Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

12 AUG 2014

M v B (Application for Permission to Relocate to Abu Dhabi) [2014] EWHC 2686 (Fam)

M v B (Application for Permission to Relocate to Abu Dhabi) [2014] EWHC 2686 (Fam)
(Family Division, Holman J, 24 July 2014)

Relocation – Parents separated after Bigamous marriage

The full judgment is available below

The mother and father had met during childhood in Algeria. In 2003 the mother went to Canada to meet up with the father and they spent 2 weeks together. She was aware that he had been married but understood it to have been an exclusively Islamic marriage and to have been ended by consensual Islamic divorce. In fact, they had also had a civil marriage in Canada.

When the father later travelled to England to spend time with the mother they entered into both an Islamic marriage and a civil marriage at a registry office. At which time the father was still lawfully and validly married to his first wife.

The mother conceived a child and for 4 years they lived as a family. In 2010 the mother and father separated and the child remained with the mother. The mother completed teacher training and wished to relocate for work to Abu Dhabi, where her older daughter also lived. She issued a formal application for permission to relocate with the child. The father objected although he was now living in Algeria and was not having regular direct contact with the child.

The mother’s application was allowed. The obvious benefits to the child were that he would be in daily contact with his sister of whom he was very fond and he would benefit from the greater prosperity and security of his mother. At present the child was living in the middle of much conflict between the parents which could not be allowed to persist. He enjoyed spending time with the father but at times contact was destructive. Given that the father was not having regular contact with the child now that he was living in Algeria it was difficult to see there were many grounds for resisting such a move.


The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Neutral Citation Number: [2014] EWHC 2686 (Fam)

Case No.MK14P00072

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Date: Thursday, 24th July 2014
Before:

MR JUSTICE HOLMAN
(Sitting in Public)

- - - - - - - - - - - - - - - - - - - - -

B E T W E E N :

M
Applicant

- and -

B
Respondent

- - - - - - - - - - - - - - - - - - - - -

Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
Tel: 020 7831 5627 Fax: 020 7831 7737
info@beverleynunnery.com

- - - - - - - - - - - - - - - - - - - - -

Miss SARAH DINES appeared on behalf of the applicant mother.
THE RESPONDENT father appeared in person.

- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T

MR JUSTICE HOLMAN:

[1]  I have heard this case throughout in public. I now give this ex tempore judgment in public. I direct that no report of this case in the media or elsewhere may name or identify the child concerned, nor either of his parents, nor his sister, nor the address at which he or they live, nor the school which he attends. In order to increase the anonymity I will avoid some detail and specificity in the narrative, although the names and addresses and other details which I avoid are perfectly well known to both parties.

[2]  This is an application by the mother of a boy, now aged about nine and a half, for permission to remove him from living here in England to live long term with her in Abu Dhabi within the United Arab Emirates. The case is an extraordinarily tragic one, as will emerge when I recount the facts; and this hearing has been very painful for me to preside over in view of the, frankly, terrible relationship between the two parents. The father has appeared and represented himself in person throughout the hearing. He is, as I will later explain, a man of very high intelligence and he has not been disadvantaged in any way by a lack of intelligence or power of expression in presenting his case. As so often happens, however, when one or both parties act in person, I have had an unusually good opportunity throughout the hearing to interact with, and make assessments about, the father. So my judgment is based not merely on the evidence that he gave formally in the witness box, but upon observing his interaction with me and the mother throughout the hearing.

[3]  As I have said, this is an application for what is colloquially known as a relocation order. Over the last 40 and more years there has been a stream of authorities on this topic both at first instance and from the Court of Appeal, although never yet from the House of Lords or Supreme Court. For the purposes of this hearing Miss Sarah Dines, counsel on behalf of the mother, has assembled a bundle of ten authorities. I am grateful to her for her industry in doing so, but we have not looked at any of them. Frankly, it is rarely necessary to make reference to authority in this field and to the range of nuanced ways in which different judges have expressed themselves. The application falls to be decided by applying section 1 of the Children Act 1989. I must, as I do, have regard to all the circumstances and, in particular, the various matters listed in section 1(3) of that Act; and I must make the welfare of the child concerned the paramount consideration. In other words, it is necessary to have regard to all the relevant circumstances of this case and to decide, in the end, whether it is more in the best interests of the child that he remains living here in England or that he is permitted to move to live in Abu Dhabi. In my long experience of this type of case, the factors may seem quite evenly balanced on paper or at the outset of a hearing, but the outcome is usually clear by the end. This case is no exception. In any event I, myself, would not permit relocation except in a case when it was clear to me at the conclusion of the hearing that that was in the overall best interests of the child concerned. So major a decision should not turn on a marginal or slight balance. I mention that although added subsection 1(2A) of the Children Act 1989 is not yet in force, I unhesitatingly start from a presumption that involvement of both parents in the life of the child concerned will further his welfare.

