Stephen Colegrave looks at the case of Afsana Lachaux who is facing the threat of bankruptcy because a British judge upheld Dubai law

So goes the headline of a recent article by Byline Times, an independent newspaper which prides itself on being straight and rigorous, a different sort of news organisation from the more established press (see here). Here we look at how reliable their coverage of one notorious family court case has been, and signpost to the publicly available judgments and other commentary on the case.

The story as written up by Colegrave is a sorry tale indeed. It would be hard for a reader not to feel sympathy with Afsana Lachaux, or incredulity at how she has been treated by our ‘British’ justice system. The narrative is threaded through with references to Brexit, and the reader is invited to view the ‘ideology’ in this case as analogous to that which ‘tricked us’ into Brexit. Whatever your views on Brexit, these references are simply spurious. This case has nothing to do with Brexit, and no sensible account of it can maintain such a tortured analogy. The Brexit references are just red flags to a bigger problem however : this is a case with a lot of back story and context, and much of it is missing from Colegrave’s story.

Afsana Lachaux IS a British mother who lost custody of her son when her French husband divorced her under Dubai law in 2012 (we can argue about whether or not this is ‘sharia’ law but the point is really moot). That much is correct. Colegrave goes on to explain that :

The French Supreme Court was asked to rule on the matter, and it upheld the universal values with which we like to assume our country is proudly associated. It dismissed the Dubai divorce as sexist and ‘manifestly discriminatory’ for failing to uphold the basic principle of equality between man and woman. Surely a British court would do the same? Afsana Lachaux had, after all, been married in England. 

Sadly not.

‘Incroyable’, the reader is probably thinking. ‘What on earth is going on?’ Before we explain the circumstances in which the English court (not a ‘British’ court – Scotland and Northern Ireland have distinct legal systems) made a decision apparently at odds with one in France, it is important to pause and note that at the time the English court made its decisions it was the French Court of Appeal which had ruled on the matter (on broadly the grounds set out by Colegrave), but a further appeal was still pending to the French Cour de Cassation (broadly the French version of a Supreme Court). It may be that since then the Cour de Cassation has ruled in the terms described by Colegrave, but if so we cannot locate any judgment.

Colegrave is heavily critical of Mr Justice Mostyn, who is the judge who originally dealt with the case in 2017, criticising him for getting hung up on ‘sovereignty, the holy grail of Brexiters’ and for supporting ‘the freedom of a ‘friendly nation’ to set its own rules’. The tone of criticism of Mostyn’s ruling is scornful throughout. Having selected a number of features of the Dubai decision that he says are objectionable (that the divorce was granted because Afsana did not obey her husband, fulfil her marital duties and because she had gay friends), Colegrave says ‘And yet Justice Mostyn apparently decided that it was Dubai’s sovereign right to treat a British woman in this way’. Strangely, there is no mention of the fact that Mrs Lachaux failed in her appeal against Mr Justice Mostyn’s decision, which was upheld (as the most cursory search of publicly available judgments would reveal).

A translation of the Dubai divorce ruling is contained in Mostyn J’s judgment (you can read his judgment in full here). From that we can see that one ground of the divorce granted was indeed Mrs Lachaux’s ‘disobedience’ of her husband. What we can also see is that rather than ignoring it or embracing it, Mr Justice Mostyn readily identifies this aspect of the reasoning as ‘objectionable’. Contrary to what is suggested by Colegrave’s use of quotation marks, Mostyn did not refer to Dubai as a ‘friendly country’ at all, although he did cite an extract from a 2001 Court of Appeal judgment regarding the UAE which includes the line ‘In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state’. What this is referring to is the established principle of ‘comity’, that where in diplomatic terms another country is ‘friendly’ (as UAE is, notwithstanding disquiet about human rights, for example), their judgments should generally be respected, particularly where, as here, the countries concerned are signatories to multilateral treaties on the topic (even if adherence to international treaties is optional for Governments it is certainly not optional for judges). A judgment of the Court of Appeal is binding on a judge of Mostyn’s rank, and he is required to set out the applicable law (of which this is a part) before reaching his conclusion. When Mostyn’s judgment was appealed the Court of Appeal, in upholding him, included the same quotation. The sneering use of quotation marks is less than illuminating. (You can read the full appeal judgment here).

