Case: Smriti Madan Kansagra Vs. Perry Kansagra

the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that : …One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field. … [47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit. [48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin. [49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State. [50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character. [51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128. … [53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests. … [55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed: I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make. [56] Singer J prefaced his consideration of the submissions advanced with the following formulation: When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court. Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement. … [62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal… (f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as : …The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.) (emphasis supplied) (g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11.1. It is a well-settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout.The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter-allegations made against each other with respect to their matrimonial life. In Rosy Jacob v. Jacob A Chakarmakkal (1973) 1 SCC 840. this Court held that :15…The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.11.6. In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.12. Personal Interaction of the Courts with the minor :Section 17(3) of the Guardians and Wards Act, 1980 provides that if the minor is old enough to form an intelligent preference, such a choice would be of crucial importance in assisting the Court to arrive at a judicious decision on the issue of custody of the minor child.In the present case, Aditya is by now almost 11 years of age. It has been observed by the Family Court, the Child Counsellor, and the High Court in their personal interactions with the child at different stages of the proceedings, that he was a bright and articulate child, who was capable of unequivocally expressing his preferences and aspirations.We will now briefly touch upon the interactions of the Courts with Aditya, and the findings in this regard :(a) The Principal Judge, Family Court had a personal interaction with Aditya on 27.01.2016 when he was 6 years old. The Family Court in the Order dated 09.02.2016 notes that the child was attached to his father and grandparents, and observed that it would be in the interest and welfare of the child to have better interaction with his father for strengthening the bond, and for his holistic growth. The Court took the view that longer meeting hours would enable the father to spend quality time with the child, and that it would be in the interest of Aditya to have exclusive time with his father, in the absence of the mother.(b) During the mediation proceedings, the Child Counsellor interacted with the child on 08.07.2016 and 11.07.2016, based on which the Report dated 21.07.2016 was submitted to the High Court.The detailed report of the Counsellor gives a clear and valuable insight of the mental disposition and inclination of the child, which are most relevant for deciding the issue of custody and guardianship of the child.The relevant extract from the Report reads as under:…Aditya stays with his mother in Delhi while his father travels from Kenya once every month to visit him. While speaking of his parents, Aditya showed lot of closeness and affinity for his father which was surprising for a child who lives with his mother and spends very little time with the father only during visitation. Father seems to be the person he idolises. He also talked affectionately of his Dada in particular and Dadi (paternal grandparents). He talked about the house in Kenya which he might be knowing only through pictures seen during visitation as he was very young when Smriti returned to India alongwith him.Various questions were asked to know more about Adityas leanings towards his father and whether his expressions of love and affinity were genuine. Aditya is ready to go to Kenya. He also mentioned that if he cant go to Kenya now, he would do so when he grows up a bit. He talked about staying in England for further education which his Papa would provide for. His affection and bond with his father seemed genuine and not something that appears tutored or forced in some manner.Aditya seems comfortable with his mother and Nani (maternal grandmother) as well. In my second session with Aditya, he talked about his recent vacation in Kashmir alongwith his mother and how he went fishing there. When asked if he goes to Kenya and doesnt like it there or misses his mother what could be done, he answered that he would come back to Delhi. However, he is not uncomfortable at the idea of making a trip to Kenya. When asked about acquiring a toy game or a skill (playing darts) his talk was all father centric. According to Smriti, his scholastic progress is satisfactory at the moment. However, he may face difficulties in higher grades as it was observed that his general ability to spell and calculate seems somewhat weak.In matrimonial disputes, when custodial issues arise, young children generally show affinity and inclination towards the parent to whom their custody belongs and they live with. Aditya surprisingly shows more affection towards Perry and his demeanour sounds genuine.While adopting holistic approach to the childs growth, it may be considered to allot more time to Perry during further visitations and then extend it to overnight visitations….