[4]  I turn now to an account of the facts and history, incorporating to the extent necessary my findings on disputed facts. Both the parents are citizens of Algeria, born of Algerian parents and brought up and educated to university level in Algeria. The upbringing, religion and culture of each of them is that of the Muslim faith. The mother was born in November 1963 and the father was born in January 1964, so they are effectively of identical age and now both 50. Part of the tragedy of the case is that they are both highly intelligent and highly educated people who each have so much to offer their son. After qualifying as an engineer at a university in Algeria, the mother travelled to England in 1986 to take higher degrees here. As events turned out, she has lived in England ever since then, now some 28 years. She has obtained a doctorate in the field of information technology and for much of her adult life worked as a specialist in that field. She became a British Citizen in 1998. She married her first husband, who was also an Algerian. From that marriage she has one child, a daughter, who was born in 1988 and is now aged 25. So as to avoid mentioning her name, I will refer to her as the context requires as either "the daughter" or "the sister". That marriage ended in divorce, but the mother prospered. She established her own business in the field of information technology, which was successful. She had a good income and considerable financial security. Her daughter always lived with her.

[5]  The father also has been educated to a high level, also in the field of information technology. At some stage he moved to live in Canada and as well as retaining his Algerian citizenship he became, as he remains, a citizen of Canada. There he met his first wife. Their marriage was childless and it is part of the background to this case that the father has a low sperm count and believed, until the child concerned was conceived, that he was unable to father a child.

[6]  These parents had known each other during their own childhoods in Algeria. As I understand it, over later years there was some occasional communication between them, from him in Canada, to her in England and vice versa. More recently that was mainly by email. There came a time when their relationship appeared to develop further, and in August 2003 the mother travelled to Canada to meet the father there. They spent two weeks together in Canada. The mother is absolutely adamant, and I accept her evidence, that although she was aware that the father had been married to his first wife, she understood that marriage to have been an exclusively Islamic and not a civil marriage and to have been ended by a consensual Islamic divorce. Whilst the mother was in Canada the parties had sexual intercourse, a fact which, as will later be seen, is of great significance in this case. The mother returned to England, and it was arranged, and came about, that shortly afterwards the father travelled and spent a week living in the mother's home here in England. At the end of that week they went through an Islamic ceremony of marriage in September 2003. They went through an English civil marriage at a register office in December 2003.

[7]  In the spring of 2004 the mother conceived their only child, a son. I will refer to him, as the context requires, as "the son" or "the child". He was born in December 2004 and is now aged about nine and a half. Because of his own awareness of his low sperm count, the father has described the child as "a miracle child", and the fact of the miracle may indeed further intensify the father's natural devotion to his only son. So the situation that obtained from early 2005 was that the mother and father, now married to each other both religiously and civilly, were living together in a home largely funded by the mother in the town in Southern England in which she had lived for many years and in which she still does live. They had with them the mother's daughter, by then aged about 16, and their adored baby son.

[8]  Tragically, this relationship and marriage appears to have been doomed to failure from the outset. From about August 2008 they began to live separate lives in the same household, and in September 2010 there was complete physical separation when the father moved out. The son continued to live with the mother. There were proceedings at that time in the local county court which resulted in an order dated 24 February 2011 which provided that the son should reside with his mother and that there should be regular contact between him and his father. It is important to note that, upon the basis of each parent giving undertakings sworn on the Quran to return him to England and Wales, each was given permission to take him to Algeria for the purpose of a holiday of not more than two weeks in each year. The detail of the order dated 24 February 2011 required that each parent should notify the other parent of the proposed dates of a holiday in Algeria at least one month in advance, and of the details of flight dates and times and the actual ticket at least seven days in advance. The child has never in fact travelled to Algeria as contemplated by, or pursuant to, that order; but so far as the position of the father is concerned, he has never in fact purported to comply with the condition or proviso of giving the required advance notifications.

[9]  In the summer of 2011 the husband lost his high level employment as an information technology consultant with a major international company and clearly went through a period of both physical and mental ill-health. He travelled to Algeria to be cared for there by his family, and the fact of the case is that between the summer of 2011 and November 2013 he has spent most of his time abroad, either in Algeria or elsewhere. The result has been, of course, that the regular weekly direct contact envisaged by the order of 24 February 2011 did not take place. The father now says that he was effectively detained in Algeria as a result of two factors, first, his health; and, second, the consequences of a car accident which had the effect that he was not permitted to leave Algeria until he had sorted matters out. Be that as it may, from the perspective of the mother, the father had appeared for a period ultimately exceeding two years to have largely ceased living in England and to have made his home and base in Algeria. Meantime, the mother's daughter, now grown up, had travelled to Abu Dhabi, in search of employment. As I understand it, she initially went there on a short term basis, but she secured good employment, and as things have turned out has now lived in a relatively settled way in Abu Dhabi for several years. She is now aged 25.

