Family Law Hub

Y v S [2017] EWHC 1020 (Fam)

Application by mother for return of a child to Pakistan under the UK- Pakistan Judicial Protocol on Children Matters of January 2003. Application granted.

  • No. FD16P00514

    Neutral Citation Number: [2017] EWHC 1020 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Friday, 17th February 2017

    Before:

    MR. JUSTICE FRANCIS

    (In Private)

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    B E T W E E N :

    Y Applicant

    - and -

    S Respondent

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    Transcribed by BEVERLEY F. NUNNERY & CO.

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    MR. A. PERKINS (instructed by Dawson Cornwell) appeared on behalf of the Applicant.

    MR. M. FIDDY (instructed by HRS Family Law Solicitors) appeared on behalf of the Respondent.

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    J U D G M E N T

    MR. JUSTICE FRANCIS:

    1 The court is concerned with a young girl called M, who is six years and eight months old. The applicant is her mother and the respondent is her father.

    2 This hearing is the listed hearing for the final determination of the mother’s application for the summary return of M in accordance with the UK- Pakistan Judicial Protocol on Children Matters of January 2003.

    3 M was brought to England from Pakistan by her father on 6th June 2016 in circumstances which I shall describe shortly. By 12th July 2016, the mother had contacted the police where M now lives with her father expressing concerns about the cancellation of Skype contact.

    4 On 19th September 2016, the mother issued Wardship proceedings and M was made a Ward of Court. The return date was 28th September 2016 when interim contact arrangements were made by way of Skype contact and possibly telephone contact. The court directed the local authority to file a s.37 report and the court also provided for the filing of witness statements. (I should add that it has been pointed out to me by counsel that it is at least possible that, when the Judge ordered a s.37 report on 28th September 2016, she may possibly have intended instead to order a s.7 report since there did not appear to be concerns which would be likely to give reason for the Local Authority to intervene.)

    5 There was a further directions hearing on 17th November 2016 when this matter was set down for final hearing with a time estimate of two days. This is my judgment in that final hearing.

    6 The mother was born in 1984 in Pakistan and is a Pakistani national. The father was born in 1951 in Pakistan and he is a British national and has a British passport.

    7 The mother and father were married in 2009 in Pakistan. It was an arranged marriage. The parties lived together following the marriage until July 2010 when the father returned to England when M was but a few weeks old. Accordingly, the couple lived together for about ten months after they were married is their only child. She was born in Pakistan and spent all of her life there until June 2016 by which time she was almost exactly six years old.

    8 It is common ground that the mother has been M’s primary carer from her birth until June 2016 when M was brought to England by her father. It is also agreed that the father was absent from the home in Pakistan from 2010, when he left for England, until late April 2016 when he returned to Pakistan.

    9 It will be obvious, therefore, that the mother has been a central and pivotal part of M’s young life and, as I have said, her primary carer, albeit with the assistance of maternal and paternal family in Pakistan until June 2016; and that the father was not in practical terms such a central and pivotal part, although he had indirect contact with her during this time.

    10 During the period of his absence, the father sent money to the mother for her and M’s upkeep. There is an issue between the parties as to the quantum of the sums sent. This was not analysed at all during the hearing and has not formed one of the issues relevant for today’s determination.

    11 The father has alleged that the mother was unfaithful to him whilst he was away and that she had an affair. I have been shown no evidence to corroborate this allegation beyond the father’s assertion, which is strenuously denied by the mother. Moreover, as the father is aware, an allegation of adultery against a woman in Pakistan is extremely serious and a criminal offence.

    12 The mother points out that she lives in a small village and that, if she had an affair, it would have been known in the community very quickly and that serious actions would be taken against her. Whilst noting the allegation, I cannot attach any significant weight to the father’s uncorroborated allegation of such a serious matter.

    13 The mother, for her part, suspects that the father was having an affair whilst he was in England. She says that from about March 2014 he was collecting the daughter of Ms. B from school on a regular basis. I am unable to know whether or not this is correct, but its relevance is that the father is now married to Ms. B. Ms. B travelled to England with her daughter in about December 2013 leaving her husband behind in Pakistan. The mother asserts that in the summer of 2015 the father stopped paying child maintenance. This is denied by the father.

    14 In April 2016, the father arrived back in Pakistan unannounced. On 2nd May 2016, he met with M. It is said that, on this date, the paternal and maternal family persuaded the father and the mother to reconcile.

