Enforcement is undoubtedly a significant issue in the present case. Generally, courts do not make orders which they cannot effectively enforce, although almost daily judges of the Family Division do just that in relation to children who have been abducted to countries which are not parties to the Hague Convention on the civil aspects of international child abduction. I accept that there is little or nothing that this court could do to enforce against the father in Saudi Arabia any order which it may make if he was determined not to obey or comply with it. There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality.
  • The father has no assets here of which I am aware, unlike in the case of Re B (see para.21 of the judgment of Parker J at [2013] EWHC 3298 (Fam) at the remitted hearing), but that does not preclude the persuasive force of an order, particularly one made after a very full and thorough hearing in which, although not personally present, the father engaged and fully participated and was fully heard throughout. The situation that will pertain after this judgment is very different from the situation that pertained under the earlier orders, many of which were expressed to be “without prejudice to the issue of jurisdiction”. By this judgment the issue of jurisdiction has been resolved. Further, the father himself voluntarily chose to live for many years in Wales; to educate and to bring his children up here; and to subject himself to both the protection of, and the constraints of, the laws of Wales and England and the legal system of Wales and England. His wife, from whom he is not estranged, and several of his children continue to live here. He may later, if not sooner, wish or have reason to visit Wales or England again, but he could not safely do so if he remained in breach of a significant order of this court, for he would be liable to be punished (if still in breach) for his continuing contempt of court.
  • For all these reasons, I consider that, although the father may ultimately decide to defy any order I make, this court does have considerable moral and also practical “hold” over him. There is no reason why I should assume or suppose that he will not obey any proportionate order which I may make; and I consider that I should proceed on the assumption that he will obey it.
  • There is one further factor to which I should refer. In Re A at para.65(vi) Baroness Hale referred to the absence of any enquiry being made about how the children in that case were. In Re B at para.86 Lord Sumption referred, rather similarly, to an independent assessment of the situation of the child abroad and said “unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country”. This led Mr. Scott-Manderson to submit that, before making any stronger order, this court should first direct or request some similar assessment of Amina by some appropriate authority in Saudi Arabia. There is, however, the significant difference that Re B concerned a child aged seven by the time of the hearing in the Supreme Court who could not speak for herself. The present case concerns an adult aged 21 who (subject to the constraints) can and does.
  • Balancing all these considerations, I have come slowly and cautiously, but ultimately very firmly, to the conclusion that I should exercise the jurisdiction and should make such orders as I can to protect Amina. If citizenship means anything at all, it does include the right to seek help and protection and, weighing all those factors, I should not deny help and protection to Amina. To do nothing at all would, in my view, amount to a dereliction towards Amina and in effect just giving up on her.

 

What order?

 

  • The next and final question is what order I should actually make. There was much discussion during the hearing about my simply repeating an order in the terms of para.15, hoping that now that a full hearing has occurred the father would permit a private meeting to take place at the consulate. He has, however, persisted in his position that he will not do so unless the Foreign and Commonwealth Office give a prior written assurance that if Amina were to seek diplomatic protection or “sanctuary” in the consulate, the consulate would not give it to her, but would hand her over to the Saudi authorities of the Ministry of the Interior. I see little point or purpose in repeating a para.15 order. Its main purpose when made on 4 July was to enable instructions to be taken from Amina so that a detailed up to date statement could be prepared for her, and an effective fact finding hearing could take place. That having been thwarted by the father, I am not now willing to set up another projected fact finding hearing in inevitably several months’ time. There has been far too much delay already in proceedings which ultimately concern liberty and which were commenced now almost eight months ago last December.
  • There has also, incidentally, been far too much expense. I was told by Mr. Setright that the costs and disbursements of Amina, all funded by English legal aid, are already of the order of £50,000. The litigation has not yet cost the father personally anything, since his costs and disbursements are apparently all being funded by or through the Saudi Arabian Embassy, although he may be required later to repay them.
  • In my view, I should, rather, move directly now to an order against the father personally that he must permit and facilitate the return of Amina, if she so wishes, to Wales or England and pay the air fare. He must at once make freely available to her both her British and her Saudi Arabian passports. She needs the former to enable her freely to enter Britain. She needs the latter to enable her freely to re-enter Saudi Arabia if later she wishes to return there for any purpose. I will specify the date by which Amina must be enabled to return as Sunday 11 September 2016. That allows about five and a half weeks for the father to reflect on this judgment and to make orderly arrangements. I myself will be sitting again here at the Royal Courts of Justice from Monday 12 September 2016, and very shortly after that date this case must be listed again before me. If Amina is, indeed, here, she must attend and I will decide what further orders, if any, should be made. If she is not here, I will similarly decide what further orders should be made or action taken.
  • As I require Amina personally to attend, that hearing will, in the first instance, be listed in private so she is not initially burdened by the presence of the media. However, at or before the conclusion of the hearing I will in some way (by judgment or by a statement) inform the public and any interested representatives of the media the gist of what has occurred between now and then. I wish to make crystal clear that, apart from requiring her attendance before me at that hearing, if she has indeed voluntarily returned to Wales and England, I do not make any order whatsoever against Amina herself. The purpose is not to order her to do anything at all. Rather, it is to create conditions in which she, as an adult of full capacity, can exercise and implement her own independent free will and freedom of choice. To that end, I will give further consideration with counsel after this judgment to what mechanism can now be established to enable her freely to state, if that be her own free decision and choice, that she does not now wish to avail herself of the opportunity provided by my decision and this order to return to Wales or England.
  • I conclude this judgment by expressing my sincere thanks to Mr. Setright QC and his junior counsel Mr. Michael Gration, and to Mr. Scott-Manderson QC for their sustained and distinguished written and oral arguments in this case; and to the solicitors on both sides who instruct them.

