Mr Justice Mostyn:
1.
In this judgment I shall refer to Asfana Lachaux as “the mother” and to
Bruno Lachaux as “the father”.
2.
This is my judgment on:
i)
The mother’s application under section 8 of the Children Act 1989 made
in Form C100 dated 8 April 2016 (No. ZE16P00521, issued in the Family Court at
East London) for an order for contact to the parties’ son Louis Lachaux, who
was born in Dubai on 4 April 2010, and who is therefore aged 6¾.
ii)
The father’s applications:
a)
for a declaration recognising as valid an order of divorce dated 12
August 2012 granted by the Non-Muslim Personal Status Court of Dubai, UAE;
b)
for an order setting aside the Decree Nisi pronounced by the Family
Court at Bury St Edmunds in proceedings No. FD1600059 on 3 March 2016 together
with the Decree Absolute made by that court on 18 April 2016; and
c)
for an order dismissing the mother’s application under the Children Act
1989 on the ground that there is no jurisdiction to entertain it.
3.
Although this case has already generated considerable publicity, and has
already been the subject of (as yet uncompleted) defamation proceedings in the
Queen’s Bench Division
it must not be forgotten that as its very centre is a small child whose
well-being is my first concern. The mother has not had direct face-to-face
contact with her son since 29 October 2013 (when he was lawfully removed from
her after he was located following his disappearance with her for 19 months).
Until I made an order last year for twice weekly indirect contact by electronic
means she had had no contact with him at all. Since the early part of this
year the indirect contact has taken place without hitches (there were problems
in setting it up) and it has been very beneficial and satisfactory for both
mother and son. During the hearing the father has agreed that not only will the
twice weekly indirect contact continue but also that he will bring Louis from
Dubai to this country next month so that he can see his mother in a supported
setting. He also agrees that thereafter he will bring Louis here for him to see
his mother in a supported setting at least twice a year. Further, he will make
Louis available for contact to his mother in Dubai, or, if the mother prefers,
in Oman, whenever she reasonably seeks it. The mother however says that she
will not contemplate under any circumstances returning to Dubai or, for that
matter, to any other country in Arabia or the Middle East.
4.
The father says that he will arrange to record his agreement as an order
in the Personal Status Court of the UAE. For this purpose, the mother will need
to instruct a lawyer in Dubai.
5.
For the reasons set out below I will dismiss the mother’s application
and grant the father’s applications. However, I do not want the father to
misunderstand the seriousness of the promises which he has made to me. I find
myself powerless to make final orders for contact in the mother’s favour for
legal reasons. However, the father has made his proposals for contact to me
directly and I have had to treat him as acting with sincerity. The father may
not recognise any qualities in the mother as mother (or indeed at all) and has
not promoted Louis’s relationship with his mother for years; and the mother
certainly does not recognise any qualities in the father as father (or indeed
at all). However, they are each parents of this small boy and, as we all know,
the child is the father of the man. The man that he develops into depends on
him having a relationship with each of his parents. This means that while he
will grow up in the primary care of his father, for the foreseeable future in
Dubai, he must have a reasonable relationship with his mother. It would be
psychologically damaging for him, in my opinion, were he to grow up without
meaningful maternal influence.
6.
So I have taken the father at his word. He should understand that while
I may not have any power to entertain an application for contact I do have a
residual inherent power, to be exercised only in exceptional circumstances, to
protect the welfare of a British citizen abroad who is a minor. That power
includes making an order that such a child be brought to this jurisdiction. If
the father breaks his promises to me then I will have to give serious
consideration on a later date to making such an order.
7.
I heard the case over four days. The mother and father gave oral
evidence, as did a consultant psychiatrist instructed as an expert by the
mother. Both the mother and father were extensively cross-examined. No stone
was left unturned.
8.
A neutral account of the undisputed relevant background is given in
paras 104 – 107 of the judgment of Mr Justice Warby which I now set out:
104. The claimant was born in 1974 in
Muret, France and went to Lycee in Toulouse. In 1996 he graduated in Aerospace
Mechanical Systems Design from the University Paul Sabatier in Toulouse. In
1998 he obtained a Master of Sciences degree in Aerospace Testing in France. In
February 1998 the claimant undertook an internship with Honeywell International
Inc, in Arizona, initially. Over the next five years, whilst working with
Honeywell, he obtained an MBA degree from a graduate school in Arizona.
105. In September 2003 he left
Honeywell and in October of that year he moved to Switzerland, where he spent a
year working for Pilatus Aircraft Ltd. His employment was terminated by Pilatus
in August 2004. Towards the end of that year he began work for Panasonic
Avionics Corporation, based in Dubai. He has lived in the UAE ever since. He
held a senior management position with Panasonic until mid-2011.
106. The claimant met [the mother] in
February 2008 in New Delhi, where he was then working. She is a British citizen
of Bangladeshi origin who was then married to her second husband. She was
unemployed at the time, but had been a senior civil servant in this country.
Between December 2008 and September 2009 the two went on a series of vacations
together in Paris, USA, Turkey, Qatar, Dubai, and Cuba. From about February
2009 they were in a relationship, and from about March/April 2009 discussed
getting married. In September of 2009 the claimant learned that the mother was
pregnant with their son. She accepted his proposal in January 2010, and on 26
February 2010 they were married at The Old Marylebone Town Hall, London. There
was a wedding lunch afterwards at a restaurant, attended by a dozen people. The
couple then made their way to Dubai separately after that. Louis was born in
Dubai on 4 April 2010.
107. The marriage soured soon after
Louis was born, and before the wedding reception took place at the Manoir Au
Quat' Saisons in Oxfordshire on 28 August 2010. The reception went ahead,
however, with some 40 guests. In due course the marital relationship
deteriorated to such an extent that in April 2011 the claimant petitioned for
divorce in Dubai. In mid-2011 he was dismissed by Panasonic Aviation Inc, in
circumstances that led to a successful employment claim by him against them.
…
9.
The mother seeks findings of fact against the father. These are set out
in a schedule to Mr Harrison QC’s skeleton argument which reads thus:
“1. M was a victim of abuse/threats/violence from F.
Findings are sought in relation to the following incidents in
particular:
(a) 14 Jan 11: assault
and threat with a knife;
(b) 13 June 11: threat at police station;
(c) 6 Jan 12: removing child from M’s care;
(d) Jan 12: assault during contact;
(e) Feb 12: attending refuge and threatening M;
(f) 19 Feb 12: threat after court.
2. M was fearful of F.
3. M had no adequate support.
4. M’s complaints were not investigated or taken seriously by
the police and the court.
5. M was mistreated by the police.
6. From April 2011 M and Louis were excluded by F from the FMH
and had no suitable accommodation.
7. F provided M no financial support and she was impoverished.
She was unable to work and survived on charitable handouts and money sent by her
family.
8. M lived in hiding as she was fearful of F and the authorities.
9. M was trapped in Dubai as a result of travel bans / confiscation
of passport.
10. M was not served with the divorce petition and had no notice
of a number of hearings.
11. M did not have adequate representation and did not have the
means to secure adequate representation.
12. The proceedings were unfair:
(a) No or inadequate notice
of hearings;
(b) No equality of arms;
(c) Inadequate representation;
(d) No interpretation;
(e) No translation of documents;
(f) Exclusion from court during evidence;
(g) Failure to ensure M given proper notice;
(h) No consideration of M’s case;
(i) No opportunity for adequate participation;
(j) No allowance made for M’s mental state or her circumstances;
(k) Decisions made on discriminatory basis;
(l) No consideration of Louis’ perspective/ voice and no independent welfare investigation.
(m) Breach of Art 6.
13. M is suffering from severe depression and PTSD resulting from
her experiences in Dubai.
14. F has failed to promote the relationship between M and Louis.”
10.
During the oral evidence the disputed facts were exhaustively analysed.
The father denied almost everything alleged against him and indeed made some
strong allegations against the mother. I am doubtful that in order to determine
the applications set out above I need to resolve every disputed fact. However,
the mother seeks vindication and the father exoneration. Mr Scott QC did not
object to the mother advancing her case about her alleged mistreatment and
indeed he very thoroughly cross-examined her on it.
11.
Before I set out my factual findings concerning the conduct of the
parties there are four matters on which I should make some early observations
and adjudications. The first is the family law system in the UAE. The second is
the mother’s mental health. The third is the mother’s privacy action against
the father. The fourth is the legal framework within which I have to judge the
applications before me.
The family law
system in the UAE
12.
In Al Habtoor v Fotheringham [2001] EWCA Civ 186 [2001] 1 FLR 951
at para 44 Thorpe LJ stated:
“The United Arab Emirates constitute a foreign
jurisdiction with which this country has a particularly close historical
connection. Orders issued by courts of the Emirates are entitled to the regard
which we would expect the courts of the Emirates to have for our orders. In my
opinion the courts of this jurisdiction should be very slow to make orders that
directly conflict with pre-existing orders in any friendly foreign state. The
principle of comity requires no less. Particularly is this so where the order,
as in this case, is unenforceable and thus empty. The temptation to make
conflicting orders arises from a contemplation of the gulf between legal systems
based on a Judaeo-Christian model and legal systems applying the Sharia law.
But if there is to be progress in the development of understanding and
collaboration in international family law it is vital that we should attempt to
build bridges over the divide rather than to issue empty challenges. Of course
no court in this jurisdiction would have ordered a transfer of residence from
the mother to the father on the application of the paramount welfare test. The
fact that that was the outcome in Dubai, even the fact that that would have
probably been the outcome in Dubai without compromise, does not mean that the
welfare of the child is not the first consideration for the judge of the Sharia
court. Both systems are child centred. It is the interpretation of child
welfare, governed as it is by different religions, cultures and traditions,
that produces such starkly different outcomes. In the years ahead it is to be
hoped that there will be more frequent and profounder exchanges between
diplomats, policy makers and judges to ensure that these differences of
interpretation are not magnified by ignorance and misunderstanding.”
13.
Since Thorpe LJ wrote that in 2001 the UAE has codified its personal
status law and put it on a statutory footing. It is the Federal Law No. 28 of
2005 on Personal Status. Article 1(2) provides:
The provisions of this Law shall apply to citizens of the
United Arab Emirates State unless non-Muslims among them have special
provisions applicable to their community or confession. They shall equally
apply to non-citizens unless one of them asks for the application of his law.
Article 2(1) provides:
In understanding, interpreting or construing the legislative
provisions of this Law, the principles and rules of the Muslim doctrine shall
be consulted.
14.
Divorce is dealt with in Book Two (“Dissolution of Marriage”). Articles
99 – 109 provide the procedure for the familiar Islamic divorce by repudiation,
otherwise known as talaq. That was not the procedure adopted here.
Articles 110- 111 provide for the familiar divorce by agreement, known as khul’.
Again, that was not adopted here. Article 117 permits a form of secular
divorce, not dissimilar to our own fault based divorce ground found in section
1(2)(b) Matrimonial Causes Act 1973. This was the process that was used here.
It provides:
1. Each of the two spouses is entitled to ask for divorce due
to prejudice that would make the continuity of the friendly companionship
between them impossible. The right of each of the spouses thereto shall not be
forfeited unless their reconciliation is established.
2. In accordance with Article (16) of this Law, the Family
Orientation Committee shall endeavour the reconciliation of the two spouses
and, in case of failure, the judge shall propose reconciliation to the spouses.
If this reconciliation is not possible and the prejudice is established, the
judge shall order divorce.
Article 122 provides:
In the case of divorce due to prejudice, the prejudice shall
be established by the legal means of proof and by the court judgments rendered
against one of the spouses.
The hearsay testimony is accepted if the witness explained,
or it was understood from his statement that the prejudice is widespread in the
spouses’ life environment as decided by the court.
A hearsay testimony to negate the prejudice is not accepted. ...
I take the word “prejudice” to mean
the same as “behaviour” as it is used in our own Matrimonial Causes Act.
15.
Divorce between non-Muslims is dealt with in the Non-Muslim Status
Court. If one party is Muslim it is dealt with in the Muslim Status Court. This
case was dealt with in the Non-Muslim Status Court as the father is Roman
Catholic and the mother a non-observant Muslim. However, as I will show below,
the mother attempted to overturn the Non-Muslim Status Court judgment of 12
August 2012 by commencing a later case in the Muslim Status Court claiming that
she was an observant Muslim and that therefore the judgment of 12 August 2012
was invalid and should be set aside.
16.
Custody and access (to use the old language) are also dealt with in Book
Two under the heading “Fostering”. Fostering is the term used to describe what
used to be called here custody or care and control, but which is now usually described
as primary care.
Art 142 provides:
Fostering is to safekeeping the child, educate and ward him
in a manner that does not contradict the tutor’s right of tutelage over the
person of the child.
