It is easy to assume that our family judges come across just about every conceivable type of case and situation in the course of their careers and that that they have therefore ‘seen it all’. Accordingly, it is unusual to hear of a judge, particularly a highly experienced one, being surprised by a case.
That, however, was what happened to Mr Justice Holman in AA v TT.
It was, certainly, an unusual case with, at one point, a rather bizarre impasse between the parties, as Mr Justice Holman himself pointed out.
The case concerned a mother of English origin and a father of Turkish origin. They married in Turkey in September 2000 and the following year they moved to England. They have three children, all born in England and now aged 12, 9 and 7.
In September 2009 the family moved to live in Turkey. However, the relationship subsequently broke down and in September 2011 there was a divorce between the parties in Turkey. There were also proceedings in Turkey relating to the children. Those proceedings were eventually concluded in June 2012, when an order was made by agreement granting custody of the children to the mother.
In early September 2012 the mother married her second husband, another Turkish gentleman, who was living in Turkey.
On the 25th of September 2012 the mother travelled from Turkey to England with the three children, without the consent or agreement of the father. The father applied to the court in this country for an order under the Hague Convention that the children be returned to Turkey forthwith.
It was at this point that things started to take a rather unusual turn.
The mother alleged that during the course of the marriage and, indeed, since, the father had been seriously violent towards her and, on occasions, towards the children. This was confirmed by the eldest child but, despite it, that child (and, so far as could be ascertained, the second child) wished to return to Turkey, provided she could do so in circumstances of security and safety. Further to this, the mother’s new husband could not come to this country, and therefore the mother herself strongly desired to return to live in Turkey, if she felt able to do so in circumstances of security and safety.
In short, all parties appeared to be moving towards the same goal: the return of the family to Turkey. Accordingly, strenuous efforts were made at court between the parties (including the father, who had travelled from Turkey to attend the hearing) and their lawyers, with a view to agreeing a package of measures which the mother considered would protect her and the children when they returned to Turkey.
Then came the surprise. Just when it appeared that the parties were close to reaching an agreement which would enable the mother and children to return to Turkey, the father decided to withdraw from the proceedings, and pursue a custody claim in the Turkish courts instead. Accordingly, the father’s Hague Convention application came to an end.
This left the family in the paradoxical situation whereby the father had travelled here to obtain the return of his children to Turkey; the mother wished to return to live in Turkey; the children wanted to live in Turkey; and yet the opportunity for creating a framework in which the mother and children felt safe and secure to do so had been removed from the court. This circumstance led Mr Justice Holman to proclaim:
“I have been a family lawyer for over 40 years and a full-time judge for over 18 years. Despite that long experience, there are still from time to time cases which surprise me. This particular case is both an unusual case and one in which, during the course of yesterday afternoon, I was indeed very surprised.”
As a footnote, I should explain that the above proceedings took place in April 2013. After that, the father did indeed pursue his case before the Turkish courts and obtained a custody order there in November 2013. He then returned to this country and applied to enforce the Turkish order here. However, by the time the case was heard this month the children no longer wished to return to Turkey and Mr Justice Holman (coincidentally hearing the case again) dismissed the father’s application.