    15 It is common ground that the father left Pakistan with M and without the mother on 6th June 2016. There is a substantial factual difference between the parties as to the circumstances of their departure. This has not been a fact finding hearing and I have not heard live evidence.

    16 The mother’s initial application for Wardship, pursuant to the inherent jurisdiction of the High Court, was supported by a statement by Shabina Begum who is a solicitor employed by Dawson Cornwell who represent the mother. In that statement, Ms. Begum said on instructions that:

    “The respondent discussed the applicant and M joining him to live as a family in England. The respondent told the applicant that he would register M at a school and then make an application for the applicant to join them in England. I am instructed that the applicant said that she did not trust him and did not want to be separated from her daughter.

    The respondent father then reassured her that he would only take the minor for a month, register her at a school and then send her back to Pakistan so that she could travel with the applicant mother in time to start a new school year in England. The applicant allowed the subject minor to travel with the respondent on this basis.”

    17 In a statement dated 11th November 2016, the mother said:

    “My agreement to them travelling temporarily with the respondent to England was on the basis that she would return to Pakistan after about four weeks and remain with me there whilst he made arrangements for us to live together as a family in England.”

    18 It has been argued on behalf of the father that the mother’s case has varied in this regard. In para.10 of her statement dated 11th November 2016, she said:

    “It is not true that we came to an agreement that M would travel to England for the purpose of education and then return after two years. The agreement was that M and I would travel to England so that the three of us could live together as a family. The respondent said that he would make arrangements for M’s education first and then he would make an application for my Visa. I agreed to allow M to travel with the respondent to England in June 2016 and stay there for a month with the understanding that the respondent would register her in a school. The agreement was that M would return to Pakistan, then M and I would travel to England together so that we could start a life together as a family. Our daughter had never had this opportunity. Her father was a stranger to her, so I felt it was important that we should all be together for her sake.”

    19 It seems to me that these three accounts are broadly consistent with each other even though there are some differences. I accept entirely, however, that the mother did not say in terms that she only agreed to the removal on the basis that they remained married.

    20 The mother says that, on 9th June (i.e. just three days after M travelled to England with her father), she found a USB stick which contained a video of the father and what she asserted was his new girlfriend, B. The father denies that he was having a relationship with Ms. B at this time.

    21 In any event, in July 2016, the mother was forcibly removed from the paternal family’s house, and, shortly after that, the father pronounced Talaq over the telephone and stopped communicating with the mother. Contact between the mother and M then ceased.

    22 Mr. Fiddy for the father draws my attention to the fact that the mother made no mention of M having been wrongfully retained in the United Kingdom when she made her complaint to the police in July 2016. He says that the mother does not state within any of her witness evidence that she told the police that M was being cared for by the father against her will and that she wanted her to be returned to Pakistan. Indeed, Mr. Fiddy says, the mother asserts through her solicitor, Ms. Begum, that it was after her Skype contact was stopped that she called the police.

    23 At para.6.2 of the s.37 report, the author describes the complaint to the police in the following terms:

    “Children Services only became aware of M and her father on 12th July 2016 when Ms. Y contacted British police that she had not contact with M for two weeks. Police visited and Ms. Y was happy to speak to the child in the presence of the police. The mother was described as upset and the police understand that this was a joint arrangement in order for M to gain a better education and life.”

    24 Mr. Fiddy makes the point that the period that the mother says that she had agreed M could spend in the UK with the father would have passed by the time she contacted the police on 12th July 2016 and yet she failed to raise the point with the police.

    25 I see the force of that submission, although I am not sure that there is clarity as to an exact period of time or an exact date by which the father was to return with M. But it seems overwhelmingly likely to me that, had the mother known that M was going to be living with the father in England in circumstances where he was unilaterally to divorce her after he arrived and then set up home with a new woman who was to become his wife, she would not have agreed to M going to England in the first place.

    26 As I said at the outset of this judgment, this claim is made by the mother pursuant to the UK-Pakistan Judicial Protocol on Children Matters as well as under the inherent jurisdiction. That protocol begins with a recital which includes the following:

    “Whereas:

    (a) Desiring to protect the children of the UK and Pakistan from the harmful effects of wrongful removal or retention from one country to the other;

    (b) Mindful that the UK and Pakistan share a common heritage of law and a commitment to the welfare of children…”

    27 It then continues with nine agreements to which my attention has been drawn, in particular to (1), (5), (6) and (8), as follows:

    “(1) In normal circumstances the welfare of a child is best determined by the courts of the country of the child's habitual/ordinary residence.