[10]  In the summer of 2012, very reasonably and understandably, the mother travelled to Abu Dhabi, taking the son with her in order to see her daughter/his sister. This is in fact the only occasion upon which the mother has actually visited Abu Dhabi. Whilst there, she became very attracted by what she saw and experienced in Abu Dhabi. She greatly appreciated resuming close proximity to her beloved daughter, and she observed how much her daughter and son enjoyed and benefited from spending time with each other despite the difference of about 15 years in their ages. The mother also discovered that she might be able to work as a teacher in Abu Dhabi, and that a combination of the rates of pay, the low taxation and the cost of living would mean that she could enjoy a far higher standard of living in Abu Dhabi than she was then experiencing here in England. She had paid for her daughter to receive a private education (part boarding and part day) here in England, and it was, and is, a matter of the utmost regret to her that she has not so far been able to make similar provision for her son. Here in England he attends the local state primary school, but she researched and established that in Abu Dhabi she could well afford to pay for him to attend a prestigious private college there based upon the English curriculum and run along English lines.

[11]  So she returned to England and began very actively to implement her plan of preparing and enabling herself to go to live and work in the way I have described in Abu Dhabi. First, she had to qualify as a teacher. As I have said, she already had the very high qualification of a doctorate in the field of information technology, but she did not have any teacher training qualification. So in September 2012 she embarked upon a year's training at a teacher training college here in England in order to obtain the post-graduate certificate of education. In order to fund that, she borrowed a large student loan which she must now repay and firmly intends to repay. It is to be stressed that throughout this period the father appeared to be living in a settled way back in Algeria with little connecting him here with England.

[12]  On 20 August 2013, having gained her PGCE, the mother issued her formal application, which is now before the court, for permission to take the son to live in Abu Dhabi. It is relevant to quote parts of sections 7 and 8 of the formal application form. Having set out briefly her plan to teach in Abu Dhabi, the mother said: "[The son] will also benefit from additional learning of the Arabic language which is part of both the [mother's] and [father's] cultural heritage. In addition, and as a result of the relocation, the child will join his older sister, who currently resides and works in the UAE and is also the applicant's daughter. The applicant did seek permission from [the father], who has not provided any response. The [father] currently resides in Algeria. He is in regular contact with the child by telephone and internet video calling. This level of contact will not be affected by the family relocation in the UAE. The [father] lives abroad in Algeria and has been living there since 2011. He also refuses to have any communication with the [mother].” So, just pausing there, the situation when the present application was issued and launched was as described in that form. The mother had sought the permission of the father but he had refused to respond. Very correctly, properly and responsibly, she came to the court and made her application. The situation at that time appeared to her to be that the father was living in Algeria having forms of telephone and video contact with the son, but not in fact seeing him with any regularity; and so she very reasonably initially put forward her application on the basis that relocation to Abu Dhabi would not really have any impact on the contact that was actually taking place between father and son. The mother issued at the same time a petition for divorce. During the autumn of 2013 various procedural steps took place, including the initial engagement of CAFCASS. In late November 2013, having been abroad, probably in Algeria, for the bulk of the previous two to two and a half years, the father returned unexpectedly to England and there have since been a number of hearings with regard to both contact and also non-molestation.

[13]  The mother says that in early March 2014, to her astonishment and very deep distress, she discovered a document which appeared to show that her marriage to the father was in fact bigamous and therefore void. What she discovered amongst documents left behind by the father was a court order of a court in Hamilton, Ontario, Canada dated 12 December 2004 made on the joint application of her husband and his first wife. It was an order for divorce which was then to take effect 31 days after the date of the order, namely in mid-January 2005. This shocking discovery led her to further investigate and discover that, contrary to what she had always previously been told and understood, there had in fact been a civil as well as an Islamic marriage in Ontario, Canada between the husband and his first wife in February 1999. It of course follows from those facts and dates that in December 2003, when the wife in good faith went through a civil marriage with the husband here in England, he was still lawfully and validly married to his first wife in Canada. It was only about a fortnight after she discovered that document that the county court, as a matter of paperwork, issued a decree nisi of divorce on the petition that she had earlier presented. The husband has very bitterly complained during the course of this hearing that the wife took any step to reveal or make public in any way the truth that he was still married to another person when he purportedly married this wife. He says that the effect is to render their son "illegitimate" or "a bastard" in the eyes of the Islamic community and he, frankly, condemns the wife for having taken any step that has that effect. To my mind, the wife was not only fully justified but, indeed, under a positive duty to do what she did. She knew that she could not in all conscience allow her decree nisi of divorce to be made absolute. That had been granted on a petition presented by her in which she had propounded that she was lawfully married to her husband. She now knew with shocking and devastating force that she was not, and never had been, lawfully married to her husband. So she took two steps. One was to request the local county court to stay and take no further steps upon her petition for divorce, whilst meantime she presented a petition for nullity which has not yet been adjudicated upon. The other was to report the matter to the police. I have read the harrowing statement that she made to the police in May 2014. She concludes that statement by saying:

"I fully support proceedings and will attend court if necessary. I strongly feel that 'the husband' should be punished for what he has done as he was deceitful and has manipulated me, resulting in a huge negative impact on my life for which I am now receiving counselling and therapy to help regain my confidence back and hopefully restart my business, career and my life."

