S v S

In proceedings concerning a child’s possible return to a foreign country, the court may permit further expert evidence and defer final determination where the evidence of foreign law and practice remains materially uncertain. The court must assess whether the additional evidence is necessary to reach fully informed, welfare-based conclusions, particularly where the proposed order could substantially alter the child’s care arrangements or affect the child’s relationship with a parent. Foreign-law experts must provide an independent and impartial appraisal for the court. Their instructions should be focused and should address the enforceability, permanence and possible modification of proposed protective undertakings.

The proceedings concerned the welfare and future living arrangements of a young child brought from Iran to England by the applicant mother without the respondent father’s consent. The father sought an order for the child’s immediate return to Iran. Both parents held UK and Iranian passports and had indefinite leave to remain in England.

The court heard evidence from both parents, the maternal grandmother and a jointly instructed Iranian family-law expert. The expert evidence concerning Iranian law, the enforceability of undertakings and the likely approach of Iranian courts remained incomplete and uncertain. The central issue was whether the court could determine the return application fairly and safely on the existing evidence.

1. Further evidence and adjournment. The court permitted the mother to instruct a further expert on Iranian family law and practice. Although the decision was unusual and further delay was undesirable, the evidence was necessary because the proposed return could transfer day-to-day care from the mother to the father and could affect the child’s continuing relationship with her mother. Fully informed, welfare-based conclusions therefore required further investigation.
2. Scope of expert instruction. The further expert was to provide an independent appraisal, not a review or critique of the first expert’s evidence. The instructions were to address the proposed undertakings, the formal steps required for their enforcement in Iran, their potential permanence, and the extent to which either parent might obtain their modification or discharge. The questions were to be considered separately depending on whether the mother returned to Iran with the child.
3. Expert’s duty. Any expert instructed by one party remained under a duty to the court to act impartially and independently. The court also directed that the expert receive only a concise factual outline and the relevant undertakings, rather than the previous expert’s opinions or the entire accumulated documentation.
4. Case-management directions. The final judgment was deferred pending the further report and the parties’ observations. The mother was permitted to file a succinct account of later events potentially relevant to the father’s reliability and consistency. The return application was accordingly deferred. The postscript records that the resumed hearing later took place, the father’s application for the child’s return to Iran was refused, and the arrangement whereby the child lived with the mother in England was confirmed.