    (5) In cases where the habitual/ordinary residence of the child is in dispute the court to which an application is made should decide the issue of habitual/ordinary residence before making any decision on the return or the general welfare of the child, and upon determination of the preliminary issue as to habitual/ordinary residence should then apply the general principles set out above.

    (6) These applications should be lodged by the applicant, listed by the court and decided expeditiously.

    (8) It is further recommended that the judiciaries, the legal practitioners and the nongovernmental organisations in the UK and Pakistan use their best endeavours to advance the objects of this protocol.”

    28 Mr. Fiddy, counsel for the father, forcefully asserts that this is not a protocol case at all. First, he says that this was not a wrongful removal. In this regard, I agree. Mr. Perkins for the mother has not sought to persuade me that the removal itself was wrongful since the mother consented to it. In saying that, I recognise that there is at least a possibility that the mother was tricked into agreeing to removal in circumstances where, had she known the truth, she would not have agreed. But I am unable to go so far as to find that and I do not find that this is a case of wrongful removal.

    29 However, plainly the protocol also refers to wrongful retention. It seems to me to be overwhelmingly unlikely that the mother would have agreed to M remaining in England with her father, then virtually a stranger to her, had she known that the father would divorce her shortly after his arrival in England with M and then marry and set up home with a new woman.

    30 I am unable, and do not need, to determine whether the father was actually having an affair with Ms. B before he pronounced the Talaq. But what is clear is that Ms. B was divorced in August 2016 and that the marriage of the father to Ms. B was registered on 23rd October 2016. The father says that he and Ms. B commenced cohabitation on 3rd October 2016 and he says that his marriage to Ms. B was approved by the Imam in England in September 2016.

    31 The mother does not have a British passport and forcefully asserts that she would be unlikely to obtain a Visa to travel to England. Thus she finds herself totally estranged from the daughter for whom she was the sole carer for most of her life and believes that she has been deceived by the father into allowing her daughter to remain in England. Whilst I do not go as far as to find deceit, I am in no doubt that the evidence points strongly in this case to a wrongful retention and I so find.

    32 My attention has been correctly drawn to the decision of Mr. Justice Wilson (as he then was) in Re H (Child Abduction: Mother’s Asylum) [2003] EWHC 1820. In that case, the Judge found that the protocol of agreement between the UK and Pakistan did not apply because the father did not have the benefit of a custody/residence order and nor had there been any relevant order by a court in Pakistan. In para.5 of his judgment, the Judge said:

    “It appears that the intention behind the provision that the non-consenting parent should have an actual order for custody/residence is to obviate a possibly complex enquiry in each of our two states as to whether that parent had rights of custody, or at least a right to object to the child’s removal, according to the law of the other…”

    33 Accordingly, following that principle enunciated by Mr. Justice Wilson in that case, I conclude that as the mother does not have an actual order for custody or residence then the terms of the protocol are not expressly triggered. However, the Judge went on as follows:

    “Nevertheless I regard it as important for me to bear in mind both the first clause, which I will set out in para [29] below, and the four recitals to the agreement. The recitals express, first, a common desire to protect the children of the two states from the harmful effects of wrongful removal from one to the other or wrongful retention in one as against the other; secondly, a common recognition that our two states share a heritage of law and a commitment to the welfare of children; thirdly, a common aspiration to promote judicial co-operation, enhanced relations and the free flow of information between our respective judiciaries; and fourthly, a common acceptance of the importance of negotiation, mediation and conciliation in the resolution of family disputes.”

    Accordingly, it is clear to me that, whilst the strict terms of the protocol are not engaged, the spirit of the protocol is.

    34 I am bound to observe as well that the facts of the instant case are far removed from the facts that Mr. Justice Wilson was dealing with. In the instant case it is acknowledged, and agreed by both parties, that M lived with her mother throughout her young life until she was brought to England by her father in June 2016; and that, until the father and M met in May 2016, the father was effectively a complete stranger to M.

    35 My attention has also been drawn to Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40. That case sets out the central proposition that any court which was determining any question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration.