 

 

FGM and future risk

The Independent recently reported that there had been more than 1,200 reported cases of FGM (Female Genital Mutilation) in 3 months. More than 2 per cent – about 24 cases, were on children.

http://www.independent.co.uk/life-style/health-and-families/health-news/more-than-1200-cases-of-fgm-recorded-in-england-in-just-three-months-a7069901.html

 

I don’t think the caption under the photograph is correct – I think they could accurately say “no successful prosecution” because we already know about THIS

http://www.theguardian.com/society/2015/feb/04/first-female-genital-mutilation-prosecution-dhanuson-dharmasena-fgm

 

 

In the High Court, Holman J had to deal with an application to make 3 children wards of Court and for orders under the Female Genital Mutilation Act 2003.

Buckinghamshire County Council v MA and Another 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1338.html

 

 

  • The parents are both Somali who were brought up in Somalia. The father travelled to Britain as a refugee in 2002 and has lived here ever since. The mother, as his wife, was enabled to join him here in 2005. She also has lived here ever since then. The parents have altogether seven children, of whom five are daughters and two are sons. Three of those children were born here in England after the mother arrived here in 2005. The eldest four were all born in Somalia.
  • It is a fact that the two eldest daughters have been subjected to female genital mutilation in Somalia. That must necessarily have been over ten years ago. The father says that it took place without his knowledge, let alone his consent, in the period after he had travelled to Britain, whilst the mother and the four eldest children were still living in Somalia.

 

That leaves three daughters who have not been subject to FGM, and of course everyone wants to ensure that this doesn’t happen. Given that it happened in Somalia to their two older sisters, there’s some sort of risk there.

 

If the family were intending to visit Somalia on holiday, that’s going to make professionals anxious. Of course one has to properly take into account that (a) The father says the FGM to his two eldest daughters took place without his knowledge or consent, and in fact whilst he was in England, (b) The family were living in Somalia at the time, where FGM does happen and is not viewed in anything like the same way that it is in the UK and (c) It was at least eleven years ago, and the family have been living in the UK since that time and have probably acquired a greater understanding of the cultural norms of the UK and why FGM is considered to be not only abusive but a criminal act.

 

 

  • Over the last several years the family have lived in the area of several different local authorities. There is clearly a history here of different local authorities at various times having acute concerns that the youngest three daughters might similarly become the victims of female genital mutilation. As a result, there were proceedings in 2012 and 2014 and again this year. It is said that the consequence of a rather last minute application by another local authority in 2014 was that the mother and children were unable at the last minute to travel on a planned holiday to Somalia. If that was the necessary and inevitable consequence, it is obviously a matter of the utmost regret; the more so as, before the actual booked date of travel, a judge sitting as a High Court Judge had given permission to go.
  • What gave rise to the current proceedings was that in early April 2016 Buckinghamshire County Council learned that the mother and two of the daughters, together with one of the sons, had travelled to Somalia without their prior knowledge, even though at that time there was quite considerable engagement between the family and that local authority. This resulted in a without notice order being made on 8th April 2016 and these proceedings ultimately coming before myself on notice here today.
  • Later in April the mother and children did duly return from Somalia. The two daughters who had been there were medically examined, and there was no evidence or indication of any genital mutilation or other interference with their genitalia. The result is that today Buckinghamshire County Council have proposed and sought that all the proceedings which they commenced last month should be dismissed or otherwise discontinued or brought to an end, and all current orders of a continuing nature discharged. I have been expressly told today by Ms. Mehvish Chaudhry, who appears on behalf of Buckinghamshire County Council, that in the opinion of Buckinghamshire County Council there is currently a low risk of any of the three youngest daughters being subjected to female genital mutilation.

 

So, what happens the next time the family want to go to Somalia? Are they stopped by Court orders, as happened in 2014? Or do they go without the knowledge of the Local Authority, as happened in 2016 (with no adverse consequences)?

