M v F

B e f o r e :

MR JUSTICE WILLIAMS ____________________

____________________

Ms Barbara Mills (instructed by Bar Pro Bono Unit) for the Applicant Mother Ms Poonam Bhari (instructed by Veale Wasbrough Vizards LLP) for the Respondent Father Hearing dates: 2nd - 4th July 2018 ____________________

HTML VERSION OF HANDED DOWN JUDGMENT ____________________

Crown Copyright ©

I am concerned with two girls N, who is nearly 11 and L who is 6. Their mother is represented by Ms Mills, counsel. Their father is represented by Ms Bhari. The family are of Eritrean origin both the mother and father having left that country when they were children. The mother is now a British citizen. The father is a Dutch citizen. The girls had another sister, A, who tragically died of meningitis in 2009. The family's African origins lie at the heart of the applications which have come before me over the last three days for determination.

This is the second time the court has had to adjudicate upon a dispute between the mother and father in relation to their children. On 2 November 2015 Deputy District Judge Willbourne made an order by consent pursuant to which the children were to live with the mother in England and were to spend time with their father in the Netherlands for half of each of the main school holidays.

The Application and Issues for Determination

The principal application was issued by the mother on 14 July 2017. By that application the mother sought to amend an existing child arrangements order to enable her to move with the children to Ethiopia in time for the children to start school in September 2017. That application has been overtaken by the passage of time such that the mother now seeks permission to relocate with the children to Uganda in time for them to start school in September 2018. On the first day of this three-day final hearing I was told that the father now agreed to the children relocating to live in Uganda. It was also agreed that the children should continue to spend time with the father for half of the school Christmas, Easter and summer holidays. Further it was agreed that the children should have indirect contact twice a week by phone or Skype. Subject to some other minor drafting type points the main substantive issues that remained to be determined are as follows

i) Should it be a precondition of the move that it could not take place until a mirror order was in place in the courts of Uganda?

ii) Should the father's obligation to meet the costs of travel for contact with him be limited to the children's air fares alone or should it also cover ancillary costs such as travel to the airport by taxi?

iii) Should the father have permission to take the children to Eritrea for one week during his time with the children?

iv) Should the children's passports be provided to the father when he spent time with the children.?

Procedural history

The mother's application came before Her Honour Judge Brasse on 27 th July 2017 and on that occasion she gave directions for the filing of evidence and for Cafcass safeguarding checks to be carried out. At that time the court was concerned as to whether the father had been served as he was not represented at the hearing.

On 15 September 2017 the matter came before Her Honour Judge Brasse again who heard the matter and gave further directions. She made provision for the instruction of an expert to report on whether an English court order would be recognised in Eritrea and/or Ethiopia, whether there is a mechanism for an order to be reflected in a mirror order, whether such an order would be enforceable in Ethiopia or Eritrea and to address the issue of the ability and safety of the children and parents in moving between Ethiopia and Eritrea. She also directed that a Cafcass report be provided and listed the application for a pre-trial review on 20 December 2017. A final hearing was listed for the 10 th 11 th and 12 th of January 2017.

As a result, it seems of liaison between Her Honour Judge Brasse and the Family Division Liaison Judge the applications were transferred to the High Court and came before me on 29 November 2017. It became clear that the Cafcass report had not been commissioned and that the expert, Dr Campbell, had indicated that some areas of the report requested were outside his expertise. I gave further directions in particular to seek to identify a suitably qualified legal practitioner in Ethiopia and Eritrea to file a report on the issues of recognition and enforcement of an English order. I relisted the hearing for 6 February 2018.

The father filed his statement on 18 December 2017. In that statement he opposed the move of the children to Ethiopia on the basis that they were established in full-time education in the UK and that a move to Ethiopia on a long-term basis would be very disruptive for them. He also said that he was concerned about their safety and well-being in Ethiopia given the historic disputes between Ethiopia and Eritrea and the risks to Eritreans living in Ethiopia.

In response to the father's concerns about the children moving to Ethiopia the mother amended her own plans. She said that given the father's reservations about the children moving to Ethiopia and the concerns he had expressed both about the state of relations between Eritrea and Ethiopia and the difficulties he might face in travelling from Eritrea to Ethiopia for contact with them that she had reconsidered her position and now proposed to move to Uganda. She said that she had extended family in Uganda including her father who runs a business there. Her mother would also be moving to Uganda with her and they would be joining extended family all living in the same private estate and the children attending the same international school as other family members.