    36 The House of Lords also made clear that there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended or applied by analogy to countries which were not parties to it and that, when non-Convention countries were involved, a trial Judge had to focus on the individual child in the particular circumstances of the case.

    37 In discussions in court with counsel, this led to an interesting debate as to the effect of the decision in Re J on the protocol. It is clear that in Re J there was no discussion of the UK-Pakistan Protocol.

    38 In para.25 of her speech, Baroness Hale said:

    “Hence, in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration. This was so, even in those cases decided around the time that the Hague Convention was being implemented here, where it was held that the courts should take account of its philosophy…”

    39 I do not take Baroness Hale to mean that the UK-Pakistan Protocol should be ignored because it is a non-Hague case. However, I do accept that, if there is a tension between a Judge-made protocol - which is what the UK-Pakistan Protocol is - and a decision of the House of Lords or (as it became) the Supreme Court, then the decision of the House of Lords or Supreme Court must prevail.

    40 There are other important and relevant passages in Re J to which my attention has been drawn. In para.32, Baroness Hale said:

    “The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.”

    She continued in para.33:

    “One important variable, as indicated in Re L, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.”

    In para.34, she continued:

    “Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return.”

    41 These principles are fundamental guides to the decision-making process in which I am engaged.

    42 Mr. Perkins on behalf of the mother forcefully asserts that the following are strong indicators when applying those principles set out by Baroness Hale:

    (1) M lived until June 2016 her entire life in Pakistan in the sole care of her mother supported by the paternal and maternal family. This is self-evidently correct and Mr. Fiddy did not seek to assert otherwise.

    (2) Until three weeks before her departure from Pakistan, her father was a stranger to her. Again, this is not in issue.

    (3) Whatever the parents agreed, M was unarguably habitually resident on 6th June 2016 in Pakistan. This, again, is self-evidently correct.

    (4) M had never previously visited the United Kingdom. Again, this is not in issue.

    (5) Despite at least two and a half months in an English school, the social worker in the s.37 report reported as recently as November 2016 that M does not currently speak English. Mr. Perkins says that, therefore, at the date of the issue of the form C66, it is safe to conclude that M spoke no English. I agree.

    (6) As of September 2016, M’s carers were the father from whom she had been estranged for the entirety of her life until June 2016 and B, who the mother suggests she had only met on a couple of occasions previously. I agree that this suggests that M’s integration into that family unit would have been limited. I also note that a period of almost five months has elapsed since that date of 19th September 2016 and so the degree of integration will have grown.

    (7) The social worker concludes that M would have suffered significant trauma in being removed from her mother’s care. Mr. Perkins asserted this is unlikely to have diminished significantly by 19th September 2016. There is no evidence either way in relation to this. There is, however, evidence to indicate that M is doing well in England and appears to be content in the care of her father and Ms. B.

    (8) M would only have just commenced at Primary School at the beginning of the school year which we now know was 4th September 2016. So by the time of the relevant date, 19th September 2016, M had only been at school for two weeks.

    (9) M’s contact with her mother had ceased and the trauma of separation followed by reduced intermittent Skype contact would have been unsettling for M. Although there is no direct support for this proposition, it seems to me that any child removed in the circumstances in which M was and then finding that her contact was reduced to intermittent Skype contact would at the very least be unsettled and more probably traumatised.

    (10) Mr. Perkins asserts that the mother believes that M initially lived with a paternal aunt when in England. I am unable to attach significant weight to this assertion as there is little evidence to support it or indeed to refute it.

    (11) The mother was habitually resident in Pakistan and, given M’s age, this is significant. I agree that, of course, the mother was and is habitually resident in Pakistan as was M at the very least until her removal to England in June.

    (12) M had left her entire life behind. The circumstances in England could not be further removed from the previous six years in rural Pakistan. I do not think anyone would disagree that the transfer from Pakistan to England in June 2016 was a radical and monumental change for this little girl.

    43 Mr. Fiddy’s principal assertion is that M remains living in England with her father pursuant to an agreement which he reached with the mother. I agree that this makes it difficult for the mother to assert that there was a wrongful removal. As I have set out above, this is not in my judgment a wrongful removal case. But there is, as I have set out above, powerful evidence to suggest that there was a wrongful retention.

