Mr Justice MacDonald:
INTRODUCTION
- In this matter I am asked to decide whether to make an order for the summary return of N, now aged 2 years old, to the jurisdiction of Azerbaijan pursuant to the inherent jurisdiction of the High Court.
- I note at the outset that the task of deciding whether to order the return of N to the jurisdiction of Azerbaijan falls to be completed by way of a swift, realistic and unsentimental assessment of the best interests of N (Re R (Minors)(Wardship: Jurisdiction) (1981) 2 FLR 416 at p 425 cited with approval by Baroness Hale in Re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 at [27]).
- The mother of N, LM (hereafter 'the mother'), is the applicant in this matter. The father of N, DR (hereafter 'the father'), is the respondent. The father works in the oil industry and is aged 44 and is a British citizen. The mother is a waitress and is aged 30 and is a citizen of Azerbaijan.
- For the reasons set out in this judgment, having considered the documentary evidence filed and served by the parties in this matter and having heard the very helpful submissions of Mr Richard Harrison QC and Ms Katherine Dunseath for the mother and of Mr Scott-Manderson QC for the father, I have decided to order the return of N to the jurisdiction of Azerbaijan, subject to the implementation of the interim protective measures that I deal with at the end of this judgment.
BACKGROUND
- The background to the matter is the subject of significant dispute between the parties. In refusing the father's application to adduce oral evidence on matters of disputed fact at this hearing, I made clear that it would not be appropriate at the stage of determining which jurisdiction should determine the welfare issues that arise in respect of N to make findings of fact on the matters in dispute between the parties, of which there are many. The determination of those factual disputes (if required) must await a further hearing in the Azerbaijani court.
- The parents are not even able to agree whether or not they were in a relationship prior to or after the birth of N. The mother states that the parents entered into a committed relationship in 2012. In contrast, the father asserts in his statement to this court that the parents had a casual sexual relationship from September 2013, although in his account to the Azerbaijani police on 16 March 2016 the father states he and the mother commenced a relationship at the end of 2012. Within this context, the father further asserts at various points in his evidence that the mother worked as a prostitute. He however fails to produce the email in which he alleges the mother conceded the same. The mother vehemently denies she worked as a prostitute. There is no cogent evidence before this court to suggest that she did so.
- The mother fell pregnant with N in September 2013. The mother states that the parents were happy when she became pregnant. In contrast, the father contends that the mother wanted to terminate the pregnancy but that he persuaded the mother not to undergo a termination on the basis that he would raise the child. The mother vehemently denies wanting an abortion. By agreement between the parents the mother travelled to England to give birth to N, which she did in June 2014. The mother returned with N to Azerbaijan in August 2014.
- There is also a marked dispute over the respective level of involvement of each parent in the care of N subsequent to his birth (I agree with Mr Scott-Manderson that this was, in part, generated by an attempt on the part of each parent to attain what they each perceived to be the forensic high ground of bringing themselves within the phrase "primary carer" used by Baroness Hale in Re J (A Child)(Custody Rights: Jurisdiction)). The mother contends that the parties lived with each other from October 2012 and after the birth of N. The father contends by his statement that the parties never "fully" co-habited and lived in separate properties, the father at an apartment in a luxury hotel and the mother at a property with the maternal grandmother in, as the father describes it, "a very poor area of Baku".
- Whilst I make no findings in respect of these disputed matters, I am bound to note that there is a concerted attempt on the part of the father to seek to draw a picture of a casual sexual relationship between himself and the mother, and to actively seek to downplay the role of the mother in the care of N that is not borne out by the evidence that is currently available to the court. In particular:
i) The father confirms in his statement that when the mother fell pregnant it was his hope that they could "build a family together";
ii) Prior to the birth of N, the father's enquires as to where best to have the mother give birth to N were made on behalf of himself and the mother;
iii) The mother contends that the parents holidayed together, which fact the father concedes;
iv) Prior to the birth of N, emails from the father tend to indicate that the father considered the mother to be "my partner" and that the parents were residing together in "our apartment";
v) When registering N's birth on 23 June 2014 the father described the mother as a "full time mother", which description was entered on N's British birth certificate;
vi) Following the birth of N and the return of N and the mother to Azerbaijan, once again the emails from the father tend to indicate that the parents were co-habiting with N as residents in the apartment, which apartment was considered to be the family home;
vii) The father contends that he and the mother would at times discuss moving to England as a family;
viii) In an email dated 6 September 2015 the father describes that he has "recently split up with the mother" and that he is "very concerned at the conditions she is now keeping my son in";
ix) In his complaint to the Baku Police following the incident between the parents on 8 February 2016 the father is recorded as reporting that he was residing with the mother unofficially in their apartment (although at a later point he claimed they were living separately);
x) In his statement of 30 March 2016 the father contends that the mother is "not fit mother, she leaves the baby goes out";
xi) When speaking to CAFCASS on 15 April 2016 the father spoke in terms of "his relationship" with the mother;
xii) The father concedes in his statement that the mother cared for N each weekday whilst he was at work from 7am to 5pm, he contending that he would care for N in the evenings and for "nearly all" weekends;
xiii) Whilst the father contends that he looked after N overnight it is the mother who in her statement provides the details of what this involved in terms of N waking every four hours and her doing the night feeds. The father's statement is silent on the details of his care in the periods during the night he asserts he was caring for N.
- Following return of mother and N to Baku in August 2014 it is plain that N has spent the majority of his short life in that jurisdiction. It is equally plain on the information currently available to the court that the father and the mother sought to continue their life in Azerbaijan and made their home there. As set out above, the evidence before the court suggests that the parents moved back into the apartment as the family home and shared the care of N in that home. The father continued to work in that jurisdiction as he had done since 2004. The mother is of Russian descent but has lived in Azerbaijan all of her life and is an Azerbaijani citizen. Members of N's extended maternal family reside in Azerbaijan, including his maternal grandmother and maternal great-grandmother. N has been exposed to both his father's first language, English, and his mother's first language, Russian (which is one of the second languages spoken in Azerbaijan). There is a dispute between the parties as to the extent to which N, as a British national, has a secure immigration status in Azerbaijan. I examine this issue further below having considered the expert evidence in this regard.
- All this is not to say that N is a child without any links to the United Kingdom. As I have recounted, N was born in the United Kingdom and has British citizenship. He spent the first 2 months of his life in England before being taken to Azerbaijan in August 2014. N has paternal relatives in this jurisdiction, including the father's children from a previous relationship. The parents appear to have discussed the possibility of coming to England in the future as a family.
- On 8 February 2016 an unfortunate incident occurred which led to the final separation of the parents. The father relies on this incident as demonstrating that the mother presents a risk of harm to N and himself should the court order the summary return of N to the jurisdiction of Azerbaijan.