The mother's change of plan was communicated to the Cafcass officer Claire Brown on 2 January 2018 and so her report addressed that proposed move rather than the move to Ethiopia.

I vacated the hearing on 6 February 2018 at the request of the parties in order to enable them to adjust their preparations to reflect the mother's new plan for the children. I provided for the parties to identify a suitable legally qualified practitioner in Uganda and Eritrea to file and serve a report on the issues of recognition of English orders and their enforceability. I relisted the matter for final hearing.

This Hearing

The mother has, for significant parts of this litigation, acted as a litigant in person. The father has generally been represented by solicitors and counsel, however he has acted as a litigant in person from 23 February 2018 until 28 June 2018. For the purposes of this hearing the mother has instructed Ms Mills through the Bar Pro Bono Unit. The father has instructed Ms Bhari. I have been provided with a bundle of documents prepared by the mother although I had provided in my earlier order that the practice direction bundle should be prepared by the father's solicitors if the mother was in person. Ms Mills filed a position statement in advance of the hearing. Ms Bhari told me that she was only instructed late on Friday 29 June 2018 and she provided a position statement on Tuesday morning.

I have had the benefit of reading the court bundle in particular the mother's first and second statements, the father's first and second statements, the Cafcass report, the report by Dr Campbell dated 9 November 2017, a letter from Luzige, Lubega, Kavuma and Co, Advocates from Kampala dated 14 May 2018 and an explanation on Eritrea laws dated 28 June 2018 by Atakli Habtemariam Gebru a lecturer at the University of Asmara and ex-High Court judge.

Dr Campbell attended court on 3 rd of July and gave evidence in relation to his report. It was not possible for the Ugandan solicitor Mr Emmanuel to attend to give evidence either by phone or otherwise. Nor was it possible for Mr Gebru to attend to give evidence.

I heard oral evidence from both the mother and the father.

Due I think to the fractured legal representation of the parties Cafcass had not been informed of the date of this hearing and so Ms Brown the Cafcass officer had not been warned and was unable to attend to give evidence due to prior commitments. Given the main issue of substance to which her report was addressed, namely relocation to Uganda, was agreed this in the event did not present any obstacle to the conclusion of the case. Neither Ms Mills or Ms Bhari suggested that the matter should be adjourned for her to give evidence and I was satisfied that it was appropriate to proceed without her giving oral evidence.

The Legal Framework.

The welfare of N and L is my paramount consideration in determining the issues before me. Section 1(2A) Children Act 1989 also applies. In determining the application, I must have regard to the welfare checklist in section 1 (3).

Given that the substantive application for relocation to Uganda is now agreed I do not intend to set out the law relating to permanent relocation. The welfare of the children is paramount and the fact that the parents have agreed to the relocation is a powerful indicator that such a move would be in their welfare interests. However that does not absolve the court of the task of considering whether on the evidence such a move is in their welfare interests. Having regard to the evidence I have read and heard I'm quite satisfied that it is in these children's best interests to relocate with their mother to Uganda to build a new life there. The mother is plainly dedicated to the children, capable, has made plans for the meeting of their physical, emotional and educational needs in Uganda and the children wish to go. The contact with their father can clearly be maintained at least at the current level and so it is in their interests to make the move.

Both Ms Mills and Ms Bhari agree that the court can and should exercise its jurisdiction to make child arrangements orders dealing with the time that the children are to have with their father. Both are agreed that the correct approach is that set out in the cases relating to removals from the jurisdiction for holidays in non-Hague convention countries. Given this court is exercising substantive jurisdiction over the children based on their habitual residence and is contemplating the authorisation of the children spending time away from their primary carer with their father in Eritrea it seems to me that counsel's agreement on this approach must be correct. The court is undertaking a welfare exercise of an identical nature to that which it would be undertaking if the father were seeking to take the children from the UK to Eritrea. The fact that the children will be based permanently in Uganda and the children will be taken from Uganda to Eritrea does not alter the essential nature of the evaluation but merely the evidence which is relevant to it. I did at the outset moot the possibility of it being more appropriate for the Ugandan court to determine this issue given they might have more direct experience of the issue given their geographical location. However enquiries with Mr Emmanuel disclosed that he had no direct experience of the Ugandan courts dealing with such applications or the movement of children from Uganda to Eritrea and back again in the context of family proceedings. In those circumstances it seems to me right for this court to determine the issue at this stage.