Nor does Colegrave mention the other reasons the Dubai court granted the divorce and awarded custody to the father, namely that the mother was ‘careless in taking care of the child…that she was always spending “nights at nightclubs with friends”’ and that she ‘”prevents” the father from seeing’ the child in breach of a court order. In fact, what this rather stilted translation is referring to is that at the time of the divorce in Dubai Afsana Lachaux had taken her son and hidden him away from the court and his father – his whereabouts were unknown for some 19 months. She was later prosecuted for kidnap. Curiously, there is no reference in the translation provided to the English court of any issue relating to gay friends, though it is possible the translation is incomplete.

Whatever your view of the rights and wrongs of the case, this is a decontextualised and highly selective presentation of a detailed judgment that Colegrave certainly ought to have digested before going to print, rather than relying solely on the account of one party. Perhaps the most egregious omission is the failure to even mention the 19 month long disappearance of the child that immediately preceded the transfer of his care to the father. In the course of his judgment Mostyn J stated that in the same circumstances he too would have awarded primary care to the father, applying English law.

‘It Gets Worse’ says Colegrave’s sub-heading, preparing us for something even more outrageous in the following lines :

It is extremely rare in a case involving children for costs to be awarded to the other side. Cases in British family courts are supposed to be all about the best interests of the child. But – without giving any reasons in his judgment – Justice Mostyn ordered Afsana Lachaux to pay her ex-husband’s legal bills in full.

This is perplexing. We’ve read the judgment. It does not include a costs decision at all. However, it is important to understand the nature of the application before the court, the findings made and the wider context in order to appreciate why a costs order might well have been made.

Firstly, the easy part of the explanation : whilst in cases concerning children it is rare for orders requiring one party to pay the other’s costs to be made, it is possible where the paying party has behaved unreasonably. However, this case was not in fact about children – Mrs Lachaux wanted it to be, she was asking the court to accept jurisdiction in respect of the parties son (who had never lived in the UK by the way and was still in Dubai) by piggybacking on an English divorce she had managed to obtain. The main decision that Mostyn was concerned with was whether that divorce should have been made or whether, as in fact Mostyn concluded, the English court never had the power to make it in the first place. Summarised very brutally, English law meant that if there was no valid divorce and no child present there was also no power to deal with questions about the welfare of the child. So the case was a jurisdictional dispute involving complicated legal issues in the context of a divorce application. In matters of divorce the courts are more likely to make a costs order against one party that in respect of a case about arrangements for children. Whilst this is more typically an order against the respondent to a petition when a divorce is granted, here, after very expensive litigation, it was established that Mrs Lachaux had effectively misled the court in her divorce application by asserting the marriage was still valid when the Dubai court had already granted a divorce, and ultimately the English divorce decree she had obtained was set aside.

Finally, the context. If you type ‘Lachaux’ into the search box on www.bailii.org no less than ten judgments pop up relating to Mr or Mrs Lachaux. Apart from the decision of Mostyn and the judgment upholding him on appeal, there are eight judgments arising from Mr Lachaux’s claim in defamation against various newspapers who had published accounts of the relationship between Mr and Mrs Lachaux which included the assertion that he was domestically abusive and which he says were defamatory and untrue. Mrs Lachaux had apparently been the source of those claims. That litigation was ongoing and under appeal at the time that Mostyn delivered his judgment. The defamation case eventually went all the way to the Supreme Court but the point at issue was the interpretation of ‘serious harm’ in the Defamation Act 2013.  Within the defamation proceedings (High Court; Court of Appeal; Supreme Court) the allegations against Mr Lachaux in those publications were not found to be true, but these were tested only in the family proceedings (further reading is on the Inforrm blog here and here.* Again, it is somewhat surprising that there is no mention of the defamation proceedings in this article – it would be very surprising if any journalist were unaware of the judgment, since it clarified the law on defamation and as such was of significant interest and importance to journalists and media organisations generally).

In addition, although there is no published judgment relating to the case, we know from Mostyn’s judgment that the mother had herself issued a privacy claim against the father and his solicitors – she later discontinued the claim against the solicitors and was ordered to pay their costs of £16,000. She had not paid them at the time of Mostyn’s judgment. In those proceedings, issued only 3 weeks before her divorce petition, she had asserted that the Dubai divorce had been valid, which contradicted her subsequent claim when seeking the help of the English court in respect of her son that her marriage was still subsisting.

Before reaching his so-say Brexit-brained decision, Mr Justice Mostyn had heard extensive evidence from both Mr and Mrs Lachaux and in his judgment he makes some pretty damning findings against both parties, but particularly Mrs Lachaux. We wrote about that at the time in more detail here, but in short, he found her to be thoroughly dishonest.

