FD25P00003 - [2025] EWHC 827 (Fam)

Fecha: 04-Abr-2025

Expert evidence

Expert evidence

29.

KS contends that his “legal rights to pursue applications in [the Philippines] are significantly prejudiced”. In her report and responses to additional questions, the single joint expert, Ms Marcia-Creencia, partner in the firm of Fortun Narvasa Salazar, states that:

The courts can determine disputes between parents in respect of custody and contact. Under Article 363 of the Civil Code and Article 8 of the Child and Youth Welfare Code, the child’s welfare shall be paramount. Section 14 of the Rules on Custody of Minors and Writ of habeas Corpus in Relation to Custody of Minors provides that best interests refers to “the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.”

Express provision is made for a court to consider a range of matters including any extra-judicial agreement reached by the parents in respect of custody or other arrangements, and to consider any “spousal abuse” by a person seeking custody.

Article 363 further provides that “No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.” There is therefore a statutory presumption in favour of H living with FB, albeit that it is rebuttable.

H is an illegitimate child under the law of the Philippines, which means that her mother will exercise sole parental authority and custody “unless there are compelling reasons otherwise”.

Supreme Court authority is cited which explains what sort of compelling reasons may show that a mother should not have custody of her young child (Briones v Miguel, 2004):

Only the most compelling of reasons, such as the mother’s unfitness

to exercise sole parental authority, shall justify her deprivation of

parental authority and the award of custody to someone else.

In the past, the following grounds have been considered ample

justification to deprive a mother of custody and parental authority:

neglect or abandonment, unemployment, immorality, habitual

drunkenness, drug addiction, maltreatment of the child, insanity, and

affliction with a communicable disease.

The effect on a child of being exposed to domestic abuse could be taken into account by the courts in the Philippines. Ms Marcia-Creencia states that “children witnessing abusive behavior towards another person can be recognized as a form of abuse if such would endanger their normal development, provided that it is sufficiently proven in court. Allegations of domestic abuse would be weighed by the courts and it would be determined based on the standard of the best interests of the child.” There is no suggestion in the expert report that shouting and physical assaults witnessed by a very young child would not be recognised as a relevant form of abuse.

The Family Code provides that if a mother is found unfit to retain custody, the courts will then look to a hierarchy of alternative family members, starting with grandparents. Ms Marcia-Creencia says that notwithstanding this order of preference, an unmarried father may be awarded custody, and cites Supreme Court authority which reiterates that ultimately, the question will be decided by reference to the child’s best interests.

An unmarried father may be granted ‘visitation’ rights in respect of their child. He would not have other rights associated with parental responsibility as understood in this jurisdiction.

An unmarried father may relocate with the child, but would first need to have custody awarded to him by the court, on the basis of compelling reasons, as outlined above. Having obtained custody, a further court order in respect of relocation would not be required, as the parent with custody would be entitled to make that decision.

There are civil laws protecting children from abuse and enabling social services to intervene. While in the Philippines, orders akin to non-molestation orders made specifically on the basis of domestic abuse can only be obtained by women against men, and not vice versa, other forms of injunction are available to protect children.

It would be open to a male victim of domestic abuse to seek damages for psychological harm, and to seek criminal prosecution of the abuser.

While the Philippines Constitution requires that private law cases are determined or resolved within 3 months of issue, in practice they can go on for longer, particularly if rights of appeal are exercised.

Foreign judgments can be directly enforced in the Philippines if they are final judgments.

Foreign orders granting custody of a child could be recognised and enforced in the Philippines, but the other parent would have an opportunity to oppose the application.

Foreign undertakings could be enforced in the Philippines but only if the foreign court had first “imposed the consequences of the violation and have embodied it in a final judgment or order”.

30.

While it is evident from the above that the system for determining disputes between parents about their children in the Philippines is not identical to that in this jurisdiction, in my judgment, it cannot be said that there is no effective relocation jurisdiction. KS would be able to pursue an application for custody, and although there are hurdles arising as a result of his status as an unmarried father which do not exist under the Children Act 1989, there is no absolute prohibition on a person in his position from obtaining custody and therefore being able to relocate with their child. The test of ‘compelling reasons’ is not an impossible threshold to reach, and I note that KS’s own case is that FB is unfit to parent H because of the history of domestic abuse. That appears to be precisely the sort of compelling reason the courts in the Philippines would consider when forming a view as to whether the statutory presumption in favour of FB has been rebutted, having regard to H’s welfare. The expert report is clear that KS’s allegations of domestic abuse would be taken into consideration under the holistic approach to best interests.

31.

It is submitted on behalf of KS that any orders or undertakings from FB in this jurisdiction would be worthless, as they could only be enforced here if H was present here (or was habitually resident here), and such enforcement would be required before the breach could be relied on in the courts of the Philippines.

32.

In my view, FB is likely to comply with orders or undertakings made in these proceedings. Although she has at times threatened in text messages that KS will never see H again, she has said in other messages and to the court in these proceedings that she wants H to have both her parents in her life and wishes to co-parent with KS. She has facilitated a relationship between her older child, G, and his father (albeit that KS says they did not have much contact with each other while he was living in the Philippines). FB understands that KS can bring proceedings in the Philippines and that any agreement reached, undertakings offered or orders made on the basis of her consent to them, would be put before the courts in that country, as would this judgment. FB has offered to give any undertaking or comply with any order the court considers appropriate.