- Once again, it would not be appropriate for me to make findings of fact in relation to the incident on 8 February 2016. However, the events of that day are tolerably clear from the concessions made by the parties in respect of the same. The mother and the father appear to have argued in circumstances where the mother believed that the father was being unfaithful to her with one of her friends and the father believed the mother was failing to care appropriately for N (the father does not appear to dispute that he is now residing with this friend of the mother in England). The mother concedes that she had "drunk a few beers" prior to the incident (although she denies being drunk) and that she scratched the father during the course of the argument, albeit she states that this was accidental. A medical report on the father dated 9 February 2016 records "multiple deep scratch marks on his torso, neck and L arm". The mother further concedes that she did throw things around the apartment and out of the window, that she smashed the father's iPad and after-shave bottles and that she was throwing things at the father. Whilst the father alleges that N was "clipped" by an object thrown by the mother resulting in bruising to his face. This is denied by the mother. A medical report on N dated 9 February 2016 records "slight bruise under R eye, abrasion on R cheek". The mother contends this injury was caused earlier when N fell over. There is no cogent evidence before the court of any other domestic incidents between the parents prior to 8 February 2016.
- The father reported the incident to the Police in Baku. Following an investigation, the Police declined to commence a criminal case against the mother due to an absence of any criminal offence being disclosed on the evidence. It is important to note that the father accepts that he has managed to persuade the Police in Baku, through his lawyer, to re-open the criminal investigation of the mother. The father states that this was achieved by his lawyer going direct to the Chief Prosecutor and that the mother may now receive a custodial sentence. It is not immediately clear to me how the father's previous insistence on seeing the mother prosecuted, with the attendant possibility of a custodial sentence, promoted N's welfare.
- Following the incident on 8 February 2016 the father excluded the mother from the family apartment. N remained in the care of his father against the mother's objection. It is clear from subsequent text messages, and as she concedes, that the mother returned to the flat at 4 or 5am in the morning in an attempt to see N. The text messages show that the mother was pleading to see N at this point. The mother also sent unpleasant text messages to the father and posted accounts of the incident of 8 February 2016 online and on the LinkedIn page of the father's employer that differ significantly from that which she now concedes. The mother contends that from this point the father prevented her from seeing N. The Mother contacted an Azerbaijani lawyer on 17 February 2016.
- Following a delay to obtain a notarised copy of N's birth certificate, on 29 February 2016 the mother issued proceedings in the Baku District Court. It would appear that on receipt of the mother's application the District Court thereafter issued a restriction on the father leaving the jurisdiction of Azerbaijan until the resolution of the proceedings before the District Court concerning N.
- Within this context, there is in the bundle a quite remarkable document. The document, dated 1 March 2016, is expressed to be a proposal "offered to [LM] regarding access to [N]". The terms of the agreement include, inter alia, a requirement that the mother "remove her false complaint" to the Police against the father, that the mother agree that the father "be the sole guardian of [N]" and that, as soon as the Baku court approves the father as the sole guardian of N, that the mother will "become the nanny to [N] at his home" from 6am to 6pm Monday to Friday excluding weekends and holiday periods. The agreement stipulates that "a separate contract with terms and conditions for being a nanny will need to be signed". The agreement provided that the father was free to leave the jurisdiction of Azerbaijan and that the father would be responsible for the education of N. The agreement also provides for two alternative proposals for the mother to maintain contact with N in the event that the father returned to England with N permanently. I pause to note that those two proposals are almost identical to the two proposals set out in the father's statement to this court dated 12 May 2016. The agreement concludes with the following words: "Should the terms of this agreement be breached by [LM], the all her rights to [N] will be lost".
- The father now seeks to assert he did not see this proposal to substantially divest the mother of her legal relationship with N and consign her to the status of a nanny before it was sent out by his lawyer. Whether he saw the document itself or not, I am not able to accept the implication contained within that assertion that the father's lawyer was acting without instruction (an allegation that the father was careful to avoid making explicit). First, the document dated 1 March 2016 contains, in almost identical terms, the proposals the father now seeks to advance in his statement to this court regarding contact between the mother and N should the father be permitted to remain England. Second, and within this context, I consider it highly unlikely that the father's Azerbaijani lawyer would have acted unilaterally and without taking instructions from the father as to the terms of the proposal to be offered to the mother. Once again, it is not immediately clear to me how the father's insistence on the terms of this agreement advanced N's welfare. Further, the fact that the father offered these terms on 1 March 2016 rather undermines his case that the mother presents a risk of harm to himself and N arising out of the incident on 8 February 2016 and the father's assertion that the mother will abduct N to the jurisdiction of the Russian Federation.
- In his statement to this court dated 12 May 2016 the father contends that he did not see any of the decisions of the Baku District Court exhibited to the mother's statement (those being the decisions of 7 March 2016, 14 March 2016 and 6 April 2016). It is clear however that the father knew of the proceedings in the Baku District Court as, by 10 March 2016, he had lodged a complaint against the restriction on him leaving the jurisdiction of Azerbaijan. On 14 March 2016 the District Court declined to enforce the complaint lodged by the father and referred the matter to the Baku Appeal Court for hearing. On 6 April 2016 the Baku Court of Appeal allowed the father's complaint in part, cancelled the restriction on him leaving the jurisdiction of Azerbaijan and replaced it with an order prohibiting the removal of N from the jurisdiction of Azerbaijan.
- The jointly instructed expert in Azerbaijani law in this matter opines that both the travel restriction imposed on the father by the Baku District Court on 7 March 2016 and the restriction on removing N from the jurisdiction imposed by the Baku Appeal Court on 6 April 2016 were incorrectly made (the travel restriction on the father imposed by the District Court relying on a law that had been recently repealed and the travel restriction on N imposed by the Appeal Court failing to take into account that N was a British Citizen in respect of whom such a restriction was, accordingly, not valid).
- Following the decision of the Baku Appeal Court the proceedings in respect of N in the Baku District Court remained live and have been adjourned on 23 May 2016 and again on 10 June 2016.
- On 17 March 2013, without informing the mother or gaining her consent, the father removed N from the jurisdiction of Azerbaijan. The father claims that at this time he did not know that there was a travel restriction in place in respect of him (the District Court having, as noted above, declined on 14 March 2016 to enforce the complaint lodged by the father against the travel restriction and referred the matter to the Baku Appeal Court for hearing). If this is the case it remains unclear why the father went to the airport a mere two days after the decision of the District Court on 14 March 2016 and not only with N but also accompanied by his lawyer. In any event, by common consent the mother was not aware that the father intended to remove N from the jurisdiction of Azerbaijan and had not given her consent to that removal. Indeed, upon discovering the departure the mother wasted no time in indicating her objection, resulting in the authorities in England being alerted and in the father and N being met by the Police, who boarded the plane when it landed in England. The father told the Police he was going to Scotland but went instead to Manchester.