The findings of the judge about the relationship are at paragraphs 122-3 :

As will by now be apparent I reject the majority of the mother’s case.  I do not accept that she was a victim of abuse, threats and violence from the father, although I do accept that the relationship was stormy and that in the course of frequent arguments each hurled accusatory insults at the other. I do not accept that she was fearful of him. I do not accept that her complaints were not investigated or taken seriously by the police and the court. I do not accept that she was mistreated by the police. I emphatically do not accept that she lived in hiding as she was fearful of the father and the authorities. She went underground to prevent the father seeing his child and because she feared she would lose the case brought by him. I do not accept that she was trapped in Dubai as a result of travel bans or confiscation of her passport. After she was found she was able to leave without let or hindrance. I do not accept that she did not have notice of the divorce proceedings or the opportunity to participate in them. She did participate in them and filed an extensive defence and counterclaim. I do not accept that she did not have adequate representation and did not have the means to secure adequate representation. I do not accept that the proceedings were unfair. The ground for divorce used in this case is virtually identical to our most commonly used one (unreasonable behaviour), and the custody laws are best interests based. The mother was not divorced on traditional Islamic grounds and sharia judges did not steal her son.

I do accept that from April 2011 the mother and Louis were excluded by the father from the marital home and had no suitable accommodation. I do accept that the father provided the mother with no financial support; that she was impoverished; and that she was unable to work and survived on charitable handouts and money sent by her family. I do accept that the mother has suffered from depression for a long time and also PTSD resulting from her experiences in Dubai. However, neither of these conditions affect her capacity or absolve her from responsibility for her conduct. I do accept that until I intervened the father had failed to promote the relationship between mother and Louis. However, that failure must be set against the mother’s conduct when she disappeared off the map with Louis for 19 months.”

By now it should be apparent why the English court might have been invited to make a costs order, and why that order might well have been granted. This was not the first litigation Mrs Lachaux had been involved in or that her actions had prompted and her actions had been heavily criticised. Mrs Lachaux’s subsequent appeal having been dismissed it is likely that she was also ordered to pay the costs of that appeal too. It is quite possible that although the article does not mention the appeal, the £100,000 costs bill she is reportedly facing is in part comprised of appeal costs – and even possibly an element of the costs of her privacy action brought in 2015.

Mrs Lachaux did appeal the decision, but she didn’t appeal the findings made by the judge and they stand, although she maintains in her crowdfunder that the judge adopted a ‘victim blaming’ approach. Nor does the appeal mention any appeal against the costs order made by Mostyn J (although if her appeal had succeeded that costs order probably would have fallen with it)

Beyond these findings of fact, the key legal issue that Mostyn had to decide was whether the English court should treat the Dubai divorce as valid – in particular whether it would be contrary to public policy to do so. The mother argued that the Dubai proceedings were discriminatory (as was the conclusion of the French court) and that she had not had a fair opportunity to participate in them.

It is not clear to what extent the French courts considered the factual evidence in the way that Mostyn J did, but Mostyn’s judgment not only tells us his conclusions as regards the parties behaviour towards one another, it also concludes that on the evidence, the mother had been able to threaten to bring her own proceedings in the Dubai Sharia court before the father ultimately made the first move, she had been represented and had been able to participate in the Dubai proceedings, had been able to bring her own applications and pursue her own appeal. Her claims before the English court in support of the argument that the Dubai divorce should be not be recognised, i.e. that she had been unaware of hearings and generally excluded from participation – were roundly rejected.

Without descending into the detail of the statutory framework, it should be understood that the judicial task was to apply Part II of the Family Law Act 1986 (a UK Statute) to the facts of the individual case, rather than decide whether to recognise the divorce on the grounds that there is something generally objectionable about sharia law. The 1986 Act gives effect to the UK’s accession to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations, which Dubai is also a signatory to, but which France is not. As a result of the Act, the parties were entitled to have their Dubai divorce recognised in England as long as it met the requirements of part II of the Act and as long as it was not ‘manifestly contrary to public policy’. Significantly, the Mostyn judgment records that both Mr and Mrs Lachaux both agreed that the French court’s ‘finding about what does or does not offend French public policy is of no relevance to the decision … about English and Welsh public policy’, even though that French decision is prayed in aid now.

After a lengthy and detailed consideration of the facts and the public policy arguments for and against recognising the divorce Mostyn J decided that the Dubai divorce should be recognised as valid and that therefore his powers in respect of the child fell away. It is recorded however that contact was agreed by the father, who was going to bring the child to the UK to see his mother. There is room for different views about the legal system in the UAE, and about Mostyn’s decision – but it is essential to understand that the ground of marital disobedience that is so obviously objectionable, was but one aspect of a much more complex picture. No reader of this article would have any sense of the complexity of the background, which we have barely sketched out.

