Experts and Temporary Leave to Remove from Jurisdiction

AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758 is an important case where an arranged marriage broke down and during the course of private law proceedings the mother wanted to take her six year old child to India, a non-Hague Convention country, for a three-week holiday. The mother, who arrived in the UK by virtue of her marriage, did not wish to return to India for good and provided assurances about coming back to the UK after three-weeks. The court considered an expert report used in another, similar, case, from a dually qualified lawyer in Indian and English law. The expert concluded that the father would have to take lengthy court proceedings in India, and that orders made by the High Court in England would be one of many factors weighed in the balance and the Indian courts would inevitably give independent judgment on merits having regard to the welfare of the child.

The family is Sikh. The father feared that once in India by the mother’s family – her father being a sarpanch (an elected head of a village level statutory institution of local self-government, a panchayat or village government) – could use the son as a bargaining tool in support of an attempt to claim some of his family’s land in India. For him, in the event that the mother wished to go and see her family then he and his parents would very gladly care for their son whilst she makes her trip.

HHJ Bellamy reminded himself of the law to be applied in determining the mother’s application to take her son, whose welfare by section 1 of the Children Act 1989 had to be the court’s paramount consideration, to India for a holiday. The judge, moreover, noted that he needed to go through the welfare checklist in section 1(3) and also consider article 8 rights and address proportionality. Equally, key guideline cases on the approach to determining such applications like the Court of Appeal’s decisions in Re R (A child) [2013] EWCA Civ 1115 and Re K (Removal from jurisdiction: Practice) [1999] 1 FLR 1084, confirm that applications for temporary removal to a non-Convention country like India will inevitably involve consideration of three related elements:

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

(b) the magnitude of the consequence of breach if it occurs; and

(c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave.

The judge refused the mother’s application to temporarily remove her son from the jurisdiction. He gave reasons for doing so at paras 29 – 41. He observed that the mother lived in England for nine years and had acquired British citizenship and was well settled in the UK, as was her son. She had a new relationship (undisclosed to her Cafcass officer), had friends and was in contact with two local Gurdwaras. Despite all this, HHJ Bellamy could not entirely foreclose the possibility of the mother’s parents arranging another marriage for her – notwithstanding her claim to the contrary – because of no evidence from them on the issue.

As regards the magnitude of the risk that the mother might not return, in light of her ties to the UK, the court held that a medium to low risk existed in the instant case and the court was satisfied on balance that “there is a risk that the mother may not return AB to England at the end of her proposed holiday”: para 32.

Turning next to the magnitude of the consequence of breach if it occurs, the judge noted that the father would need to resort to lengthy and hard legal proceedings in which orders made in a foreign jurisdiction would be just one factor taken into account in undertaking a welfare analysis. The court explained that “for the father, the consequences of breach would be profound.” Equally, in light of the Cafcass officer’s opinion that the child’s limited access to his paternal family was not in his interests, the judge also found that the consequences of a breach would also be detrimental for the child.

The three safeguards offered by the mother – obtaining a mirror order upon arriving in India, lodging a copy of HHJ Bellamy’s order with an advocate in India and lodging her passport and her son’s passport with the British Embassy in Jalandhar or Delhi – did not in the judge’s view offer any realistic safeguards in India because he reasoned that the expert evidence was that a mirror order could not be obtained and that his own English order was only persuasive in India. Moreover, he also found that if the mother did not wish to return from India then the proposed depositing of passports would not amount to a meaningful safeguard.

The court noted that the mother was unable to offer any financial security either by way of a deposit of a sum of money or by way of a deposit of title deeds to land. He therefore opined, “in this case, the reality is that the safeguards proposed by the mother are not capable of having any real and tangible effect in India”: para 38. Conscious of the importance of the child’s cultural roots to India and also taking into account that if asked whether he would like to go to India on a holiday the son would say “yes”, HHJ Bellamy nevertheless held that he was “in no doubt that the balance comes down against granting the mother’s application [to temporarily remove her son from the jurisdiction]”: para 41.

Recalling his earlier decision in March this year in Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam), the judge devoted a massive chunk of his judgment, paras 42 – 70, to considering the conduct of the Legal Aid Agency (LAA) when dealing with an application for prior authority to incur the fees of an expert in an application for the temporary removal of a child to a non-Hague Convention state. The mother’s application was refused because the LAA was unconvinced that her expert, a dually qualified Indian and English lawyer, was an “expert” for whom prior authority for funding could be provided. Citing section 3(1) of the Civil Evidence Act 1972, the court was “in no doubt” that the lawyer was an expert notwithstanding the LAA’s conclusion to the contrary that he was not. The court moreover found “that the LAA had misunderstood the nature of the advice required from an expert in this case” because of its belief that an expert for “immigration advice” rather than foreign law was needed.