[14]  As she had been the innocent victim of these facts and events it seems to me that the wife was fully justified in making that complaint to the police. The husband has said that he thought somehow that he and his first wife were in fact divorced. It was notified during the course of this very week that apparently the police have decided not to prosecute. When, during the course of the hearing, the husband was complaining bitterly of the terrible thing that the wife had done, to render their son illegitimate in the eyes of the Islamic community, I suggested to him that perhaps he rather than she bore the main responsibility. His answer was: "It was definitely not my responsibility". I asked him whose responsibility it was. He first said: "The responsibility is [the name of the first wife]". Eventually and reluctantly he said: "It is my responsibility. It was my mistake. It was my mistake to marry her. It was my mistake to sin with her [a reference to having sexual intercourse in Canada when they met there in August 2003]. It was my mistake to have [the son]." It can be seen, therefore, that the discovery in March 2014 that the marriage is bigamous and void has had a profound effect for both these parties and no doubt also their son. As I will shortly relate, the wife was already held in contempt by the husband and all his family in Algeria, and I regret that their bitterness and contempt has clearly been even further intensified by the revelation that the marriage was and is void. Those answers, and others in similar vein by the husband, also reveal the sad fact that he now says that the only reason he ever married this wife was because they had sinned by having sexual intercourse in Canada. He said: “While she was in Canada we had sexual intercourse. It was voluntary but in my belief it was sinful. I felt forced into marrying her by my religion and I have regretted it ever since.” He does not say or suggest that it was she who forced him into marrying her. She, by contrast, said that she married him for love.

[15]  During the last few months there has been very regular contact between the father and son here in England. As a result of earlier court orders, he has broadly seen the son every weekend for staying contact from Friday evenings until Sunday mornings, and also for longer periods of about eight days during the Easter school holidays and six days during the May school half term. There has been a thorough investigation of this case by a child and family reporter, Mrs. Diane Clark. It is clear from both her written report dated 4 July 2014 and her oral evidence to me that there is fundamentally a good relationship between the son and his father. The son loves his father and greatly enjoys his company. But sadly, it is also the fact that the contact that has been taking place has been the source of the utmost stress and distress to the son. As Mrs. Clark was to say in paragraph 9 of her written report: "There is great conflict between the parents and this has a significant impact on [their son].” At paragraph 11:

"Up until very recently the handovers for [the son] were clearly causing him to suffer harm. Handovers are outside of [the local] police station and sometimes it was taking hours for this process to take place with [the son] getting extremely upset about moving from his father to his mother. The police had to intervene and the police also contacted the local authority due to their level of concern for the child."

At paragraph 14 of her report she wrote "[The son] has experienced an emotional roller coaster throughout these proceedings...". It is said that very recently the contact has improved due to adjustments to the handover regime.

[16]   It is clear that there is a massive lack of trust between these parents. The father's underlying and main objection to the application to relocate is his belief that the application and the proposed move to Abu Dhabi is simply a device by the mother to avoid the child visiting Algeria. He said at paragraph 2 of his written statement, actually signed by him yesterday, 23 July 2014:

"I am not convinced that this application is genuine and that its true purpose is what is stated by the applicant. I truly believe that it is a sneaky move to vary an existing court order that grants [the son] the right to see his grand-family in Algeria..."

Indeed, during the course of the hearing the father was to say:

"This is the main issue. This is the real, real, problem. It's not about Abu Dhabi. It's not about the United Kingdom. It's about him not being able to go to Algeria."

So that passage was an expression of the father's repeated refrain that his son should be visiting Algeria and that the wife is preventing that. The father particularly wishes him to go to Algeria for a range of reasons. First, he is of course an Algerian boy by ancestry and also has Algerian as well as British citizenship. The father, very understandably and justifiably, would like him to experience from time to time the Algerian culture and way of life. Further, there are many family members on both sides of his family all living in Algeria; most particularly there are the father's own parents who are now elderly, and in the case of his father, unwell. The father desperately wants his parents to be able to see their grandson again and for him to see them before, frankly, they die. That is all very understandable indeed.

[17]  The mother, too, has made absolutely plain that she would ideally desire nothing more than that her son visits Algeria and that she also is able to visit Algeria. As she said, she has three sisters and a brother all living in Algeria with whom she is in a good relationship. She would desperately like to visit Algeria to see them. She would like them, as well as the paternal family, to be able to see the parties' son. But she has not been to Algeria for five years. The reason is that she considers that it is far too risky for her to do so. She said during the course of her evidence: "My family is close and supportive. They are the ones who are telling me not to come back to Algeria because I might not be able to take our son out again.” So here one sees the lack of trust by the mother of the father. She made absolutely clear during the course of her oral evidence that in no circumstances will she agree to their son visiting Algeria, whether they continue to live here or move to live in Abu Dhabi. She gave four reasons for that. First, she said that the father believes that their son should be living with him. Second, she said that the father has no ties with England although he has acquired British citizenship as a result of his marriage to her, but he has no job here, no accommodation here, no funds here, at most one friend here (with whom his friendship seems recently to have become less close), and merely one auntie living here. Third, she said that once her son is there she would not be allowed to take him out again and referred to the fact that the husband believes, as he has stated to Mrs. Clark and others, that at any rate once a boy attains the age of 11 he should be living, under Algerian law and culture, not with his mother but with his father. Fourth, she said that the father believes that she is a bad person and not a good mother.