 

Counsel for the parents was keen for the Court to deliver a judgment on what the future risk of FGM for this family was. Having travelled to Somalia with no incident, was it right for the prospect of Court applications every time they wanted to visit Somalia to see family to be hanging over them? Or conversely, given that two children in the family have been mutilated in Somalia, is it right that the three daughters should have that protection of only going to Somalia if a Court seized of all the facts felt it was safe for them to do so?

 

 

  • Mr Alistair Perkins, who appears on behalf of both parents today, has urged that there should nevertheless be a “fact finding” hearing at which the court should consider and give a suitably detailed and analytical judgment as to whether there is any future risk of any of these three daughters being subjected to female genital mutilation. He stresses that this is now the third set of proceedings in relation to this issue, and that the proceedings in 2014, in particular, had the undesirable consequence (it is claimed) that the planned travel of the mother and children to Somalia was aborted. He submits that unless there is a fully reasoned judgment after hearing oral evidence there is a risk that there will be yet further future sets of proceedings of this kind. Whilst I do have considerable sympathy with these parents and with that argument and submission of Mr Perkins, it seems to me that a so-called “fact finding” hearing cannot really achieve the finality from any future legal proceedings that Mr Perkins seeks.
  • The issue in this case does not relate essentially to past facts, but to future risk. The headline past facts can be very shortly stated. The two eldest daughters did undergo female genital mutilation in Somalia. The three youngest daughters have now travelled on one occasion to Somalia for a fortnight last month and have not ever been subjected to genital mutilation. It would, of course, be open to a court to hear at a little length from each parent about their attitudes to female genital mutilation and their future intentions. A court might indeed conclude, as the local authority already have done, that there is only “low risk” of future female genital mutilation. But it seems to me that no court could ever responsibly, on the facts and in the circumstances of this case, rule out altogether any risk of female genital mutilation. The inescapable fact is that, whilst in Somalia, two of the daughters in this family were genitally mutilated. So it does not seem to me that the parents could realistically ever achieve some fact finding judgment that rules out altogether any future risk of genital mutilation.
  • The inescapable fact is that if, on some future date, on some future facts, a local authority with a proper interest in these children (essentially the local authority for the area in which they are from time to time living) had concerns that one or more of these children was at risk of being genitally mutilated, it would be the duty of that local authority to take whatever action seemed to them to be appropriate. It seems to me, therefore, that the proposed future so-called fact finding hearing that Mr Perkins seeks could not achieve the finality or certainty that he and his clients aspire to; and it would, frankly, be a considerable further waste of court time and public money, all parties in these proceedings being publicly funded. For those reasons, I decline to give directions for a future so-called fact finding hearing.
  • However, as I have already stated, Buckinghamshire County Council, who have clearly displayed proper concern for the wellbeing of these children, are now currently satisfied that there is, at most, a low risk of any of these children being subjected to female genital mutilation. The trigger to the present applications and round of proceedings was, as I have already said, Buckinghamshire learning that two of these daughters had already travelled to Somalia with their mother.
  • The father himself has said in paragraph 29 of his recent statement in these proceedings that:

 

“I confirm to the court at this stage that I did not inform Buckinghamshire County Council of the trip as I did not think that I had to. There were no orders in place that required me to inform them of any planned holidays. Further, it had never been discussed during child protection meetings or child in need meetings in either Surrey or Buckinghamshire that they would have to be informed. At no stage did I try to keep the holiday secret from the local authority and if it had been made clear to me that they had to be informed of all trips abroad, I would have shared this information and avoided the need for this matter to come before the court once again.”

 

  • Pausing there, one can see from that paragraph that the father himself has said that if he had appreciated the importance of giving to the local authority due warning or notice of a proposed trip abroad, and in particular one to Somalia, then he would have told them in good time. As I understand it, having learned the hard way of the importance of keeping an involved and concerned local authority well aware in good time of a trip of this kind, the father will do so in the future.

 

 

The Judge concluded that it was not possible to tie the hands of either Buckinghamshire, or any future Local Authority deciding that the children were at risk of FGM, but did his best to put a clear scheme in place so that the parents would know what was expected of them

 

  • That being so, I am very content to record on the face of the order which I will make today:

 

(1) In the opinion of Buckinghamshire County Council, there is currently a low risk of any of the daughters being subjected to female genital mutilation; and

(2) On the evidence currently available to the court, I (the court) am not satisfied that the parents (whether separately or together) present or are likely to present a risk of female genital mutilation to the youngest three daughters during their minority, or that the parents will fail to prevent others from causing them to undergo female genital mutilation.

I couple that with stating (although it cannot be the subject of any undertaking or order since all proceedings are now coming to an end) that, before any of the children travel again to the continent of Africa, the parents should give to the local authority for the area in which they then reside not less than twelve clear weeks’ notice of the proposed trip, and permit a social worker or similar professional to discuss the risks of female genital mutilation with the parents at that time.