    44 I have already indicated that, pursuant to the decision of Mr. Justice Wilson in Re H, the UK-Pakistan Protocol does not strictly apply. I have also already identified what the House of Lords said in Re J and that my duty is to regard the welfare of the child as my paramount consideration and I do so.

    45 The father asserts that there are compelling reasons why it would not be in M’s best interests to be returned to Pakistan. First, the father has made allegations that the mother has neglected M. He says that M was very weak and fragile when he visited in April 2016 and that she was being cared for inadequately. There is no independent evidence to support this assertion. There is no evidence from the maternal or the paternal family, yet I am told that the paternal family were closely involved in M’s care before she came to England in June 2016.

    46 The father also asserts there was an occasion or occasions when M displayed inappropriate sexualised behaviour when she first came to England. The only reference of any assistance in relation to this allegation appears at para.8.7 of the s.37 report, which reads as follows:

    “Mr. S has stated that, when M first came to the UK, she would cover herself with blankets and rub her private parts whilst under the blankets. Mr. S stated that he told her to stop doing it and it was wrong. M has not done this since. Mr. S was worried about M had witnessed in Pakistan.”

    47 I note that the father did not detail this in his own witness statement and the brief reference to it in the s.37 report does not seem to me to amount to anything approaching evidence which should compel me to fear a return to Pakistan.

    48 The second of Mr. Fiddy’s points is that the father asserts that the mother was failing to meet M’s educational needs in Pakistan saying that it is apparent from the s.37 report that M had not been enrolled in a school by the summer of 2016. This may be troubling, but, as I pointed out during discussions in court, not all countries require children to be at school by the age of five as is the law in England and Wales.

    49 Thirdly, the father correctly identifies that there are no concerns regarding the father’s care of M. The s.37 report concluded that M appears settled and happy within the family home and that, although there will have a detrimental impact on her emotional wellbeing on leaving Pakistan and her mother’s care, she is not showing any signs of distress when she has been seen in the father’s care. This is plainly a significant factor in support of the father’s case.

    50 The author of the s.37 report tried, as would be expected, to ascertain M’s own view. In this regard, the social worker reported:

    “M only stated that she likes living with her father as he buys her sweets. She did not discuss anything more about her mother in Pakistan or the care that the father provides.”

    51 So far as I am concerned, when considering M’s welfare, I have to have regard not only to the circumstances in England but also to the fact that M is now completely estranged from her mother apart from Skype contact that it would be difficult, if not impossible, for the mother to see her while she is in England.

    52 In this regard, I am told and accept that both parents are of very limited means and would find it difficult to afford the flights. Furthermore, there are real issues as to whether the mother would even be able to obtain a Visa to visit England. Even if she did obtain such a Visa, for example because it may be easier to get one if I made a contact order, she would only be able to visit England very occasionally. I have to consider whether it is appropriate to remove M from the care of the only parent that she knew, and create a situation where she is now completely separated from her mother.

    53 Fourth, Mr. Fiddy asserts on behalf of the father that M has several connections to the United Kingdom. The connection relied upon is the father and his new wife and it is said that there are uncles in England in addition to paternal cousins. I have had no evidence about these uncles or cousins, but I recognise that these are potentially important connections. It is, however, plainly a much weaker connection than the connection which M has with Pakistan where she spent almost all of her life and was living in the community of both maternal and paternal family members.

    54 Next, Mr. Fiddy asserts that the father is willing and able to promote contact. I have already referred to the fact that such contact could only really be Skype or telephone contact or similar.

    55 Sixthly, Mr. Fiddy says that the mother would not be at a material disadvantage if proceedings took place in England. I am not so sure. If the mother has to litigate in England it must, first, be doubtful whether she would be able to secure legal aid in what would then be relatively ordinary private law proceedings rather than inherent jurisdiction or protocol proceedings, although I recognise that there is a hope that she might receive legal aid if those were the circumstances. The mother speaks no English and I have already referred to her limited means. Conversely, the father would be able to participate in proceedings in Pakistan more easily because it is a county which is known to him both in terms of language and culture.

    56 In spite of the fact that Mr. Perkins opened this as a protocol case, I have endeavoured to demonstrate why this case is at best a case of applying the spirit of the protocol and it is clear that it is my duty to apply the welfare checklist.

    57 I have already referred to the fact that the ascertainable wishes and feelings of M, taking into account her age and understanding, have not really been secured. The only evidence that we have is that M likes living with her father because he buys her sweets.