Art 143 provides:
The fosterer must satisfy the following conditions:
1) sound judgment;
2) having attained the age of maturity;
3) fidelity;
4) ability to raise the fostered child and provide for his
maintenance and care;
5) safety from dangerous contagious diseases; and
6) not previously condemned for a crime against honour.
Art 144 provides:
In addition to the conditions mentioned in the above Article,
the fosterer must:
1) If a woman:
a) Be not married, in a consummated marriage, to a man not
related to the fostered child, unless the court decides otherwise in the
interest of the child.
b) Be of the same religion as the fostered child, with due
compliance with Article (145) of this Law.
2) If a man:
a) He must have around him a woman able to be a fosterer.
b) Be related to the fostered girl with such close kinship
prohibiting him to marry her.
c) Be of the same religion as the fostered child.
Art 146(1) provides:
Fosterage of the child is a
right to the mother, then to the females, within the prohibited degrees of
kinship, giving preference to those from the mother’s side over these from the
father’s side….
Art 146(6) provides:
Unless the judge deems in the
interest of the fostered child, the mother, in case of litigation, is entitled
to fosterage.
Art 146(7) provides:
In case of difference between
the spouses and where the mother leaves the conjugal domicile, even if the bond
of marriage has not been dissolved, the mother or the father may apply to have
the children join him/her and the judge shall decide in accordance with the
children’s best interest
Art 154(1) provides:
Where the fostered child is
under the fosterage of one of his parents, the other is entitled to visit and
be visited by the child and accompany him wherever decided by the judge
provided he fixes the place and time and the person in charge to bring the
fostered child.
Art 156(1) provides:
The right of women to
fosterage of a child shall end upon his reaching the age of eleven years, if a
male, and thirteen years, if a female, unless the court deems that extending
this age to the age of maturity, for the male, and up to her marriage, for the
female, is in his/her best interest.
It can be seen that the system is
focussed on the best interests of the child but that for young children there
is a presumption in favour of day to day care by the mother. There is no warrant
for saying that the law discriminates against women in favour of men. If
anything, it is the other way round.
The mother’s mental health
17.
Dr Kolkiewicz, consultant psychiatrist, with my permission provided a
detailed report concerning the mother’s mental health. She had examined the
mother for three hours and had been given sight of her medical records. She was
cross-examined on behalf of each parent for some hours. Her opinion is that
the mother has suffered from recurrent depressive disorder since 1992 and that
the current episode has been ongoing since her post-natal period in 2010. In
addition, she is of the opinion that the mother is suffering from
post-traumatic stress disorder (PTSD) in relation to the removal of Louis from
her on 29 October 2013. Dr Kolkiewicz accepted that without corroborative
history and on the basis of the mother’s self-report it is difficult to comment
on how her depressive disorder may have affected her functioning between 2010
and 2014. In my judgment the same reasoning must equally apply to the
post-traumatic stress disorder diagnosis. Dr Kolkiewicz accepted that the
mother’s condition could not act to absolve her from responsibility for her
conduct. Further, she accepted that the mother was not incapacitated within the
terms of the Mental Capacity Act 2005.
18.
I accept Dr Kolkiewicz’s evidence.
The mother’s
privacy action against the father
19.
The mother’s privacy claim was issued in the Queen’s Bench Division on
16 July 2015. Initially, she included not only the father as defendant but also
his solicitors in the libel proceedings, Taylor Hampton. Later, she
discontinued the action against Taylor Hampton and was ordered to pay their
costs in the sum of £16,000, which she has not paid. In paragraph 1 of her
particulars of claim she stated “the claimant was previously married to the
first defendant until a divorce was granted in August 2012”. The divorce there
referred to is, of course, the Dubai divorce which the mother was then asserting
had effectively dissolved the marriage. In paragraph 2 of the particulars she stated:
“During the course of their marriage the claimant believed
that the first defendant, without her knowledge or consent, accessed and removed
large amounts of her personal private information and data. The information
removed by the first defendant includes private emails between the claimant and
third parties, private photographs of the claimant and third parties, financial
and social security data, Skype correspondence as well as telephone and other
electronic records.”
20.
In a witness statement made in the libel proceedings on 27 November 2015
the mother stated that her computer and mobile devices were password protected.
21.
As I will explain, I am satisfied that the father has indeed abstracted
personal data of the mother from her computer and her Blackberry. That material
is before me (at least in part) and no-one has suggested that it is
inadmissible. Equally, I am satisfied the mother has abstracted confidential
privileged material from the father’s computer. That material is not admissible
as Sir Michael Tugendhat has made an injunction preventing its use in the libel
proceedings and generally. It is not before me.
The legal
framework
22.
There are two distinct legal questions. The first concerns the status of
the Dubai Divorce. If this is entitled to be recognised, then it follows that
the later decrees nisi and absolute obtained by the mother in the Family Court
at Bury St Edmunds are nullities and must be set aside. The restriction on
appealing a decree absolute set out in section 18 of the Senior Courts Act 1981
has nothing to do with setting aside a decree which is null and void. That
section (which in fact is now redundant as no appeal from a divorce decree has
its destination in the Court of Appeal) is talking about an appeal on the
merits. Where there was no question as to the court’s power to entertain the
divorce suit a party cannot appeal a decree absolute to the Court of Appeal if
he or she had time and opportunity to appeal against the preceding decree nisi.
The idea plainly is to stop opportunistic late appeals or second bites from the
cherry. It has nothing to do with the situation where it is said that the court
had no power to grant the decree nisi or absolute in the first place because
there was no subsisting marriage to dissolve, it having been validly dissolved
earlier elsewhere.
23.
The procedural route for setting aside the decrees would be either FPR
4.1(6) or the inherent jurisdiction of the court (see R v R and S
(Bankruptcy Jurisdiction Concerning Real Property Abroad: Setting Aside Consent
Order) [2007] EWHC 2589 (Fam) [2008] 2 FLR 474), it matters not which.
24.
The second legal question is whether the court has power to hear the
mother’s application for contact in circumstances where Louis’s habitual
residence is in Dubai, where he has lived for all of his life. It only arises
if I decide that the Dubai divorce should not be recognised. It turns on the
correct construction of section 2(1)(b)(i) of the Family Law Act 1986. I will
deal with it at the conclusion of this judgment
25.
Recognition of foreign divorces was put on a statutory footing by the
Recognition of Divorces and Legal Separations Act 1971. That has since been
repealed and re-enacted in identical terms in Part II of the Family Law Act
1986. The 1971 Act was passed to give effect to the UK’s accession to the Hague
Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations,
to which the UK was an original signatory (but to which France has never
subscribed - the relevance of this I will explain later).
26.
Section 45(1) of the Act applies to divorces obtained in countries
outside the EU. It provides:
Subject to … sections 51 and 52 of this Act, the validity of
a divorce, annulment or legal separation obtained in a country outside the
British Islands (in this Part referred to as an overseas divorce, annulment or
legal separation) shall be recognised in the United Kingdom if, and only if, it
is entitled to recognition —
(a) by virtue of sections 46 to 49 of this Act, or
(b) by virtue of any enactment other than this Part.
Section 46(1) provides:
The validity of an overseas divorce, annulment or legal
separation obtained by means of proceedings shall be recognised if -
(a) the divorce, annulment or legal separation is effective
under the law of the country in which it was obtained; and
(b) at the relevant date either party to the marriage -
(i) was habitually resident in the country in which the
divorce, annulment or legal separation was obtained; or
(ii) was domiciled in that country; or
(iii) was a national of that country.
Section 48 provides:
Proof of facts relevant to recognition.
(1) For the purpose of deciding whether an overseas divorce,
annulment or legal separation obtained by means of proceedings is entitled to
recognition by virtue of section 46 and 47 of this Act, any finding of fact
made (whether expressly or by implication) in the proceedings and on the basis
of which jurisdiction was assumed in the proceedings shall -
(a) if both parties to the marriage took part in the
proceedings, be conclusive evidence of the fact found; and
(b) in any other case, be sufficient proof of that fact
unless the contrary is shown.
(2) In this section “finding of fact” includes a finding that
either party to the marriage -
(a) was habitually resident in the country in which the divorce,
annulment or legal separation was obtained; or
(b) was under the law of that country domiciled there; or
(c) was a national of that country.
(3) For the purposes of subsection (1)(a) above, a party to
the marriage who has appeared in judicial proceedings shall be treated as
having taken part in them.
Section 51(3) provides:
… recognition by virtue of section 45 of this Act of the
validity of an overseas divorce, annulment or legal separation may be refused
if -
(a) in the case of a divorce, annulment or legal separation
obtained by means of proceedings, it was obtained -
(i) without such steps having been taken for giving notice of
the proceedings to a party to the marriage as, having regard to the nature of
the proceedings and all the circumstances, should reasonably have been taken;
or
(ii) without a party to the marriage having been given (for
any reason other than lack of notice) such opportunity to take part in the
proceedings as, having regard to those matters, he should reasonably have been
given; or
…
(c) … recognition of the divorce, annulment or legal
separation would be manifestly contrary to public policy.
27.
These provisions mirror the terms of Articles 2, 8 and 10 of the 1970
Convention.
28.
In this case there is no dispute that the divorce is effective in Dubai
and that at the relevant date (the date of commencement of the proceedings –
see section 46(3)) both parties were habitually resident there. The Dubai
divorce is therefore entitled to be recognised, unless the mother can prove a
case under section 51(3). An open question is whether section 48 applies to an
enquiry under section 51. My opinion is that it does not, as a refusal of
recognition would be pursuant to section 51 and not to section 46. By its terms
section 48 is limited to recognitions under section 46 and not to
non-recognitions under section 51. However, findings of fact made by the overseas
court will undoubtedly be relevant within the section 51 enquiry.
29.
Section 51(3) on its face gives the court an apparent discretion whether
to decline recognition (“recognition …. may be refused”). However, as in so
many other instances, this seeming grant of a pure discretion does not in fact
vest the court with an unlimited power to do what it considers just. An enquiry
under section 51(3) is evaluative rather than discretionary. If the enquiry
under section 51(3)(a)(i) leads to the conclusion that no notice was given but that
it was reasonable for notice to have been given, then that will inevitably
drive the conclusion that recognition should be refused. Equally, if the
enquiry leads to a conclusion under section 51(3)(a)(ii) that a party was not
given a reasonable opportunity to participate then that finding will drive the
conclusion not to recognise. In each case the court reaches a value judgment
rather than a discretionary one, and that value judgment is exclusively
informed by the concept of reasonableness in each instance. It is true that in El
Fadl v El Fadl [2000] 1 FLR 175 Hughes J cast his decision under section
51(3)(a) in the language of discretion but a proper analysis shows that he in
fact made the value judgment on the specific facts that no notice in that case
was not unreasonable because had that wife been given notice she could not have
resisted the Lebanese divorce anyway. In Golubovich v Golubovich [2010]
2 FLR 1614 Thorpe LJ explained that if a breach of public policy is proved
under section 51(3)(c) then that will be the end of the matter – recognition
must be refused.
30.
The cases under section 53(1)(a) do show that the court is generally
reluctant to bring about a state of affairs where there is a limping marriage,
that is to say with the parties being married in one place but divorced in
another, but that is not a general principle and such a result is of course
contemplated in a successful application under section 51(3). In Duhur-Johnson
v Duhur-Johnson [2005] 2 FLR 1042 at para 44 Mr Jeremy Richardson QC set
out six propositions. These were followed by Holman J in Olafisoye v
Olafisoye [2010] EWHC 3540 (Fam), by Peter Jackson J in Ivleva v Yates
[2014] EWHC 554 (Fam) and by me in Liaw v Lee [2015] EWHC 1462 (Fam).
The propositions are:
“First: The power contained in section 51(3) as a whole
provides for wide judicial discretion. The provisions need not be exercised if
the interests of the respondent spouse (as opposed to the petitioning spouse)
are met by other means (An example of this is El Fadl v El Fadl).
It seems to me that it is important to emphasise that those interests must be
safeguarded. I would anticipate that this approach would only be adopted where
the respondent spouse has no option under the overseas divorce law but to
submit to the divorce. The important point to note is that the judicial
discretion is wide and the applicability of the section will vary depending on
the many and varied circumstances of each case.
Second: When considering section 51(3)(a)(i) a judge must ask
whether reasonable steps have been taken by the petitioning spouse to notify
the respondent spouse of the divorce proceedings in advance of them taking
place.
Third: In answering that question the judge must look at all
the circumstances of the case and the "nature of the proceedings" in
the overseas jurisdiction.
Fourth: Whether reasonable steps to notify the other party
have been taken is to be judged by English standards having regard to the
nature of the overseas proceedings.
Fifth: Whether reasonable steps have been taken is a question
of fact in each case (it must also be remembered that there are cases where
reasonable steps have been taken but they were unsuccessful or, in rare cases,
where it is entirely reasonable for no steps to have been taken).