 

  • I am further very content to state on the face of the order that if, in the future, the relevant local authority (whose duty and discretion must remain unfettered) consider that there is a risk of female genital mutilation such that they must seek a legal remedy, they should do so without delay and as long as possible in advance of the proposed trip. The words “whose duty and discretion must remain unfettered” in that formulation are very important. I must, and do, make quite clear that if, at some future date, some local authority – whether Buckinghamshire County Council or any other local authority – do have a current concern that any of these children are at risk of female genital mutilation, they are under a very high duty to take whatever steps then appear to them to be necessary and appropriate to protect the child or children concerned.
  • Equally, it is obviously highly undesirable if there are late or last minute applications, particularly if made without notice, for orders shortly before a proposed trip or, as in this case, whilst a planned holiday is already under way and the children are already abroad. So there is a very clear tie in between the expectation, on the one hand, that the parents will be open and up front with any relevant local authority and give to them very good notice (i.e. not less than twelve clear weeks) of any proposed trip by any of the children to the continent of Africa; and, on the other hand, an expectation that if, having been given that notice, the local authority are sufficiently concerned, they really must bring legal proceedings very promptly and not leave it to the last minute.
  • I make clear that I simply cannot give a judgment in terms, or to the effect, that there is no risk of these children being genitally mutilated. As two of their older siblings already have been, it is impossible to exclude all future risk. But Buckinghamshire County Council, who have recently been very concerned about these children, have satisfied themselves that any risk now is a low one. I am not myself aware of any evidence or material to suggest that the risk, such as it is, is any higher than that which Buckinghamshire County Council have assessed it to be.

 

 

That seems to me a very sensible form of order for such cases, where there is not likely to be a risk of the FGM happening in this country (though it does happen, the procedure is much more likely to happen in an overseas country where the practice is culturally accepted and not illegal).  It strikes a good balance of the risks being assessed and the family knowing in advance whether they are able to take the holiday.  (Let’s not forget that telling people that they can’t take their children to their country of birth or to see relatives is a significant interference with their family life)

 

 

 

Something something oranges something

In a very classic Alan Moore comic, D.R and Quinch go to Hollywood, the two criminally twisted alien ‘heroes’ acquire a script from a genius writer who then dies, and they set off to Hollywood armed with the script to get the movie made and become hotshot Directors and auteurs.

The twist is, that although it is easy for them to get backing to make the movie and attract a monosyllabic star called “Marlon”,  it turns out that the handwritten script is almost totally illegible, save really for one word in the title, which is “Oranges”. So all they really know about the film they’re making is that the title is Something, Something, Oranges, Something.

Agent:So, where is this film set, exactly?
D.R.Well, does that word look more like “sandwich” or “submarine” to you?
Agent:Submarine
D.R.Well then, the film is set on a submarine, and not on a sandwich, as you might have previously imagined, man

 

It’s a great comic, anyway. Alan Moore knows the score.

http://mind-the-oranges-marlon.blogspot.co.uk/2009/11/dr-and-quinch-go-to-hollywood-part-1-by.html

 

(and part 2 is linked on that same page)

 

In this case in front of Holman J

Re I (A child) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/910.html

The child involved had told the social worker and the Guardian SOMETHING. But he didn’t want the parents to know what it was. The social worker and Guardian didn’t think it would affect the case in any way, but if the parents knew what it was, they might want to use it in the final hearing (no, it doesn’t make any sense to me either). The LA felt that despite not wanting to share the information, they were under an obligation to do so. The Guardian thus made   an application to Court that the LA be ordered not tell the parents SOMETHING, but also not to let them know what that SOMETHING was or why they weren’t to know this SOMETHING. Or even in fact to know that the application was being made.

 

  1. Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to his guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year-old child who is in their care. They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.
  2. The local authority therefore consider that they are under a duty to reveal or disclose the information to both parents; and they have said that they will do so unless prevented by the court, or at any rate unless the court indicates that in its view the local authority are not, on the facts and in the circumstances of this case, under a duty to disclose the information. That issue having arisen between the local authority and the guardian, the guardian issued an application dated 18th March 2016 in form C2. She did in fact name the local authority and both parents as the respondents to the application in paragraph 1 of it. The relief sought in the application is, “An order preventing the local authority from disclosing this information”. The application form goes on to ask that, “In order that the other parties are not made aware of this application or that it is being heard, we would ask that…” it be heard before the scheduled next hearing in this case and that it “…be dealt with privately or that the court makes some other arrangement to ensure that the other parties are not put on notice.”

 

Adding to the weirdness of this, it turned out that the Guardian’s previous counsel, having been appraised of this knotty problem, had mentioned it to a colleague in his chambers, without knowing that said colleague would then go on to be instructed by one of the parents.

