Bi v Mohammed

A fact-finding hearing should not be dismissed merely because a parent currently cannot enter the United Kingdom. The court must consider whether the disputed facts remain materially relevant to the parent’s present or alternative case, including any possible future relocation of the child. Serious and repeated video-link failures may make remote participation unfair or ineffective. Where police resist disclosure on public-interest grounds, a public-interest immunity hearing is required. The court may recognise that representation by a special advocate is a necessary legal-aid disbursement, but cannot direct the Legal Aid Agency to authorise payment.

The wife and husband were involved in disputed family proceedings concerning their daughter. The wife had travelled to Pakistan and was refused permission to re-enter the United Kingdom. A five-day fact-finding hearing was listed to determine the circumstances in which she left England and whether she had been coerced or deceived.

The wife was unable to attend in person. Attempts to enable her participation by video link repeatedly failed. The police also resisted disclosure of potentially relevant material, relying on public interest concerns involving informants and an incomplete investigation. The husband initially argued that the fact-finding hearing should be dismissed, relying on Akhtar v Ayoub, but the wife maintained both a primary case concerning her return to England and an alternative case seeking the child’s relocation to Pakistan.

1. The fact-finding hearing was adjourned. It was not dismissed. The court considered that the hearing could not fairly proceed in the present week because of repeated failures of the video link and unresolved police disclosure issues.
2. The court remained satisfied that the disputed facts were materially relevant. The wife had an extant appeal against the refusal of her visa and, if that appeal and other avenues failed, she might seek the child’s return to Pakistan. In either event, the circumstances in which she left the child in England remained fundamental to the determination of her case.
3. Akhtar v Ayoub was materially different. In that case there was no outstanding appeal against the refusal of entry, and the mother did not seek to have the children move to Pakistan. Those differences meant that the present proceedings should not be dismissed at this stage.
4. A public-interest-immunity hearing was required before the court could determine whether the police material should be disclosed. The material included call logs and statements concerning the alleged stranding of the wife, while the police relied on the protection of informants and the fact that their investigation remained incomplete.
5. The wife’s solicitors were directed to seek prior authority from the Legal Aid Agency for the reasonable costs of the Attorney General’s special advocate. The judge could not direct the Legal Aid Agency to agree to payment, but considered that the expenditure appeared necessary for the fair determination of the disclosure issue. The Attorney General might exceptionally bear the cost if authorisation was refused.