The leading authority is Re R (a child) [2013] EWCA Civ 1115 which draws on and considers the previous case law including Re K (removal from jurisdiction: practice) [1999] 2 FLR 1084 and Re M (removal from jurisdiction: adjournment) [2010] EWCA Civ 888 .

Lord Justice Patten said as follows in re R

All of the authorities emphasise the need for the court to consider within the paramount welfare evaluation three particular factors and to ensure that they are in focus at all times:

i) the magnitude of the risk of breach of the order if permission is given;

ii) the magnitude of the consequences of breach if it occurs; and

iii) the level of security that may be achieved by building into the arrangements all of the available safeguards.

In considering in particular iii) but also ii) the Court of Appeal has emphasised the importance of expert evidence in the evaluation process. Although not always required invariably it will be. That poses particular problems in this case given the limited nature of both the written expert evidence but also the inability of the parties or the court to test it.

The Parties Positions

On behalf of the mother Ms Mills makes the following essential points.

She invites me to prefer the evidence of the mother to that of the father where there is a dispute of fact. She says that the evidence overall supports the mother as being a more consistently reliable historian. In relation to the principal issues she says as follows

i) should it be a precondition of the move that it could not take place until a mirror order was in place in the courts of Uganda.

ii) Should the father's obligation to meet the costs of travel for contact with him be limited to the children's air fares alone or should it also cover ancillary costs such as travel to the airport by taxi.

iii) Should the father have permission to take the children to Eritrea for one week during his time with the children.

iv) Should the children's passports be provided to the father when he spent time with the children.

On behalf of the father Ms Bhari makes the following essential points.

i) Should it be a precondition of the move that it could not take place until a mirror order was in place in the courts of Uganda?

ii) Should the father's obligation to meet the costs of travel for contact with him be limited to the children's air fares alone or should it also cover ancillary costs such as travel to the airport by taxi.

iii) Should the father have permission to take the children to Eritrea for one week during his time with the children.

iv) Should the children's passports be provided to the father when he spends time with the children.

The Family History and the Evidence

Although the factual issues between the parties are relatively narrow they do exist. In approaching the evidence, I determine any disputed matter on the balance of probabilities; i.e. is it more likely than not that an event occurred, or occurred as described by the mother or father. In considering the evidence I have to consider the credibility of the parties by reference to the consistency of their account internally, consistency with other known facts, whether they have a motive to exaggerate or suppress the truth and how they gave their account. I remind myself that a person may lie about one matter but may be reliable on other matters.

The mother came across as an open, consistent and child-centred witness. In her oral evidence she was open and frank, with a tendency to give too much detail rather than to suppress information. Her description of events over the course of 2012 was spontaneous, detailed and had a ring of authenticity to it. Her account tied in with contemporary documents in particular for instance the emails in 2014. She is clearly dedicated to the children. That she amended her planned move to Ethiopia to take account of the father's concerns indicates that she is willing to compromise and to take account of other people's views. Overall I considered her to be an honest witness, occasionally in error as to dates, but generally to be relied upon.

The father was far less straightforward as a witness. His opening line was that he lived in Holland. On closer examination it became quite clear that he does not live in Holland but rather he lives most of his time in Eritrea at least eight or nine months a year but visits Holland extensively combining his time there with his visits to see the children, with business and with visiting extended family. He was far less comfortable giving evidence, was far less open and often sought to avoid giving a straight answer and was on occasions under cross examination by Ms Mills argumentative. He was much less spontaneous with detail and at times I found it very hard to follow the logic in what he was saying. In particular in relation to the alleged family trips in Europe to Germany or Euro-Disney I was unable to grasp what the father's case actually was. I got the impression that he was improvising. His evidence in relation to the children was far less child-centred. He appeared to be preoccupied at times with his rights and appeared to resent the mother exercising any form of control over him. However he appeared not to recognise the imposition on the mother of not permitting her to live where she chose whilst having complete freedom himself to live where he chose. I do not consider the father to be a reliable witness, but rather someone who is capable of moulding his evidence to suit his ultimate goals. That is not to say that I consider that he would deliberately harm the children in any way. He plainly loves them and they love him. However I detect a very strong streak of pride and determination in him which may at times lead him to insist upon his strict rights thus obscuring his focus on the children's welfare. His approach to the children starting school in Uganda in September of this year but also his approach to his right in January 2015 are prime examples of this.

Thus in general where there is a dispute between the father and the mother over the history I prefer the mother's evidence

Turning now then to the chronology, within which I will incorporate my conclusions on such of the disputed matters of fact is exist.