If one reads the penultimate passage of Colegrave’s article in light of the above context it is depressingly tendentious for a publication that prides itself on being a different sort of journalism :

All this has been imposed on a British woman who now only sees her son for six hours a year in the cold impersonal surroundings of a contact centre in London.  

We should be better than this, and we should expect our judicial system to be better than this. It is an ugly outcome and a warning to other women who may find themselves in a similar position. Afsana Lachaux is now fighting to save her home after being penalised for fighting to see her own child.  

If Global Britain is to mean anything at all, it should mean that we fight for justice and fairness at home and abroad and that we refuse to kowtow to legal and political systems that don’t share our values. That hasn’t happened in this case.  

It is not without irony that we recall from checking back at our April 2019 blog post that when the Byline Times published its first print issue (a Brexit Special), that issue trumpeted how :

Brexit hasn’t just exposed the weakness of our political system, but also the lack of effective journalism to hold it to account… The heart of our paper will follow investigations. We will follow the story wherever it goes, without fear or favour. 

The oddity of the Brexit Britain motif that runs throughout the article is that, rather than the sort of faux-‘sovereignty’ that Brexiters would often be associated with : asserting protective jurisdiction over our own nationals and eschewing the interference of foreign nations – this was an example of a court enforcing principles of international comity and of a judge following a UK statute that prescribes when an English court is and is not permitted to accept jurisdiction. Ultimately, by following the English common law and statutory framework the court considered itself bound to recognise the Dubai divorce as valid and as a consequence set aside an English Divorce that as a result had been wrongly granted before Mrs Lachaux’s dishonesty (as found by Mostyn) had been revealed. That in turn compelled the judge to decline jurisdiction in respect of the children issues. Whilst the Court of Appeal did conclude that Mostyn was not right about everything in his judgment, his decision was upheld. His findings of fact, so adverse to Mrs Lachaux’s credibility as an informant for this story, were not apparently challenged by her in court.

It is not our role to pass judgment on the individuals involved in this case. Rather our objective is to ensure that anyone reading about it is able to access accurate and balanced information about what has happened in the legal process and why. Either the journalist has relied upon the account of one party without properly checking out the judgments, or he has chosen to ignore them and to exclude obviously material facts and alternative perspectives that are inconvenient to the ‘angle’ taken. We don’t know which, but note the similarity between several of the points in Colegrave’s article that we have flagged as being inconsistent with the published judgments, and several of the gaps in the narrative are also present in Mrs Lachaux’s crowfunding page.

It is a real shame that relegated to the very bottom of the article is a legitimately important point : Whatever the rights and wrongs of this case, or the specific factual and legal conclusions, British women living and raising children in the UAE (amongst other countries) do face particular legal perils and vulnerabilities that many are unaware of until it is too late.

The article, dated 17 September 2020 concludes by saying that Afsana Lachaux is fighting ‘this judgment’. The only judgment acknowledged to exist is the judgment of Mostyn J, but Mrs Lachaux has already unsuccessfully appealed this. Judging from the rather unclear crowdfunder page that Byline link to, Mrs Lachaux is raising funds to help pay the costs order and to challenge the award of costs against her, rather than appealing the Court of Appeal’s decision to the Supreme Court. It is very difficult to tell, but if, as it appears, she is seeking to appeal a costs order made 3 ½ years ago Mrs Lachaux is very much out of time, and will face an uphill struggle persuading the court that this is something she could not have appealed at the same time that she appealed the main order. [UPDATE 21 Sept 8.10pm, It’s been pointed out to us that the Supreme Court (UK) refused permission to appeal as long ago as March 2020, which exhausts her right of appeal in the UK. We are therefore still unclear what potential appeal could possibly be being referred to in September 2020 either in the article or the fundraiser. It is also unclear whether any proportion of the c£100,000 costs the article refers to results from that failed appeal.]

Barbara Rich recently wrote about the unregulated nature of crowdfunding appeals for litigation costs in this post concerning pension litigation.

NB We corrected a number of misspellings of Stephen Colegrave’s name at 8.41pm on 20 Sept.

*asterisked sentence corrected to clarify that the falsity of the allegations was presumed rather than positively proved within the defamation proceedings, where the preliminary issue being considered was serious harm rather than any truth defence. 4.55pm 21 September 2020

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Feature pic : by Erica Minton on Flickr (Creative Commons licence – thanks!)

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