 

At this point it is necessary to record a further twist in this particular case which does, or may, add a further layer of complexity. I have been told today by the guardian, Miss Tracey Cross, that her previous counsel (not, I stress, Mr Andrew Bainham, who appears on behalf of the guardian today) had mentioned the factual circumstances and the problem in this case to a colleague in his chambers, without either he or that colleague realising that the colleague had been, or was going to be, instructed on behalf of the father in these proceedings. It thus appears (although this will need further clarification from the two counsel concerned) that, inadvertently, counsel who is now instructed on behalf of the father in these proceedings may already be in possession of the confidential information in point. If the facts are as I have just summarised them, then some quite difficult questions may arise in relation to the professional duties of counsel to his client on the one hand, and the aura or carapace of candour and confidentiality which may attach on the other hand when one barrister discusses a knotty problem with a colleague.

 

 

The Judge had become (rightly) troubled by the notion of deciding whether information could be withheld from parents at a hearing at which they were not present

 

This led to consideration of two authorities in particular. The first is a decision of the Court of Appeal in Re: M (Disclosure) [1998] 2 FLR 1028, which itself refers with approval to the decision and guidance of Johnson J in Re: C (Disclosure) [1996] 1 FLR 797. The other authority considered today is that of the House of Lords in Official Solicitor to the Supreme Court v K and another [1965] AC 201, which makes reference at pages 215 B and 226 A to C to a practice in situations such as this of counsel being informed of the actual nature and content of the confidential information, on terms, or on the basis, that counsel will not communicate the actual nature and content of the confidential information to his or her solicitor or client without the permission of the court. In the much later authority of Re: M (Disclosure) that practice is also referred to with apparent approbation by Lord Justice Thorpe at page 1031 G.

  1. In all events, it seems to me, having regard to the clear authority of the Court of Appeal in Re: M (Disclosure), that I simply cannot with propriety substantively conclude today’s hearing or rule upon the application which the guardian has issued. If, in another situation, the local authority and the guardian were both in agreement that the information in question was not such that there was any duty to disclose it (for instance, if both agreed that it was too unimportant or trivial to require disclosure), then non-disclosure might indeed follow without any involvement at all on the part of the court. But the situation in the present case is that a dispute has arisen between the guardian and the local authority with regard to disclosure of this information, and a formal application has been made by the guardian to the court upon which the court is required to rule.
  2. If, in those circumstances, I were simply to rule on this matter today, without any knowledge whatsoever on the part of the parents and their legal advisors, then it seems to me that the court would risk complicity in a deception, not as to the substance of the information itself (which the law clearly establishes may in certain circumstances be withheld), but as to procedures which have taken place in the course of the set of proceedings with simply no notice at all to the respondents. Whilst Lord Justice Pill said in Re: M (Disclosure) at page 1033 F that he would not exclude the possibility that hearings of this kind may be held ex parte, he continued that, “I would hope that such situations would occur only rarely”. He then went on to give an example which is far removed from the facts and circumstances of the present case.
  3. I am deeply conscious that whenever disclosure issues of this kind arise there is an inherent problem once any notice is given. The problem is that if persons such as parents know that there is some information which it is sought, and may perhaps be ruled by the court, not to be disclosed, then “conspiracy theory” and imaginings may inevitably take over. There is indeed a risk in this sort of situation that a respondent, knowing that some information has been withheld from him or her, may start imagining that the information is more grave than the information actually is. It seems to me, however, that that is a risk that is simply inherent in a situation of this kind, and that the authority of Re: M (Disclosure) clearly requires that, on the facts and in the circumstances of the present case, notice is given. For those reasons, I will accordingly adjourn this whole hearing to start afresh on a later day of which notice is given to the three respondents and their legal advisors.
  4. Mr Bainham asked that I should list it part-heard before myself in order to maintain judicial continuity. For my part, however, I consider that it should be heard by any other judge except myself. I have now heard quite considerable argument, and indeed ventured some provisional views on the substance of the matter. It seems to me that if there is now to be a hearing on notice to the respondents, it should be a hearing which genuinely starts afresh, before some judge who comes to the matter with a fresh mind and is influenced only by arguments and material (apart from the information itself) which all parties and their advisors are enabled to hear and read. So, I shall direct that it is not heard again before myself.

 

At the next hearing, counsel for parents could be ASKED whether on instructions, they would agree to have the relevant information on the basis that it would not be disclosed – but the Court can’t make counsel do that unless they agree and their clients agree.

 

If counsel for any given one of the respondents is willing to give, and is able to give, a written assurance that he or she will not, without the further permission of the court, reveal or disclose the information in point to his or her client, then that counsel may be supplied in advance of the hearing with the whole slim bundle which is before me today, which contains the information in point and such evidence as there is in relation to it. That, however, will be a matter for the decision of each respective counsel. If he or she is unwilling or unable to give that assurance, then he or she cannot for the time being be told the information.

 

And what about the counsel instructed for father, who may have been inadvertently told what the information is?

I am deliberately not naming in this judgment the two counsel who had the conversation to which I have referred. I do not know whether the counsel who was party to that conversation, who is or was acting on behalf of the father, will be able personally to attend the hearing which has been fixed in London, but it is essential that there is some form of evidence or material, if he cannot attend that hearing, which makes quite clear the extent of his existing knowledge and what use, if any, he has made, or still intends to make, of any information so imparted.