(c) The High Court had a personal interaction with the child, which is recorded in the Order dated 11.05.2016. The relevant extract from the said Order reads as:3. The son of the parties - Master Aditya Vikram Kansagra has been produced before us today. We have also had a long conversation with him and are deeply impressed with the maturity of this intelligent 6½ year old child who displays self confidence and a remarkable capacity of expressing himself with clarity. He exhibits no sign of confusion or nervousness at all.4. We also note that the child was comfortable in his interaction with his father and grandparents in court. The child has expressed happiness at his visitations with his father and grandparents. He unreservedly stated that he looks forward to the same. Master Aditya Vikram Kansagra is also able to identify other relatives in Kenya and enthusiastically refers to his experiences in that country. It is apparent that the child has bonded well with them.5. We must note that the child is at the same time deeply attached to his mother and Nani. His bearing and personality clearly bear the stamp of the fine upbringing being given to him by the appellant and her mother.6. As of now, since 9th February, 2016, the child is meeting his father and grandparents between 10:30 am and 05:00 pm on Saturday and Sunday in the second week of every month and for two hours on Friday in the second week of every month. The visitation is supervised as the court has appointed a Counsellor who has been directed to remain present throughout the visitation.7. We are informed that the child has two passports – one Kenyan and the other British. The Counsellor appears to have been appointed for two purposes - firstly to assuage the appellants fear that the child would be removed from India and secondly, to ensure his comfort. The second purpose appears to have been achieved.8. It cannot be disputed that for his complete development, the child needs nurturing from both parents and the love of all grandparents and relatives, if possible. Quality time with his parents and relatives is undeniably in his welfare. The constant presence of the counsellor – certainly an outsider – would certainly prevent the intimacies between a son, his father and grandparents i.e. close family. They have no quality private family time.(d) In the Supreme Court, we had called Perry, Smriti and Aditya for a personal interaction in Chambers on 17.03.2020. By this time, the child was over 10 years old. We found Aditya to be a bright and articulate child for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. We found the child to be emotionally balanced, who was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand-parents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far.(e) What emerges from all these interactions of Aditya with the Courts since 2016 when he was 6 years old, till the present when he is almost 11 years old, is a very positive attitude towards his father and paternal grandparents, even though he has not lived with them since the age of 2½ years when he was a toddler, and had come to India on a visit in March 2012, after which he did not go back.We place reliance on the Report of the Counsellor dated 21.07.2016, wherein it has been recorded that Aditya idolises his father Perry, and was ready to go to Kenya. The affection and bond of the child with his father was found to be genuine, and not something which was tutored or forced in any manner. The Counsellor recorded that Aditya surprisingly showed more affection towards Perry, and that his demeanour sounded genuine.As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.In view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have arrived at the conclusion that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child.13. Other considerations regarding the welfare of the minorHaving considered his preferences and aspirations, we will now consider other aspects with respect to the welfare of the child.(a) Aditya is a citizen of Kenya and U.K., even though he was born in India. Evidently, his parents took a conscious decision to obtain dual citizenship of Kenya and U.K. for him soon after his birth, when he ceased to be an Indian citizen, by virtue of the Explanation to Clause 2 of Rule 7 of the Registration of Foreigners Rules, 1982 and Section 9 of the Citizenship Act, 1955.Aditya travelled to India in 2012 on a Kenyan passport, with an OCI card attached to his passport. The Kenyan passport was cancelled in 2016 when a non-cognizable report was filed by Smriti regarding the loss of his passport. Subsequently, no steps were taken to obtain a fresh Kenyan passport to date.The factum of his nationality is a relevant aspect which has to be given due consideration while deciding the issue of custody of the child.In Re L (minors) (wardship: jurisdiction) [1974] 1 All ER 913, the Court of Appeal in England held that every matter having relevance to the welfare of the child should be taken into account and given such weight as the court deems fit, subject always to the welfare of the child being treated as paramount. Nationality is a factor which is an important aspect and must be taken into consideration, to determine where the welfare of the child would lie.(b) The educational opportunities which would be available to the child is an aspect of great significance while determining the best interest of the child.It was submitted on behalf of Perry that he has secured admission for Aditya in the Nairobi International School, which follows the IB curriculum. This would be more beneficial to him, given the fact that he is a dual citizen of Kenya and United Kingdom, and intends to pursue further education overseas. Being a citizen of United Kingdom, the child would get various opportunities as a citizen for admission to some of the best universities for further education, which would be in his best interest.