SA v FA (Setting Aside Consent Order on Ground of Duress)  EWHC 1731 (Fam)
Family Division, 16 May 2017, Holman J
The father was originally from the Kurdistan area of Iraq, but had become a British citizen. He met and married the mother and the couple had two children together, now 14 and 12. The family was based in England. After the parents separated the children lived with the father. The mother remarried and again divorced; she had twins, aged 4, from her second marriage, both of whom lived with her.
In 2015 the elder child moved to live with the maternal grandmother and the father issued proceedings in an effort to secure the child’s return. In 2016, both parents, with their two sons and the mother’s twin daughters, all travelled to the Kurdistan area of Iraq, with return flights. The mother’s position was that this was intended merely as a holiday of a few weeks, as had happened in previous years. A few weeks into the trip, the father made it clear to her that he and the boys would be remaining permanently in Kurdistan.
The mother issued an application in form C100 in relation to the boys, seeking a ‘return order with a penal notice and passport order’. The following day she appeared in person in the High Court, which made the boys wards of court and ordered their return forthwith, with a passport order in the prescribed standard form. The father was in England for the return date, when his application to discharge the order was dismissed; an order provided that the port alert and passport seizure orders were to remain in force until the matter was reconsidered. The father was ordered to secure the return of the children by 30 August 2016. However, shortly after the hearing, the father managed to leave England and Wales undetected, without his passport (which was with the Tipstaff). Within days the mother had written and signed new statements, which she presented to court only after getting the father’s ‘approval’ as to their terms and contents, in which she said she agreed with the children remaining in Iraq with the father. An order was made ‘by consent’ for the proceedings to be dismissed. Before making the order the court investigated the mother’s capacity, asked her about mental health problems in the past and checked with her that her decision was being made of her own free will; she clearly stated that it was.
Before that hearing the mother had clearly stated to a social worker that the father had made threats to her. Within a few months the mother made another application, claiming that in asking the court to dismiss the proceedings she had been acting under powerful duress. She now sought to have the dismissal order set aside so that her application and proceedings were reinstated.
Although the father was under an obligation personally to attend the hearing to consider the mother’s application (under FPR 2010, r 27.3), he failed to do so. This was apparently because he was concerned that on return to England and Wales he might be arrested. The judge recorded in an order that there was no passport or similar order in force preventing the father from leaving England and Wales and that, unless he was in contempt of court subsequently, the court would not prevent him from leaving the jurisdiction at the conclusion of the hearing. The order went on to require the father to attend. However, the father did not do so, apparently because of fears that he would be unable to leave. In the judge’s view his participation was vital, so arrangements were made for the father to take part by telephone link; unfortunately this proved unsatisfactory for technical reasons. The judge explored the possibility that the father might be able to attend some future hearing; ultimately the father made it clear that he was not prepared to attend any hearing if there was any possibility that the children might be required to return to England and Wales. The father’s counsel suggested that the father give oral evidence by telephone, to contradict the evidence as to duress given by the mother, but the judge made it clear that he was unwilling to do so.
The mother’s oral evidence was that the father had threatened her by telephone, or Viber, that if she continued with her original application he would remove both children from Iraq to some other undisclosed place whose whereabouts she would never learn and from which she would never be able to recover them or even communicate with them. She claimed that this threat had been repeated.
The original application had been issued at a time when the court undoubtedly had jurisdiction to make orders in relation to the children; arguably, there might no longer be jurisdiction for fresh proceedings to be issued.
The High Court judge set aside the dismissal order on the ground of duress.
The court had considerable experience of trying to communicate with litigants by both video link and telephone and it remained frequently highly unsatisfactory as a means of reliably gathering evidence on disputed issues of fact. Much might depend upon the country with which the connection was made and the technical quality of the facilities there, but there was still frequent breakdown and frequent difficulties in hearing with any clarity what was being said. It now frequently happened that, for instance, expert evidence was given and received by telephone or video link, but that was in circumstances where there was no underlying issue as to the integrity of the witness and the credibility of their evidence. A video link or telephone link could be used, as indeed it was used yesterday, as a means of engaging with a party or witness abroad in order to discuss important issues in a case. But when it came to the task of assessing credibility and evaluating the quality of a witness’s evidence, use of a telephone or video link was far from satisfactory and potentially unreliable.
There was no suggestion that this father could not afford to travel from Iraq to England for the purpose of participating in hearings. The court had done all it possibly could to meet and assuage the father’s fear about being unable to leave England and Wales, and had given such assurances as a court properly could to the father. In those circumstances this was not a case in which the father required to be afforded the choice or opportunity of giving his evidence by telephone link.
There was no doubt that, in the field of family law, court orders could be vitiated and might be set aside if tainted by, or obtained as a result of, fraud. There was no reason why the court could not, and in appropriate cases should not, set aside orders if they were tainted or obtained as a result of duress. It was a strong and exceptional matter for any court to set aside earlier orders on this ground, and it should be done only with the utmost circumspection and care. That was particularly so in the field of family law, for it was endemic and almost inevitable in any aspect of family law, that one or other or both parties are acting under, and motivated by, pressures of one kind or another. To say that one felt under pressure could never of itself justify subsequently setting aside some consent order. Much more was required than that. As a minimum, the pressure must be deliberately imposed by the other party and it must have the element of illegitimacy.
On the facts and in the circumstances of this case, under any possible approach and test, the order had been made as a result of, and impacted by, severe duress. The court was satisfied on the evidence of the mother, first, that the threats which were repeatedly made to her by the father, were credible and convincing threats and second, that they were threats of a very powerful kind. Short of a threat to kill a child, it was hard to imagine a more powerful or cruel threat to make to a parent than that the child would, or might, be removed to some place from which the parent would never be able to recover him; where the parent would not even know where he was; and where the parent would have no communication with him. The court was further satisfied that threats of that kind were patently illegitimate, and there could be no conceivable legitimate or justifiable reason for making them. Further, and significantly in this case, these were threats which had a continuing coercive force, from which the mother could not achieve any safety or release. The contrast was with a threat, for example, to the personal safety of the victim himself or herself. In those circumstances, if the victim was able to seek refuge, for example with the police who might be relied upon to protect him or her, then the continuing coercive force could cease. The father knew, and the mother equally knew, that if he were to take the children to some other undisclosed place, this court and the English authorities would be almost totally powerless to do anything about it. Further, the threats were being made by a demonstrably determined person, who had recently demonstrated his capacity and resourcefulness to carry the threats out. Duress could only be in play if it was in fact operating upon the mind of the victim so as to destroy the victim’s own free will and on the evidence the court was totally satisfied that the threats were powerfully operating on the mother’s mind in the whole period before and throughout the hearing at which the order was made. It was inconceivable that the judge would have made the order in these terms if he had known the true facts.
The court would set aside the order dismissing the mother’s proceedings, with the effect that those proceedings revived and were immediately reinstated. Having begun at a time when the boys were still clearly habitually resident in England and Wales, there was therefore a clear jurisdictional basis for those proceedings which persisted even if either or both children were now habitually resident in Iraq.