Thursday, July 31, 2014

M v B: Extraordinarily tragic

A summary of M v B [2014] EWHC 2686 (Fam) - an application by the mother of a boy, now aged about nine and a half, for permission to remove him from living in England to live long term with her in Abu Dhabi.
"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 facts:
  • Both parents are Algerian citizens and Muslims.
  • The mother has lived in England since 1986. She has a 25 year old daughter by her first marriage, who now lives in Abu Dhabi.
  • At some stage the father moved to live in Canada, where he met and married his first wife.
  • The parents formed a relationship, the mother understanding that the father's marriage was an exclusively Islamic and not a civil marriage that had been ended by a consensual Islamic divorce. They met in Canada.
  • The mother returned to England, where the parents were married in December 2003, after which they lived together in England.
  • The mother then conceived their only child, a son, who was born in December 2004.
  • The marriage broke down and the parents separated, the father moving out in September 2010.
  • The son continued to live with the mother, who was granted a residence order in February 2011.
  • Between the summer of 2011 and November 2013 the father spent most of his time abroad, either in Algeria or elsewhere. During this time he had contact with the son via telephone and internet video calling.
  • In the summer of 2012 the mother travelled to Abu Dhabi to see her daughter. She was very attracted by what she saw and decided to move there and work as a teacher. She therefore began teacher training.
  • In August 2013, having gained her teaching qualification, the mother issued her application for permission to take the son to live in Abu Dhabi. She did seek permission from the father, but received no response. The mother also issued divorce proceedings.
  • 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.
  • In March 2014 the mother discovered documents which indicated that the father was still married to his first wife when the mother and father were married. The mother then stopped the divorce proceedings, issued a petition for nullity, and reported the matter to the police.
  • The father did not consider that that the mother should have taken any step to reveal or make public in any way the truth that he was still married to another person when he purportedly married her, saying that the effect was to render their son "illegitimate" or "a bastard" in the eyes of the Islamic community.
  • In the last few months prior to the hearing of the mother's application the father had regular contact with the son. Whilst the son has a good relationship with the father, he heard a lot of negativity about his mother from his father.
  • The father maintained that the mother's application was merely a device to avoid the child visiting Algeria, where many family members on both sides reside.
  • The mother fears that if the son were to go to Algeria he would not be returned.

The mother's application was heard by Mr Justice Holman. He found that the mother's concerns regarding the son going to Algeria were well founded. He also found "that the father has what I can only describe as hatred for the mother and he regards her with the utmost and bitter contempt." For example, the father and close members of his family refer to her as "cancer", a description used by the father in front of the son. The father had also made it clear that he believed that under Algerian law and culture once a boy whose parents has separated reached the age of 11 then he should live with his father.

In the light of the above Mr Justice Holman made it clear that "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." This obviously impacted upon the father's allegation that the mother's application was just a device to avoid the child visiting Algeria.

Mr Justice Holman also found:
  • That the mother's application was well motivated, having been made originally when it appeared that it would have little or no impact upon the father's contact with the son.
  • That the mother had properly researched the move to Abu Dhabi, including finding an appropriate school for the son.
  • That the mother would keep her house in England and would bring the boy here during school holidays, so that the father could have contact.
  • That the boy neither has a clear or strong wish to go to Abu Dhabi nor a clear or strong wish to remain in England.
  • That frequent contact between the father and the son may have a detrimental effect upon the boy, in the light of the father's attitude towards the mother.

In the circumstances Mr Justice Holman held that "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." He therefore granted the mother permission, subject to her undertaking to return the boy to this country three times a year, and not to sell or lease her house without the permission of the court.

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