(c) It is necessary that Aditya gets greater exposure by overseas travel. It is important for him to be exposed to different cultures, which would broaden his horizons, and facilitate his all-round development, and would help him in his future life.(d) The minor child Aditya is the heir apparent of a vast family business established by the family of Perry in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for Aditya to imbibe and assimilate the culture and traditions of the country where he would live as an adult.It would also be necessary for him to learn the local language of Kiswahili, and adapt himself to the living conditions and surroundings of the country. Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.(e) The minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial formative period in a persons life. Having completed almost 11 years in her exclusive custody, Aditya is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, Smritis continued participation in the growth and development of the child would be crucial. It must be recognized that Smriti has given her best to Aditya, and had him admitted in one of the best public schools in Delhi. The credit must also go to her for ensuring that the child is emotionally balanced, and has not tutored him against his father and paternal family.14. Objection regarding racismThe objection raised by Smriti regarding Perry being racist has not been established from the material on record. Perry and his family have been living in Kenya for over 85 years, and have established an extensive business in that country. There is no evidence brought on record to substantiate the allegation, except an oral submission made on behalf of Smriti. We do not feel that any importance can be given to this objection as a ground for refusing custody of the child to Perry.15. Objection regarding excessive drinkingWith respect to the allegation of alcoholism and excessive drinking made by Smriti, both the Family Court and the High Court have considered this objection at length and considered the evidence led by her in this regard. She had produced R.W.2, a practicing advocate from the chambers of her Counsel, who has deposed with respect to two incidents which allegedly took place at social events in Delhi. The evidence of R.W.2 was discarded as being unreliable, by both the Family Court and the High Court, since it was not corroborated by the evidence of Smriti and her mother, who were present on both these occasions. Furthermore, since R.W.2 and his wife were colleagues of her counsel, and she herself had been an associate in the same office, the Courts below were of the view that R.W.2 was an interested witness, and his evidence could not be relied upon, and had to be disregarded. We, therefore, reject this objection as being unsubstantiated.The certificate u/S. 65B produced by Smriti merely states that the content of the emails placed on record were the same as the content of the emails on her inbox. This certificate does not certify the source of the messages allegedly received on the Blackberry of Perry, which were transferred to her cellphone. In the absence of a certificate in accordance with S.65B, with respect to the source of the messages, we cannot accept the same as being genuine or authentic.This Court in a recent decision delivered by a bench of three Judges in Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal 2020 SCC OnLine SC 571 held as under :59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.The Family Court rejected the allegations of marital infidelity based on the aforesaid emails.The High Court also holds that the emails were dated 05.05.2012 and 06.05.2012; on which dates, Smriti could not have had access to the Blackberry of Perry, since Perry had left India on 26.04.2012, which has been admitted by Smriti in her examination-in-chief.In view of the afore-mentioned facts, and the law laid down by this Court, we are unable to place reliance on the emails with respect to the allegations of marital infidelity. We, therefore, affirm the findings of the Family Court and High Court in this regard.We are of the view that the pendency of this case is not a valid ground to refuse custody of Aditya to his father. The criminal proceedings have arisen out of a natural disaster, and cannot be blown out of proportion to contend that he would be unfit for grant of custody of his son.18. For the aforesaid reasons, we are of the view that it would be in the best interest of Aditya, if his custody is handed over to his father Perry Kansagra. Once Aditya shifts to Kenya, he would be required to adapt to a new environment and study in a new educational system with a different curriculum. It would be in the best interest of the minor if he is able to go to Kenya at the earliest, so that he has some time to adapt to the new environment, before the new term starts in January 2021 in the Nairobi International School.This would, however, not imply that the mother would be kept out of the further growth, progress and company of her son. Smriti would be provided with temporary custody of the child for 50% of his annual vacations once a year, either in New Delhi or Kenya, wherever she likes. Smriti will also be provided access to Aditya through emails, cellphone and Skype during the weekends.19. Accordingly, we affirm the concurrent findings of the Courts below.(a) To safeguard the rights and interest of Smriti, we have considered it necessary to direct Perry to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.(b) Given the large number of cases arising from transnational parental abduction in inter-country marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders, and safe habour orders, since there is no accepted international mechanism to achieve protective measures. Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures.(c) The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time, and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a mirror order from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child. In international family law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of the minor child. These orders are passed keeping in mind the principle of comity of courts and public policy. The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State.The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.(d) The use of mirror orders to safeguard against child abduction was first analysed by Singer J. In re P (A Child: Mirror Orders) [2000] I FLR 435. The relevant extracts from that judgment are set out hereinbelow :…Though these are the facts as far as relevant of this particular case, they in turn reflect a relatively common situation made ever more common by the frequency of transnational and transcultural marriage and therefore inevitably an increased frequency of separation and breakdown in such marriages. It is nowadays by no means uncommon to find families upon separation separated by frontiers or by oceans.Contact to the non-residential parent in that parents home country, which often according to circumstance may be a country with which the child has prior connections, may be highly desirable. Yet for it to flourish it is necessary either for there to exist (or to develop if it is lacking) a confidence mutually between the parents, or for there to be a satisfactory judicial framework that lessens anxieties and may help to produce confidence where none exists.As it happens, for some years now, more often of course in unreported but not infrequently in reported cases, Family Division judges and judges of the Court of Appeal have advocated in appropriate cases that the parties before them, where contact or a move to live abroad is in contemplation, should provide precisely that form of cordon sanitaire in that foreign jurisdiction which in this case the parties would seek to create here for their child.Thus, Englands judges have invited parties to go off and get mirror orders or their non-common law equivalents in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt and even in Saudi Arabia. For instance, in Re HB (Abduction: Childrens Objections) [1998] 1 FLR 422, in a passage at 427H, Thorpe LJ said this:… it is important not only that the parents should combine to contain the children but also that the court systems in each jurisdiction should equally act in concert. Once the primary jurisdiction is established then mirror orders in the other and the effective use of the [Hague] Convention gives the opportunity for collaborative judicial function. The Danish judge and the English judge should in any future proceedings if possible be in direct communication.In Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642, the return of a child to the Sudan, a non- Convention country, was approved by the Court of Appeal.In the leading judgment Thorpe LJ observed that:… the maintenance of mutual confidence within the member States is crucial to the practical operation of the [Hague] Convention. But the promotion of that confidence is probably most effectively achieved by the development of channels for judicial communication … The further development of international collaboration to combat child abduction may well depend upon the capacity of States to respect a variety of concepts of child welfare derived from differing cultures and traditions. A recognition of this reality must inform judicial policy with regard to the return of children abducted from non-member States.Where the Hague Convention does not apply, mirror orders find a more prominent place. Again, the situation will be that it will be the English court inviting the parties to seek an order in the country to which the child is to return to reflect, for instance, contact provisions that have been agreed to take place in England.The third category is those cases where application is made for leave to remove permanently from England for a new life abroad. Again, mirror orders are by no means untypical or unusual. Again, it is from the foreign court that the parties will hope to obtain such an order, and it is from the foreign court that English judges have from time to time required as a condition that such orders should be obtained.The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.… I therefore have no difficulty at all in concluding that as a matter of common sense, of comity and indeed may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently in past years invited other courts to make.(e) The judgment of Singer J. was affirmed by a three judge bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that :…One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.[47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit.[48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin.[49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State.[50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character.[51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128.[53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests.[55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed:I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make.[56] Singer J prefaced his consideration of the submissions advanced with the following formulation:When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.[62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal…(f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as :…The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.)(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672.