Sixth: It is important to note that whether the respondent
spouse has notice of the proceedings is not the issue. It is whether the petitioner
spouse has taken reasonable steps to notify the other party. The focus of
enquiry is upon the actions of the petitioning spouse not simply a question of
whether the respondent spouse knew about the proceedings.”
31.
For the reasons given above I consider it potentially misleading for the
first proposition to refer to “wide judicial discretion”. The second and sixth
propositions both refer to asking whether the petitioning spouse in the other
jurisdiction has taken reasonable steps to notify the other party. Indeed, in
the sixth proposition the deputy judge says “the focus of enquiry is upon the
actions of the petitioning spouse”. I agree with Mr Scott QC that this
overstates the position. Section 51(3)(a) is cast in the passive voice. It
does not presuppose that any action needs to have been taken by the petitioner.
In this jurisdiction before the advent of the Family Procedure Rules 2010 the
default position was that the court would serve the process, not the petitioner
(see Thum v Thum [2016] EWHC 2634 (Fam) at para 17). Many other
countries maintain that as their default position. The focus of the enquiry is
on whether the respondent was given reasonable notice, by whatever means, not
on whether the petitioner gave it.
32.
Plainly, a case mounted under section 51(3)(a)(i) and/or (ii) is highly
fact specific.
33.
A case under section 51(3)(c) will be exceptional. Indeed, the Law
Commission wondered whether it should be included in the proposed statute at
all, doubting that a case could be made out under this head that did not fall
within what is now section 51(3)(a). But as it was in the Convention they
concluded that it should be included. In Dicey, Morris & Collins (Sweet and
Maxwell, 15th Ed, 2012) at para 18-125 to 18-127 it states:
“Any overseas divorce, annulment or judicial separation may
be refused recognition in England if its recognition would be manifestly
contrary to public policy. In Kendall v Kendall, the wife was deceived
by the husband's lawyers into applying for a divorce which she did not want in
a language which she did not understand. It was held that recognition would be
refused in England on the ground of public policy. The only other case in which
a foreign divorce has been refused recognition solely on this ground seems to
be B v B (Divorce: Northern Cyprus), which concerned a divorce granted
in the “Turkish Republic of Northern Cyprus”, which is not recognised by the
United Kingdom. However, this was not followed (after submissions on behalf of
the Attorney-General and the Secretary of State for Foreign and Commonwealth
Affairs) in Emin v Yeldag, where it was held that a divorce granted in
Northern Cyprus would be recognised in England if it was obtained in accordance
with the relevant conditions applicable to that part of Cyprus. The word
“manifestly” is probably redundant. It appears in s.51(3) of the Act because it
appears in Art.10 of the Convention, where it was inserted to discourage the
excessive reliance by the courts of some countries on alleged grounds of public
policy. On the other hand, English judges have claimed a “residual discretion”
to refuse recognition to divorces which offended their sense of justice, and
have occasionally exercised it. This discretion appears to have been abolished
by the Act, and such divorce could now be refused recognition only on the
statutory ground of public policy. If an English judge concludes that
recognition would be manifestly contrary to public policy, refusal of
recognition must follow; there is no further discretion. The fact that a foreign
decree was obtained in breach of a Hemain injunction issued by the
English court will not in itself justify refusal of recognition. So, a Russian
decree obtained in such circumstances was recognised, given that the Russian
court was made aware of the injunction and there were no procedural defects in
that court.
It was thought at one time that the public policy ground
might be successfully invoked where a husband ordinarily resident in England
obtained a divorce abroad (perhaps a talak, where the wife would have few if
any procedural rights) in an attempt to avoid financial or other consequences
attaching to a divorce obtained in England. It is now recognised that the
enactment of Part III of the Matrimonial and Family Proceedings Act 1984
prevents there being any public policy issue so far as financial consequences
are concerned. However, Thorpe LJ suggested that a foreign decree might be
refused recognition under s.51(3)(c) where the English court held primary
jurisdiction established by a fully reasoned judgment delivered on an
application for a forum conveniens stay and the foreign court, with full
knowledge of the London judgment, defiantly dissolved the marriage of a wife
who could not establish jurisdiction for a claim under Pt III of the 1984 Act [Golubovich
v Golubovich [2010] 2 FLR 1614].
These are the only grounds on which the court has
discretionary power to refuse recognition to an otherwise valid foreign decree.
The fact that it was obtained by fraud, or without the petitioner's consent, is
not such a ground.”
34.
Public policy is a ground for non-recognition in Art 23(a) of the
revised Brussels II regulation (No 2201/2003), which is in the same terms as
Art 45(1)(a) of the recast Brussels I Regulation (No 1215/2012). Obviously,
this ground must mean the same under both section 51(3)(c) and Art 23(a) of the
revised Brussels II regulation. The jurisprudence under the recast Brussels I
Regulation (No 1215/2012) and its predecessors (No 44/2001, and the Brussels
Convention of 1968) highlight just how exceptionally difficult it is to mount a
challenge under this head. In Dicey, Morris & Collins at para 14-225 it is
stated:
“The first ground is that recognition of the foreign judgment
would be manifestly contrary to public policy in the State where its recognition
or enforcement is sought. The public policy exception is to operate only in
exceptional circumstances, a fact which is reinforced by the incorporation of
the word “manifestly” into Art.34(1). The European Court, in interpreting the
corresponding provision in Art.27(1) of the Brussels Convention, provided a
definition of when recognition may be said to be contrary to public policy:
whereas the content of English public policy is a matter of English law alone,
the role of that public policy within the framework of the Regulation and the
Convention is a matter for the European Court. Before it may find recognition
contrary to public policy, the court addressed must conclude that recognition
would conflict, to an unacceptable degree, with the legal order in the State of
recognition because it would infringe a fundamental principle, or would involve
a manifest breach of a rule of law which is regarded as fundamental within that
legal order. Accordingly, where the adjudicating court had refused to hear a defendant
who had placed himself in contempt of court, the recognising court was entitled
to consider this to be a violation of Art.6 of the European Convention on Human
Rights, and to refuse to recognise the judgment. By contrast, where the
adjudicating court had misapplied European competition law, the effect could
not be regarded as the manifest breach of a fundamental right, serious enough
to raise issues of public policy, especially as the adjudicating court had a
proper procedure for the correction of errors by appeal or review.”
The facts
35.
When making my findings about the disputed facts I have relied first on
those contemporary documents which I am satisfied are authentic. I share the
misgivings of Leggatt J in placing weighty reliance on carefully prepared “remembered”
accounts of past events as expressed either in a witness statement or orally
from the witness box. In Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor
[2013] EWHC 3560 (Comm) he said at paras 15 – 22:
“An obvious difficulty which affects allegations and oral
evidence based on recollection of events which occurred several years ago is
the unreliability of human memory.
While everyone knows that memory is fallible, I do not
believe that the legal system has sufficiently absorbed the lessons of a
century of psychological research into the nature of memory and the
unreliability of eyewitness testimony. One of the most important lessons of
such research is that in everyday life we are not aware of the extent to which
our own and other people's memories are unreliable and believe our memories to
be more faithful than they are. Two common (and related) errors are to suppose:
(1) that the stronger and more vivid is our feeling or experience of
recollection, the more likely the recollection is to be accurate; and (2) that
the more confident another person is in their recollection, the more likely
their recollection is to be accurate.
Underlying both these errors is a faulty model of memory as a
mental record which is fixed at the time of experience of an event and then
fades (more or less slowly) over time. In fact, psychological research has
demonstrated that memories are fluid and malleable, being constantly rewritten
whenever they are retrieved. This is true even of so-called 'flashbulb' memories,
that is memories of experiencing or learning of a particularly shocking or
traumatic event. (The very description 'flashbulb' memory is in fact
misleading, reflecting as it does the misconception that memory operates like a
camera or other device that makes a fixed record of an experience.) External
information can intrude into a witness's memory, as can his or her own thoughts
and beliefs, and both can cause dramatic changes in recollection. Events can
come to be recalled as memories which did not happen at all or which happened
to someone else (referred to in the literature as a failure of source memory).
Memory is especially unreliable when it comes to recalling
past beliefs. Our memories of past beliefs are revised to make them more
consistent with our present beliefs. Studies have also shown that memory is
particularly vulnerable to interference and alteration when a person is
presented with new information or suggestions about an event in circumstances
where his or her memory of it is already weak due to the passage of time.
The process of civil litigation itself subjects the memories
of witnesses to powerful biases. The nature of litigation is such that
witnesses often have a stake in a particular version of events. This is obvious
where the witness is a party or has a tie of loyalty (such as an employment
relationship) to a party to the proceedings. Other, more subtle influences
include allegiances created by the process of preparing a witness statement and
of coming to court to give evidence for one side in the dispute. A desire to
assist, or at least not to prejudice, the party who has called the witness or
that party's lawyers, as well as a natural desire to give a good impression in
a public forum, can be significant motivating forces.
Considerable interference with memory is also introduced in
civil litigation by the procedure of preparing for trial. A witness is asked to
make a statement, often (as in the present case) when a long time has already
elapsed since the relevant events. The statement is usually drafted for the
witness by a lawyer who is inevitably conscious of the significance for the
issues in the case of what the witness does nor does not say. The statement is
made after the witness's memory has been "refreshed" by reading
documents. The documents considered often include statements of case and other
argumentative material as well as documents which the witness did not see at
the time or which came into existence after the events which he or she is being
asked to recall. The statement may go through several iterations before it is
finalised. Then, usually months later, the witness will be asked to re-read his
or her statement and review documents again before giving evidence in court.
The effect of this process is to establish in the mind of the witness the
matters recorded in his or her own statement and other written material,
whether they be true or false, and to cause the witness's memory of events to
be based increasingly on this material and later interpretations of it rather
than on the original experience of the events.
It is not uncommon (and the present case was no exception)
for witnesses to be asked in cross-examination if they understand the
difference between recollection and reconstruction or whether their evidence is
a genuine recollection or a reconstruction of events. Such questions are
misguided in at least two ways. First, they erroneously presuppose that there
is a clear distinction between recollection and reconstruction, when all
remembering of distant events involves reconstructive processes. Second, such
questions disregard the fact that such processes are largely unconscious and
that the strength, vividness and apparent authenticity of memories is not a
reliable measure of their truth.”
36.
In line with Leggatt J, I prefer to try to determine the truth by
applying the dissenting speech of Lord Pearce in Onassis
and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, HL:
“'Credibility' involves wider problems than mere 'demeanour'
which is mostly concerned with whether the witness appears to be telling the
truth as he now believes it to be. Credibility covers the following problems.
First, is the witness a truthful or untruthful person? Secondly, is he, though
a truthful person, telling something less than the truth on this issue, or,
though an untruthful person, telling the truth on this issue? Thirdly, though
he is a truthful person telling the truth as he sees it, did he register the
intentions of the conversation correctly and, if so, has his memory correctly
retained them? Also, has his recollection been subsequently altered by
unconscious bias or wishful thinking or by over-much discussion of it with
others? Witnesses, especially those who are emotional, who think that they are
morally in the right, tend very easily and unconsciously to conjure up a legal
right that did not exist. It is a truism, often used in accident cases, that
with every day that passes the memory becomes fainter and the imagination
becomes more active. For that reason, a witness, however honest, rarely
persuades a Judge that his present recollection is preferable to that which was
taken down in writing immediately after the accident occurred. Therefore,
contemporary documents are always of the utmost importance. And lastly,
although the honest witness believes he heard or saw this or that, it is so
improbable that it is on balance more likely that he was mistaken? On this
point it is essential that the balance of probability is put correctly into the
scales in weighing the credibility of a witness. And motive is one aspect of
probability. All these problems compendiously are entailed when a Judge
assesses the credibility of a witness; they are all part of one judicial
process. And in the process contemporary documents and admitted or
incontrovertible facts and probabilities must play their proper part.”
37.
These views were echoed by Robert Goff LJ in The Ocean Frost [1985]
1 Lloyds Rep 1 at 57:
“Speaking from my own experience, I have found it essential
in cases of fraud, when considering the credibility of witnesses, always to
test their veracity by reference to the objective facts proved independently of
their testimony, in particular by reference to the documents in the case, and
also to pay particular regard to their motives and to the overall probabilities.
It is frequently very difficult to tell whether a witness is telling the truth
or not; and where there is a conflict of evidence such as there was in the
present case, reference to the objective facts and documents, references to the
witness' motives and to the overall probabilities can be of very great
assistance to a Judge in ascertaining the truth.”
These wise words are surely of
general application and are not confined to fraud cases (although this case includes
allegations of fraud). It is certainly often difficult to tell whether a
witness is telling the truth and I agree with the view of Mr Justice Bingham
that the demeanour of a witness is not a reliable pointer to his or her honesty.
