The tangled web of modern families

Family Law|May 21st 2015

Oh, what a tangled web we weave,

When first we practise to deceive!*

– Sir Walter Scott

I have written here previously about the international complexities of modern family law, with families and their members moving around the globe, and expecting to be able to take their children with them. Sometimes, however, a case will have not just an international dimension, but also other layers of complexity. Such a case popped up on Bailii this week.

EN (Mother) v AH (Father) had an international dimension, three issues for the court to decide and, as if that were not enough, it also had the involvement of the local authority children’s services. The judgment, handed down by Mr Justice Cobb, is fairly lengthy and for the purposes of this post I do not need to go into the details. Instead, I will set out those layers of complexity, by way of an example of the sort of difficulties regularly faced by our family court judges these days.

The case concerned a four year old child, who has been the subject of almost continuous litigation between her parents for most of her life. Its international dimension arises from the fact that her parents are Iranian nationals. They came to this country after the father obtained asylum as a political refugee. Consequently, the father is at serious risk of harm if he returns to Iran. On the other hand, the mother still has ties with Iran, including owning two properties there, whereas her ties to this jurisdiction are not particularly strong.

At some point after they came to this country the parents’ relationship broke down. A residence order was subsequently made in favour of the mother, with contact to the father. The mother was specifically prohibited by the court from taking the child to Iran. The residence order was later replaced by a child arrangements order, which provided for the child to have extensive contact with her father.

The three issues before Mr Justice Cobb were: an application by the mother for permission to take the child to Iran for a holiday, another application by the mother for permission to take the child to Turkey for a holiday, and an application by the father to enforce the child arrangements order. However, as mentioned above, matters were complicated by the fact that the local authority children’s services had had periodic involvement with the family, and had become involved once again.

The issue relating to taking the child to Iran was actually a re-hearing of the matter. The mother had been given permission by the court to take the child, but the father appealed. The Court of Appeal allowed the appeal, and directed the re-hearing. However, in the event Mr Justice Cobb did not have to decide the matter as the mother withdrew her application when it became clear that she might have difficulties leaving Iran with the child if the State authorities or the father sought to prevent her from doing so.

As to the application for permission to take the child to Turkey, this was allowed by Mr Justice Cobb. After careful consideration, and having regard to the fact that Turkey is a signatory to The Hague Convention on Child Abduction and to the safeguards offered by the mother, he felt that the holiday was in the child’s best interests and that the risks of her not being returned were minimal.

That left the father’s application to enforce the child arrangements order, which he had made because the contact set out in the order had been stopped by the mother, and he had not seen the child since January. The reason for the mother stopping contact was that she had been contacted by social services, who raised concerns about the father’s new partner. Social services did not advise the mother to stop contact, but clearly their concerns gave the mother a reasonable excuse to stop contact, and therefore the father’s enforcement application was likely to fail.

However, Mr Justice Cobb was not prepared to dismiss the father’s application. He was clearly concerned, not just about the father’s new partner, but also about the effect of the continuous litigation and the animosity between the parents upon the child. He therefore directed the local authority to investigate the matter and prepare a section 37 report for the court, envisaging the possibility that it may be appropriate for the local authority to initiate proceedings for a care or supervision order. Meanwhile, the father was to have contact with the child by Skype.

I won’t say that EN v AH is the most complicated family law case that I have ever come across, but it does demonstrate how complex family law cases can be. In particular, unlike other types of civil proceedings, family cases often do not just deal with one discrete issue. Sometimes, as here, there can be several issues for the court to grapple with, and those issues may or may not be intertwined with one another. The task of a family court judge can certainly be an onerous one!

*          *          *

* I make no suggestion that the parties in this case were involved in lies or deceit, although unfortunately the same cannot be said for many other family cases!

Photo by Jon Sullivan via Flickr

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