[18]  I regret to have to say that in my view all those grounds of risk and concern put forward by the mother are well made out on the evidence in this case. The more the case continued in court, the more apparent it became that the father does indeed believe that the mother is a bad person and not a good mother. I am very sorry to have to say this, but I choose my words with care after, as I have said, presiding over a hearing now of three days, during which I have observed very considerable interaction between the father and the mother. It is plain to me that the father has what I can only describe as hatred for the mother and he regards her with the utmost and bitter contempt.

[19]  During the course of her cross-examination of him, Miss Dines asked the father if he could identify one nice thing about her character. He could give no answer. She repeated the question. He could give no answer. Finally, he said: "I am ejecting her from my life to save my life.” He made no bones about it, that by him and amongst all the close members of his family and, for good measure, her former husband's family in Algeria, she is referred to and called (in the local language) cancer. He said: "When they refer to her that is how they refer to her, as cancer.” He said: "She is known as cancer by everybody in my family back home.” He said to me at one stage: "She is not a principled woman because she smokes cigarettes.” I understand that she is an occasional smoker. He himself is a heavy smoker, but he said it was alright for him as a male to smoke cigarettes, but the fact that she smokes cigarettes means that she is not a principled woman. He referred to the fact that she had admitted to him many years ago that she had, prior to her marriage to him, tasted alcohol. She herself readily admitted that in her evidence, but did assure me that she has not drunk alcohol at all since she married her present husband. He bitterly complains that while they were having their brief courtship in Canada, as I have described, he believed that she would be an obedient and submissive Islamic wife. He said that during that period she wore a veil. She was adamant that she had not worn a veil at all in Canada. Eventually, but only eventually, the husband conceded that she had not in fact worn a veil in Canada. She did wear a veil on the occasion of their Islamic marriage, and out of respect for his family she wore a veil on the subsequent visits that she made to Algeria.

[20]  The reality is that this mother is, and for a long time has been, a very westernised woman. As I have said, she travelled to England as a student at the age of about 23. She has lived here ever since. She has been educated to a very high level here. She has worked and had her own business here. She has applied for, and obtained, British Citizenship; and although she remains Muslim in faith, she has for a long time been thoroughly westernised. The father simply cannot accept and reconcile himself to that fact. He said at one stage during his evidence that a woman who smokes is a bad woman. He said: "A woman who drinks you don't even think about.” "The fact that she once had a drink makes her a woman of very low morals.” He said the word "very" with great emphasis. As long ago as November 2010 he sent her a text, now in the supplementary bundle at page S2, in which he said to her "While [Z - another child] is enjoying aid [sic] with his dad and mum, my son is on his own, away from his dad, because of a cancer he is currently with...". That was in 2010. The father readily admitted that throughout his family in Algeria she is known by them and him as cancer. I thus unhesitatingly accept paragraph 17 of the report of Mrs. Clark in which she said: "[The son] also did not like it when his father was rude to his mother and referred to her as 'cancer'." Mrs. Clark said during the course of her oral evidence that she believes the child has heard a lot of negativity from his father about his mother, and it is her impression and belief that when the child told her that his father referred to his mother as "cancer" that was true.

[21]  Other examples of the sort of language that the father still uses to, and about, the mother are to be found in the supplementary bundle at page S13 which is transcripts made by the mother of various voice messages left by the father upon the mother's telephone, mainly in Arabic or occasionally in English. At the request of the father a memory stick with these voice messages was played repeatedly in the court room here this morning, so he could hear them. I wish to stress that this is not an example of a mother surreptitiously recording apparently unrecorded oral telephone conversations between her and the father. It is the mother simply retaining recorded voice messages that the father has chosen to leave upon her telephone. The transcript has been the subject of considerable adjustment in the light of playing and replaying repeatedly the memory stick this morning, and I accept that it may be that some of the translations first given by the mother may not have been accurate or precise, or may have suffered from some ambiguity in the language used. There are references to the father puking. He used in Arabic an expression the mother first translated as describing her as "face of shame". He said that it was more accurately translated as "face of somebody I don't want to talk to". She had translated references to her late father as reading: "Fuck your father". The father said that it was more accurately translated as "Damn the religion of your father". He referred to her with an expression which translates as "Face of tin". He said that that is an expression in general use in Algeria, but accepted that it is not complimentary. He frequently used a word, the meaning of which was the subject of considerable contest and debate between the two parents whilst the memory stick was played this morning, but it seems clear that it is a word whose primary meanings include "whore", or "pimp" and he frequently attached that word to her. In one of the many messages he left on the afternoon of 5 May 2013 he used the word in a passage in which it is agreed he said: "You will do nothing. You have nothing to give him [viz their son]. You teach him to steal, you teach him to whore/pimp, you teach him to deceive/betray. You have nothing... I want to talk to my son, whore/pimp... You made him a whore. You are a whore and now he is the son of a whore.”