The Expert Evidence

Dr Campbell's report and his oral evidence were ultimately only of relatively limited assistance. He is not an expert in Ethiopian or Eritrean law. He is an anthropologist and has expertise in the state of the country and in particular in relation to human rights issues. He expressed concerns about the ability of the Eritrean legal system to recognise and enforce a foreign order. He noted that the courts were not independent of the executive, and all judges were appointed by the executive. In particular he was concerned that the children as Eritrean citizens might be subject to both exit controls and to the risk of conscription. Having heard the mother's evidence and the father's evidence and Dr Campbell's acceptance that his knowledge of the laws of Eritrea had to be judged in context of real-life experience it seems to me that the risks to the children of the state interfering in their lives either by refusing an exit Visa or by conscription are limited. Dr Campbell noted that there had been positive developments in the border dispute between Eritrea and Ethiopia and thus travel may becoming easier and the risk of conflict less. However it is quite clear from his evidence that Eritrea remains a one-party state with none of the normal checks and balances in a modern democracy and where the courts cannot be viewed as truly independent of the executive. The risk of sudden changes in attitude of the authorities cannot therefore be ruled out.

The evidence of Mr Emanuel, the Ugandan lawyer, was that the reciprocal enforcement of judgments act provides for the enforcement in Uganda of judgments made in the UK and that section 2 of that Act emphasises that where judgment has been obtained in a superior court (i.e. the High Court) in the UK the judgment creditor may apply to the High Court of Uganda within 12 months after the date of judgment for the judgment to be registered and executed. He also notes that the Foreign Judgments (Reciprocal Enforcement) (General Application) Order 35/2002 reinforces that position. He confirmed that such an application did not require the children to be present in Uganda and that the process could commence shortly after an order was made by this court. He noted that the cost would be US$2000. He also observed that the vacation period is due to commence for a month running from 15 July and that in order to push the process through during vacation it would cost a further US$500. The net effect of his evidence is that it seems highly probable that any order I make will be registered and enforced by the Ugandan courts will but the time frame that cannot be guaranteed.

The evidence of Mr Gebru on Eritrean law is that the courts of Eritrea are able to execute foreign judgments and awards. Articles 456 to 461 of the Transitional Civil Procedure Code make provision for this. There are five conditions for allowing an application. Firstly that the execution of Eritrean judgment is allowed in the country in which the judgment to be executed was given. Mr Gebru observes that the other four conditions are likely to be fulfilled at but there is an issue over the first condition I have just outlined. There is of course no reciprocal enforcement arrangement between Eritrea and England and Wales although an application could be made under the inherent jurisdiction relating to children for recognition of an Eritrean children order; although that would only be recognised by the English court if it was satisfied following its own evaluation that the order itself was in the welfare interests of the child. Ms Mills notes that the terminology in Mr Gebru's report relating as it does to execution creates an issue over whether advance recognition, registration or a mirror order can be obtained. It appears that the process would not be lengthy or expensive according to Mr Gebru's evidence.

Cafcass

Ms Brown's report was primarily focused on the question of relocation to Uganda. However the report also contains the following material which is relevant to the issues before me.

i) The children speak English as a first language and present as confident polite and engaging.

ii) The people who are important to them are their mum, dad, grandparents and friends. They both chose happy faces for their mum and their dad. They recalled positive memories of spending time with both of their parents.

iii) Both children recalled memories of living in Ethiopia with their mother. N talked about her dog and how she missed him. They were very excited about moving to Uganda.

iv) Both children spoke of having a close relationship with their father and that he was an important person in their lives which suggested to Ms Brown that they have some consistency in speaking to him on the phone.

v) Both parents confirmed that they communicate well to ensure that the agreed spending time arrangements are complied with.

vi) Ms Brown observes that Eritrea is the country of the children's origins and where their father lives and works and that they also have extended family members who they can spend time with. Ms Brown observes that the father moves freely in and out of Eritrea, presents as a caring father who would not place the children in a potentially dangerous situation.

vii) N wrote a letter to me in which she writes 'Dear Judge I would like to live in Uganda from N'. L is too young really to understand the proceedings.

viii) Ms Brown observes that the children experience safe and loving care from both of their parents. They need to be protected from experiencing any further adversity in the future.

ix) Ms Brown opines that spending time in Eritrea with their father would be a positive experience for them and given her views of the father and the risks he poses she recommended that the children be allowed to spend one week per year in Eritrea.