    M’s physical, emotional and educational needs

    58 There is no doubt that her physical needs are met by her father. Moreover, she attends school and it appears that her educational needs are met, subject of course to the language difficulties which she must face. But those would, in due course, be overcome.

    59 I am, however, greatly troubled as to whether her emotional needs are being properly met. Whatever the truth of the circumstances surrounding the father’s departure from Pakistan, and the evidence points distinctly to the fact that he may have misled the mother at some point either around or not long after his departure, it is hard to see how M’s emotional needs are being properly met when she is being deprived of real contact with the only parent that she knew for the first six years of her life.

    The likely effect of any change of circumstances

    60 The short term effect of a transfer from England back to Pakistan may be profound, but, in my judgment, far less so than would have been the effects of the move from Pakistan to England. M would at least be returning to people that she knows, in a country that she knows, in a place that she knows and with people who speak her language. I fully take into account the likely effect on her of any change in her circumstances.

    Her age, sex, background and any characteristics of those which the court considers relevant

    61 She is of course a young girl born to Pakistani parents where the father has a British passport and British nationality. I have no doubt that if she remained with the father and Ms. B in England that she would continue to respect her Pakistani heritage.

    Any harm M has suffered or is at risk of suffering

    62 I do not have the benefit of a report which assists me very much, but, in my judgment, a young child of this age who is suddenly removed from her or his mother where the mother has been the only carer is bound to have suffered emotional harm. There is no evidence of any substance to suggest to me that M will suffer physical harm, either by remaining with the father or by being returned to the mother. There would, perhaps, be some emotional harm to her at least in the short term by another change in her circumstances and by being taken away from England back to Pakistan.

    63 In this case, I am absolutely clear that that short term harm is a price that has to be paid when balanced against the other harms to which I have referred. I have already mentioned that I have regard to the spirit of the UK-Pakistan Protocol qualified as it is by the cases referred to above. I make clear that, although I have had considerable regard to that protocol and find that the spirit of that protocol requires me to consider making an order to return, I make my order strictly by reference to the welfare principles which guide my decision.

    64 Having regard to those welfare principles, I am left in no doubt that M’s welfare is best served by a return to Pakistan.

    65 Mr. Fiddy strenuously argues that, whilst it may be open to the court ultimately to conclude that M’s best interests will be served by living with the mother in Pakistan, this conclusion can only be reached after a more extensive balance sheet welfare enquiry has been made. He correctly asserts that this is not a kidnapping case, but I have found that this is a case of wrongful retention where the facts point substantially to the father having misled the mother regarding the circumstances in which M remained in England.

    66 I make it clear, however, that my judgment does not depend simply upon such a finding. I am completely clear that there must be implied into the mother’s consent to the move to England that she was to join her husband and M in England in due course. There was implied into her consent that she was going to remain married to the father and not that the father would pronounce Talaq shortly after his arrival in England and then, in due course, set up home with a new wife.

    67 I accept that there will be some disturbance to M in being removed from her present home in England back to Pakistan (her old home). However, the impact of this removal, in my judgment, is very much smaller than would be the impact of her removal to England from Pakistan in the circumstances to which I have referred and being brought up by the father whom she did not know in any substantial sense until June 2016 and by the father’s new wife.

    68 Whilst M is undoubtedly now learning English, the fact is that she will be returning to a country where she is known, where she speaks the language and which she is completely used to. I do not think for one moment that, at the age of six years and eight months, she will have forgotten the life that she led until some eight months ago.

    69 There may well now be proceedings between these parents in Pakistan for custody and contact and those proceedings will have to take their course. I expect the mother, when M is returned, to promote contact between M and her father. I will, of course, hear submissions about that if the parties are unable to agree to it.

    70 I recognise that the parties will be emotional today and that it may need to wait until another day before the detailed provisions of this order can be set out. Plainly, contact must include as much telephone and/or Skype contact as can reasonably be arranged and, of course, the right for the father to see M in Pakistan when he is there; and, in due course, orders may have to be made about whether she can be taken out of Pakistan and back to England, but that is certainly not a matter for me today.

    71 Accordingly, my order is for M to be returned to Pakistan in accordance with the mother’s application.

Judgment, published: 04/05/2017

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Published: 04/05/2017

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