38.
In this case I have read the witness statements and listened to the oral
explanations of the parties about events that happened up to seven years
earlier. For me, that is a secondary source of evidence for determining what actually
happened at that time. In my judgment, I should first rely on the contemporary documents.
The mother plainly recognises that, as her response to some difficult
contemporary documents was to say that the father had forged them. I have
reached the conclusion that both parties have told me lies from the witness
box, although the mother’s lies have been more extensive than those of the
father. I have not reached this conclusion in reliance on the demeanour of the
parents.
39.
As mentioned above, Louis was born on 4 April 2010 in Dubai. The father
produced an email from the mother to the British Consulate dated 10 February
2010 about the registration of the forthcoming birth in which she described
herself as an “Indian Christian”, when in fact she was neither. The father
relies on this as showing that right from the start the mother was prone to
telling lies. The mother claimed that the email was a forgery. She said to me
“I don’t recognise this”. I am completely satisfied that it is genuine.
40.
It is the mother’s case that following the birth the relationship
quickly deteriorated. The true nature of their emerging incompatibility is
shown in emails sent by each of them on 20 and 21 August 2010 (these were
produced by the mother) only one week before the wedding reception at the
Manoir Au Quat' Saisons in Oxfordshire on 28 August 2010. In them the father writes:
“Presently, [while] there is trust, respect and warmth
towards each other we seriously need to rebuild and I guess we both feel
shattered by how stubborn we can be and all the debates we have had and how
entrenched we can be in our own views.”
To which she replied:
“Yes I am shattered by it because you are hard work and I
maintain the view that it is abnormal the level of consultation you want over
very minor things like, if I was to remove his birth certificate or any paper
from the drawer – I was to consult you. We have useless arguments over silly
things that when I talk to other people or couples, they don’t get that grief
from their partners over such minor things. Since Louis has been born you
always use him against me and for sure, I will raise this with the counsellor
as I would welcome any thoughts that he/she has on such matters”.
41.
Things did not improve. The contemporaneous evidence does not show a
picture of domination and coercion by the father of the mother. Rather, I think
that the mother gave as good as she got. Thus, on 9 October 2010 the mother
wrote an email to the father (she accepts this is genuine) where she said:
“you said this morning that you did not wish to speak to me
again and refused to talk about arrangements for Louis. There is little point
in sending recriminations or throwing accusatory insults at each other. It is
the end of the road for us and I have no more energy to disagree, fight or
argue with you anymore. It is clear that our relationship is poisoned and
irrevocably damaged. I agree that we should not speak or see each other. I did
not have a chance to tell you this morning. But ironically you will get your
wish not to see me as I have my final interview next week, so I will not be
able to fly back to the UAE anyway. I have sought advice from a family lawyer
friend and I should be able to get an annulment as we had married at the
beginning of the year.… I will go and see the lawyer on Monday morning to kick
things off… I do not want to drag this out any longer than I have to. Please
try and get a lawyer sorted ASAP so that I can see my son unless of course you
wish to deny my right to see him (which I would not be surprised by). Anyway,
regardless, I will ask the lawyers to sort it out”
42.
This email to my mind accurately describes the state of the marriage at
that time. The parties were mutually engaged in the throwing of accusatory
insults, as the mother frankly put it. The mother had already obtained legal
advice. Her conduct, described in her own words, is not very consistent with
someone disabled by depression or under the coercive control of her husband.
Significantly, the email reveals that at that time the mother was being
interviewed for employment in the UK. Again, that is not consistent with her
case that the father prevented her from seeking employment. The employment in
question is described in an email sent by the mother to a friend a few days
earlier on 4 October 2010 (she accepts it is genuine). In that email she
describes how she was arriving at Heathrow on 6 October 2010 and had an
interview for an “international role” with a business at its headquarters in
Watford the following day.
43.
In addition to job-hunting the mother was also closely involved with an
organisation which that month had meetings in New York City and Philadelphia.
The father produced an email sent by the mother to a participant who was more
than just a close friend on 27 October 2010 together with photographs taken by
him (I assume with his mobile phone) of texts on the mother’s Blackberry between
her and this man between 26 October and 9 December 2010. In order to obtain
these photographs of the mother’s Blackberry the father must have found out her
password. The mother said that this email and these “screen grabs” were all
forgeries, but it is quite obvious that they are genuine. Quite apart from the
technical challenges in re-creating on a Blackberry this sequence of texts the
fact is that they are all written in the mother’s distinctive language and
describe events that actually happened (e.g. staying in a hotel sharing a room
with her friend Nadia). It is noteworthy that the first time that the mother
has ever alleged that these documents are forgeries was in the proceedings
before me. She has not said in either the libel or privacy proceedings that
these documents were forgeries. Rather, her position must be taken to have been
that they were authentic but obtained illegitimately.
44.
These documents show that the mother travelled to New York City and
Philadelphia from late October to early November 2010 (leaving Louis in Dubai
with the father) and there engaged in a sexual liaison with this man. Again,
this shows to my mind not only the poverty of the marriage but that the mother
was a free spirit doing exactly what she wanted, where she wanted, with whom
she wanted. It is a far cry from the case of grinding depression and coercive
control painted in her carefully prepared witness statements.
45.
On 14 December 2010 the mother had a meeting with an official at the
British consulate in Dubai. According to the redacted note produced by the
mother she told the official that the marriage was strained; that she worked as
a consultant to support herself and her two adult children; and that she was to
travel to the UK on business that week. The note states “she is now concerned
and is asking what her options are of getting a British passport for her baby”.
The official told her that in the UAE the father had more rights than the
mother (the note does not explain why or how) and encouraged her to sort things
out with her husband. The official gave her a list of lawyers.
46.
It is not suggested that the father knew anything about this. The
enquiry about a British passport suggests that the mother was forming the plan
to effect a unilateral removal of Louis from his home. Why would she need a
separate British passport for him when he already had a French one? The note
confirms that there was no fetter placed on the mother’s freedom of movement or
ability to work.
47.
At para 19 above I referred to the mother’s witness statement made in
the libel proceedings on 27 November 2015. In it the mother stated:
i)
They did not have a shared computer. The mother had a Mac Notebook and a
Blackberry both of which were password protected. The father had a computer
provided by Panasonic which was password protected.
ii)
The mother did not allow the father general access to her computer “to
browse the web and the like” (as he put it). On a couple of occasions, she
allowed him access to her computer to check his trading activities when his own
computer was not working.
48.
In paras 42 and 43 above I referred to emails sent by the mother on 4
and 27 October 2010. Examination of the emails show that they were sent from
the mother’s Hotmail account to the father’s Yahoo account on 12 January 2011
at 11:22 and 11:06 respectively. It is not possible to tell when the father
photographed the text messages on the mother’s Blackberry (see para 43
above) but I am confident that it would have been at that same time.
49.
In his oral evidence the father told me that he obtained the mother’s
emails because he had free access to her computer and was able to read her
emails as she invariably left open her email program. He had to accept that in
order to have found the emails of 4 and 27 October 2010 he would have needed to
have gone into the mother’s sent mail file and then sorted and searched it.
50.
I do not accept the father’s evidence. It was put to him that he had
accessed the mother’s passwords by looking in her diary and I am satisfied that
that is exactly what he did. I do not accept his denial. I am satisfied that he
had a very good look at all the mother’s emails on 12 January 2011 and on that
date read all her texts on her Blackberry. In that way he discovered that the
mother was having an affair. However, I do not believe that he installed
spyware on the mother’s computer. First, had that happened there would surely
have been an expert’s report demonstrating that. Second, had the father done
that he would not have needed to have forwarded the mother’s emails to himself
(which is what the documents clearly show).
51.
The father’s conduct in violating the mother’s privacy, whilst not uncommon
in these cases, was completely unacceptable.
52.
I move forward temporarily to March 2011. In her witness statement in
the libel proceedings the mother confirmed an account given in a letter written
by the media’s lawyers to the father’s solicitors on 7 October 2015. With that
letter a plainly confidential, privileged, document belonging to the father was
produced. The letter states:
“Our clients have been provided with the attached document by
Afsana. She states that it was retrieved from the hard drive of her computer in
around the end of March 2011 by a computer technician in Dubai in the course of
it being repaired after it had been identified as having malware. It purports
to be a letter from your client to a French lawyer in relation to divorce proceedings.”
53.
In fact, as the judgment of Sir Michael Tugendhat explains, there was
not one but two such documents obtained by the mother.
54.
The mother repeated her story in the witness box. She said that she had
no idea how these privileged documents found their way onto her computer. She
told me that they were part of a number of “dossiers” which the father had
created containing her private information which she had found on her own
computer. She said that the file names were something like “Dossier A” and “Dossier
B”.
55.
I do not accept the mother’s evidence. Her account is totally
implausible. If the father had his own computer for his own personal use, as
the mother says in her witness statement in the libel proceedings, why would he
prepare and leave a letter to his French lawyer on the mother’s computer? It is
plain that the father had unauthorised (as well as occasionally authorised)
access to the mother’s computer but it makes no sense at all to suppose that he
would have prepared a key confidential document on that computer, let alone
dossiers containing his main evidence against her.
56.
It is far more likely in my judgment that the mother had behaved in
precisely the same way as the father and accessed his computer and got hold of
a copy of these confidential documents. The matter is put beyond doubt by the
contents of an email which the mother wrote to an official at the British
consulate on 3 April 2011. In it she said:
“Currently however, the most pressing reason that I need to
leave Dubai is that I am fearful for my life. I have discovered in the past
week that my husband has been spying on me and has compiled a “dossier” on
his computer which is composed of screenshots from my laptop of
emails/message exchanges, voice recorded clips from when I have spoken to him
and friends/family and also a host of personal information (financial, private
etc) which I did not disclose willingly to him.” (Emphasis added)
The mother’s evidence to me that
her use of the male pronoun was a mistake and that she meant to say “my
computer” was not convincing at all.
57.
In my judgment there is a moral equivalence between the parties’ conduct
concerning the violation of their personal privacy.
58.
I now turn back to the events of 14 January 2011. There had been a
heated argument the night before as the mother had discovered that Louis’s
French passport was not in its usual place.
59.
In her oral evidence to me the mother stated that by that time she “loathed
the very sight” of the father. The father probably felt the same way about the
mother given that he had just discovered that she was having an affair. Tensions
were running high and a fight broke out. Each entirely blames the other.
60.
It is not disputed that the mother initiated the sequence of events by
throwing the Christmas tree and its decorations into the rubbish bin. The
father says he made a comment about this whereupon the mother attempted to
throw the rubbish over him. He says that the mother then ran to the kitchen and
picked up a knife with which she threatened to kill him. The father grappled
with her while trying to disarm her. The mother managed to remove her stiletto
shoes with which she started to beat the father. By this stage they had moved
to the bedroom. The mother threw a chair at the father. She managed to get off
his shirt and baptismal medal and chain which she threw out of the window.
The father pinned her arms behind her back and they fell on the bed with such
force that a leg of the bed broke. The father says that in order to calm the
mother down he promised to collect Louis’s French passport. He then left the
apartment with his computer and some clothes and went to the Rashid hospital,
where his injuries were photographed. The photographs show extensive bruising
and scratching. The father says that he stayed away from the home for three
days.
61.
The mother’s account is less detailed. In her witness statement she
said:
“On 14 January 2011, Bruno physically assaulted me in our
home. He became angry that I had thrown away a decoration on the Christmas
tree. He started shouting at me. I continued to throw away the decorations. He
became more agitated and lunged at me, shook me, pushed me to the floor and
pinned me down while shouting at me. I fought back in an attempt to free
myself. I grabbed an adjacent small brush and started to hit him with it to get
him off me. He grabbed a kitchen knife and held it above me. At that point I
froze. Bruno got up, left the kitchen and shortly after left the apartment. I
started crying when I heard Louis crying from his cot. After the assault, Bruno
left the home for many hours. I was in shock and stayed at home, feeling
frightened and needed to take care of our baby. Very late into that evening, I
received a call from Bur Dubai police station and was informed that the
claimant had filed a report stating that I had physically attacked him. Bruno
and I were sent to Rashid hospital to obtain separate medical reports and give
a statement to the police. I had sustained some injuries and a hospital
provided me with a medical report to give the police. Despite making a
statement to the police and explaining the history of abuse, the police officer
told me that “I should go home, after my husband’s forgiveness and obey my
husband”. The police officer told me that under the law “a husband is entitled
to beat his wife”. I also reported the incident to the British Embassy.”
62.
There are a number of points to be made about the mother’s account. She
clearly says that the father stayed away from the apartment only for a matter
of hours. She implies that they went together to the hospital. A fair reading
of her account suggests that she promptly reported the matter to the British
embassy.