 

(I assume there’s some sort of order which notifies him of this requirement)

 

Very tricky.  I’m sure I can make a very informed guess as to the nature of the information being held back here, it doesn’t take Sherlock Holmes to work out what it might be, but I won’t spell it out. We’ll just leave it as “Something, Something, Oranges, Something”

 

One last chance

RE C (A child: Refusal to make Interim Care Order) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/6.html

The High Court had to consider an application for an Interim Care Order. At the time Holman J was considering it, the child was in foster care, having been removed by the police under Police Protection.

The mother had long-standing drug addiction problems and was accepting that she wasn’t able to care for her child. She was trying to get herself into a clinic for rehab. Her brother, who had similar problems, had entered into the family home, in breach of a restraining order, and attempted to strangle the mother whilst she was holding her son (who was 4 years old)

The issues before the Court were whether the child should go into foster care, or whether the child should be with grandmother – with mother and the maternal uncle staying away from the home. Doubts were raised about whether she could be trusted.

 

  1. The essential question today is whether or not the grandmother can be relied upon to keep her own daughter, the mother, completely away from the home, and completely out of any contact of any kind with C, apart from supervised contact arranged by the local authority. The local authority and the guardian (who has not yet had an opportunity actually to meet anyone in this case, apart from observing part of the hearing today) both say that the grandmother cannot be trusted. They rely in particular on the episode last Thursday when they say that the brother was seen upstairs in the house and the grandmother denied that he was there, although they say she must have known that he was there. There are a number of other respects in which she is said to have been devious with the local authority, or at the very least not upfront with them. Further, it is said that she was either naïve, or is now being dishonest, when she says she did not appreciate the full extent of her daughter’s drug taking.
  2. I have to form a judgment about that. I did hear from the grandmother at some length this afternoon. I myself am not persuaded that she cannot be trusted. I will require her formally to give to me from the witness box the undertakings that have been drafted and discussed. I wish to make absolutely clear to her and to the mother, and for all to hear and understand, that if there is the slightest breach, the slightest breach, of any of these terms and conditions, C is likely to be removed at once and made the subject of a further interim care order, and that will almost certainly be the last time that he lives within his family. Therefore, the grandmother needs to understand that this is now very serious indeed and she is absolutely on her mettle and on trust.
  3. There is a further point that was made by Mrs Brown on behalf of the local authority, which I fully understand and which indeed has concerned me. That is the risk of C becoming what might be called a “yoyo” child. The fact is that he was removed under a police protection order last Thursday. He has now been fostered for about five days. Under my proposed order, he will in any event remain fostered for another week in order to give to the mother a sufficient opportunity to make and implement arrangements as to where she goes. Therefore, already he has been removed from home. If he were now to return home, the point made by the local authority is that there is a high risk that he will have to be removed again. I do appreciate that; but it does not seem to me that, if it is otherwise right that in the interim he should be entrusted to his grandmother, that should be prevented simply because of the delays in this interim decision being made due to court availability.
  4. I completely understand the concerns of the local authority and of the guardian. I wish to stress that I am not in any way starry-eyed. I appreciate that there is a definite risk here that these arrangements will break down and that C will have to be removed again. But I do not feel that the requirements of the authorities that the stage has been reached when he must be removed, and kept removed, from his established home have yet been met. For those reasons, I shall make an order in the terms already discussed.

The Judge made a careful assessment of the grandmother, and decided that she should have the opportunity to care for the child. He then did something unusual (but both clever and kind) and put both mother and grandmother in the witness box and asked them a series of questions.

Well worth a read

The mother – SwornBy THE COURTQ. So, you are [name], the mother of [name].

A. I am.

Q. All right. Do you undertake to me, that is, promise me, the court – this is not the local authority now, it is promising the court – first, that not later than noon next Tuesday, 2nd February, you will totally vacate the premises at [address stated].

A. Yes, I will.

Q. Secondly, that once you have vacated, you will not until further order of the court return to [address stated] or enter at all the road which is known as [road name stated].

A. I will.

Q. You promise me that?

A. I promise I will.

Q. Third, do you promise me that until further order of this court you will not in any way contact, communicate with or come into the presence of [the child, named], save for the purpose of supervised contact under arrangements made by the Birmingham City Council?

A. I promise.

Q. Now, do you understand that if you break those promises, in the first place, you will be in contempt of court and could be punished, but secondly and more importantly, you really will have absolutely lost for all time any prospect of [the child] either living within his family or living with you? Do you realise that?

A. Yes, I do.

Q. This is,—

A. Serious.

Q. —to put it bluntly, your last chance. Do you understand that?

A. Yes, I do.

Q. So, if you break this and you are caught, the consequences will be very grave. Do you understand that?

A. Yes, I do.

Q. You give me those promises?

A. I promise.

Q. All right, thank you very much. Will you come up, [the grandmother] please.

MR PEARCE: My lord, I hesitate to rise, but the prescription needs to be collected and the chemist, I am told, will be closing at 7:00 and I am mindful of the traffic.

