Court prevents mother from taking child to Kurdistan

Children|January 18th 2018

I wrote here the other day about the dangers surrounding a parent taking a child to a country that is not a signatory to the Hague Convention on Child Abduction. The danger in that situation, as I explained then, is that the parent may not return the child to this country, and it will be extremely difficult for the other parent to secure the child’s return, without the assistance provided by the Convention. However, this is not the most dangerous scenario surrounding a parent taking a child abroad. What if the destination to which they wish to take the child is part of, or close to, a warzone?

That was the scenario in the High Court case M (A Child) (Temporary Removal to Kurdistan), which was decided last March, but has only recently been reported. The case concerned an application by a father of a 12 year old girl, ‘M’, for orders preventing the mother from taking M for a holiday and a family reunion with the maternal family in Kurdistan.

The background to the case, which was, as Her Honour Judge Robertshaw described, unusual, was as follows:

  1. The mother and father, who were married to one another, are both Iranian Kurds.
  2. The father fled Iran in February 2012 for fear of persecution and arrest as a result of becoming caught up in an incident with the Kurdish Freedom Fighters, the PDKI.
  3. On arriving in England in 2012 as a refugee, the father sought and eventually obtained asylum in 2013. He has permission to stay in the United Kingdom until August 2018.
  4. The mother and M came to the UK in 2014. They were also granted permission to remain for five years.
  5. The mother and father separated shortly after the mother and M arrived in England, and divorce proceedings were commenced.
  6. In July 2015 a child arrangements order was made by consent, providing for M to live with the mother and to spend time with her father.
  7. The divorce was finalised in October 2016.
  8. Both parents intend to remain in the United Kingdom and seek British citizenship when they are entitled to do so.

Judge Robertshaw takes up the story:

“The father says that in February 2017 he became aware of the mother’s plans to travel to Sulaymaniyah, Kurdistan with M and he issued his application to prevent her from doing so. He believes that Kurdistan is very unstable and dangerous, that M’s life and safety would be in danger if she travelled to Kurdistan, particularly in view of his previous involvement with the PDKI and that the mother would travel with M from Kurdistan to Iran, where the risks would be even greater, and that they will not return.”

In response the mother said that she had no intention of going to Iran, that she had no intention of not returning, and generally asserted that the trip was not as dangerous as the father maintained.

The father conceded that there was no evidence that the mother would travel to Iran, or that she would not return to the UK with M after the holiday. However, he maintained that the risks to M’s physical and psychological health and safety were too great. He pointed out that at that time the Foreign and Commonwealth Office was advising against all but essential travel to Iraq and Kurdistan, including Sulaymaniyah. The mother’s case was that this was guidance only and not mandatory, and that it was focussed at British nationals and not at Kurdish-Irani nationals, such as the mother and M.

Judge Robertshaw made a number of findings, including the following:

  1. If the mother went to Kurdistan, she would not travel with M to Iran.
  2. If the mother went to Kurdistan she would return, as she intended to do, to the United Kingdom.
  3. The purpose of her planned trip was for a holiday to see her family, whom she has not seen for three years.
  4. M wished to go on this trip and wanted to see her maternal family.
  5. There was a risk to M’s health, safety and wellbeing in her travelling to Kurdistan at that time. This risk was real, significant and could not be ignored.
  6. If the risk materialised, the consequences for M could be grave. She would be exposed to a significant and real risk of severe and serious physical and psychological injury, even death.
  7. No matter how hard the mother tried, and how desirous she was of protecting her daughter, she could not, and was not in a position to take any steps to reduce the risks to M to an acceptable level.

Accordingly, the risks to M’s health and safety outweighed the benefits to her of having time and communion with her maternal family. The court could not therefore permit M to go to Kurdistan.

You can read the full report of the case here.

 

Author: Stowe Family Law

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