- On 30 March 2016 the father issued proceedings under the Children Act 1989 in the Family Court sitting at Manchester without notice to the mother. The father completed the application form C100 himself. In that application form the father asserted that "child and I are in fear of our lives if we return to Azerbaijan". He further asserted that the mother was involved in prostitution and had a drink problem. He further stated that "the mother has made death threats, attempted to kill me and injured baby already". In answer to Section 4(b) of the C100 form, which requests the reasons justifying a without notice application, the father wrote "As we are in fear of our lives, safety of child". In answer to the question in Section 6, which enquires if there is any reason to believe there may be issues as to jurisdiction, the father answered 'No'. In form C1A the father repeated his allegation that the mother had tried to kill him.
- Having considered the application, the Deputy District Judge made a prohibited steps order pursuant to the Children Act 1989 s 8. The father was represented by counsel (not Mr Scott-Manderson). The transcript of the hearing indicates that the father's case was advanced on the basis that the mother was a prostitute, that the father had always had primary care of N and that the mother tried to stab him. Through counsel the father confirmed that "there are no ongoing proceedings in respect of this child" in Azerbaijan and produced an email from the father's Azerbaijani lawyer. That email does assert that there is "no case against baby [N]". However, the email also makes clear that this view was expressed on the basis of the lawyer's opinion that the Azerbaijani court did not have jurisdiction in the proceedings in respect of N. In fact, as set out above, proceedings in respect of N continued in the Azerbaijani courts, which proceedings were, having regard to the evidence of the jointly instructed expert, correctly constituted. In the circumstances, the submission to the Deputy District Judge that "there are no ongoing proceedings in respect of this child" was not accurate.
- I pause to note that the transcript of the hearing indicates that the only point at which the issue of jurisdiction was mentioned at the hearing on 30 March 2016 was when counsel said "So essentially I think today, aside from the fact of jurisdiction, the application is for an emergency prohibited steps order". No consideration of the question of jurisdiction was undertaken nor do the reasons the court assumed jurisdiction appear on the face of the order. There was likewise no consideration of the reasons for proceeding without notice to the mother.
- The jurisdiction of the Family Court to make prohibited steps orders under the Children Act 1989 derives from Brussels IIA, pursuant to s.2(1)(a) of the Family Law Act 1986. Within this context, the authorities make clear that the starting point in any case where there is a foreign dimension is an enquiry by the court as to whether the court has jurisdiction. That issue must be addressed at the outset of the proceedings and good practice requires that in every case the court sets out explicitly, both in its judgment and in its order, the basis upon which it has either accepted or rejected jurisdiction under Brussels IIA (see Re F (A Child) [2014] EWCA Civ 789 and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] 2 FLR 361). The President has made it clear that where the parties do not raise the issue of jurisdiction in a case that has a foreign dimension, the court itself should raise the issue of jurisdiction (see Re F (A Child) [2014] EWCA Civ 789). Further, before deciding to proceed without notice to the other parent proper regard must be had to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ at 1412.
- In circumstances where the Deputy District Judge was not taken to these principles on 30 March 2016 I repeat the observations I made in R v R (Jurisdiction and Acquiescence) [2016] EWHC 1339 (Fam) at [60].
- On 8 April 2016 the State Migration Service of the Republic of Azerbaijan issued a certificate confirming N's status in Azerbaijan, which certificate states:
"This is to certify that [N], date of birth: [date given], is recognised as a citizen of the Republic of Azerbaijan subject to the Article 4.1.5 of "Procedures to determine citizenship of the Republic of Azerbaijan of a person" approved by Decision No 84 dated 18.03.2015 of the Cabinet of Ministers of the Republic of Azerbaijan".
- The father contends that this is evidence of corruption in that the mother has been able to obtain Azerbaijani citizenship for N in circumstances where the jointly instructed expert states that dual citizenship is not permissible in Azerbaijan. The mother contends that this document does not confer citizenship on N but rather simply describes accurately the position of N in respect of Azerbaijani nationality as set out in the report of the joint expert. Namely, that N is entitled to be recognised as an Azerbaijani citizen by virtue of his mother being an Azerbaijani citizen but subject to the requirements of Azerbaijani law. The mother further points to the fact that N has a visa issued from 3 March 2016 and valid to 3 March 2017, which visa he would not require if he was an Azerbaijani national.
- On 28 April 2016 the mother issued an application in this jurisdiction under the inherent jurisdiction of the High Court for an order for the summary return of N to the jurisdiction of Azerbaijan. The father's application under the Children Act 1989 was stayed pending the determination of the proceedings under the inherent jurisdiction. On 29 April 2016 CAFCASS provided a safeguarding letter. I note that the father told the CAFCASS Officer that he had no concerns regarding contact between mother and N but was "concerned" about unsupervised contact. The CAFCASS Officer observed that N has spent the majority of his life in Azerbaijan and, that in this context, whilst his needs were being catered for by the father he "may still be confused and distressed…by the loss of physical contact with his mother".
- As to the current position of the parents in Azerbaijan, the mother continues to live in that jurisdiction (although she is present in England for this hearing and is staying with the father in this country). The father contends that his employment in Azerbaijan with a company called X ceases in November 2016 and with it his right to remain in Azerbaijan. However, as with many of the father's assertions, the position in this regard is less than straightforward.
- In the bundle there is a letter dated 20 December 2015 that makes clear that an earlier termination of the father's contract by X in November 2015 was rescinded on 20 December 2015. There is also in the bundle an email dated 10 May 2016 from the Human Resources Manager at X. That email appears to have been drafted by a person for whom English is a second language and reads, inter alia, as follows:
"Your contract with the company is endless. But you are assigned to project with Client which currently is signed until November 2016. Your contract with X is subject to the prolongation of this project. Or if Company can find another position for you."
- During the hearing there was some debate about whether the word "endless" means what it says or is a typographical error, the writer having intended to write "ended". The answer appears, at least in part, to be contained in the father's representations to the Baku District Court on 10 March 2016 ahead of its decision on 14 March 2016 to refer his complaint to the Baku Appeal Court. It is plain that on 10 March 2016 during the course of his appeal (and subsequent to the letter of 20 December 2015 from X) that the father had made clear to the District Court that he had "a permanent job and house in the Republic of Azerbaijan" which made "his living here inevitable". This would tend to suggest that the term "endless" is an idiosyncratic way of depicting a continuing contract with X by a person who speaks English as a second language rather than a typographical error that should have read "ended". The father's employment position in Azerbaijan appears to be that he will continue to have a job with X subject to the company obtaining contracts on which his services are required. Within this context, I note that the father has worked in Azerbaijan (with short sabbaticals in other countries) since 2004 and that he is an expert in his field. I also note that the father made no attempt to file evidence correcting any purported error in email of 10 May 2016 notwithstanding his case in respect of his current employment.
- Finally by way of background, in resisting the application for return the father also seeks to rely on the contention that the mother will, perhaps out of desperation or high emotion, seek to take advantage of corruption and lack of respect for human rights in Azerbaijan were the welfare of N to be determined in that jurisdiction.
