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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A (Children Retained in Iraq), Re [2017] EWHC 1163 (Fam) (28 February 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/1163.html Cite as: [2017] EWHC 1163 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: A (CHILDREN)

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		28th February 2017

JUDGMENT

THE HONOURABLE MR JUSTICE HOLMAN:

1. In this case I am today giving further directions which are, I hope, self-explanatory. The purpose of these few words is simply to record the context in which I am doing so and the essential reasons for them.
2. These proceedings concern two boys who are now aged 14 and nearly 12. Their father is of Iraqi descent. However, he has become a British citizen. Their mother is a British citizen. Both children were born in England and until last summer had always lived in England, albeit making holidays abroad to Iraq from time to time to meet their paternal family there.
3. Last July, both children and both parents travelled to Iraq. They had return tickets booked for the end of August. It turned out that the mother returned to England but the children did not. There is, no doubt, considerable contention between the parents as to the circumstances in which that came about. The fact is that since late July 2016 these two children have lived continuously in Iraq.
4. There has since then been considerable litigation here in England. Last August orders were made to the effect that the father must bring the two children back to England in early September 2016. Further, there was a passport order in relation to himself which was patently designed to achieve that the father himself remained in England (where he was at that time) until, at any rate, the conclusion of the hearing on 13^th September 2016. There were, further, two orders, each requiring the father personally to attend that hearing.
5. In the event, on 13^th September 2016 neither the father nor either of the children were present here in England and Wales. The mother, who at that time was acting in person, did attend the hearing on 13^th September 2016. The circuit judge made an order, the effect of which was to dismiss all the then existing proceedings and discharge all orders of a continuing effect. It appears that at the hearing the mother told the court that that was what she desired. One order that I make today is for an official verbatim transcript to be made of the whole of that hearing so that it is possible to see exactly what the mother was saying and what, indeed, the judge or others were saying to her.
6. Around the end of November 2016 the father was again in England and Wales. He appears to have travelled here in part for medical treatment and in part to attend to the letting of a property of which he himself is the tenant. The mother went in person before Mr Justice MacDonald in London on Friday, 25^th November 2016 and asked for an order preventing the father from leaving. However, she told Mr Justice MacDonald, as no doubt she believed, that the father was scheduled to fly out the following Sunday, 27^th November 2016. In those circumstances and having regard to the recital or preamble to the order of 13^th September 2016, Mr Justice MacDonald declined to make any order for reasons given in his judgment dated 25^th November 2016.
7. Ironically and, frankly, tragically, it has since emerged that the father was not scheduled to fly out as early as Sunday, 27^th November 2016 and he did not leave England and Wales for about a further ten days. I venture to think that if Mr Justice MacDonald had known that the father was, in any event, going to remain in England for a further ten days, so that minimal inconvenience would be caused to the father, he would have required the father to remain in England and attend court for a further short hearing, probably in the week beginning Monday, 28^th November 2016. At all events, the father did return to Iraq and, so far as I am aware, has not returned to England since.
8. The present hearing was fixed by order of Her Honour Judge Singleton QC in London on 18^th January 2017. It is regrettable, to my mind, that that order did not make express that the father personally must attend this hearing. He was, nevertheless, under an obligation to do so, unless excused, by virtue of the provisions of Family Procedure Rules rule 27.3. The fact is that the father has not attended this hearing at all and, as I understand it, remains in Iraq.
9. The mother attended yesterday, which was the first day of the hearing but, as I speak, which is 3.30pm today, she has not attended at all today. She has not sent any kind of message to her legal representatives, although when her legal representatives contacted the mother's own mother (who had also been at court yesterday), the grandmother said that she thought the mother was on the bus and on the way. But, as I have said, it is now five hours since the listed start time of this hearing, and the mother has not attended nor has she herself sent any kind of message to her legal representatives despite their leaving text and other messages upon her mobile phone.
10. So the situation in this case is now thoroughly unsatisfactory. The fact remains that two children, aged 14 and almost 12, who are both British citizens and whose whole background and upbringing until very recently was here in England, are now in Iraq. Somewhat predictably in a situation such as this, each parent indicates their own account as to the current wishes and feelings of the children. The mother has produced what she says are photo shots of messages left by the elder child upon her mobile phone on 11^th January 2017 to the effect that they are unhappy in Iraq and strongly wish to return here to England. This morning Mr Jeremy Rosenblatt, who appears on behalf of the father, says that the father's instructions overnight are to the effect that those are concocted or contrived text messages which did not, in truth, emanate from the children, who have said no such thing.