63.
It is clear that the father is right when he says that he stayed away
for days. On 15 January 2011 the mother sent the father seven texts begging him
to come home. She asked him to forgive her. She asked that they should have a
calm conversation to try and sort something out for Louis’s sake. On 18 January
2011 she sent him a text asking if he would be back home for the weekend. The
mother does not challenge the authenticity of these texts. They are difficult
to square with her account.
64.
The mother’s report to the British Embassy did not happen until 25
January 2011, eleven days after the incident. It merely records the mother’s
allegation that the father had attacked her; that they had both made complaints
against the other but they had each later dropped those cases. The primary
concern of the mother was, as before, to obtain a British passport for Louis.
65.
I have concluded that the father’s account is more plausible than the
mother’s and more likely to be true, or at least truer than the mother’s. His
injuries are verified by photographs. The texts from the mother are consistent
with his story. I do think that he has over-dramatized the events as I
consider that there is force in the point that he would hardly have left Louis
in the mother’s sole care for days if she was as deranged as he describes.
66.
On 4 April 2011 the mother travelled to London without Louis. She says
that the father tried to prevent her leaving but I cannot accept that. The
contemporary evidence shows that she had complete freedom of movement. The
email that she wrote to the consulate the previous day (see para 56 above) makes it perfectly clear that there was no impediment at all preventing her
from travelling to London. She says that the father prevented her taking Louis,
and that I can accept. On 13 April 2011 at 20:21 the mother sent an email to
the father, purportedly from London. She was in fact in Dubai, staying at a
hotel when she wrote it, she having returned earlier that day. The email is as
follows:
“I have been missing Louis very much and your continual
refusals to allow me to see Louis and to be with him is having a devastating
effect on me. Louis needs to be with his mother, I have taken care of him since
his birth and he cannot be looked after by strangers. It is cruel and unfair on
Louis and it is clear that you have been using him as a weapon against me.
It is very clear that our relationship has deteriorated. What
I care most about is Louis’s welfare and his needs. Forcibly keeping Louis in
Dubai when he should be with his mother is inhuman and unjustified.
This situation cannot continue any longer, I have tried to
reason with you and come to arrangements that you have refused to even discuss
these matters with me and have hidden his passport and documentation since last
year.
You have left me with no option but to pursue actions through
the Dubai Courts. I have seen a sharia lawyer in Dubai who has advised me that
our marriage is illegal under sharia law and that any child of the marriage
(given that Louis was born two months after our marriage) born to a Muslim
parent will be awarded to that parent. Court action has serious consequences
for both of us which will ultimately result in jail and deportation for us
both. The law is very clear on this matter.
I know that you still have assignments where you will be
away, out of the country and there is currently no primary carer for Louis so I
am begging you to sort this out immediately, for Louis sake.
As I have consulted my lawyers they are ready to act upon my
instruction. If I do not hear from you by Thursday 14th lunchtime as
to when you will bring Louis to London I will instruct the lawyers to make an
application to the court.
Please go see your own sharia lawyer as I am sure that you
have not told anybody about our mixed faith marriage and the circumstances of
Louis birth. They will advise you that we will both be facing criminal charges
resulting in imprisonment and deportation, and of course that would mean you
lose your job.
You must also know that if I file this court action it cannot
be withdrawn so I implore you to think about this as it will have serious consequences.
I do not wish to take this action in the first instance but
there is still time for you to correct the situation by doing the right thing
and bringing Louis to London where we can discuss arrangements for his
well-being. As parents Louis’s welfare must come first and we can then discuss
our own personal issues when you come to London.
Please reply by email as I am tired of the abusive phone
calls.”
67.
This email speaks for itself. It is noteworthy that the mother was
prepared to deceive the father as to her whereabouts. It is also noteworthy
that she was perfectly prepared to menace the father with a sharia legal action
likely leading to his deportation and imprisonment. Her complaint that he
inflicted a discriminatory sharia court process on her has to be compared to
her forthright threats in this email to mete out exactly such treatment to him.
68.
On about 11 April 2011 the father commenced the process of divorce in
Dubai. He had intended also to apply for custody of Louis but he says his lawyer
failed to include that claim and that it was not rectified until April 2012. This
is surprising, but the father was not challenged on this. A reconciliation
session was fixed before a mediator (known as a Mutawa) for 26 April 2011. As
with many other countries (such as France) you cannot commence divorce
proceedings in the UAE until you have been through a reconciliation session.
69.
It appears to be agreed that the mother discovered from the father’s
secretary at Panasonic that the father was on a business trip in Turkey from 15
to 19 April 2011. The father had arranged for his parents to care for Louis
during this period. On 17 April 2011 the mother recovered the care and control
of Louis with the assistance of the police. The police temporarily took the
mother’s passport as a condition for having custody of Louis; it was returned
to her on about 2 May 2011. On about 17 April 2011 the father applied without
notice for an order preventing Louis’s removal from the jurisdiction of Dubai.
This was granted on 19 April 2011. Such an order would likely have been made
here in the same circumstances. The mother learned about this order at an early
stage and instructed lawyers to contest it.
70.
Meanwhile the mother had disappeared with Louis. She was uncontactable
and was not affording the father any access. The mother did not attend the
reconciliation session – she may well not have known of it. Following that session,
the father was permitted to commence divorce proceedings which he did in the
Non-Muslim Status Court relying on Article 117 of the Code. He did not seek a
religious Islamic divorce. The mother says that the divorce application was not
served on her but that is not a tenable complaint since, as I shall show, she
attended one hearing in the proceedings and was legally represented at seven
out of 18 hearings. She also filed an extensive defence and counter-claim.
71.
On 26 May 2011 the first hearing in the father’s divorce action took
place. The mother did not attend; she says she did not know about it. That is
difficult to understand given that the mother had instructed lawyers to contest
the order prohibiting the removal of Louis from Dubai. On 19 May 2011 the
father wrote directly to the mother’s lawyer Mrs Awatif in these terms:
“I am contacting you on the advice of my lawyers to request
the possibility of seeing my child Louis Lachaux.
I gathered from Alaa Diab here copied, he had enquired
verbally the same at multiple occasions with you and my wife has always turned
down any possibilities for me to spend time and see our child Louis.
This is now nearing a month I have had no physical contact
with him and you would agree I still have the same right as my wife does to be
with him while we are husband and wife.
As the case will certainly extend for some time, there is no
reason to think the next hearing on May 26 is the final milestone and as such,
I should be granted the same right she has to be with him until a final
settlement is concluded.”
72.
I cannot accept the mother’s evidence that her lawyer did not convey
this to her or that she did not therefore know about the hearing on 26 May 2011.
73.
At the hearing on 26 May 2011 the only direction made was an order
requiring the mother to attend on 12 June 2011. On 10 June 1011 the father
placed the mother and Louis on the missing persons register maintained by the
Dubai police.
74.
In June 2011 two events occurred which I am satisfied were effected by,
or on behalf of, the mother which were designed to and had the effect of
causing the father serious harm. First, the father discovered that a fake
Facebook page had been set up in his name. The pages stated that the father was
seeking an “inter-racial relationship”; that he was “anti-Islamic” and
“anti-sharia law” and that he was prepared to “slander” Dubai. This was
obviously very dangerous for the father, and he immediately made a complaint to
the police about it. On 12 June 2011 the father was summoned to attend a
meeting with his superiors at Panasonic. His superior referred to the Facebook
page and also to emails which he had received from the mother which contained
“very strong allegations” against the father and which further stated that she
(the mother) was able to “see everything” the father did on his computer. The
father sought to explain the true situation to his superiors. Notwithstanding
this he was dismissed on 14 June 2011. The father later won an unfair dismissal
case against Panasonic in the courts of Dubai. He has since obtained
alternative employment.
75.
It is plain to me that the mother’s strategy was to obtain the dismissal
of the father so that his right to residence would be abrogated and he would be
deported. This much is clear from the letter that she wrote to the judge in the
Dubai divorce proceedings on 27 September 2011, to which I refer below.
76.
I revert to the divorce case. On 12 June 2011 the mother again did not
attend the hearing and the order records the father’s lawyer stating that her
whereabouts were unknown. The lawyer asked (a) for an adjournment so that the
mother’s whereabouts could be investigated, and (b) for an order for temporary
contact. The court adjourned the case to 30 June 2011 and awarded interim
contact for two hours on a Friday from 17:00 to 19:00 at a contact centre. In
the circumstances this was a very modest order, and favourable to the mother.
It is noteworthy that the order did not disturb the primary day-to-day care of
the child by the mother notwithstanding that they were both missing. In
contrast, in this jurisdiction one could well see in similar circumstances a
collection order being made requiring the Tipstaff to find and collect the
child and to hand him to the father.
77.
On the morning of 13 June 2011 the police located the mother and Louis.
They took her and Louis to the police station. The mother alleges that she was
there assaulted by a female police officer and that she and Louis were kept in
a cell without food and water for six hours. For reasons which now perhaps have
become obvious, I am not prepared to accept the uncorroborated evidence of the
mother. The mother was allowed to call the British Consulate from the police
station and their note timed at 12:19 does confirm that the mother stated that
she was being held without food and water, although the note does not record
her saying that this had gone on for six hours. There is no reference in that
note to her having been assaulted by a police officer. It would appear that on
that occasion the police re-seized the mother’s passport, which is hardly
surprising. The father attended at the police station. The mother says that he
threatened her there with “consequences” if she did not allow him to see their
son. I would not be surprised if the father had said that there would be
consequences if the mother did not comply with the court order for contact.
78.
The mother’s witness statement about this episode makes interesting
reading. She casts herself entirely as the victim in this sorry episode and
does not appear to recognise at all how blameworthy her own conduct was. After
all, she had gone missing with the child and was refusing the father contact to
him. She was refusing to engage in the court process even though her lawyer was
well aware of it. She wrote in her witness statement:
“On the 13th June 2011 I was arrested by the Dubai
police in connection with the false complaint that I had gone missing with
Louis (despite the fact that we had both instructed lawyers and that he knew
how to get in contact with me). Indeed, shortly before my arrest he had written
to my lawyer Mrs Alwatif, asking her to take my instructions on contact.”
I cannot accept therefore that the
mother was not fully aware of the court proceedings.
79.
It would appear that the hearing fixed for 30 June 2011 was
administratively changed to 17 July 2011. On 17 July 2011 the mother again did
not attend. This is very hard to understand as she must have been well aware by
then both through her lawyers, and directly, of the divorce and access
proceedings. On that occasion the proceedings were adjourned to 18 September
2011; the mother was ordered to attend and that order was directed to be
published in both an Arabic and an English language newspaper. On 23 July 2011
a notice appeared in Gulf Today which stated that the mother had to attend the
next hearing on 18 September 2011 at 08:30 and had to file any documents on
which she relied at least three days before the hearing. An identical notice in
Arabic had been published on 21 July 2011 in the Al Khaleej newspaper. I am
satisfied that through her own lawyers the mother must have been well aware of
these hearings.
80.
On 7 September 2011 the mother wrote a lengthy letter to an official at
the consulate. In it she said:
“My estranged husband has a recorded history of sexual
offences and has been violent towards me. He is a violent person and I consider
him to be a danger to both my child and me. He blatantly abuses the laws of
this country with the full knowledge of the authorities… I am formally
requesting that the consulate make representation to the UAE authorities on
human rights grounds, that my child and I are allowed to return to our home in
Britain. My estranged husband is illegal here, he has no legal entitlement to
stay here and neither do we.”
A number of points should be made
about this letter (which was copied to William Hague, Alistair Burt, and two
Labour MPs). First, it was untrue for the mother to say that the father had a
recorded history of sexual offences. It is true that in 2004 an American court
made a restraining order against him at the suit of his then girlfriend. But
there was no allegation of sexual misconduct, let alone a conviction. Second,
given that the mother had engineered the dismissal of the father from
Panasonic, and with it his right of residence, it was brave of her, to say the
least, to rely on his apparent illegal presence in Dubai.
81.
On 18 September 2011 the mother again did not appear in court. The court
in Dubai adjourned the proceedings yet again to 20 October 2011 and directed
that the newspaper publications be repeated. The notices were published in the
Al Khaleej newspaper on 22 September 211 and in Gulf Today on 23 September
2011.
82.
On 27 September 2011 the mother wrote a letter direct to the judge
hearing the case. In it she made strong allegations against the father and
accused him of being an absconder with a deportation order against him. In it she
said:
“The interest of the baby should come before the interest of
an abusive parent. My son and I are suffering greatly and I do not understand
why if Bruno Lachaux is an absconder he is not deported like everyone else who
is in the UAE illegally. If the UAE authorities execute the deportation order
against Bruno Lachaux, I will allow access to our son back in Europe where we
legally belong. I beg you to send me and my baby home to England.”