HHJ Bellamy chided the decision and he went on to say:

63. It is a matter of concern that two months after the Court of Appeal handed down its decision in JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 a senior case worker and a Director should both reject an application for prior authority by advancing arguments based on an interpretation of section 22(4) of the Access to Justice Act 1999 which had been so roundly rejected by the Court of Appeal. That, though, is not the only concern about the approach of the LAA in this case.

The court was equally concerned that the LAA should have disregarded its decision that the proposed expert was in fact an expert:

64. As I noted earlier, the 2013 Standard Civil Contract does not define the word ‘expert’. That is unsurprising. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness ‘is qualified to give expert evidence’ (section 3(1) of the Civil Evidence Act 1972) are issues for determination by the court not by the LAA. I am concerned that in this case the LAA should have disregarded a decision by the court that Mr Kumar is an expert. In my judgment it was not open to the LAA to disregard a judicial decision on this issue.

The court went on to hold that:

65. … Whether the “expert” is an academic specialising in that area or a person who is a practitioner in that foreign state is immaterial. It is equally immaterial if such a practitioner happens to have dual qualification enabling him also to practice law in England and Wales.

The court also questioned the adequacy of training of LAA staff in deciding applications for prior authority. The judge expressed concern about the mother’s solicitors having to submit their application three times before the LAA acknowledged that they had received it and that to arrive at the stage at which the LAA appeared to agree in principle to fund a non-solicitor expert in Indian law took more than four weeks and in excess of 20 letters and e-mails between the solicitors and the LAA. In light of Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam), the court took the view that:

68. … the facts of this present case strongly suggest that, administratively, the LAA is disorganised. The consequences of this for litigants and their hard-pressed solicitors are matters of concern.

The court also criticised the LAA’s resistance to approving funding for an expert in foreign law for an application to remove a child in the jurisdiction to a non-Hague Convention country and directed “that the mother’s solicitor shall forthwith forward a copy of this judgment to the Chief Executive of the LAA”: paras 69 – 70.

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

Comment

Family proceedings in South Asia are very tedious and are governed primarily by the antiquated Guardians and Wards Act 1890; which for example applies to all of Pakistan (including Azad Jammu and Kashmir). The Act envisages different types of applications, i.e. for interim custody (under section 12), permanent custody (under section 25) and for a declaration of guardianship (under section 7). Overall it may be said that the rights of mothers are stronger than those of fathers. However, the parties’ religious orientation affects parents’ rights of custody over children.

In Pakistan, in respect of which the Parental Child abduction and the UK-Pakistan Protocol represents a meeting of the Pakistani and UK judiciaries’ minds, advocates representing mothers would argue that subsequent to the amendment in respect of section 12 of the Act passed by the National Assembly on 19 August 2009 the law clearly and unambiguously states that where the minor has not attained the age of seven years in the case of male or the age of sixteen years in the case of female children, the family court shall, on the first date of hearing pass interim order for the custody of minor to the mother and visiting rights to the father. On the other hand, the cumulative effect of sections 19 (guardian not to appointed in certain cases) and 41 (cessation of authority of guardian) is clearly to declare in unambiguous terms that if the father is alive, fit and well then he must be deemed to be the natural guardian of his children until they achieve the age of 18.

The key principle as regards rights of custody is that ordinarily the mother has the first right to the custody of her children. Under Hanafi law male children of up to seven years belong with the mother: similarly, female children should be in their mothers’ custody until achieving puberty.

On the other hand, under Shia law, custody of male children of up to two years and female children up to seven years should vest in the mother. Second to the mother’s right to custody, non-exhaustively the following persons retain rights of custody (i) maternal grandmother (ii) paternal grandmother (iii) maternal aunt and (iv) paternal aunt.

However, the mother, who is otherwise entitled to the custody of a child, may lose the right of custody if she lives apart from the father (who is the overall “guardian”) during the subsistence of her marriage to him, lives an “immoral life” or neglects to take proper care of the child.

Other sects and religions have their own take on these ancient and “alien” laws and matters can be almost as complicated as immigration law in the UK. Things are complicated further because South Asia’s family courts can be crowded, hot, dusty and unwelcoming places. But that does not mean that it is not possible to produce results for clients there.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Children, India, Spouses and tagged , , , . Bookmark the permalink.

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