[22]  All these references and the many things that the husband repeatedly said about the wife during the course of the hearing lead me to conclude, as I have said, that his overall emotion towards her is one of hatred as well as contempt. Further, it seems clear from objective evidence that the father does have a firm view or belief that at any rate from the age of 11 the son of separated parents should be living with his father rather than his mother. At paragraph 24 of her written report Mrs. Clark said:

"He [that is, the father] has informed me that [their son] will come to him at the age of 11 years in any event under Algerian law. I am not sure if this is an expectation in his culture or indeed the law in Algeria."

During the course of her oral evidence, I asked Mrs. Clark about that passage and she said:

"On both occasions I saw him [namely on 13 February 2014 and 2 June 2014 - therefore separated by about four months] he told me that boys will live with their father at 11 if the parents are separated. He was saying what is the point of his going to Abu Dhabi because he will be with me in a year's time anyway?"

[23]  In the light of all that evidence and material, it is crystal clear to me, as it is to the mother, first, that the father believes that the son should be with him; second, that the father has no real ties here; third, that the father does indeed believe that the mother is a bad person and not a good mother; and, fourth, that the father believes and considers that at any rate from the age of 11 his son should be, and will be, with him. In all those circumstances, it seems to me that the mother's fear, that if this boy were to travel in the foreseeable future to Algeria he would not be allowed to leave again, is amply justified. Speaking for myself, I could not possibly contemplate taking the risk at the moment of permitting this child to travel to Algeria against the better judgment of his mother. The father repeatedly referred to the provisions of the order of 24 February 2011, to which I have referred, and says that as long ago as that hearing in February 2011 it was in some way adjudicated and settled that this boy should be permitted to travel to Algeria with him for two weeks every year. The fact of the matter is that an enormous amount has changed between then and now. The father never took up the provisions of that order. The hatred that the father feels towards the mother is perhaps a great deal more apparent to me after this hearing of three days than it may have been to the judge on that occasion in February 2011. Further, the hatred and intensity of the feelings of the father towards the mother have undoubtedly been further intensified by the developments of this year and the revelation that the marriage is void. Whatever the father felt about the mother in 2011, he feels even more strongly and intensely now, because he feels and believes that the mother has done a terrible thing to their son by effectively rendering him illegitimate.

[24]  So I make crystal clear that, so far as I am concerned, any possibility of this boy travelling to Algeria in the near or foreseeable future is simply not on the agenda against the will and better judgment of his mother. That conclusion is very relevant to overall consideration of the present application precisely because, as I have already quoted, the father's own position in opposition to the application for permission to move to Abu Dhabi is fundamentally rooted in his desire for the child to visit Algeria. I repeat, he said to me "This is the main issue. This is the real, real problem. It's not about Abu Dhabi. It's not about the United Kingdom. It's about him not being able to go to Algeria." As I have now made plain, there is no question of this boy being able to go to Algeria whether he moves to live in Abu Dhabi or remains living here in England.

[25]  I turn now to consider the application and the advantages and disadvantages more generally. Always in these cases the court has to consider, first, whether or not the application is properly motivated, or is motivated by some improper desire such as to frustrate contact. Although the father firmly believes that the mother has the entirely improper motives of frustrating contact and frustrating the child visiting Algeria, I do not agree with him. Indeed, the father believes, even more paranoically, that the mother's real motive is to use Abu Dhabi as a stepping stone from which she will then travel on to some unknown and undisclosed destination, and the son will be lost to the father and the reach of this court for all time. In my view that is not the position at all. I have also heard from the mother at very considerable length during the course of this hearing. I completely accept her account that her motivation is entirely sparked by, and bound up with, the fact that her own beloved daughter happens to live at the moment in Abu Dhabi. If her daughter were not living there, it is most unlikely that the mother would be seeking to go there. The plan has, as I have already described, huge advantages to the mother in that she could greatly improve the standard of living for herself and her son, and enable her to fund a much better education for him (in her belief) than he would be able to receive from the state system here. She is proposing to take him to live in an Islamic country, and the father himself did accept during the course of his final submissions this morning that it would be some advantage that his son would be living in a Muslim environment.

[26]  Further, it needs to be repeated and stressed that the mother formed this plan at a time when the father appeared to have returned to live full time in Algeria, and I refer again, without repeating it, to the way in which she put her case in her very initial application, that it seemed to her then that living in Abu Dhabi would not in fact impact at all on the contact that was actually taking place between father and son. In my view, the mother's motives are entirely proper motives to do what she feels is the best for herself and her son, and to enable the son to resume a regular enjoyable relationship with his sister.