The mother copied this letter to
William Hague, the Foreign Secretary; to Alistair Burt, the Minister of State
at the Foreign Office; to two other Members of Parliament; to two consular
officials; and to her sister. The letter demonstrates that the mother was
perfectly well aware of the legal process that the father had initiated. She
had no qualms in seeking to procure the deportation of the father from the
place where he had worked for many years and where his son was born. She was
only prepared to allow the father access to his son away from Dubai.
83.
In her chronology for the hearing before me the mother says that she had
no notice of the hearing on 20 October 2011. This is impossible to accept. Not
only had there been newspaper publications but at all times the mother was
instructing an experienced lawyer. It is inconceivable that her lawyer would
not have known of these hearings (if only by reading the newspapers) and would
not have told the mother about them. The real reason that the mother did not
engage was, in my judgment, because she was determined not to allow the father
to see his son, even for the limited two hour supervised sessions provided for
in the order of 12 June 2011. Apart from glimpsing Louis at the police station
on 13 June 2011 the father had not laid eyes on his son since 15 April 2011 – for
more than six months.
84.
Unsurprisingly the father had made complaints to the police concerning
the disappearance of his son and the failure of the mother to comply with court
orders to attend hearings. On 25 October 2011 an official at the British
Consulate wrote an email to the mother in these terms:
“I am sending you this email to let you know that we received
a phone call from the police today. The police told us that the court granted
one visit a week for the father to see your son. I have been told that when the
father did not see your son, he complained to the court, so the court issued an
arrest warrant against you. The police explained that this is not a criminal
case, but it is a family court case, so it is unlikely that the court will
order to detain you unless you fail to follow the court orders.
I have managed to persuade the police to hold up the arrest
warrant for a grace period of two days. The police said that you should go and
ask to see Major Saeed Al Saadi at the CID. He said that would be taken to the
court to show that you are not hiding and to drop the arrest warrant. You can
explain your fears and why you have so far failed to go to the police. You
could take a copy of the letter you wrote before, although this would need to
be in Arabic. This is not going to be in a police vehicle. Major Saeed said
that if you go to the police yourself, this would be much better than enforcing
the arrest warrant, bearing in mind that your son is with you.
I suggest that you speak with your lawyer and discuss the
above. Being [in] hiding from the local authorities can complicate the matter
and probably could weaken your situation in the custody case. I understand from
the lawyer that he was happy to help you in this case without extra charges.”
In the light of this email it is
completely impossible to accept that the mother was not fully aware, or should
be taken to be fully aware, of the court proceedings against her.
85.
On 20 October 2011 the mother again failed to attend and the court fixed
a hearing on 24 November 2011 for ‘reconciliation or otherwise the proof’. If
reconciliation proves impossible then the court would move to consider the
evidence offered by the parties for and against the divorce. Proving the
allegations of behaviour is of course an identical process in this jurisdiction
in a defended divorce case.
86.
On 1 November 2011 the mother gave a wide-ranging power of attorney to
Mrs Makki, an attorney with the law firm Ibrahim Khouri. This power of attorney
entitled Mrs Makki to represent the mother in any litigation.
87.
On 24 November 2011 the mother again did not attend, nor was she
represented. On that occasion the father’s attorneys asked for an adjournment
in order to submit the evidence of proof. That was granted and the case was
adjourned to 15 December 2011.
88.
On 15 December 2011 the father appeared in court in person while the
mother was represented by Mrs Makki. The mother states that she was unaware
that she was being represented on that day, but I cannot accept that. Mrs Makki
asked for a further adjournment “for examination and commentary”. The court
granted this application and ordered that the matter be adjourned to 12
February 2012 “for acceptance or reconciliation”. In addition, it was agreed
that there would be a mediation meeting on 22 December 2011 concerning the
father’s contact to Louis.
89.
It is important that I record that by the time of the hearing on 15
December 2011 virtually nothing had happened in the father’s divorce action
beyond the making of the limited supervised interim access order. The mother’s
complaints that she was neither served nor had the opportunity to participate
before 15 December 2011 must be seen in that context.
90.
Both parties attended the mediation meeting on 22 December 2011 where
they reached an agreement. This was the first event in the proceedings attended
by the mother. It was agreed that Louis would remain in the mother’s care. The
father would have contact, every Friday from 5 PM to 7 PM in Al-Safa park. The
father agreed that the ‘arraignment order’ (which I take to be the order for
the mother’s arrest for not attending hearings) would be cancelled.
91.
At one of the early contact sessions, on 6 January 2012, the mother
alleges that the father removed Louis from her care and abducted him; that the
police were called; and that the father was made to hand Louis back to her.
There is no contemporaneous document about this incident which the father
strongly denies. As indicated above I am not prepared to accept the mother’s
uncorroborated evidence. I do not believe that this incident happened although
I am prepared to accept that tempers may well have been frayed on that
occasion.
92.
In this period the mother instructed Mrs Makki to prepare a detailed
defence and counterclaim to the father’s divorce action. The mother says that
Mrs Makki did this without her instructions and off her own bat, but I cannot
accept that. Apart from anything else the document contains details that could
only have derived from the mother’s instructions. The document was submitted at
the hearing on 12 January 2012. The mother was represented by Mrs Makki but did
not attend herself. She says in her witness statement that Mrs Makki attended
‘on my behalf without instructions from me and without my knowledge’ but I
cannot accept that.
93.
The defence and counterclaim is an extensive document. It makes a number
of factual assertions which, as I say, could only have derived from the
mother’s instructions. For example, it asserts that the father had a “huge
salary of AED 21,700 monthly”. It asserts that the mother “left her country of
origin and [went] to USA looking for [a] job to be able to pay necessary
expenses for her and their child after [the father] declined and refused to pay
the necessary expenses”. These factual assertions can only have been made if
the mother had instructed Mrs Makki to make them. In my judgment it is not true
for the mother to suggest that all this was invented by her own lawyer.
94.
In her defence and counterclaim the mother avers that she is a British
national and that therefore the court should rule on the current case according
to British law. As explained above, the law in the UAE permits the application
of the parties’ personal law. The document goes on to deny the father’s case
and to seek the following:
i)
a divorce;
ii)
custody of Louis;
iii)
a monthly payment of AED 4,000 for herself;
iv)
a monthly payment of AED 5,000 for Louis;
v)
an order that the father pay the cost of food drink and clothes;
vi)
an order that the father pay for independently furnished house or
alternatively AED 70,000 per annum for rent with a one-off payment of AED
50,000 for furniture;
vii)
an order that the father pay for a housemaid to take care of Louis; and
viii)
an order for the father to pay the mother’s legal costs.
95.
It can be seen that the mother fully embraced the procedures and reliefs
available under the UAE family law system.
96.
There was another incident at Al-Safa park on the contact visit on 20
January 2012. The mother alleges that the father assaulted her. The mother
produces a witness statement of a friend who accompanied her during the contact
visit which states that during the handover the father pushed the mother to the
ground. The father denies this and says that the mother had tried to grab Louis
from him before his time was up and in so doing fell to the ground. In this he
is supported by the evidence of a woman, unknown to either party, who observed
the incident and gave a statement to the police. I am unable to determine who
is telling the truth about this. However, I note that the matter was carefully
investigated by the public prosecutor, the mother having made a complaint, but
he (the public prosecutor) concluded that there was no case for the father to
answer.
97.
At the hearing on 2 February 2012 both parties were represented by
attorneys. The mother again says that Mrs Makki represented her without her
knowledge or instructions, and again I reject that. The father’s attorney
submitted his response to the counterclaim and Mrs Makki sought a further
adjournment in which to submit a rebuttal. The court fixed 19 February 2012 for
a full hearing of both the claim and counterclaim. At that hearing each party
was to produce its witnesses and other evidence.
98.
Shortly after the hearing on 2 February 2012 the mother went to stay in
a women’s refuge with Louis.
99.
The mother attended the hearing, with Louis, on 19 February 2012. In her
chronology it is stated that she attended that hearing “after being informed
about it by the refuge”, but I cannot accept that. She attended because she
knew about it through her attorney who had submitted the extensive defence and
counterclaim on her behalf. Because Louis was crying in court she was asked by
the judge to take him outside so that the proceedings would not be disrupted.
However, she was fully represented by Mrs Makki throughout. The mother alleges
that the court heard evidence in secret from the father’s witnesses, implying
that the exercise was akin to the procedure in the Star Chamber, but the
reality is much more banal that. The mother was not present simply because she
was asked to take Louis out so that the proceedings would not be disrupted. The
father had brought four witnesses but the court only allowed him to call two. These
were police officers. I remind myself that at that stage the father’s claim was
confined to divorce and access – he was not claiming custody. His witnesses
were giving evidence about “prejudice” for the purposes of proving a case under
Article 117. However, it is true that one of witness did give the opinion that
in view of the disappearance of the mother with the child and her refusal to
allow the father access she should be deprived of custody.
100.
Notwithstanding the terms of the order on 2 February 2012 the mother was
not required to call her witnesses and to adduce evidence. Instead a yet
further adjournment was granted to 11 March 2012 “for negation of the proof,
and reconciliation if applicable”.
101.
Two days after the hearing, on 21 February 2012 the mother wrote an
email to a friend (which email she has produced). In that email she said:
“I debriefed my [refuge] caseworker yesterday regarding the
divorce hearing outcome and told her that I now fear even more that I will be
left to hang with my poor legal representation and the fact that the two Bur
Dubai police officers were allowed to testify on his behalf. The judge did not
even want to listen to me. … I have to prepare my witnesses. She [the
caseworker] was very critical of my lawyers and told me that I should complain
to them as they have a duty to explain and translate everything to me. I told
her I had bitter experiences with all the sharia lawyers I have had. All of
them have operated in the same unscrupulous way. … There is no point in me
pleading to go home. I will never get out of this nightmare. His threats, the
police persecution, proof positive now that I know he has these corrupt
officers on his side, they will stop at nothing. I told the embassy and
everyone all along that he bribes the police and they stitch me up. They never
took any of my complaints seriously and when I was assaulted I had to argue to have
a case opened. Now I know why the officers at Bur Dubai police station treated
me so badly. Their attendance at court is proof of the lengths they will go to.
The public prosecutor is also victimising me. I am not safe here and fear that
they will do more things against me. So many times he threatened he would use
the police and courts against me. And now he is succeeding. It is grossly
unjust and persecution”
102.
This email is relevant because it shows clearly that the mother knew
exactly what she had to do – prepare her witnesses. The very serious allegation
that the father had bribed the police was not put to him in the hearing before
me. The allegation that the judge refused to listen to her is also revealing. I
accept the father’s evidence that what happened was that the mother interrupted
the judge and demanded the right to speak while the father’s case was being
presented. She was, not surprisingly, told to be quiet but the terms of the
order plainly contemplated that at the next hearing she would be given a full
opportunity to present her case and to be heard.
103.
The mother alleges before me that at the hearing on 19 February 2012 the
father demanded that the mother hand Louis over to him and that when she
refused he threatened to find her and kill her. She also alleges that later in
that same day she received menacing phone calls which she believed were from,
or on behalf, of the father. The father denies these allegations. I reject
them. There is no corroboration. It is noteworthy that in her email referred to
above she does not mention this threat or these telephone calls by the father.
104.
On a day between 2 and 9 March 2012 the mother left the refuge with
Louis and went underground. It is noteworthy that she does not allege any
misconduct by the father between the day of the hearing on 19 February 2012 and
the date of her disappearance. For the next 19 months the father had no contact
of any nature with his son. He did not know if he was dead or alive. The agony
of a parent not knowing the circumstances of his child is very difficult to
imagine fully. It must be in his mind at every waking moment. It is often
rightly said that one of the worst forms of child abuse is abduction. In R
v Kayani [2011] EWCA Crim 2871, [2012] 1 WLR 192, the Lord Chief Justice, Lord
Judge, said at para 54 “the abduction of children from a loving parent is an
offence of unspeakable cruelty to the loving parent and to the child or
children, whatever they may later think of the parent from whom they have been
estranged as a result of the abduction”.
105.
On 11 March 2012 the father appeared in court in person; the mother was
not represented. The court granted a adjournment to 25 March 2012 “to complete
the proof”. On 25 March 2012 the father was represented by his attorney and the
mother was represented by Mrs Makki. The father stated that he had not seen his
child for three weeks and that the mother and the child had disappeared. Mrs
Makki explained that she did not know the whereabouts of her client. The court
adjourned the proceedings to 22 April 2012. As explained above, it was in April
2012 that the father amended his claim to seek custody of Louis. There were
further interlocutory hearings on 6 May 2012, 24 May 2012, 7 June 2012, and 21
June 2012, at none of which was the mother in attendance or represented. She
had decided to withdraw from the court process. Ultimately the matter came for
final determination before the court on 12 August 2012. Again, the mother
neither attended nor was represented.