- Within this context, the father relies on a travel advice issued by the Foreign and Commonwealth Office in respect of Azerbaijan in 2016 (aimed at fans of Formula One travelling to Baku for the Grand Prix of Europe on 19 June 2016). The father also relies on the Human Rights Watch World Report 2015: Azerbaijan and World Report 2016: Azerbaijan. There does not appear to be a Country Information and Guidance report from the Home Office in respect of Azerbaijan. With regard to the question of corruption the FCO travel advice states "Corruption is an everyday aspect of life in Azerbaijan. You should avoid paying bribes." The HRW reports detail human rights violations in Azerbaijan, including the imprisonment of lawyers for political ends. Neither of these sources articulate issues with the administration of family justice in Azerbaijan, whether by reference to Azerbaijani citizens or foreign nationals. Within this context, Mr Scott-Manderson does not seek to level criticisms at the legislative and procedural provisions per se in Azerbaijan relevant to the determination of the substantive issues between the parties.
- By way of specific evidence of what the father contends is the likelihood of the mother using corruption against him, the father relies on what he alleges is evidence of the mother securing Azerbaijani nationality for N (disputed by the mother for the reasons set out above), threats made by the mother online that the father will "answer for" what he has done and threats made by the mother over Skype that she will put the father in prison for removing N.
THE EXPERT EVIDENCE
- The jointly instructed expert report on Azerbaijani law has been provided by Dr Rashad Ibadov, Assistant Professor of Law at ADA University, Baku. The following propositions can be drawn from the expert report, the contents of which report have not been challenged in cross examination by either party:
i) Pursuant to Art 440.1 of the Code of Civil Procedure of the Republic of Azerbaijan 2000 (CCPAR 2000), in civil and economic cases, if one of the parties is a foreign national, having his or her place of residence, location or place of usual attendance in the Republic of Azerbaijan, the Azerbaijani court will have jurisdiction.
ii) The family law of the Republic of Azerbaijan is primarily aimed at those family relationships which are legally recognised and registered before the State. However, by virtue of Art 5 of the Family Code of the Republic of Azerbaijan (2000) (FCAR 2000), which deals with "Application of Family and Civil Legislation to Family Relationships by Analogy", it is possible to apply the principles of the family law of the Republic of Azerbaijan to "similar" family relationships by analogy.
iii) Art 48 of the FCAR 2000 confirms that children born out of marriage have equal rights and obligations.
iv) Pursuant to Art 58.2 and Art 60.3 of the FCAR 2000, questions regarding the upbringing and education of children are decided on the basis of the mutual consent of the parents having regard to the rights and interests of the children.
v) In cases where there is an absence of agreement between the parents as to the custody of the child then, pursuant to Art 22.2.1 of the FCAR 2000, the determination of that dispute is left to the discretion of the court within the context of the following principles:
a) Art 3 of the FCAR 2000 is aimed at providing comprehensive protection of the interests of mothers and children and ensuring a happy life for every child;
b) Art 5 of the Law on the Rights of the Child of the Republic of Azerbaijan 1998 (Azerbaijan ratified the United Nations Convention on the Rights of the Child on 13 August 1992) prioritises the best interests of the child and Art 18 of the LRCAR 1998 recognises the right of a child to communicate with a parent who lives separately from the child;
c) The non-binding Resolution of the Plenary Session of the Supreme Court of the Republic of Azerbaijan on The Implementation of Legislation by the Courts in the Cases of Dissolution of Marriage, Child Custody, Claim of Withholding Alimony for Children was adopted to assist courts in resolving disputes of child custody, which non-binding Resolution has to have regard, when considering the importance of the child's welfare, to (1) the age of the child, (2) the opinion of the child, (3) the child's relationship with each of the parents and siblings, (4) the moral and other characteristics of the parents, (5) relations between the child and each of the parents, (6) competence of the parents to create conditions for the education and cultivation of the child and (7) other circumstances related to the residential area/place of each parent. The non-binding Resolution further provides that pecuniary advantages cannot be taken into account as "a decisive standard" and the parent having care of any siblings should be preferred.
vi) Where there is no consent regarding the place of residence of the child (as distinct from the custody of the child) pursuant to Art 60.4 of the FCAR 2000 the court will decide the issue primarily taking into account the rights and interests of the child, the opinions and other circumstances of the child (including the attachment of the child to his or her siblings as well as the parent, the behaviour and other characteristics of each parent, the child's age and the possibilities for creating conditions for their development and education) and the terms of Supreme Court of the Republic of Azerbaijan on The Implementation of Legislation by the Courts in the Cases of Dissolution of Marriage, Child Custody, Claim of Withholding Alimony for Children as set out above.
vii) The principles of Azerbaijani law applicable to determining disputes as to custody and residence will apply to the father and N in this case. Pursuant to Art 153 of the FCAR 2000:
"The rights and duties of parents and children, including the duties of parents to maintain the child, shall be established in accordance with the legislation of the country in which they live together. In the absence of shared residency of children and parents (father / mother), the rights and duties of children as well as parents (father / mother) shall be defined in accordance with the legislation of the country of nationality of the child. At the request of the plaintiff, for alimony liabilities and other relationships that may exist between parents and children, the law of the country in which the child permanently resides can be applied."
viii) The general timescales for determination of an application filed by a citizen of the Republic of Azerbaijan to state of authorities is 15 days pursuant to the Law on Applications of Citizens of the Republic of Azerbaijan, although this can be extended to 30 days if there is a need for necessary assessments but cannot be extended for a period greater than three months. Claims involving alimony must be dealt with within one month (CCPAR 2000). Timescales for applications by foreigners are not covered in the legislation.
ix) Where there are restrictions on the ability of either parent to relocate a child to another jurisdiction, the notarised consent of the other parent to that relocation is required pursuant to Art 11.2 of the Migration of the Republic of Azerbaijan (2013) (MCAR 2013). The FCAR 2000 does not articulate a formal procedure for an application to court for permission to relocate with a child. Further, in circumstances where N is not an Azerbaijani citizen for the reasons set out below, there are no restrictions imposed on the removal of N from Azerbaijan.
- As to the position regarding N's status in Azerbaijan, Dr Ibadov opines that N is a national of the United Kingdom but may also be considered a national of the Republic of Azerbaijan pursuant to Art 1 and Art 52 of the Constitution of the Republic of Azerbaijan, the effect of which is that a person whose parent is a citizen of the Republic of Azerbaijan is a citizen of Azerbaijan. However, Dr Ibadov further opines that N has "lost" his Azerbaijani citizenship by virtue of the Art 18.1 of the Constitution of the Republic of Azerbaijan (which provides that an Azerbaijani citizen will lose his or her citizenship "if a citizen of the Republic of Azerbaijan voluntarily acquires citizenship of another state") by reason of his parents, as his legal representatives, choosing British citizenship for N and no steps having been taken under Art 15 of the Constitution of the Republic of Azerbaijan to restore his Azerbaijani citizenship. Under the Azerbaijani citizenship laws N may only have one citizenship. Failing to report a person who obtains another citizenship carries with it a criminal penalty. The expert further makes clear that the father faces no sanctions in Azerbaijan regarding his removal of N having regard to the matters set out in the foregoing paragraph.