[27]  The court always has to consider, also, whether an application of this kind has been properly researched and is realistic and not opportunistic or fanciful. I am quite satisfied, from the material that the mother has assembled and produced, that it has been well planned and well researched by her. She has already undergone for a whole year her teacher training course at considerable cost to herself. She has clearly identified a good school in Abu Dhabi which offers a place for the son and will give to him a good English based education. She very clearly stressed during the course of her evidence that her hope and wish would be that in due course this British boy will come to England for university and further education. That much she shares with the father. They both talked about Oxford or Cambridge and similar establishments for their son. She has identified a school that pursues the English curriculum, and the English GCSE and A level system, so that he would be well prepared for university applications here. She has researched and obtained a job offer for herself in another school in Abu Dhabi, and she has produced calculations which show that the income that would be available to her from that employment would more than cover her estimated outgoings in Abu Dhabi and the school fees. It needs to be remembered in all of this, that since the parents separated the father has not paid one penny of regular maintenance to, or for, his son. He has a constant refrain that at the time of their separation the mother acquired £75,000 of his money. Whether there is substance in that assertion depends on tracking the course of their property dealings, and it may or may not transpire that there was, in truth, a net transfer of capital from him to her. But, even if there was, the fact of the matter is that for the last nearly four years he has not paid her one penny for the regular weekly or monthly support of their son. The entire burden has fallen on her. She has had to learn to budget, and she has prepared a budget to be completely self-sufficient in Abu Dhabi.

[28]  The schools that the son would attend and she would teach at in Abu Dhabi have school holidays that broadly accord with the English school holidays. Her own employers would fund one return visit for herself and her son to England each year. She has done her sums and calculated that she will be well able to afford two further return visits. So it is part of her plan and proposal that she could fund and would bring the son back to England three times a year in each of the school holidays, so as to be able to have periods of contact with his father here.

[29]  In my view, therefore, this is an application which is well motivated and well researched and realistic. However, the father does not trust the mother an inch and believes that she will not in fact return the son here or enable him again to have contact with the father. I do not share that distrust. She has at every stage operated within the requirements of the law. She has issued this application; she has financed it herself; she has pursued it now for over a year. She told me very clearly on oath that she will indeed return him three times a year, and I believe that evidence. She has produced calculations to show that what she says she would do she will in fact be able to afford to do. Further, she retains very strong ties with this country in which, it should be recalled, she has lived for the whole of her adult life. She owns mortgage free her house here. It is worth about £250,000. She has made absolutely clear that she wishes to retain that house and keep it available for herself as a base for herself and her son on the three visits a year. She offers, therefore, an undertaking not only that she will bring the son here three times a year, but also that she will not, without the permission of the court, sell, charge, lease or part with possession of that house before 1st August 2019 or earlier further order. Frankly, I have a high degree of confidence that this reliable, honest woman will do as she says and will honour the undertakings that she offers to give.

[30]  The crunch question, then, is where does the balance of the best interests of the son lie? His own wishes and feelings are of course highly relevant, having regard to his age and understanding. These are described by Mrs. Clark in paragraphs 14 to 18 of her written report where she said:

"[The boy] has experienced an emotional rollercoaster throughout these proceedings. I have had contact with him now on four occasions and I believe that whilst his wishes and feelings are important, it is for the court to determine what should happen, and he agrees it is an adult decision. He and I have focused on the pros and cons of him moving to Abu Dhabi. Initially, the most obvious positive for him was that he would live in close proximity to his half sister. Other factors were vague at that time [viz at the time of their meeting in February] such as where he would go to school etc. He then went through a period of stating he wanted to live with his father or at least see more of him. On my last visit [viz in late June] he was much more focused and gave what I believe to be a more balanced view which was much more considered. He stated that if he moved to Abu Dhabi he would miss his friends and his school in the UK and that he would not see his father so often. He gave the alternative that if he went to Abu Dhabi he could enjoy a new school and meeting new friends and he could come back to the UK about four times a year and stay with his father during those periods. He could also talk to his father on the phone or through Skype and his father could come and visit him as well. He continues to have divided loyalties towards his parents; he loves them both and is finding this process extremely painful and difficult."

[31]  During the course of her oral evidence Mrs. Clark said:

"He remains ambivalent about the move, giving a very balanced view. It is a fair summary of his wishes and feelings that he neither has a clear or strong wish to go nor a clear or strong wish to remain."

Mrs Clark repeated, as she had said in her report, that he himself feels and desires that this decision should be taken for him by an adult, and indeed by the judge.

[32]  The most obvious benefits or advantages for the child of the proposed move to Abu Dhabi are that he would be able to be in daily contact with his sister of whom he is very fond; and that he would benefit from the greater prosperity and security of his mother. Clearly, the most pivotal issue in all of this is the impact upon contact between him and his father. Quite frankly, if his father was still living in Algeria and not having regular direct contact with him, it is difficult to see that there could be much grounds for resisting that he move to Abu Dhabi. The father fairly said that the main effect of his travelling to Abu Dhabi is that he would have less frequent time with his father. The father said, and I accept, that the son really enjoys his time with his father. They spend much time doing electronics together, they swim together, they play together. The father teaches him Arabic, the Quran and good manners, and his son appreciates that. The father said that he is at an age when it is most important for him to have regular contact with his father and that "his mother is not able to help him to take the right path".