106.
At that final hearing, so far as the divorce was concerned the court
cited Articles 117 and 122; it recounted the evidence that was before it
(including documentary evidence); and noted that the mother had not followed
the procedure to seek to apply British law. It reached the following conclusion:
“It is understood from all of these that their life is full
of problems, and repeated quarrels in a way that changed life to be a hell and
this will gradually move to the children and the married couple shall have the
right to ask the divorce when they define degree and danger of the damages that
adds to the misery of life which makes it impossible to live peacefully. These
damages may be material or spiritual and these damages shall be, and apparent
in the surroundings, families and friends of the married couples.
Based on the above-mentioned as well as the document proves
that the damages are public and, in the midst of their surroundings and the
defendant does not obey the claimant and she is careless in taking care of the
child and fulfilling her marital duties and she is always depending (sic,
recto “spending”) nights at nightclubs with friends, and through the
provided documents which prove that the defendant travels a lot and leaves the
house and she prevents the claimant from seeing his child/Louis.
Whereas the defendant does not provide what negates these
facts and her sayings were evidence-less; this makes it clear for the court to
be satisfied that the claimant is aggrieved deeply supported by the testimonies
of the witnesses in which they stress that the defendant beats, insults and
takes no care of his feelings as a husband and she always refuses to obey him
all of these shall lead the court to divorce him from the defendant for the
insults and damages he suffered.”
107.
If an English court were giving a reasoned judgment on an undefended
divorce petition based on behaviour (which used to happen, but which now does
not in undefended cases) it would not express itself in the same terms (although
I have my doubts, as I have said, about the quality of the translation). I
doubt that a court here has spoken of a wife failing to obey her husband for
over 75 years, although one has certainly seen plenty of divorce petitions
containing the allegation that one party has failed to comply with the reasonable
requests of the other.
108.
So far as the father’s custody claim was concerned the court cited Articles
143, 144 and 146, and reached the following conclusion:
“Accordingly, and since it was established in the documents
and personal evidence of the original petitioner that the original respondent
is not trustworthy to take care of the child Louis and has prevented the
petitioner from seeing him in spite of the presence of a legal permit to see
the child from the authority of the court, and the respondent abstained from
executing the judgment of the right of the legal custodian to commence his
custodianship
of the child Louis and nurture him. And according to the documents submitted to
the authority of the court that the respondent had neglected taking care of
Louis which resulted in skin diseases which spread over his face and body, and
such allegations were not refuted or disputed by the respondent in addition to
her negligence of the child because of travelling outside the country according
to the statements of the Immigration and Nationality Department, and being busy
with her friends at nightclubs. And whereas the petitioner has stated that the
respondent is not safe for the child to be around and worrying about the child
and his health, and since the petitioner has a woman who is able to provide
nurture for the child in addition to the ability to provide.”
The court accordingly awarded
custody of Louis to the father.
109.
Mr Harrison QC argues that it would have been impossible for such a
decision to have been reached here without the voice of the child having been
heard through a Cafcass officer. I completely disagree. The child was aged only
2¼ at the time. He had been the subject of an unlawful abduction for over five
months. The mother had shown complete disregard for the father’s right to see
the child and the child’s right to enjoy the society of his father. She had refused
to engage in the proceedings. How could a Cafcass officer have reported with
any utility given that he or she would not have been able to have seen the
child and interviewed the mother?
110.
Had I been deciding the issue while applying English law on that day I
would have reached the same conclusion having regard to the history which I
have set out at great length above. I would not however have expressed myself
in the same way. I would have awarded primary care to the father, and would
have issued a collection order addressed to the Tipstaff.
111.
In February 2013 the father filed a criminal complaint of kidnapping
against the mother. Had the events occurred in this jurisdiction one can see
that the mother would have been liable to have been accused of a number of
different criminal offences, as well as contempt of court. A warrant was issued
for the mother’s arrest.
112.
The father began an exhaustive grid by grid search of Dubai. Eventually
on 29 October 2013 Louis was located in a playground outside the apartment
where the mother was staying. He had been missing for 19 months. He was
restored to his father. The mother was informed that the custody judgment was
final and that the time for appealing had expired. Not very surprisingly the
mother was charged with kidnapping and stood trial on 13 February 2014. She was
found guilty, again not very surprisingly, and was sentenced to one month in
prison suspended for three years - a sentence that strikes me as lenient in the
circumstances.
113.
The mother thereafter filed on 18 February 2014 an application through
new attorneys for custody and, in the alternative, for access to Louis. The
mother additionally sought the right to change the name of her son to an
Islamic form, namely Mohammed Ismael. She asked that his passport should be
handed over to her and she asked, in the alternative, for permission to see her
child in Dubai at the Family Centre of Barshaa, under the supervision of the
Community Development Authority, on Sunday and Friday of each week, with the
times of each session to be fixed by the court. Her principal ground for
seeking the change of custody from that which had previously been ordered on 12
August 2012 was that the earlier order was invalid, because it had incorrectly
determined that she was a Christian. This was contrary to the truth, she
claimed. She sought a declaration that her marriage, in fact, was invalid
because she was a Muslim and because a mixed marriage in Dubai is not
possible. In those circumstances, she sought to argue that the father had no
rights in relation to the child and that she should be awarded custody.
114.
It is noteworthy that this legal strategy of the mother relied exclusively
on strict Islamic sharia law.
115.
In those proceedings, as the judgment that was ultimately rendered
shows, both the mother and the father attended in person a number of
preliminary hearings and the mother was represented by legal counsel. In the
final hearing, which was held on 30 April 2014, her attorney submitted a final
memorandum repeating her previous statement. On that day, 30 April 2014, the
mother was not, in fact, present in Dubai. She had left some 28 days earlier,
on 2 April 2014, in circumstances where she said that she was in peril of
persecution or incarceration or both. It is significant that, notwithstanding
that she was absent from Dubai, she was still maintaining to the court in Dubai,
exactly four weeks later, her argument that custody should be transferred to
her on the legal ground which I have mentioned, and, in the alternative, that
she should be awarded supervised contact twice a week in Dubai.
116.
The court gave its judgment on 12 May 2014. It denied the mother’s
primary case, but it allowed her alternative case and it made in her favour an
order for access whereby she could see Louis on Sunday and Friday for each week
for three hours in the afternoon in the Family Centre of Barshaa.
117.
Both parties appealed the decision of 12 May 2014. The mother’s appeal
was dated 26 May 2014. Again, notwithstanding that she was absent from Dubai,
she had the wherewithal to instruct attorneys on her behalf to formulate
grounds of appeal, to lodge them and to argue the case.
118.
Comparably, the father also appealed. In fact, he withdrew his appeal
at the appeal hearing.
119.
The appeal by the mother was heard on 11 December 2014 and judgment was
given, I think, on the same day. It recounted the technical legal ground
advanced by the mother and that was rejected. Implicitly, it approved the
decision of the lower court in relation to access.
120.
The mother remained dissatisfied and, on 8 January 2015, she lodged an
appeal with the Court of Cassation, the highest court in the UAE in civil
matters, and that was heard on 23 June 2015. Again, her technical legal
argument was recounted. She, specifically and emphatically, relied on her
Muslim religion, which she stated was in accordance with the Islamic Sharia
Council in the UK and which she argued was a new factor that the court in Dubai
had yet to address, but that argument was unsuccessful and this, her second
appeal, was dismissed. Again, in dismissing the appeal, the application made
alternatively by her for access was implicitly approved.
121.
The mother has never taken up the access awarded to her. She has not
physically seen her son since 29 October 2013. Until I established the
electronic contact she had not laid eyes on him at all since that date. Her
agony in not being able to be with her son must be comparable to the agony that
was suffered by the father during the period of the abduction (see para 104 above).
122.
I revert to the findings sought by the mother set out at para 9 above. As will by now be apparent I reject the majority of the mother’s case. I do
not accept that she was a victim of abuse, threats and violence from the father,
although I do accept that the relationship was stormy and that in the course of
frequent arguments each hurled accusatory insults at the other. I do not accept
that she was fearful of him. I do not accept that her complaints were not
investigated or taken seriously by the police and the court. I do not accept
that she was mistreated by the police. I emphatically do not accept that she
lived in hiding as she was fearful of the father and the authorities. She went
underground to prevent the father seeing his child and because she feared she
would lose the case brought by him. I do not accept that she was trapped in
Dubai as a result of travel bans or confiscation of her passport. After she was
found she was able to leave without let or hindrance. I do not accept that she
did not have notice of the divorce proceedings or the opportunity to
participate in them. She did participate in them and filed an extensive defence
and counterclaim. I do not accept that she did not have adequate representation
and did not have the means to secure adequate representation. I do not accept
that the proceedings were unfair. The ground for divorce used in this case is
virtually identical to our most commonly used one (unreasonable behaviour), and
the custody laws are best interests based. The mother was not divorced on
traditional Islamic grounds and sharia judges did not steal her son.
123.
I do accept that from April 2011 the mother and Louis were excluded by the
father from the marital home and had no suitable accommodation. I do accept
that the father provided the mother with no financial support; that she was
impoverished; and that she was unable to work and survived on charitable
handouts and money sent by her family. I do accept that the mother has suffered
from depression for a long time and also PTSD resulting from her experiences in
Dubai. However neither of these conditions affect her capacity or absolve her
from responsibility for her conduct. I do accept that until I intervened the
father had failed to promote the relationship between mother and Louis. However,
that failure must be set against the mother’s conduct when she disappeared off
the map with Louis for 19 months.
The French
recognition proceedings
124.
I have mentioned above that France has never subscribed to the Hague Convention
of 1 June 1970 on the Recognition of Divorces and Legal Separations. However,
in 1991 it entered into a bilateral treaty with the UAE on the recognition and
enforcement of judgments in civil and commercial matters. Article 13 of that
treaty provides that such a judgment shall be recognised inter alia where the
parties have been legally and duly summoned, represented or declared in default
and the decision contains nothing contrary to the public policy of the
requested state.
125.
On 23 April 2014 the father applied in France for recognition of the
divorce judgment given in Dubai on 12 August 2012. The application was heard on
16 September 2015 and judgment was given on 14 October 2015 by Judge Kurz. In
his judgment Judge Kurz curiously describes the Dubai divorce as a ‘talaq’,
when it was, as I have explained, nothing of the sort. However, Judge Kurz was
satisfied that the judgment should nonetheless be recognised under the
bilateral treaty. Judge Kurz was plainly troubled by the reference in the Dubai
judgment to the “defendant’s refusal to obey her husband” but concluded that
whilst that could not be expressed in a French ruling it could nonetheless not
be grounds for a refusal of recognition since that finding was not crucial
amongst those issued by the Dubai judge.
126.
The mother appealed. The appeal was heard by the Paris Court of Appeal
by a panel of three judges and judgment was given on 31 January 2017. The
appeal was allowed. Recognition of the Dubai divorce was refused. The appeal
court was satisfied that the mother was validly summoned and represented in the
proceedings. Even though the mother had been hiding for several months she had
not demonstrated that she was deprived of any contact with her attorney or that
it was impossible for her to defend herself through him (sic). However, the
appeal court concluded that the terms of the findings made by the Dubai court were
contrary to French public policy. It held:
“Whereas the duty of the wife to obey her husband, the breach
of which was expressly put forward by Mr Lachaux as part of the grievances
justifying that the divorce be pronounced against his spouse, as well as by the
witnesses, is in no way reciprocal under UAE law; whereas the same is true for
the fault constituted by the simple act, on the part of a wife, of attending
nightclubs with friends or travelling frequently;
Whereas these provisions, referring to the husband’s
authority over his wife, are manifestly discriminatory, in the context where
the wife is a British citizen and the husband of French national; whereas they
are contrary, in this respect, to the principle of equality between spouses
and, more generally, of gender equality protected by virtue of French
international public policy;
Whereas accordingly, the disputed judgment cannot be declared
enforceable in France, regardless of the other grievances retained against the
wife.”
127.
In sharp contrast to their earlier positions (when the only extant decision
was that of Judge Kurz) the mother now strongly urges me to follow the French
decision while the father urges me not to. I am informed by Mr Scott QC that
the father intends to pursue an appeal to the Cour de Cassation.
128.