- The expert makes clear that a person who is visiting Azerbaijan (i.e. a person who does not have a work permit or other permission beyond a simple visitor's visa) may remain in the jurisdiction for 90 days with an opportunity to extend that period for a further 60 days pursuant to Art 20.1 and Art 42.1 of the MCAR 2013.
THE LAW
- There is no dispute between the parties as to the law in this jurisdiction that I must apply in determining the application before me for an order for the return of N to the jurisdiction of Azerbaijan.
- The power to make such an order and the method of its application are described in detail in the case of Re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 from which the following propositions can be drawn:
i) The court has the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits.
ii) Any court determining any question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration.
iii) There is no justification, either in statute or case law, for extending the principles of the Hague Convention on the Civil Aspects of International Child Abduction 1980 to countries that are not parties to that Convention (which Azerbaijan is not).
iv) In the circumstances, in all non-Convention cases the court must act in accordance with the welfare principle. If a return order is made, it must be because the child's welfare, as the court's paramount consideration, demands it.
v) Summary return should not be the automatic reaction to every unauthorised removal but summary return may very well be in the interests of the child. The court may find it useful to start from the proposition that it is likely to be better for a child to return to his or her home country for any disputes to be decided there, although the weight to be given to this proposition will vary enormously from case to case.
vi) Kidnapping is strongly discouraged, like other forms of unilateral action in relation to children, but that discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the prompt return of the child to their own country but not by sacrificing the child's welfare to some other principle of law.
vii) The focus in each case has to be on the individual child in the particular case.
- With respect to the application of the foregoing principles, in Re J (A Child)(Custody Rights: Jurisdiction) Baroness Hale observed as follows at [32] to [34]:
"[32] The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.
[33] One important variable, as indicated in In re L [1974] 1 WLR 250, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his "home" country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.
[34] Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return."
And at [40]:
"[40] The effect of the decision upon the child's primary carer must also be relevant, although again not decisive. A child who is cared for by nannies or sent away to boarding school may move between households, and indeed countries, much more readily than a child who has always looked to one parent for his everyday needs, for warmth, for food, clean clothing, getting to school, help with homework and the like. The courts are understandably reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes be necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so, and what is to happen to the children if she does not."
- Thus, factors relevant to determining the question of whether it is in the child's best interests to return to his home country for any disputes about his future to be decided there will include (but will not be limited to) the child's degree of connection to each country (in the sense of with which country does the child have the closer connection in terms of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far), the length of time the child has spent in the country and the effect of the decision on the child's primary carer.
- Within this context, it is important to maintain focus on the issue to which the question of best interests has to be applied in an application for summary return to another jurisdiction. In Re F (Minor)(Abduction: Jurisdiction) [1991] 1 FLR 1 Lord Donaldson MR observed:
"The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on, should be made."
- Where there is a question of how the returning parent or child may be treated under the law of the receiving jurisdiction then, as foreign law is presumed to be the same as English law, it will be for the party resisting return to show that there is a difference which may be detrimental to the child's welfare (Re J (A Child)(Custody Rights: Jurisdiction) at [15]). In Re J (A Child)(Custody Rights: Jurisdiction) Baroness Hale concluded as follows:
[37] Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. Once upon a time it was assumed that all very young children should be cared for by their mothers, but that older boys might well be better off with their fathers. Nowadays we know that some fathers are very well able to provide everyday care for even their very young children and are quite prepared to prioritise their children's needs over the demands of their own careers. Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery were only fit to care for their children if the father agreed to this. Nowadays we recognise that a mother's misconduct is no more relevant than a father's: the question is always the impact it will have on the child's upbringing and wellbeing. Once upon a time, it may have been assumed that there was only one way of bringing up children. Nowadays we know that there are many routes to a healthy and well-adjusted adulthood. We are not so arrogant as to think that we know best.
[38] Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known "check-list" in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child's point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.
[39] In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Hughes J put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight."
THE SUBMISSIONS
The Mother
- Mr Harrison QC and Ms Dunseath submit that on 17 March 2016 the father perpetrated a cynical and unilateral removal of N from his home country of Azerbaijan, without the consent of the mother and in the face of a travel restriction that at the time of the removal remained in force, when it became apparent on 14 March 2016 that his application to the District Court to discharge the travel restriction had failed. Thereafter, it is submitted on behalf of the mother that the father misled the Deputy District Judge in Manchester by advancing a case that bore no resemblance to the actual position in Azerbaijan and by failing to comply with the strict procedural safeguards applicable to without notice applications.
- Within the foregoing context, Mr Harrison QC and Ms Dunseath submit that this case is predominantly an Azerbaijani case and, accordingly, the welfare issues arising between the parents in respect of N should be determined by the Azerbaijani court.
- In this regard the mother relies on the fact that Azerbaijan is N's home country and his home environment, in which he has resided for the majority of his life and in which he was residing at the time of his removal. The mother further relies on the fact that she resides in Azerbaijan, as does her own mother and the maternal great-grandmother, and on the fact that father has, with only sporadic breaks, worked in Azerbaijan since 2004 and continues to have employment and a home in that jurisdiction. Mr Harrison and Ms Dunseath further submit that the evidence before the court demonstrates beyond peradventure that the mother was responsible for the majority of N's care during his waking hours.
- Within this context, Mr Harrison and Ms Dunseath further submit that these factors also point to Azerbaijan plainly being the appropriate venue for determining the welfare issues that arise in respect of N in circumstances where the vast majority of the evidence relevant to that question is centred on Azerbaijan. Mr Harrison and Ms Dunseath submit that not to order the return of N to Azerbaijan would result in a hearing in this jurisdiction that would require the extensive translation of documentary evidence, the use of interpreters and the widespread use of video-links to take witness evidence. It is further submitted on behalf of the mother that such a course would, in contrast to the father's position in Azerbaijan, leave her litigating in a jurisdiction where her immigration status is precarious, where she does not speak fluent English and where she will not have funding for representation in any proceedings under the Children Act 1989 and would leave both parents litigating in a jurisdiction where neither has employment. In so far as the father submits that N is now settled in a "calm" situation in this jurisdiction, Mr Harrison and Ms Dunseath argue that N has not been in this country without objection and, indeed, that the mother has maintained her early and clear objection since the date of removal on 17 March 2016.
- With respect to the father's assertion that returning N to the jurisdiction of Azerbaijan will result in a risk of harm to him and to the father having regard to the incident on 8 February 2016 and an alleged threat of abduction to Russia, Mr Harrison and Ms Dunseath submit that these assertions in this regard are defeated by the fact that this was a single incident in the context of the breakdown of the parents' relationship and by the father's offer of 1 March 2016 to employ the mother as a nanny for N.