[33]  It is, however, very questionable, on the particular facts and in the circumstances of this case, whether it is really beneficial for this boy to be having such frequent contact with his father. I have already quoted passages from the report of Mrs. Clark as to the distressing and stressful effect upon the son of handovers at this regular and frequent contact. She herself said in her written report:

"There is no doubt that it will be a different relationship [if he goes to Abu Dhabi]. However, he is of an age whereby he knows who his father is, and less frequent contact should not impact on the relationship that he has formed with his father to date. The contact will simply be different with him spending longer periods when he is with his father than he does currently."

During the course of her oral evidence Mrs. Clark said:

"Contact less frequently but for longer periods would be beneficial to him. It is frustrating when he has to go back on Sunday morning at the end of his contact."

She said that:

"He hears a lot of negativity about his mother from his father. He has respect for his father and in the long run he could form an unhealthy view about women and how they should conduct themselves.”

She continued:

"I think every week to go through this emotional trauma is damaging for him. He will before long need CAMHS input.”

[34]  So it is the very clear view and opinion of Mrs. Clark, who has observed contact and spent time considering this case over many months, that actually the present contact regime and anything like it, far from being beneficial to this boy, is in fact damaging to him. A very sad illustration of that appears in the referral form when he was indeed referred to CAMHS as recently as May of this year. CAMHS in fact did not accept the referral by the GP at that stage, taking the view that the problem lay more with the parents than with the mental health of the boy. But there is a section in the referral form to be filled in by the child or young person himself. It asks a printed question: "What do you want to happen as a result of this referral?" He wrote: "I really would like to sort out my brain, making me not believe what my dad says. On Sundays I don't want to shout at and ignore mum. Happy to go with mum but not at it [sic] in front of my dad.” In my view, therefore, and in agreement with Mrs Clark, it is far from clear, on the particular facts and circumstances of this case, that it will be disadvantageous to him to have less frequent but longer periods of contact with his father. I do appreciate that one month in the school summer holidays and one week in each of the two shorter holidays, as the mother proposes, only adds up to six weeks a year. But she proposes, also, that there should be very regular contact by Skype and that if the father chooses to go to Abu Dhabi there can be contact by agreement there.

[35]  The father himself has made very obvious that he himself finds it disagreeable living in England. He would prefer to live in Algeria. He is only currently here, reluctantly and unhappily, because his son is here. If his son does relocate to Abu Dhabi, he himself would return to Algeria in order, as he put it, “to decompress”. He could, however, travel here three times a year for the purpose of contact.

[36]  There are, of course, other factors that need to be considered. As the child himself said to Mrs. Clark in the passage I have quoted, he would lose close contact with his friends here, but may be presumed to forge new friendships there. The impact upon his education needs to be considered. I have read the recent end of term report from his school here. It is a good report of which he and his parents should be very proud. In almost every subject he scored the highest level of A for effort, where A where means "very good". In almost every subject in his national curriculum assessments he has scored at levels approximately two years higher than his chronological age. The narrative report uses phrases like "a bright and hard working member of the class"; "has made excellent progress this year"; "is a good all rounder". So undoubtedly he is performing well at his state primary school here, although the father is of the view that he should be performing a great deal better and is suffering from a lack of academic diligence by the mother. But I have read a lot of information about the proposed school in Abu Dhabi and I have no reason to suppose that it would not provide at least as good an education as that which he is currently receiving here. The father raised a few other relatively trivial points such as reference to the higher temperatures in Abu Dhabi. Whilst expressing some satisfaction that his son would be living in a Muslim environment, he qualified that by saying that the language they speak there is Emirati not Arabic.

[37]  My overall view is that at the moment this child is living in a situation which is potentially very destructive indeed for him. Frankly, the present situation, whereby he is in the centre of so much conflict between his parents, simply cannot be allowed to persist. The mother is not applying to go to Abu Dhabi in order to reduce the frequency of contact between him and his father. She made her application long before there was any recent direct contact between him and his father, but since then the frequent direct contact has resumed. He certainly enjoys his time with his father, but it has the potential to be destructive and, as Mrs. Clark reported, to render him before long in need of mental help and treatment. In my view, the advantages to this boy of the proposed move to Abu Dhabi in the particular circumstances of this case very greatly outweigh such disadvantages as there are. This seems to me to be a very well worked out, proper application. The mother would not dream of going if she felt that her son would suffer. He will not suffer, and I propose to grant the permission sought provided the mother gives to me the undertakings that she has offered on the Quran to which I have briefly referred.
Family Law Online

Family Law Online

Get a FREE trial today! The fastest way to access the latest law reports, case law, commentary,...

Available in Family Law Online

Financial Remedies Handbook

Formerly entitled the Ancillary Relief Handbook this is the first resort for thousands of...

More Info from £79.00
Available in Family Law Online
Subscribe to our newsletters