All are agreed that the finding about what does or does not offend
French public policy is of no relevance to the decision I have to make about
English and Welsh public policy. Given that the father intends to appeal it is
as well that I keep my observations to a minimum. I can well see that a
reference to a wife not obeying her husband is objectionable, as Judge Kurz
noted. However, it is clear that article 117 of the Federal Law No. 28 of 2005 on
Personal Status is indeed reciprocal. I can accept that it would probably be
unlikely that in Dubai a wife would ever achieve a finding that her husband had
refused to obey her; but the law itself is gender neutral. It does not say that
a complaint about going to nightclubs can only be made by men. The finding in
question was not a “provision” of the law. It is no more than a finding of
prejudice which is all that the law requires. I have stated above that the
finding could equally have been expressed as a refusal by the wife to comply
with the reasonable requests of the husband. Had that been the case then it is
hard to see what objection could have been taken to it.
129.
I do recognise the force of Mr Harrison QC’s submission that if I
recognise (or rather decline to refuse to recognise) the Dubai divorce then the
consequence will be that these parties are divorced in the UAE and the UK but
remain married in France; whereas if I refuse recognition of the Dubai divorce then
the English divorce will be valid and the parties will be recognised as divorced
in all three places even though there will be a difference between England and
France on the one hand, and the UAE on the other, as to when they were
divorced. However, while limping marriages and limping divorces are generally
to be avoided that outcome is implicit in a successful application under
section 51(3) Family Law Act 1986. If the father does not succeed in his appeal
to the Cour de Cassation then the consequence is that he will have to obtain a
divorce in France.
The English
divorce proceedings
130.
On 22 September 2015 the mother filed a divorce petition in the Family
Court at Bury St Edmunds. It was issued on 5 October 2015 at 14:28 and given
the case number BV15D12659. It pleaded that the marriage was formed on 26
February 2010, and that it was still subsisting. She alleged that the marriage
had broken down irretrievably and in support of that she stated that the
respondent had behaved in such a way that she could not reasonably be expected
to live with him. In part 6 of her petition, where she sets out details of the
father’s behaviour she said that Louis was “currently resident with the
[father] under a sharia custody order”. She prayed that the court should
dissolve her marriage; that the father should pay costs; that she should be
granted the full range of ancillary relief; and that orders should be made for
financial provision for Louis. The addresses for service for the father she
gave as: (1) c/o his solicitors in the libel proceedings, Taylor Hampton, and
(2) at the former matrimonial home in Dubai.
131.
Obviously, the mother could not have presented this petition if she
believed that the Dubai court had validly dissolved the marriage. As I have
explained above at para 19, she had commenced her privacy action only a matter
of weeks earlier on 16 July 2015 and had pleaded in it “the claimant was
previously married to the first defendant until a divorce was granted in August
2012”. This was endorsed with a statement of truth. Yet she was now saying in
this divorce petition, also endorsed with a statement of truth, that she was
currently married to the father and that she wanted the English court to
divorce them. The two statements are impossible to reconcile.
132.
In Part 4 of the standard form of petition the applicant is required to
set out details of any proceedings in any court in England and Wales or
elsewhere with reference to the marriage. Here the mother wrote:
“The respondent was granted a sharia-based divorce and
custody judgment in Dubai on 12 August 2012. The petitioner was never served
with any divorce proceedings and judgment was granted in her absence. On 23
April 2014 the respondent filed an application in France for recognition of the
Dubai sharia divorce. The petitioner does not recognise the validity of the Dubai
divorce and is contesting the French proceedings.”
133.
It will be apparent from what I have written above that this was a
thoroughly misleading and inadequate description of what had happened in the
proceedings in Dubai. I do not accept the mother’s excuse that the word limit for
the box in question prevented her from giving a fuller (and truthful) account.
134.
The mother followed her divorce petition with her application under the
Children Act 1989 which she filed in the Family Court at East London on 18
March 2016. It was issued by the court on 8 April 2016 and given the case
number ZE16P00521. It was thus issued in a different registry of the Family
Court, on a different date and was given a different case number. On 15 April
2016 the mother issued in the Family Court at East London her Form A which
triggered her claim for ancillary relief. This had, of course, the same case
number as the divorce suit, since ancillary relief has not (yet) been
procedurally “delinked” from the main suit. The relief remains, as its statutory
name confirms, ancillary to the primary relief of dissolution.
135.
The mother had asked the Family Court to serve the petition and the
court sent it to Taylor Hampton on 5 October 2015. The mother followed this up
with chasing letters to Taylor Hampton on 15 October and 19 October 2015. In
addition, the mother posted the petition and the response pack to the former
matrimonial home in Dubai on 9 October 2015. Further, she sent a copy of the
unissued petition (but not the blank acknowledgment of service) by email to the
father from the address [email protected].
136.
Although Taylor Hampton returned the petition to the Family Court saying
they had no instructions to accept service of it, they told the father about it
on 15 October 2015. They did not give the father a copy of it. Although the
father had found the email from the mother in his spam file on 13 October 2015
he decided to ignore it as he thought it would be “dangerous”. This is
surprising. He says that he never received the hard copies in the post at his
home in Dubai. The father says that he decided to do nothing about this
development because he was confident that the mother could not obtain a divorce
against him in England and Wales as they had already been divorced in the
United Arab Emirates.
137.
On 22 October 2015 the mother made an application to the Family Court
for an order for deemed service of the petition. In support of her application
she made a witness statement endorsed with a statement of truth. Again, her
account was misleading and inadequate. For example, in paragraphs 14 and 15 she
stated:
“In October 2013, the respondent found out where we were
living and snatched our son while he was out in the playground. The British
Embassy informed me that he had obtained a sharia divorce in my absence. I was
never served with any divorce petition and was not told that a final hearing had
taken place in my absence. I was severely traumatised by this news and the loss
of my son.
The Dubai sharia divorce judgment granted the respondent
custody and wiped out all my parental rights. I was advised by my Dubai lawyers
that I have no right of appeal against the sharia divorce and custody. I was
not allowed any contact with my son at that time. The sharia judgment provided
for no contact.”
When the mother made this statement
on 22 October 2015 she had applied for, and had been granted, contact by the
court in Dubai on 12 May 2014. That order had been confirmed by the appeal
court on 11 December 2014 and by the Court of Cassation on 23 June 2015.
138.
On the basis of that statement the court granted an order for deemed
service on 20 November 2015. The court made a further order that “the
petitioner is given permission to amend the petition to confirm jurisdiction.
The petition shall be amended in RED and re-dated and re-signed in RED. Service
of the amended petition be dispensed with” (uppercase in original). I have not
seen the amended petition. On 11 January 2016 the mother applied for decree
nisi and made her statement in support. She did not alter any of her previous
statements about the Dubai divorce.
139.
When the court considers pursuant to FPR 7.20(2) whether it is satisfied
that the applicant is entitled to a decree nisi it must, even though the process
has been downgraded from its previous numinous status to a banal administrative
exercise, still apply section 1(3) of the Matrimonial Causes Act 1973 which
provides “on a petition for divorce it shall be the duty of the court to
inquire, so far as it reasonably can, into the facts alleged by the petitioner
and into any facts alleged by the respondent”. So far as I can tell, there was
no inquiry whatever into the status of the Dubai divorce when the certification
exercise took place. The court would only have jurisdiction to dissolve the
marriage if it were satisfied either that the Dubai divorce was not effective
within the terms of section 45 the 1986 Act, or if it had decided pursuant to
section 51(3) that the divorce should not be recognised. Merely to accept the
statement of the mother that she did not recognise the divorce comes nowhere
near satisfying the requirement. There is nothing to suggest that the court
gave any consideration to this aspect at all.
140.
FPR rule 7.27 is headed “stay of proceedings”. Rule 7.27(1) provides
that where the court is considering granting a certificate of proof but it
appears to the court that there are proceedings continuing in any country
outside England and Wales which are in respect of the marriage or civil
partnership in question or which are capable of affecting its validity or
subsistence, and the court considers that the question whether the proceedings
should be stayed should be heard, then the court must give directions for the
hearing of that question. Similarly, under rule 7.27(2) where it appears to the
court in matrimonial proceedings that, under Articles 16 to 19 of the Council
Regulation No. 2201/2003, the court does not have jurisdiction to hear the
application and is or may be required to stay the proceedings, the court will
stay the proceedings and fix a date for a hearing to determine the questions of
jurisdiction and whether there should be a further stay or other order. These
rules plainly anticipate that there will be a hearing where the papers reveal that
there are continuing, un-concluded overseas proceedings which may affect the
validity or subsistence of the marriage. I do not know why the rules are not
stated to apply equally where the papers reveal the existence of concluded
overseas proceedings which may bear on the validity or subsistence of the
marriage. I think this must be an oversight.
141.
In my judgment what happened here should not happen again in the future.
If there is revealed in the petition the existence of an overseas divorce which
may be entitled to recognition under section 45 of the 1986 Act, then the court
has a duty to investigate that pursuant to its obligation under section 1(3) of
the 1973 Act. This may require the matter to be listed for a hearing.
142.
But no such investigation took place; the certificate was granted; the
decree nisi was pronounced on 3 March 2016; and that decree was made absolute
on 18 April 2016.
Conclusions
143.
I am wholly satisfied for the reasons I have set out at length above
that the mother had knowledge of the proceedings in Dubai and a full
opportunity to participate in them. Indeed, she did participate in them. I am
satisfied that the proceedings were fair, and that the Dubai court gave the
mother much latitude. The mother does not even begin to scratch the surface of
demonstrating that this UAE divorce is contrary to English and Welsh public
policy. On the contrary, I am satisfied that the divorce ground under Article
117 is entirely consistent with our public policy as it is virtually the same
as the ground for divorce that is principally used here. I do not agree that
the language used by the Dubai court renders its decision contrary to the
public policy of this country.
144.
I therefore recognise the Dubai divorce as valid. I decline to refuse
recognition of it under section 51(3). This means that the English decrees nisi
and absolute are null and void and must be set aside.
145.
The consequence of this decision is that all of the proceedings issued
by the mother must be discharged. With the revocation of the English divorce
proceedings the mother has no jurisdictional basis left under the terms of
section 2 of the Family Law Act 1986 to pursue relief under the Children Act
1989. Mr Harrison QC accepts this.
146.
It is therefore not strictly necessary for me to decide the question of
construction of section 2(1)(b)(i) of the Family Law Act 1986. As I have heard
argument about it, and as it may be that another court considers that my
decision about recognition of the Dubai divorce is wrong, I will nonetheless
give my ruling on the question.
147.
I am wholly satisfied that the decision of Mr Justice Bodey in J v U
(Child Arrangements Order: Jurisdiction) [2017] 2 WLR 760 is correct. I
take the view that the residual jurisdiction provided for in 2(1)(b)(i) of the
Family Law Act 1986 (“the question of making the order arises in or in
connection with matrimonial proceedings”) has become redundant with the repeal
of both section 41 and section 42 of the Matrimonial Causes Act 1973. Like Mr
Justice Bodey I struggle to envision a child case that arises “in connection
with” the divorce now that the processes have been completely delinked. I am
not sure I agree that if the allegations made in the child case happened to
correspond to allegations of unreasonable behaviour in the divorce petition then
the necessary connection would be made. It seems to me that while sections 41
and 42 of the 1973 Act were in force then the idea of a child related
application “in” (section 42) or “in connection with” (section 41) the divorce
is very apt. But with the repeal of those sections the platforms fall away.
148.
I think it is time to recognise that there are now no imaginable circumstances
where it can be said that a child issue arises “in connection with” matrimonial
proceedings. In any event I consider that this provision now has very strange
discriminatory aspects to it and that a purposive view of its utility should
conclude that it is now redundant. The provision can only apply if neither Council
Regulation No. 2201/2003 nor the 1996 Hague Convention applies. So it is not
available if the country of habitual residence is Morocco (a 1996 country) but
it might be if it is the UAE (which is not a 1996 country). It is not available
if it is Australia (a 1996 country) but it might be if it is New Zealand (not a
1996 country). It is available if the parents were married (or civilly
partnered) and their union was dissolved here. It is not available if the
parents were unmarried. It is impossible to justify rationally. In paragraph 16
of his decision Mr Justice Bodey states that because the words are alive in a
statute they must be applied. I am of the view that it is possible for an un-repealed
statutory provision to become redundant or obsolete (see, for an example, para 22 above).
149.
Therefore, even if the Dubai divorce is not to be recognised, I conclude
that the mother does not satisfy the jurisdictional requirement in 2(1)(b)(i)
of the Family Law Act 1986 as her claim under section 8 of the Children Act
1989 is not made either in, or in connection with, her divorce proceedings.
150.
For all these reasons, therefore, the mother’s applications are
dismissed. The father’s application for a declaration is granted and the
decrees nisi and absolute granted in this jurisdiction are set aside.
151.
I end by referring to my remarks at the beginning of this judgment. I
have made strong findings against both parties. They should act as a form of
closure between them. It is now time for them to move on and to put the past
behind them and to work together as parents in the upbringing of their son. I
reiterate that Louis’s well-being will be seriously compromised if he does not
have a meaningful relationship with each of his parents.
___________