- In response to the father's assertions that the mother will seek to take advantage of corruption and lack of respect for human rights in Azerbaijan, Mr Harrison and Ms Dunseath submit that on the father's own evidence the mother is simply not in a financial or social position to bribe officials. Mr Harrison and Ms Dunseath further point out that it is the father who has successfully persuaded the Chief Prosecutor in Baku to re-open a criminal investigation in respect of the mother that the Police had decided not to pursue further, as a result of which the mother is at risk of receiving a custodial sentence. Mr Harrison and Ms Dunseath argue further that there is no evidence before the court justifying criticism of the administration of family justice in Azerbaijan and still less a finding by this court that the father would fail to get a fair trial in family proceedings in Azerbaijan. Specifically, Mr Harrison and Ms Dunseath contend that there nothing in material before the court relied on by the father to suggest that the court system is likely to be biased against him as a foreign national engaged in family proceedings. Within this context, Mr Harrison and Ms Dunseath point to the fact that it was the father who was, in part, successful in the Baku Appeal Court.
- In the foregoing circumstances, Mr Harrison and Ms Dunseath submit that it is plainly in N's best interests to be summarily returned to the jurisdiction of his home country for the purposes of determining the welfare issues in respect of him.
The Father
- Mr Scott-Manderson QC grounds his submissions on behalf of the father firmly in what the father contends is the risk that the mother may seek to take advantage of corruption and disregard for human rights in Azerbaijan to gain advantage and the risk that the father will not, as a foreign national, receive a fair hearing in a jurisdiction in which the father is unable to take advantage of reciprocal arrangements available under bi-lateral agreements such as the 1980 and 1996 Hague Conventions or BIIA. I have set out above the evidence on which the father relies in an attempt to make good these submissions.
- The father further submits through Mr Scott-Manderson that in so far as the father removed N from his home country without the knowledge or consent of the mother he did so in a situation of "grave concern" following the incident of 8 February 2016, which incident, the father contends, is evidence of the likely harm that N would suffer if he were returned to Azerbaijan, in addition to a risk that the mother would remove him to the Russian Federation (which risk the father sought in particular to emphasise to the court). The father submits that this risk of harm is further exacerbated by what he submits is his precarious immigration position consequent on his current employment position and N's precarious immigration position consequent on the uncertainties regarding his citizenship.
- Whilst the father acknowledges through Mr Scott-Manderson that N has spent the majority of his life in Azerbaijan and has substantial links to that jurisdiction, the father urges the court to have regard to the manifest links that N has to the United Kingdom, not least that he is a British Citizen born in this country. Within this context, Mr Scott-Manderson submits on behalf of the father that N's links with the United Kingdom weaken what Mr Scott-Manderson styles as the already "weak presumption" arising from the starting proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. Further, whilst Mr Scott-Manderson again concedes on behalf of the father that the evidence before the court shows that both parents were involved in the care of N, Mr Scott-Manderson seeks to style the father as having "overall control" in this regard.
- Within the foregoing context Mr Scott-Manderson submits that, in circumstances where N is now, as the father would have it, settled in this jurisdiction in a "calm" situation, it is in N's best interests to remain in this jurisdiction for a short while longer whilst the substantive welfare issues that arise in respect of him are determined in this jurisdiction. The father submits that the court is in a position to do so notwithstanding that the majority of the relevant events took place in, and majority of the evidence is in Azerbaijan in circumstances where the court is able to utilise video link technology to hear evidence from Azerbaijan. Mr Scott-Manderson characterises the father's proposal as an appropriately cautious approach to take in light of the risks of peremptory return (to adopt Mr Scott-Manderson's phrase) the father contends arise from the incident on 8 February 2016 and the risk that the mother will seek to take advantage of corruption and lack of respect for human rights in Azerbaijan. In the circumstances, Mr Scott-Manderson submits on behalf of the father that the court should refuse the mother's application for summary return on the grounds that it cannot be said that this is in N's best interests.
DISCUSSION
- As I stated at the commencement of this judgment, having considered the documentary evidence before the court and having listened carefully to the submissions, I have decided that it is in N's best interests to order his return to the jurisdiction of Azerbaijan in order that issues concerning his welfare can be determined by the courts of his home country, which courts are already seised of that issue. My reasons for deciding are as follows.
- I am satisfied that it is proper on the evidence available to the court to characterise Azerbaijan as N's home country. Whilst N has significant connections to the United Kingdom, not the least of which are the fact that he was born here, is a British Citizen and has extended family here, the evidence available to me indicates that it is in Azerbaijan that he has lived the majority of his life, it is Azerbaijan where his parents made their life together with N and cared for him prior to their separation and it is in Azerbaijan that he was residing immediately before his clandestine removal by the father. It is in Azerbaijan that the members of N's extended maternal family with whom he has had extensive contact live. Within this context, Azerbaijan is also the location of important aspects of N's dual heritage and his cultural background.
- Having regard to the evidence currently available to the court, I consider the father's submission that the parents had merely a casual sexual relationship in the context of which he was responsible for the majority of N's care to be unsustainable on the available evidence. Rather, I am satisfied that the evidence currently available tends to suggest that whilst N was in Azerbaijan his mother undertook the majority of the care of N during the week prior to the breakdown of the relationship that I am satisfied that the parents were in. On the father's own evidence, the mother was responsible for caring for N between 7am and 5pm each weekday and on some weekends. I consider it unlikely on the evidence currently available that upon the arrival of the father from work the mother was excluded completely from the care of N. From the respective descriptions provided (or not provided) by the mother and the father, it appears that the mother was responsible for at least some of the night time care of N. In the circumstances, prior to his sudden and peremptory removal from Azerbaijan I am satisfied that N would have experienced his mother as consistent and vital presence in his life.
- Within the foregoing context, the evidence available to the court demonstrates clearly that on 17 March 2016 the father removed N from his home country and from the affection and society of his mother in a clandestine manner and without notice to, or gaining the consent of the mother. Whilst it would not be appropriate to make a definitive finding regarding the father's precise level of knowledge with respect to the proceedings in the Baku court at the time, the fact he took this step only two days after the District Court had refused to grant his complaint against the travel restriction and was accompanied to the airport by his lawyer tends to suggest that father was aware of the restriction on his travel but had decided to take matters into his own hands rather than let his appeal run its course. However, in my judgment it is the action of the father in unilaterally removing N from Azerbaijan without the knowledge or the consent of the mother, rather than the legality or otherwise of that course of action under Azerbaijani law, that is the important factor when considering N's best interests (see Re F (Minor)(Abduction: Jurisdiction) [1991] 1 FLR 1). By his actions the father, having attempted to reduce the mother's legal relationship with N to a contractual arrangement, severed unilaterally the relationship between her and N.
- I am satisfied that in removing N to England on 17 March 2016 the father failed to act in the best interests of N. Whilst to a certain extent mitigated by the fact that N was not a complete stranger to England, given his age at the time I am satisfied that he would have experienced his father's actions as an uprooting from the environment most familiar to him and as a distressing interruption in his vital relationship with his mother. The removal also deprived N of the love and society of extended family members with whom he was used to having contact.
