YS v MN (Summary return to Algeria) [2017] EWFC B112 (20 October 2017)

JUDGMENT HHJ HILLIER: 1. These proceedings were listed before me on 18 October 2017, with a time estimate of one day. There was insufficient time to deliver judgment. The matter was therefore listed today. The Issues 2. This is the final hearing of the mother’s application for summary return of the parties’ son to Algeria. She made the application on 6 September, and the case was heard on a without notice basis by Russell J on 7 September. 3. Russell J made the child, a boy aged three years, a ward of court, made a location order and gave directions for filing evidence. Provision for contact between the mother and child was made by Holman J on 18 September. 4. Miss Chaudhry, acting on behalf of the mother, sought a summary return order. Miss Fox, on behalf of the father, asked me to hear the parties’ oral evidence on the issue of ‘consent’. I stress that this was not on the basis of some legally erroneous application of Hague Convention principles to a non-Hague Convention case, but on the basis of how the child came to be in England and whether that was due to a welfare based decision and agreement by both his parents. 5. Miss Fox also submitted that I should adjourn the proceedings for the purpose of obtaining more information about the welfare of the child in the UK, and about his disputed diagnosis of autism. 6. I determined that I would hear the parents’ evidence on the issue of consent, insofar as it reflected on the child’s welfare. I am pleased I did, as it was an opportunity to assess the parents and their understanding of the child’s welfare needs. It was illuminating. 7. I considered the application to adjourn the case for the purpose of obtaining further evidence. Miss Fox submitted that I should obtain evidence about the child’s health needs, and whether they could be met in Algeria. She told me on instructions from her client that he would agree to his son returning to Algeria in the event that there was evidence that the boy’s health needs could be met there. 8. I have to balance the inevitable delay in determining this child’s future against the need to have sufficient evidence about his health needs in order to determine his welfare interests. Both parties have filed information about the child’s health, both as identified in Algeria and since he has been in the UK. The only difference between them is whether the child displays traits which may indicate an autistic spectrum disorder, which is the mother’s position, or whether he has been diagnosed as autistic. The relevance of this is that the father claims that there is stigma attached to autism in Algeria, and that the condition is not treated in an appropriate way as a result. 9. The father’s evidence is that the child has been referred for assessment in England, and that I should await the outcome of that assessment before making a welfare based decision. 10. I have concluded that I do not need any expert evidence on the subject of the child’s health to determine this application. My reasons for this are as follows: 11. I have evidence from both the father and the mother about the child’s development. He has somewhat delayed speech, and there has been some exploration of his hearing. He has also had some behavioural difficulties including excessive screaming. These difficulties have been considered in Algeria. In the UK he has had his MMR vaccination and he has seen a GP. He has been referred for further assessment based on the information supplied about him to the GP by his father. 12. This evidence is more than sufficient to enable me to make a welfare decision about his needs. I was not given any timescale or proposal as to how the evidence could be obtained as to a) diagnosis or otherwise of autism; or b) any medical support for such assessment; or c) any proposed expert opinion on the availability of assistance for the child in Algeria. 13. Having weighed the evidence and submissions I concluded that expert evidence on this issue is not needed in the circumstances of this case, and on these facts. I am able to assess this child’s welfare interests without it. The application is therefore dismissed. 14. Miss Fox also applied for an adjournment to obtain a CAFCASS report in respect of the child’s circumstances. I have considered that application in the light of what I know and what I need to know in order to fairly assess the child’s welfare needs. Miss Fox asked me to consider Re H (Abduction: Dominica: Corporal Punishment) [2006] EWCA Civ 871 . 15. The children in that case were aged 12, 9 and 6 and they had been seen by a CAFCASS officer at court. They made allegations of serious physical chastisement and on the basis of that information the whole case was ended summarily. The Court of Appeal held that in such circumstances there should in fact have been a full trial of the issues. 16. In this case the only criticism of the mother’s care of the child is that she has not sufficiently pursued a diagnosis of, and treatment of, autism. The criticism of the father’s parenting is that he failed to appreciate the emotional consequences to this child from a peremptory separation from his primary carer. 