THE JUDGE: Yes, well, we will be gone within a few minutes.

MR PEARCE: I am grateful.

The grandmother – SwornBy THE COURTQ. Are you [name]

A. Yes.

Q. Of [address stated]?

A. Yes.

Q. Do you undertake to me, that is, promise me, the court – this is not the local authority, it is the court – first, that after noon next Tuesday, 2nd February, you will not until further order of the court in any circumstances permit [the mother, named] or [the brother, named] to enter the premises at [address stated] or its garden?

A. Yes.

Q. All right. They are just not allowed into the road at all, let alone into your house. [The mother] has got a week to make arrangements. Second, you will not until further order in any circumstances permit [the child, named] to have any contact or communication with or come into the presence of [the mother, named] or [the brother, named]. Third, you will, once he is returned to your care, care totally for [the child] and ensure that he is kept clean, well fed and appropriately clothed.

A. Yes.

Q. Fourth, you will not permit him to sleep or reside at any other address than [address stated], except with the prior written agreement of the [local authority, named].

A. Yes.

Q. If a situation arises where he wants to go and stay with a friend or something like that, I am not ruling it out, but they have got to agree in writing first, all right. Five, unless he is ill, you will punctually deliver [the child] to and collect him from the nursery – you know where the nursery is, it will be written in—

A. Yes.

Q. —at all sessions which he is due to attend, all right—

A. Yes.

Q. —day in, day out, whenever he is supposed to go. This is a very important safeguard because it means he will be seen all or most weekdays by the nursery, of course—

A. Yes.

Q. —and they will be asked by the [local authority, named] to keep a very close eye on him, of course, so he has got to go, all right.

A. Yes, yes.

Q. Six, you will permit social workers of the [local authority, named] to enter the premises at [address stated] at any time, whether announced or unannounced, and inspect any part of the premises. I anticipate they will make unannounced visits.

A. Yes.

Q. As far as I am concerned, if they have got the manpower or the womanpower, they can do it late at night, very early in the morning, weekends, whenever they like in order to check, all right, and you have got to let them in. Seven, you will not leave [the child] unattended in the house with your husband. That is not intended to be unkind to him, but because he is not entirely well. Eight, you will not permit any person to sleep at the premises at [address stated], except yourself, your husband and [the child] without the prior written agreement of the [local authority, named].

A. Yes.

Q. If you want to have a little friend of his round or something like that, or a relative of yours wants to come and stay, you can ask [the local authority] and I hope they will agree, but you are not to otherwise allow anyone to sleep there. Nine, you will not without the prior written agreement of the [local authority] permit any person to enter the premises at [address stated] who is not either a relative or an established personal friend of yourself or your husband or a person who needs to enter in the course of his profession or trade. So, you can permit your own relatives or an established personal friend of yourself and your husband or a professional person, such as a doctor, or a person who needs to enter in the course of his business or duties, such as a tradesman or meter reader or if you need to get a plumber or anything like that. Do you give me all those promises?

A. Yes.

Q. I want you to understand that I have made a judgment about you. I am reposing trust in you. I think in fact you are lucky, because I think a lot of other judges would not have done, but I have been doing this for a long time and I am broad shouldered and I am prepared to take responsibility for this decision, which they think is too risky, but I am prepared to take responsibility for it. They will be watching you like a hawk. This will be reviewed in four to six weeks anyway to see how things are going, not by me because I will not be here. If in the meantime they discover that there has been any breach of any of that, they will be round here like a shot, that is obvious, and I am afraid you will not be given another chance. So, this is the last chance for you as well as for [the mother]. Do you understand that?

A. Yes.

Q. Well, do not let me down. Thank you very much. You can go back

 

But Belgium says no thanks

 

This is decidedly weird.  The High Court were dealing with an application under the Hague Convention for an order to return the child to Belgium. The father alleged that the mother had abducted the child and that the child should be returned to Belgium, where the Belgian Courts could then make the decision about where the child should live.

 

The problem was, that before anyone started to get stuck into whether there had been an abduction, whether there were defences under the Hague Convention and Child Abduction Act that might mean that the child should not be returned and so forth, that Belgium would not let the mother and child into their country anyway.

 

Re NA (dismissal of application under Hague Convention) 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3686.html

 

The entire family had come from Iran. They left Iran in 2008, made their way to Belgium and made a claim for asylum. That claim was refused and there was substantial litigation about the appeals process. They tried again afresh in 2011, and again their claim was refused.

The mother and child came to England in 2013, and she applied for asylum here (she and her son have been given leave to remain in the UK for five years – this happened whilst these proceedings were taking place). Father applied two years later for an order compelling the child’s return to Belgium.