- Within this context, I am satisfied that it is not in N's best interests to be kept away from his home environment and from his mother in that environment pending the determination of the welfare issues in respect of him. Whilst the father contends that the mother could remain in the United Kingdom during that period of time, in my judgment this would place the mother in a potentially precarious situation in which she would be reliant on the father for accommodation and income and in which her immigration position would be uncertain. I am satisfied that the mother's uncertainty and insecurity would, in turn, impact on N's welfare. By contrast, the father has a home, current employment (the situation in respect of which I consider further below) and a settled life in Azerbaijan.
- Finally in respect of the effect of the father's clandestine removal of N from Azerbaijan, in the context of the need still to determine the welfare issues in respect of N, I also bear in mind the observation of Wilson J (as he then was) in Re H (Child Abduction: Mother's Asylum) [2003] 2 FLR 1105, commenting on Charles J in Re Z (Abduction: Non-Convention Country) [1999] 1 FLR 1270 that "the decision upon his long-term future is more likely to be in his interests if it has not been distorted by the attempted – and unreversed – imposition by one parent of a fait accompli."
- Notwithstanding the father's peremptory actions on 17 March 2016 and the fact that some 16 weeks has now passed since that date, I am satisfied that the centre of gravity in this case remains in Azerbaijan. Whilst the father commenced proceedings here he failed to prosecute them in accordance with the well-established principles applicable to without notice applications and applications which raise questions of jurisdiction, or with the requisite candour. More importantly, and as I have already recounted, N's home country is Azerbaijan and is where the parent who, the currently available evidence tends to suggest, provided N with the majority of his care prior to the end of the parents' relationship resides. Proceedings in respect of N's welfare were commenced prior to his clandestine removal from Azerbaijan and remain on foot in that jurisdiction.
- Within the latter context, I am further satisfied that the Azerbaijani courts are better placed than the English court to determine the welfare issues in respect of N.
- Generally, the courts of the country from which a child has been abducted will be in a better position to resolve disputes relating to the child's future and I am satisfied that is the case here. As Wilson J (as he then was) said in Re H (Child Abduction: Mother's Asylum) [2003] 2 FLR 1105:
"…the optimum programme for a child's future will substantially be identified by reference to past events; to the personality, abilities and needs of the child, and of those around the child, whether parents, siblings or others, and to the relationships between them, as illumined by past events; and to the physical, emotional, social and cultural milieu in which the family lived; and that all these matters, including in particular any resolution of factual disputes relating to past events, are more satisfactorily addressed in the courts of that state."
- As I have noted, the Azerbaijani court is already seized of proceedings in respect of N. The report of the jointly instructed expert articulates the provisions the relevant Azerbaijani legislation concerning the priority given to the child's best interests, recognition of the importance of taking into account the opinion of the child, recognition of the importance of contact with the non-resident parent and recognition of the importance of considering the behaviour and character of the parents and their capacity to meet the needs of the child. Whilst the absence of a formal procedure for an application for permission to relocate has given me pause, it is clear that the Azerbaijani court has an established process for determining disputes over custody and residence. Prior to his departure the father was actively participating in the proceedings in Azerbaijan with the assistance of a lawyer and had succeeded in challenging on appeal certain aspects of the interim relief granted by the Baku District Court. The mother likewise has the benefit of lawyers within the proceedings in Azerbaijan, a situation that is unlikely to be mirrored in this jurisdiction in private law proceedings under the Children Act 1989 having regard to the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
- In circumstances where the events which will fall to be examined in determining the welfare issues in respect of N took place primarily in the jurisdiction in which the parents and child made their home, where the relevant witnesses are in Azerbaijan and where any assessments will need to consider N's home environment in Azerbaijan, I am satisfied that the Azerbaijani courts are, practically, better placed to conduct a fully informed welfare hearing. Further, whilst I accept that it is possible to utilise translators in respect of documentary evidence and video-links to secure the attendance of witnesses at a hearing in this jurisdiction, those procedural tools do not make up for the fact that the court in the child's home jurisdiction will have a closer connection with, and a greater understanding of the "physical, emotional, social and cultural milieu in which the family lived" and in which the welfare issues between the parties arose, and the relevance and impact of the same on the welfare outcome for the child. Whilst Mr Scott-Manderson submits that material has now arisen in this jurisdiction that will fall to be considered at a welfare hearing (namely the routine involvement of the Health Visitor and the father approaching children's services for advice on difficulties with N's behaviour), I am satisfied that that material is highly unlikely to be the subject of forensic challenge and can be made available to the court in Azerbaijan in documentary form.
- In the circumstances and for these reasons, I am satisfied that it is in the best interests of N for further investigations and determination to be made by the court of N's home country in Azerbaijan.
- Having considered them carefully, I am not persuaded by the father's submissions that an order returning N to the jurisdiction of Azerbaijan will expose him to a risk of harm (a) by reason of the mother's actions on 8 February 2016 and/or a risk of abduction to the jurisdiction of the Russian Federation, (b) by reason of the father's stated concerns regarding the mother taking advantage of corruption and the human rights record in Azerbaijan or (c) by reason of the father's employment position in Azerbaijan and the father and N's immigration position in that jurisdiction.
- The incident on 8 February 2016 was plainly very regrettable and should never have taken place. Whilst on the father's case put at its highest N sustained minor injury after being caught in the cross-fire, if that is what did indeed happen the incident plainly resulted in physical harm to N. Even on the mother's account N would have been alarmed and distressed by the events she concedes took place. Against this, I note that there is no evidence of other incidents of a similar nature having occurred during the parents' relationship and that the events that took place on 8 February 2016 occurred within the context of the parents' relationship breaking down and the mother having discovered, on her case, the father's infidelity. Within this context, the father was, by virtue of his proposal of 1 March 2016, plainly willing to allow the mother to assume care of N (albeit on a contractual basis) notwithstanding the incident of 8 February 2016 and his stated concerns that the mother may abduct the child to the Russian Federation. I also bear in mind that the father has been content to have the mother residing with N and himself during the course of this hearing. In the circumstances, I do not consider that the single incident on 8 February 2016, whilst strongly to be deprecated, leads to a conclusion that it is not in N's best interests to be returned to the jurisdiction of Azerbaijan.
- I am likewise not persuaded that the mother will seek to take advantage of corruption or a lack of respect for human rights in Azerbaijan in order to gain advantage in proceedings in that jurisdiction. Whilst the documentation relied on by Mr Scott-Manderson indicates that corruption and human rights abuses occur in Azerbaijan, I am not satisfied that the father has demonstrated that the mother has used corruption to gain advantage or that she is likely to do so. In particular, I am not satisfied that the certificate setting out N's citizenship status is evidence of the mother taking advantage of corruption, satisfied as I am that that certificate merely records the legal position regarding N's status subject to satisfaction of the requirements of Azerbaijani law as opposed to being a certificate of citizenship. Nor am I satisfied that certain unwise and emotional statements the mother has made online and over Skype evince an intention to take advantage of corruption to the prejudice of the father. With respect to proceedings, the mother appears to have reacted entirely predictably and appropriately to the dispute between the parents in respect of N's clandestine removal. She sought relief in the Azerbaijani court and has diligently pursued litigation in this country following the father removing N without notice or her consent.