17. As an experienced family judge, I am satisfied that in this case I am able to assess those factors without the need of a CAFCASS report on the evidence before me. 18. On instructions, Miss Fox submitted that I may be further assisted by guidance on the child’s wishes and feelings. I reject that submission. He is only three-years-old. He has delayed speech and language. He was clearly happy in the care of his mother and had been seen by the police in August to be content in the care of his father. Even if he were able to articulate his wishes, whether to return to his mother or to remain here, I would be unlikely to place significant weight on those views, given his age and understanding of his circumstances. An application to adjourn for a report by CAFCASS in respect of his welfare or views is therefore dismissed. 19. Miss Fox also submitted that the court should have more information about how the Algerian court would deal with disputed child arrangements. I have of course considered the guidance provided in Re J (a child) Custody Rights: Jurisdiction [2006] AC 80 The guidance provides that I should consider the relevance of the difference between the two legal systems in the light of the facts of this case. 20. I have evidence of both parents making use of the Algerian court system in respect of their son. Firstly, the father obtained contact orders on 18 June 2017 and 16 August 2017. 21. Secondly the mother obtained a temporary custody order and requirement for the father to hand over the child to her, in the context of the ongoing divorce proceedings. That order was issued on 24 August 2017. The father has further made a court application and started libel proceedings against the mother. 22. It is of course important that I consider the father’s claim that if he returns to Algeria he will be arrested and detained without access to a lawyer, for up to six months. The mother’s evidence is that she has not sought criminal prosecution of the father. She will give undertakings not to instigate such proceedings in Algeria. 23. I have considered this issue in the light of my assessment of their oral evidence and their credibility. Neither party has claimed that I will need expert evidence about the approach that the Algerian court may take to this dispute in respect of the child. The father claims that he will be unable to access the Algerian courts if he is in the UK. That is contrary to what has actually happened. He has instructed a lawyer in Algeria to instigate the libel proceedings I referred to. The action was commenced since these proceedings were started, following notification of the authorities there about his removal of the son to the UK via Tunisia. 24. I am therefore satisfied that he would be able to be represented in any proceedings relating to the child in Algeria, whether from the UK or if he went to Algeria. Insofar as the claim is pursued as a ground for an adjournment to obtain further evidence, the application is dismissed. Essential Background 25. Both parents are Algerian nationals. The father also holds British nationality. He is 38 and she is 26. The father states that he has lived in the UK for the past 18 years and that he currently works as a taxi driver. He says that he has spent much time in Algeria over that period of years. 26. The mother was unable to obtain a visa to enter the UK to enable her to attend to give evidence in person. She attended by video-link. The maternal and paternal grandparents live in Algeria. The parents have been married to each other on two occasions. They first married in October 2013. The mother says the father left the marriage in February 2014. In June 2014 the mother obtained a divorce in the Algerian court and she moved back to her maternal family home. 27. The father returned to the UK. Their son was born in the following month. The father did not see his son for the first few months of his life. In February 2016 the parents remarried. They lived together in Algeria for a few weeks at the paternal family home. The father then returned to England. The mother remained at the paternal grandparents’ home until about May 2017. At that stage she issued further divorce proceedings. 28. In June 2017 the father obtained a contact order to see his son each Monday and Tuesday. At the first contact the father retained the child and the mother obtained an order from the court confirming his failure to return the child following an authorised contact. It would appear that he kept their son for a week, when it was clear from the order that he was only supposed to see him for a day. 29. During July 2017 the father spent time with the mother and also his son, although the extent of that is disputed. On 16 August the father obtained a further contact order providing for contact each Friday and Saturday, from 9:00am until 4:00pm. On 18 August the child was handed over to the father. The circumstances of the handover are disputed. The father says that the handover was to enable him to bring the child to the UK with the mother’s consent. The mother says that her brother handed the child over for a day’s contact at the beach and that the father kidnapped the child and brought him to the UK, without her knowledge or consent. The mother obtained a temporary custody order in Algeria on 24 August and made an application under the inherent jurisdiction of this court for summary return, on 6 September. 