Whether there had been an abduction of the child or not, can the Court order someone to return the child to Belgium when the Belgian authorities had ruled twice that the family had no legal right to be in Belgium ?  Nor could the Home Department of the UK remove the mother and child to Belgium – (prior to granting their leave to remain they could have removed them back to Iran, but not back to Belgium)

 

 

  1. There was indirect contact between the father and the child on occasions during 2014. In June 2015 the father issued an application for the return of his son to Belgium pursuant to the Hague Convention, thereby commencing the present proceedings. It is to be noted that that application was issued a little more than two years after the removal of the child from Belgium, and accordingly the application would in any event have raised a lively question as to whether it was “demonstrated that the child is now settled in its new environment” within the meaning of, and for the purpose of, Article 12 of the Convention. That issue and, indeed, any other “defences” under the Hague Convention has never been considered, nor determined, by the court; for in the meantime the question arose whether, even if ordered to return the child to Belgium, the mother could, in fact, lawfully do so, because it appeared that neither she nor the child would be permitted to enter Belgium. As I have indicated, that difficulty arose because the period within which the state of Belgium would have been required to take back the mother and child pursuant to the regulation Dublin II had long since elapsed. It appeared, therefore, that the mother herself could not lawfully voluntarily return with the child to Belgium. It appeared also that the Secretary of State for the Home Department could not now remove the mother and child to Belgium, although it might have been open to the Secretary of State to remove them to Iran, being the state of which they are both citizens.
  2. During the last few months there have been several brief hearings before the court, and most recently on two earlier occasions before myself, whilst efforts have been made fully to explore the immigration status of the mother and child here; the intentions of the Secretary of State with regard to removing them; and the question whether the mother and child could be forcibly removed to Belgium or, indeed, voluntarily return to that state. One possibility that was mooted was that, upon application to it, the state of Belgium might exercise a discretion to permit the mother and child to return to and enter Belgium on the basis of a “family reunion visa”. The difficulty with that particular suggestion was and is that there is no question of “family reunion”, because the mother makes crystal clear that she is not willing to return to live with, or in any way be “reunited” with, the father.
  3. Against that background I made an order dated 28th October 2015, which anyone with a proper interest in this matter could read for its full terms and effect. There were two recitals, which essentially recorded the position as it was or appeared to be at that date, namely:

    “1. Upon it now appearing from the reply from the Home Office dated 28th October 2015 to the request for information in Form EX660 that the mother and child cannot now be returned to Belgium pursuant to the Council Regulation Dublin II, and that the Home Office is now substantively considering the mother’s and child’s claim for asylum, which (it appears) are likely to result in the Home Office either granting asylum or seeking to return the mother and the child to Iran;

    2. And upon the present evidence from the Belgian authorities and in relation to Belgium appearing to indicate that the mother and child could be granted admission on a ‘family reunion visa’, but that there cannot be a ‘family reunion’ as the mother would not agree to living again with the father, and would not voluntarily agree to the child living with the father; but that it is possible (but speculative) that the Belgian authorities might permit the mother and the child lawfully to enter Belgium (without passports) on some alternative basis.”

  4. Upon the basis of those recitals, this case was further adjourned until today, and my order made plain, in summary and in effect, that the father had an opportunity meantime to obtain evidence and material from the state of Belgium to the effect that the mother and child would both be permitted lawfully to enter and remain in Belgium and that any fresh application by the mother and child for asylum in Belgium would be considered by that state. The order made clear that the documents and material required to be produced by the father would have to include an original authentic official actual laissez-passer or similar document in respect of each of the mother and the child, which would actually permit each of them lawfully to enter and remain in the state of Belgium.
  5. Over six weeks have elapsed since that order, and the father has not been able to obtain or produce any such material or documents and, quite frankly, it would seem that there is no realistic prospect now of the Belgian authorities permitting this mother and child to return to and enter Belgium on any basis.
  6. Meantime, there has been a further very significant development. By a decision letter dated 16th November 2015 the Home Office informed the mother and the child that they have been granted asylum in the United Kingdom for a period of five years, with leave to remain here until 12th November 2020. The letter makes clear that if they wish to remain after that date, they must make an application for further leave before the leave now granted expires.
  7. So, the position now is that the ability of the mother and child to remain here for the next five years is no longer tenuous but has been granted. There is, therefore, no further imminent possibility or prospect of the mother and child being forcibly removed by the Secretary of State to Iran. Equally, there is no longer the slightest scope for the application of Council Regulation Dublin II or the mother’s claim for asylum being considered in Belgium, since she and the child have been granted asylum here.
  8. In those somewhat unusual circumstances I simply dismiss this claim for a return of the child summarily to Belgium pursuant to the Hague Convention, on the short grounds that it is not practicable or possible for either the mother or the court or, indeed, anyone else to give lawful effect to an order if one was made for the return of this child to Belgium. As I have indicated, there may have been a range of other “defences” to the application, but in the circumstances I have not given any consideration to them and dismiss this application on the short basis that I have described.

 

All very peculiar.