11. More specifically there is, of course, a potential issue in this case with regard to jurisdiction. The present proceedings were commenced on or about 25^th November 2016. On behalf of the mother, Mr Andrew Venables argues that there are, in fact, three possible bases for jurisdiction in this case. First, that the order made by His Honour Judge Jordan on 13^th September 2016 should be avoided because the mother consented to it as a result of duress. The alleged duress is statements allegedly made by the father to the effect that unless the mother withdrew these proceedings she would never see her children again. Second, Mr Venables submits that, in any event, the children were still habitually resident here in England and Wales on 25^th November 2016 when these proceedings were commenced. Third, and residually, he submits that there is, in any event, jurisdiction because both children are British citizens, albeit that in its discretion the court should only exercise jurisdiction on that basis with great circumspection and exceptionally.
12. In this situation it seems to me absolutely essential that the court should, so far as it reasonably can, obtain some objective account of the wishes and feelings of these children. Their wishes and feelings are obviously relevant to any welfare or outcome decisions. They may also be relevant to, although not decisive of, any consideration of habitual residence. Just to take two extremes; if on the one hand, the objectively reliable position of the children is that they are very happy in Iraq, and very well settled and integrated there, then that might point strongly to their being habitually resident there. If, on the other hand, their objectively reliable position is that they are very unhappy in Iraq and have never settled there and long to return to England where they retain friendships and other connections, then that would tend to point away from any conclusion that they are habitually resident in Iraq. The technically important date for determination of habitual residence in the present proceedings is, of course, late November 2016 and so it would be their state of mind at that time which is specifically in point insofar as it is now ascertainable.
13. So it seems to me vital in this case that every effort should be made to ascertain as reliably as possible the wishes and feelings of these children at their respective ages. It would undoubtedly be best if they were to return, if only temporarily, to England and Wales in order to have free, face-to-face meetings with a guardian and, if appropriate, personally to meet a judge. It does not seem to me that, on the present state of the evidence and at this very unsatisfactory hearing, I can go so far as to order the return of the children to England and Wales even for that relatively limited purpose, although I make clear that that may later be ordered. Further, quite frankly, I am highly sceptical whether the father, who has a demonstrable history of non-compliance with court orders, would in fact bring them here for that purpose. As I have said, he failed to bring them here in early September in breach of earlier orders requiring him to do so.
14. However, I have today had long and extremely helpful discussions with Mr John Mellor of CAFCASS High Court team. He has told me that CAFCASS do have some experience of interviewing children in Iraq through Skype or similar electronic means. They would be very willing to endeavour to do so in this case. I have, accordingly, made detailed orders today directed to enabling CAFCASS to communicate with each of these children by Skype or similar means. The order requires in detailed terms that the father causes and permits and facilitates that the children can freely and confidentially do so.
15. I propose, therefore, to adjourn this matter but reserve it to myself so far as available, which necessarily means the next hearing being in London. There will be directions for the preparation of other evidence and the exchange of statements. Although I do not order that the children are returned in advance of that hearing, I do positively order that the father attends that hearing. It has not been suggested that the cost of doing so is beyond his means. As I have said, he has already been in England at least twice since the children went to Iraq at the end of July. It seems to me essential, if there is ever to be any just resolution in relation to these children, that both parents engage directly in the court room with the court.
16. There is currently no passport order in force in relation to the father. He is, in fact, free to come and go. I make crystal clear that, so far as I am concerned, if he does attend that next hearing, and provided he is not, subsequent to today, in contempt of court in any way, then he will be freely permitted to leave again at the conclusion of that hearing. Of course, I can only speak for this court. If, for instance, he were to have committed, or to commit, any criminal offence, then a criminal court in quite different proceedings might prevent his leaving. But, so far as this court is concerned, if he does attend as I order him to do, he will be freely enabled to leave again at the conclusion of the hearing provided only that between now and then he is not in contempt of this court.
17. As I have said, there have been earlier breaches by him in a number of respects of earlier orders but, so far as I am concerned, that is now in the past. There has never been any application to commit him for contempt of court. At the hearing on 13^th September 2016 it must have been patent to the judge that the father had been, and was, in contempt of court but the judge chose not to take any action in relation to it. So the father is not at risk now of any committal in relation to any known breaches of orders or contempts of court up to the date of today. Of course, I cannot bind myself or any court in relation to any contempts that may be committed subsequent to today.
[Short discussion follows]