(Family Division, Roberts J, 5 April 2016)
Private law children – Specific issues – Temporary leave to remove – Circumcision – Shared care
The father’s applications for shared care, permission to take the children to Algeria on holiday and a decision that it was in the children’s best interests to be circumcised were dismissed.
In private law children proceedings the father sought permission to take the two children to Algeria to visit family members. Algeria was not a signatory to the Hague Convention. He also sought a decision that it was in the children’s best interests to be circumcised in accordance with the father’s Muslim beliefs.
Applications by father concerning the amount of time the parties' two children should spend with each parent; whether the father should be permitted to take the children to visit his family in Algeria (a non-Hague Convention country); and whether it was in the children's best interests to be circumcised in accordance with the father's Muslim beliefs.
The mother and father were never legally married but went through an Islamic marriage ceremony in 2009. The relationship broke down amid issues including domestic violence and threatened abduction. In 2012 the mother issued wardship proceedings and a raft of protective orders were put in place.
A fact-finding hearing disclosed an escalating pattern of threatening behaviour, verbal harassment and outbursts of a violent temper by the father including in front of the children. The judge found that the mother’s fear that the father would abduct the children had a real and not fanciful basis.
Contact with the father was initially supervised but after a psychiatric assessment and a s 7 report was prepared there was a gradual progression towards unsupervised contact. He now sought a shared care arrangement.
The guardian submitted that a shared care arrangement would place increased pressure on the children. He acknowledged that the children were entitled to know their paternal family but he had concerns regarding the adequacy of protective measures.
The shared care arrangements were the least contentious issues for determination. The proposal for shared care was not in the children’s best interests but an additional overnight contact on a weekly basis was ordered.
In respect of the application for leave to remove to a non-Hague Convention country evidence was given by an expert in Islamic law. He submitted that there were no legal provisions for family court orders made in England and Wales to be enforced in Algeria and mirror orders could not be secured. The father would be considered to have the right to determine where the children resided and would be able to keep the children in the jurisdiction against the wishes of the mother and an order of the English court.
Roberts J determined that the risk of abduction remained and although that risk was slight the possibility of retaining the children in Algeria following contact was of concern. Retention would have catastrophic consequences for the children and would have an appalling effect on their emotional wellbeing.
The safeguards proposed by the father were unlikely to have any real or tangible effect in Algeria and there were very considerable obstacles in the mother’s path in terms of her ability to access a swift mechanism for securing the children’s return to the jurisdiction. The father’s application to remove the children was refused. The court also refused to permit the father taking the children to a Hague Convention country in circumstances were it was likely to be no more than a springboard for removal to Algeria.
In relation to the application to have the children circumcised, the starting point was the paramountcy of the children’s welfare pursuant to the Children Act 1989. The judge found that although this was a finely balanced decision the father’s application should be dismissed.The procedure was irreversible and there was no guarantee that the children would wish to continue to observe the Muslim faith to the same extent as the father. They were still young and there was no way of anticipating how the different influences in the respective parental homes would shape and guide their development. The procedure carried risks, albeit small, which had to be outweighed by clear benefits before it could be sanctioned. A declaration was given that it was not in the children’s best interests to undergo the procedure at this point and until they were competent in terms of their age and degree of maturity to make a decision for themselves.