30. On 17 September the father notified the Algerian court that he wished to defend the mother’s divorce proceedings and on 25 September, he obtained an order in respect of the child’s medical records. He also commenced libel proceedings against the mother. The Child’s Removal from Algeria 31. The circumstances of how the child came from Algeria to this country are disputed. The father and mother both gave short evidence on this point and I have considered that evidence, the written evidence filed and the submissions of their counsel in considering their two versions of events, in respect of their credibility on this issue. The Father’s Version 32. The father’s case is that the mother was struggling with their son’s behaviour. He said they both felt that they had tried everything in Algeria to assist with their son’s autism and together they decided that their son should come to the UK in order for him to access better treatment. The father states that they were both aware that the mother could not come to the UK as she does not have a British passport. He says that on 18 August he went with a friend to the mother’s home to collect the child as planned. She handed the child over together with his clothes and some medication for diarrhoea in the full knowledge, says the father; that he was coming to the UK. 33. The father said that his wife had fully co-operated in obtaining a British passport for the child. The father also produced an email from the friend who had driven him and the child from the mother’s home to Tunisia. The email stated that the mother was crying as she handed the child over, and that she asked the father to take care of him, and get him some warm clothes as it was cooler in England. The father said that she had voluntarily given him documents including a ‘family book’ which allowed him to leave Algeria. 34. The father said that the mother had already started proceedings in Algeria and he had been advised not to go there. He admitted that he had texted the mother and agreed to return their son to Algeria provided she agreed to give him full custody in that country so that he could come and go with their son between the UK and Algeria at will. 35. The father denied trying to hide the child’s whereabouts from the mother. He said he was unsure who had texted him on 25 August in the following exchange: ‘I want to see my son’ 14:09 ‘I need to talk to him’ 14:22 Response:‘Finland is best in the world for autism. He is between good hands. Don’t contact me anymore’ 16:09 Response: ‘He needs real attention, not a clown who dragged him every day to a new location’ ‘He’s not autistic’ 16:43 The father denied that he was trying to give the impression to the mother that the child was in Finland. He stated that the reason the mother had alleged kidnap was due to family pressure. The Mother’s Version The mother said that she had agreed that the father should get a British passport as that might be useful for holidays in the future or for the child to come to the UK when he was an adult. They had also thought that she might be able to get a visa to visit the UK for a holiday if her son had a passport. She said that they had never discussed the father taking the child to the UK and that she never would have agreed. She said that the father had lied to her about applying for a visa for her. She also stated that at the time when the passport was sought they were together as a couple and the father was saying that he would move to Algeria and that they could all go on holidays to the UK. The mother told me that she had concerns for the child’s development in Algeria, and that she had always sought professional help. She said that he was to be monitored for autistic spectrum disorder traits because he had language delay and he cried a lot. She said that the investigations were normal and that although the child does not speak much she had helped him by reading to him. The mother said she had referred the child for speech therapy. She felt that were he to be diagnosed with autism in Algeria at some future point there were suitably qualified personnel, suitable facilities for treatment, and good treatment options in Algeria. She denied that there was any stigma attached to autism. The mother told me that she was not present when her brother handed the child over on 18 August, and that the father had not seen her on that day, nor had the driver. She said that the child was wearing clothes for the beach because that is what the father had said they were going to go. She expected the child back at four o’clock. When they did not return she panicked, raised a Facebook alarm in respect of kidnap, and reported the abduction to the authorities and to the court. She said that she was desperate to speak with her son and that she would never have agreed to be parted from him. Miss Fox suggested to the mother that all her son’s needs are being met in the UK. The mother responded that she feels her son needs his mother, as he is very attached to her. Discussion and Findings When I analyse the written and oral evidence I am satisfied that the father removed the child from Algeria by stealth and subterfuge, and as part of a unilateral plan to remove the boy from his mother, his maternal and paternal grandparents, and from his country of Algeria, the country where he has lived all his life in the primary care of his mother. I am satisfied that although the father had access to the Algerian court, he chose not to seek custody of the child there or to seek permission to remove the child to live here. Instead, knowing that the parents’ relationship is over and the mother had applied for a divorce, he decided to remove the child. The suggestion that she consented is without any foundation, and was plainly untrue. If she had agreed, why would he have needed an Algerian court order for contact on 18 August? The mother would have simply handed the child over, without the need for any order. I am satisfied that as soon as the father obtained the British passport for his son, which