- Further, whilst I have paid very careful regard to, and do not dismiss the concerns regarding corruption and human rights abuses raised in the documents relied on by Mr Scott-Manderson, it remains the case that there is no evidence before the court that the father's position in the family proceedings in Azerbaijan will be prejudiced by these matters. The father has lawyers protecting his interests in the Azerbaijani proceedings. He has been successful in part at appellate level and he has persuaded the Chief Prosecutor to re-open the Police investigation into the mother's alleged conduct on 8 February 2016. In the circumstances, I am not satisfied that the matters relied on by the father in this regard can properly lead to a conclusion that it is not in N's best interests to be returned to the jurisdiction of Azerbaijan given the matters I have outlined above pointing to such a return.
- Finally, I am not satisfied that the employment position of the father or the immigration position of the father or N leads to a conclusion that it is in N's best interests not to be returned to Azerbaijan. On the evidence available to the court the father's employment position appears to be that he will continue to have a job with X subject to the company obtaining contracts on which his services are required. Within this context, I note that the father has worked in Azerbaijan (with short sabbaticals in other countries) since 2004 and is an expert in his field. Within this context the father at present has a family home and current employment in Azerbaijan with apparently good prospects. He knows the country well after 12 years residing there, is familiar with its conventions and has a social network. Once again, by contrast, were she to have to remain in England pending the determination of the welfare issues in respect of N, the mother has no employment, no independent accommodation, no secure immigration status and limited English.
- The immigration position of both the father and N is clear. The father is entitled to remain in Azerbaijan whilst he is in employment. Even were his job to cease in November 2016 (in respect of which assertion I entertain significant doubts) he will be able to remain as a visitor at least until April 2017. N is a British citizen and has a visa valid until March 2017. The expert evidence suggests that the proceedings in Azerbaijan concerning N's welfare will be completed well before the expiry of this period.
CONCLUSION
- Accepting that this is a case in which the child has a connection with the United Kingdom by virtue of his birth and nationality, within the context of the matters set out above I am satisfied that this is a case in which the starting point should be that it is likely to be better for a N to return to his home country for any disputes about his future to be decided there. For the reasons I have given I am not satisfied that a case has been made against adopting this course. Rather, having regard to the evidence currently available to the court and for the reasons set out in this judgment, I am satisfied that it is in N's best interests to be returned to the jurisdiction of Azerbaijan to enable the proceedings currently on foot in that jurisdiction to determine the welfare issues in respect of him.
- There is some dispute between the parties as to what the interim arrangements pending the first inter partes hearing in Azerbaijan should be, both in terms of protective measures and N's interim living arrangements. Having regard to the respective positions of the parties and having considered carefully those positions, I am satisfied that the interim arrangements should be as follows:
i) Pending the first inter partes hearing in the Azerbaijani court in my judgment it is in N's best interests for his living arrangements to reflect broadly the position that the evidence tends to suggest pertained prior to the parents' separation, namely that the care of N was shared. In the absence of contrary agreement between the parties, I am satisfied that it is N's best interests that the mother should care for him from Monday to Friday each week and the father should care for N from Friday to Monday each week. It will be for the court in Baku to consider any amendments to this arrangement at the first inter partes hearing;
ii) Prior to the return of N to the jurisdiction of Azerbaijan, and without prejudice to any submissions the mother or the father may seek to make regarding jurisdiction in the Azerbaijani court, the mother and the father should, subject to confirmation being sought, declare and confirm to the court that:
a) No warrants for arrest are in existence in Azerbaijan in respect of either the father or the mother;
b) No orders in Azerbaijan or other legal processes in Azerbaijan are in existence which remove the parental rights of either parent, which regulate the physical custody care and control of N or which limit in any way the freedom of movement of the father to move freely into and out of the jurisdiction of Azerbaijan;
iii) The mother and the father should each give the following undertakings to this court (which undertakings will not prevent either parent from referring to any facts relating to allegations of removal or domestic violence in the factual determination of any issue in the Azerbaijan Court with regard to determining the welfare issues in respect of N or other civil proceedings between the parties arising out of their relationship):
a) Not to institute, continue or support in Azerbaijan or elsewhere any process, determination or proceedings or seek any warrants for arrest or other orders or process, whether criminal or civil, for the punishment of each other (whether by imprisonment, arrest, fine or howsoever otherwise) arising from the removal or retention of N;
b) Not to institute, continue or support in Azerbaijan or elsewhere any process, determination or proceedings or seek any warrants for arrest or other orders or process, whether criminal or civil, for the punishment of each other (whether by imprisonment, arrest, fine or howsoever otherwise) arising from any allegation in respect of each other occurring prior to the date of N's return to Azerbaijan in accordance with the terms of the return order;
c) Save in a case or urgency, not to make any applications or seek any orders, including any without notice applications, pending the first inter partes hearing on notice in a Court in Azerbaijan at which orders may be made in respect of the physical care and control and contact in respect of N, save to list the matter on notice to the other on a date not earlier than two full working days following the return of N;
d) To jointly and promptly send copies of these undertakings with translations to the appropriate court in Azerbaijan and to the Ministry of Justice in Azerbaijan and to provide evidence of the same not less than two working days prior to the return;
e) At all times following the return of N to Azerbaijan, to facilitate, support and not to seek to limit or restrict in any way, the full and absolute personal freedom of movement of each parent to freely enter and to freely depart Azerbaijan without N;
iv) The mother should undertake to support (in so far as she is able to do so) prompt resolution of all Azerbaijan immigration applications of the father in order for the father to be able to exercise his parenting time with N.
- With respect to these undertakings certain of them will need to be expressed as being intended to govern the position pending the first inter partes hearing and not being intended to trespass on the jurisdiction of the Azerbaijani court.
- I am not satisfied that prior orders should be obtained in the Azerbaijan court before N is returned to that jurisdiction. There is no evidence before this court as to the method by which this would be achieved or the timescales involved in achieving the same. More importantly, for the reasons I have set out above, I am not satisfied that the risks contended for by the father justify this step as necessary before N is returned to the jurisdiction of Azerbaijan. Within this context, I am satisfied that undertakings set out above constitute the appropriate protective measures in this case.
- Within the foregoing context, I make an order for the return of N to the jurisdiction of Azerbaijan and direct that the father pay for reasonably priced economy airline tickets for the mother, N and himself to Azerbaijan. I will also direct that a copy of this judgment be translated and disclosed to the District Court in Baku. I will invite the parties to submit a draft order reflecting the decision of the Court and the matters set out in the foregoing paragraphs.
- That is my judgment.
