S-M (Children), Re

In child-contact proceedings, arrangements should reflect the children’s increasing age and maturity, and their interests may favour unsupervised contact. Where contact creates a risk of abduction or wrongful retention abroad, it may be conditioned on effective safeguards, including mirror orders in the foreign jurisdiction and a freedom-of-movement safeguard for the resident parent. Changed circumstances and an accord reached during an appeal may make it unnecessary to determine challenges to the earlier order.

The mother appealed against Mr Justice Hedley’s refusal to impose more stringent safeguards on the proposed extension of the father’s contact from supervised to unsupervised. A stay had left the existing arrangements unchanged while mediation was substantially delayed. By the hearing, the parties had reached agreement in principle on recognition of the English orders in Iran, a mirror order in Tehran and an Iranian divorce incorporating safeguards for the children and the mother. The central issue became the form of order required to give effect to that agreement.

1. The appeal was allowed unanimously. Lord Justice Thorpe gave the leading judgment, with Lord Justice Clarke and Mr Justice Munby agreeing.
2. The court considered that the children’s interests included unsupervised contact with their father and a contact pattern reflecting their increasing age and maturity. Their interests also required the strongest available safeguards against abduction to, or wrongful retention in, Iran.
3. The mother’s safeguard had a separate aspect. If wrongful abduction or retention required her to return to Tehran to litigate, she should not be trapped there through the absence of a declaration protecting her freedom of movement.
4. The father accepted recognition of the London orders through a document executed at the Iranian Embassy and certified by the Iranian Consulate, together with a mirror order in Tehran. He also accepted an Iranian divorce, subject to agreement on its grounds. The mother agreed to collaborate over those grounds.
5. In light of the accord and the passage of time, the court considered that the rival submissions concerning the earlier judgment no longer required determination. The extension from supervised to unsupervised contact was ordered not to take place until the Iranian divorce process had been completed, including a Hezanat order mirroring the London order and a direction securing the mother’s freedom of movement.

• Court of Appeal (Civil Division) — The mother’s appeal was allowed on 19 July 2004. The court made the protective order described above: [2004] EWCA Civ 1238.
• High Court, Family Division — Mr Justice Hedley delivered judgment on 13 December 2002 and refused to impose more stringent safeguards on the extension of contact from supervised to unsupervised.