Thu, 15 Jul 2021
Two recent cases involving families in the Middle East have highlighted different approaches to dealing with co-parenting and conflict resolution, as well as the need for good expert evidence on the law in non-Hague convention countries when the application is for permission to temporarily remove children to those jurisdictions.
In XM v XF [2021] EWHC 1279 (Fam) the family was and remains based in Dubai. The English court assumed jurisdiction for the Children Act proceedings as a result of there being ongoing divorce proceedings in England, where the parties had married in 2012.
There were two children, now aged 3 and 6. The marriage began to break down in late 2019 and by early 2020 the parents were in a state of high conflict, the Judge finding that the Father had behaved badly and the atmosphere within the family home had become “toxic”. Following the separation, matters continued to be difficult between them, and there were difficulties with the progression of both face-to-face and video call contact between the Father and the children. The children suffered emotional harm as a result.
The Judge considered that the litigation had been a very difficult process for both parents.
Nevertheless, the case is striking for the apparently proactive approach the parents took to obtaining outside assistance to resolve their dispute and improve their family situation. At a very early stage of the litigation, the parents jointly appointed an independent social worker who engaged both them and children throughout in a therapeutic approach, as well as providing reports to assist the court process. The Father sought personal counselling to address his emotional response to the marriage breakdown. By the time of the final hearing, Roberts J had a plethora of evidence, including detailed independent evidence about the children. Unfortunately, while the parents were ultimately unable to agree on the way forward for the children, requiring the Court’s determination, they showed a willingness to seek support, recognising that their own behaviour was detrimental to the children’s wellbeing. This seems to have enabled the litigation to move more quickly than is often seen, with both parents being involved in the children’s care throughout.
The parents hoped, post-proceedings, to engage the services of a “parenting coordinator”, which was encouraged by the Judge. Parenting coordinators are qualified mediators who assist parents with communication and decision-making where child arrangements are already in place, and who can coach and empower parents to achieve a more positive co-parenting relationship.
The case indicates a move away from a purely evidence-based and adversarial approach to a manner of working which proactively assists the parents both during and after the proceedings.
The parents in AA v BB [2021] EWFC 55, however, approached the litigation in a very different way. The Father was a Jordanian national, living in Dubai. The Mother and children had lived in the UK since 2018, and the English court assumed jurisdiction based on their habitual residence.
This was a very high conflict case, with the Father refusing to cooperate with or even acknowledge the concurrent divorce proceedings. Over the course of four days, Richard Harrison QC sitting as a Deputy High Court Judge heard evidence from both parents and a family friend. He was required to make findings with respect to the Father’s alleged domestically abusive and controlling behaviour, religious fundamentalism and the risk of the Father abducting the children and wrongfully retaining them abroad.
Most interestingly, the Judge found that the risk of the Father retaining the children in either the UAE or Jordan was “real and not fanciful”, but he did not find that, on the balance of probabilities, the Father was likely to abduct the children. He was required to balance that level of risk against the benefits to the children visiting the country and the safeguards that could be put in place to mitigate the risk.
In this case, the Mother had renounced her Islamic faith. The Court heard evidence from an expert in UAE family law that, because the Mother would be considered an apostate in both jurisdictions, she could be afforded no legal or informal protections. To attempt to do so would offend the principles of Sharia law. Additionally, the Mother would not be acknowledged as the children’s custodian.
The Judge, therefore, found that the risk of wrongful retention outweighed any possible benefits to the children and ordered that the Father must not remove them from the jurisdiction of England and Wales, supported by port alerts. An order was made for a phased reintroduction of contact between the children and their Father to take place when he visits England.
AA v BB reiterates the need for expert legal evidence in international cases such as this. On its facts, this case differed from previous apparently similar cases.