Welfare Evaluation

Turning then to my evaluation of the welfare of the children having regard to the issues in play.

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);

(b) their physical, emotional and educational needs;

c) the likely effect on them of any change in their circumstances;

(d) their age, sex, background and any characteristics of the children which the court considers relevant;

(e) any harm which the children have suffered or are at risk of suffering;

The risk to the children of emotional harm if the father took such a course is huge. Depending on how long the situation were to exist for it might be capable of amelioration but one cannot underestimate the potential impact of such a radical change in their situation.

In any event there is no security at all that the father offers or that can on the balance of probabilities be achieved in Eritrea to ensure that if the children visit they will return. It is not clear whether a mirror order could be obtained and the father offers no financial security.

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;

I consider the father is fully capable of meeting the children's physical needs and partially meeting their emotional and educational needs. He is not sufficiently focused on the children, and that may be a reflection of the fact that he has not been an integral component of their lives but has lived away in a different country for the majority of their young lives. He chose to move to Eritrea alone rather than to pursue a course which would have led to him being more involved in their lives. This is another indication of him doing what suits him rather than what suits the children. I appreciate there may be practical limitations on his ability to work in certain countries but his leaving on his own in December 2012 and moving to Eritrea did not prioritise the children. There are therefore limitations in his capability.

(g) the range of powers available to the court under this Act in the proceedings in question

I could make an order which permitted visits to Eritrea, a mirror order were made there or if the father were to provide security.

Conclusion

Returning then to the issues before me.

I consider that the mother will promote contact with the father whether or not an order is registered in the courts of Uganda. My conclusions on her ability to focus on the children and their need for a relationship with their father more than satisfies me that she will ensure the contact with the father takes place whether or not an order is registered in the Ugandan courts. In order to ensure that a regime is in place though I will require that the order is registered in Uganda. I do not consider that it needs to be done before the mother and children leave. It is plainly in their welfare interests to commence school at the beginning of term rather than to play catch up both in terms of lessons but also friendship groups by joining after the beginning of term. This is another example of the father's inability to see it from the children's point of view. The costs of registering the order shall be shared. If the father wants to expedite it he should be responsible for the additional £500 cost of doing so.

The arrangements for contact should be determined three months in advance. Once the dates have been settled in accordance with the formula which has worked over the past few years and the father and mother can exchange details as to the flight possibilities and the father can select the flights. Given that he pays nothing towards the maintenance of the children he should be responsible for all of the costs of the children's travel.

In relation to travel to Eritrea and the father having the passports it will be evident from my evaluation of the three Re R conditions that the existence of a risk of the children not returning from Eritrea combined with the magnitude of the consequences, and the absence of security strongly point away from granting permission. The welfare benefits to the children of visiting Eritrea clearly exist but they are limited in extent given the fact that their extended paternal family primarily lives in Holland or elsewhere and they are able to experience Eritrean culture away from Eritrea. I therefore consider that the welfare balance falls clearly against granting permission to the father to take the children to Eritrea. I do not consider that making a conditional order (on the condition that the father obtained a mirror order and provided security in Eritrea) would be appropriate given the state of the evidence. Nor do I consider that it is appropriate to make provision for the children to visit in three years' time. I believe the mother's concession that she would be prepared to agree to this was driven by her desire to seek compromise with the father where possible. I accept that her anxiety plays a part in her assessment of whether it is safe for the children to visit Eritrea. Losing A when she was four years old was a tragedy. For the mother as A's primary carer I do not underestimate the impact this has on her thinking. However viewed objectively the risks clearly outweigh the benefits at the present time, I do not believe it is appropriate to pre-determine whether the children should visit at any point in the future. If that issue arises it will have to be determined in the Ugandan courts having regard to the children's wishes and feelings and the risk balance at that point in time.

In relation to the provision of the passports to the father I do not accept the father's reasons for wishing to have those documents. I think the reality is that the father wishes to have them in order to achieve some sort of parity with the mother; it is a rights issue not a practicalities issue. Within the Schengen area he should be able to travel without restriction and I see no need for him to have the passports for identification reasons. As a Dutch citizen and with this order or a travel consent form he should be to travel freely to Euro-Disney Germany or anywhere else within the Schengen area. Providing him with the passports opens a window to possible action by him which is not child-centred and which could have significant consequences for the children. I do not consider that there is sufficient advantage in him having the passports to take that risk.