the mother had supported only as it would potentially enable them to visit this country for a holiday, the father went to Algeria with the intention of bringing the child here and separating him from his mother. If the mother had agreed, why would she raise the alarm immediately when her son was not returned at four o’clock? Why would she contact the authorities? Why would she go through all the trouble of applying through the courts? The father says all this is due to family pressure. I disagree. In my assessment this mother was telling the truth, and I am satisfied that she had no idea what was going to happen that day when her son was handed over. If she had agreed that the child was to come here, she would have sent all his clothes and belongings with him. She is a caring mother. She would have sent his comforter with him, his toys and things of special significance. I am satisfied that he left with the clothes that he had on for the day, and essentials for a day with his father. No more. Finally I found the father’s evidence to be disingenuous on several points. I place very little weight on the email produced at the eleventh hour from his friend, the driver who took him to Tunisia. There is no mention of this in the father’s two statements. I am also satisfied that the father knew full well that the mother was desperate for contact with her son and that he sought to mislead her into thinking he was in Finland. He clearly knew the texts were from her. I am sure that this was all part of his overall abduction plan. All the signs are that he was intent on thwarting the mother’s contact with the child, including a failure to let her speak to the boy until he was ordered to do so. I am satisfied that there have been further deliberate attempts to avoid contact, even now, by putting the boy to bed at contact time or saying that he is at class or unavailable, in order to thwart his communication with his mother. Legal Principles In addition to Re J (A child: custody rights jurisdiction) [2005] UKHL 40 , Miss Fox asked me to read and consider A v B (Wardship: summary return: non convention country) [2015] EWHC 176 ; Re H (Abduction: Dominica: corporal punishment) [2006] EWCA Civ 871 ; Re U (Abduction: Nigeria) [2010] EWHC 1179; and AR v AS [2015] EWHC 3440 . I have done so and I am very grateful to her for her clear exposition of the law in her submissions. I have sought to apply the guidance contained in those cases. If I may, I will adopt the summary of the Re J key themes, given by Pauffley J in A v B , as they provide an eloquent and elegant exposition of the law: “The principles which guide the court when considering applications for summary return in non Convention cases are well known. They derive from the judgment of House of Lords in Re J (supra). I mention the key themes. • The welfare of the children is paramount. If a decision is made to return the child it must be because it is in his best interests to do so not because the welfare principle has been superseded by some other consideration. • The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non Convention case. • The court has the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. • 'Kidnapping' or abduction, in common with other forms of unilateral action in relation to children is to be strongly discouraged, but the 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 return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law". • There is no presumption that it is likely to accord with the child's welfare needs to be returned. The most one can say… is that the judge may find it convenient to start from the proposition that it is likely to be better for the child to return to his home country for 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 may be best for him in the short run. It should not be assumed that allowing a child to remain here while his future is decided here inevitably means he will stay here for ever. • One important variable is the degree of connection of the child with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion, culture and education thus far will all come into this. Another closely related factor will be the length of time he has spent in each country. • 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 necessarily inevitably to be preferred to another … We are not so arrogant as to think that we (in England and Wales) know best. • 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… 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 a judge pause for thought… it may be a decisive factor… 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. • These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country even if that country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be litigated here. Our concept of child welfare is quite capable of taking religious and cultural factors into account in deciding how a child should be brought up. Welfare Assessment Having carefully weighed the written and oral submissions, the written and oral evidence, and the legal authorities, I turn now to my welfare assessment of this three-year-old Algerian boy. I have rejected the applications to adjourn for reasons already outlined. I am satisfied that this child needs a ‘swift, unsentimental and realistic assessment’ of his needs, as part of the summary process which is listed before me. I state at the outset that the evidential balance falls firmly in favour of him being returned to Algeria as soon as possible to his mother’s care. The court there have determined that position as a holding position until this matter can be litigated. The reasons for that decision are now very clear to me, having balanced his welfare needs. Until August this boy lived his life in Algeria in the primary care of his mother. He is only three. He has never left her care for any significant length of time. He is Algerian. His family are Algerian. Until August his entire world was in Algeria. His culture was Arabic and he was Arabic-speaking, albeit to a limited extent. This child had no idea on 18 August what was about to happen. He thought he was going to the beach with his father. He may have looked forward to splashing in the water. He may have looked forward to his toes being in the sand. He did not have familiar things with him. He did not have his toys and his possessions. There was therefore nothing to comfort this child as he was taken from all his familiar surroundings and, rather than being taken for a fun day on the beach, he was removed from that country and denied any contact with his mother or his family. He was brought to an English-speaking country, with no family ties other than his father. Any further separation from his own country, his family and most importantly from his mother, would in my view be contrary to his welfare needs. In my assessment this child will have suffered emotional damage by his father’s unilateral actions. He has some developmental delay and speech and language problems. He is simply not equipped to deal with the changes inflicted upon him, and it will have been impossible for him to understand what has happened. If, as his father claims, he is ‘autistic’, it is likely that the dramatic change to his surrounding circumstances, and his routine, will have affected him far more. I am not satisfied that the mother has failed or will fail to meet his health needs, by accessing appropriate health care for him. I am satisfied she has ensured his health needs were met in the past and that she will do so in the future. I am not satisfied that the Algerian healthcare system cannot treat his needs, assess them and assist him to grow to his full potential. The father gave an example of his ‘utistic’ cousin, who he says was referred to as a ‘nutter’. Sadly there are those all over the world who are abusive and intolerant of diversity. I am sure there are children in this country, and in many others, who have suffered name calling of that type. I am not sure that the problem of ignorance, discrimination and intolerance is any more prevalent in Algeria, as the father suggests, than anywhere else in the world. I am satisfied that the mother is able to meet all of the child’s physical, emotional and health needs. Even if, in Algeria, he is treated with hostility, ignorance or discrimination, she struck me as the sort of mother who would seek to protect him from that and would ‘fight his corner’. This father seems absolutely unable to comprehend his son’s emotional needs, and therefore cannot meet them. By focussing on his own view that the child is a) ‘autistic’ and b) would get better treatment here in the UK, the father has completely failed to consider the impact of what he has done and the consequences for his son. His profound inability to empathise with this child, and to recognise that this child needs to be with his mother, is very worrying, as is his complete inability to see that this enforced removal has undeniably impacted on the mother. The mother held her composure very well, but she has no doubt been profoundly affected by the unilateral removal of her son. I have of course taken into account the fact that the Algerian court has a different approach to family cases than this court. The father clearly did not trust the Algerian court to make a decision on removal to the UK, and he may have to explain to that to an Algerian court in due course. I realise that the father’s contact may be limited in the future as a result of several factors. Firstly, he may choose not to go to Algeria through fear of punishment for abduction. I have accepted the mother’s undertaking not to prosecute any case against him. I am satisfied that she will not do so. Ultimately, it may be that he runs the risk of repercussions beyond her control, or even of imprisonment because the authorities there are aware of what he has done. I have of course balanced that in my decision, and it troubled me. Ultimately the father has a choice. He has not seen very much of his son during the past three years and he could can have Skype and indirect contact whilst litigating at a distance. He could go to Algeria and face possible imprisonment. It is a matter for him. In my welfare evaluation however, I am satisfied that the risks he outlines to me, to disruption to his liberty and potentially to contact with his son, are of his own choice and do not come close to weighing against the son’s urgent and overwhelming welfare need to return to his mother’s care in Algeria. The mother has been unable to travel to this country for this hearing. I sincerely hope that urgent arrangements for her to attend to collect her son can be made. I order the return to Algeria as swiftly as can be arranged. That is my judgment. End of Judgment Postscript. The mother was able to enter the UK to collect her son a few days after this judgment was given. The father cooperated with the handover and the child was returned to Algeria. Transcript from a recording by Ubiqus 61 Southwark Street, London SE1 0HL Tel: 020 7269 0370 legal@ubiqus.com BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII