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A & B (Children : Restrictions on Parental Responsibility: Extremism & Radicalisation in Private Law) [2016] EWFC 40

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Mother applied for orders including a child arrangements order (that the children live with her and that there is no contact ordered with Father), a specific issue order (that the children are to be known by different names), a prohibited steps order and a s91 (14) order (restricting Father from making further applications to the court).

  • Neutral Citation Number: [2016] EWFC 40

    Case No: BS15P00888

    IN THE FAMILY COURT AT BRISTOL

    (Sitting in the BRISTOL MAGISTRATES COURT)

    IN THE MATTER OF THE CHILDREN ACT 1989

    IN THE MATTER OF A (A Child) (Born on 18th October 2012) and B (A Child) (Born on 2nd May 2014)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 22/07/2016

    Before :

    MS JUSTICE RUSSELL

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    Between :

    F

    Applicant

    and

    M

    1st Respondent

    and

    A & B (Children by their guardian)

    2nd & 3rd Respondents

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    - - - - - - - - - - - - - - - - - - - - -

    Miss Elizabeth Isaacs QC (instructed by Andrea Davies at DS Legal) for the Applicant

    Ms Sarah Morgan QC and Mr Richard Jones (instructed by Rebecca Stevens at Withy King LLP) for the 1st Respondent

    Ms Tanya Zabihi (instructed by Sheldan Price at Watkins Solicitors) for the 2nd and 3rd Respondents

    Hearing dates: 13th to 24th June 2016

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    Judgment

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    The Honourable Ms Justice Russell DBE:

    Introduction

    1. These are private law proceedings under the Children Act (CA) 1989 (as amended by the Children and Families Act (CFA) 2014) concerning two boys of dual British and Arabic heritage; A, who was born on 18th October 2012 and is three and a half years old and B, who was born on 2nd May 2014 and is just over two years old; they are the 2nd and third respondents to these private law proceedings and are represented through their guardian. They are the sons of M (the applicant and their mother) who is English and F (the 1st respondent and their father) who is of Arabic/Egyptian heritage and is currently incarcerated and subject to a deportation order. This case was heard in Bristol Magistrates Court as F is in prison and there are no facilities or cells available at the civil and family courts in Bristol. F was originally imprisoned in 2015 after a trial in the Crown Court for breaches of court orders forbidding him from molesting M, and had completed his sentence; but he was not released as he is subjected to a deportation order.

    2. The two boys were born in England and have always lived with their mother. B was born after M had, on her case, fled the family home for the second time because of F’s violent and controlling behaviour. She and the children now live in part of a refuge because of the continued harassment by F. M attended court on the second day of this trial to give her evidence from behind a screen. Although there were facilities for M to attend the rest the hearing by video-link she chose not to do so. M alleged that F has been violent and controlling throughout their relationship; F denies any such behaviour.

    3. This case was listed before a High Court judge for a fact-finding hearing because there were allegations that F has been “radicalised” and that he supported Islamic State (or Daesh) and that this may present an additional threat to the children in the future. Following F’s arrest M had been interviewed by the local police and her responses to questions about F had led to her being questioned by officers of the Metropolitan Police Counter Terrorism Unit (CTU), however, when the case came before me there were no criminal proceedings pending in respect of any radicalisation or terrorism charges. Although M’s counsel, Miss Elizabeth Isaacs QC, had sought disclosure orders regarding the status of any police investigation, she was unable to identify any details, or to specify with any exactitude in a disclosure order what information she sought on M’s behalf. As the matter remained live at the outset and was pursued during the hearing, on the 16th June 2016, this court made an order regarding the status of any past or present investigation seeking disclosure from the Metropolitan Police Commissioner. With the assistance of the children’s solicitor, who contacted the office of the Commissioner, the court was able to establish that, after an initial investigation there was no further action being taken by the police. I shall return to this issue later in my judgement.

    4. In February 2015 F was convicted at Crown Court after a trial by jury for the offences connected as a result of breaching protective orders made in November 2014. He continues to deny the facts which led to his conviction, however, at the preliminary hearing in May 2016, I decided that this court could properly rely on the fact of those convictions and the facts which led to them, and it was neither necessary in the interests of justice nor proportionate for those matters to be re-heard or re-tried in this court.

    5. M made an application for orders under the Children Act (CA) 1989 on 2nd July 2015, these include child arrangements orders (that the children live with her and that there is no contact ordered with F), a specific issue order (that the children are to be known by different names), a prohibited steps orders and an s91 (14) order (restricting F from making further applications to the court).

    6. As I said above, the children are separately represented and they have had a guardian appointed to provide the court with a welfare analysis on their behalf. Their guardian supports the application made by M for orders that will have the effect of stopping the children from having any contact with their father. The guardian also supports, on welfare grounds, applications by M to change the children’s names and to place restrictions on any further applications being made by F to the court in respect of the children.

    Background history

    7. M (who was born 9th June 1985 and is 31 years old) and F (who was on born 27th March 1982 and is 34) met in the UK after F had come here to, he says, escape persecution in Syria. F claims that he is a Syrian national and M says he is Egyptian. The question of F’s nationality was an issue between the parties but on the evidence before the court it was not one that seemed capable of resolution, however, after the trial concluded the court received further information from the Home Office. M and F met on an Islamic dating web-site and were married in an Islamic ceremony within two months of their introduction, in London, in December 2011; and later in a civil ceremony at Chelsea Register Office on 14th March 2012. On 18th October 2012 their first child, A, was born. In January 2013 M, F and A moved to live in a rented property, (which was in F’s sole name) on the Worlds End Estate, London. On 12th February 2013 F was granted indefinite leave to remain in the UK.

    8. F has been less than forthcoming about his background; indeed, he refused to discuss it with the children’s guardian. What is known is that his mother is an Egyptian and a teacher, and that she, and the children’s paternal grandfather live in Alexandria, in Egypt. F’s brother and sister also live in Egypt however throughout this trial F has claimed that he is a Syrian national. This court was not made aware of any communication from the Home Office (a request had been made under the protocol for communication between the Home Office and the court), however after the conclusion of the hearing on 24th June 2016 it was brought to my attention, through my clerk, that the Family Court office in Bristol had received several emails from the Immigration Enforcement (Criminal Casework) in Croydon. I shall return to this below when dealing with the evidence before the court.

    9. M and F married very quickly after they met (within six weeks) and A was born within three months of the civil ceremony. It is M’s case that throughout the marriage, and during the whole time that she was living with F, he was violent, abusive and controlling; she was socially isolated; F controlled the family finances; that she was not allowed to go out on her own; and, that A was present and would have been affected by the domestic abuse. It is her case that she became depressed, and as a result of this, she was prescribed medication and had referred herself to a counsellor to help her cope with her situation.

    10. During their marriage M and F had had a joint bank account, however, F had his own bank accounts into which were paid the benefit and welfare payments which he claimed and which included enhanced disability living allowance (DLA) for himself and which, he accepted in his oral evidence, he was paid, up until his imprisonment for breaches of the Family Law Act (FLA) injunctions in 2015. The evidence before this court suggests that for most of the time that he was receiving DLA the claim was fraudulent. F also received the family tax credit and the child benefit payments. M had access to the joint account but had little or no income of her own. The money that was paid into the joint account was controlled by F.

    11. During the marriage both M and F practised the Islamic faith. M had converted, she told me, after travelling abroad and being impressed by the welcoming and tolerant nature of the Muslims she had encountered in several countries including in The Gambia and North Africa. It would seem that there was divergence in the way that M and F believed that they should observe and follow their faith which was most starkly realised after A’s birth when the issue of circumcision arose. Eventually, although this took place in the presence of both M and F, it was arranged by F and carried out privately by a doctor who was not the child’s GP. It was accepted by both parties that the baby was very distressed by the procedure and that it affected his mother who was crying herself and very upset at the baby’s distress. In his evidence F denied that A suffered any ill-effects but the GP records obtained by his guardian include a reference to treatment for an infection following the circumcision.

    12. Although it was part of M’s case that F had been radicalised or was involved in radicalisation and counsel for M, Miss Isaacs (who was instructed in this case in March 2016) made an application for disclosure against the police, she did not identify against which part of the police service or named officer or officers an order should be made. Thus an order for disclosure could not be made as it would have been too imprecise and incapable of enforcement. The court was aware that the police had not, at any stage, provided M or the court with any material that would suggest that there were any current investigations in respect of extremism, radicalisation or offences under the anti-terrorism legislation. Indeed, there was no evidence filed on behalf of M that supported this allegation apart from her recollection of conversations with police officers after F was arrested in her garden for breaches of the non-molestation injunction in June 2014.

    13. I shall return to the precise allegations of domestic abuse made by M when I set out the findings she seeks below, but will deal with other issues raised on her behalf first. M had said in her written evidence that she did not believe F to be a Syrian national as he had claimed in his evidence; she said he was an Egyptian national which he denied. At issue and in the background to this case is F’s determination to remain in this jurisdiction and to stop his deportation. The case is not about a determination of F’s nationality, but it is a matter that has been repeatedly raised, not least by F himself, who claims that if he is deported to Egypt he will then be deported from there to Syria where his life will be in danger. The solicitors and counsel he instructed in this case are not instructed in any applications by him against the deportation order or any application for judicial review, in respect of immigration decisions, which F claimed was underway.

    14. Domestic abuse On 1st August 2013 F was arrested after M made a complaint to the police. No further action was taken as M left the family home with A in August, for the first time. She said in her evidence that she had left because of the respondent’s abusive behaviour, however she was persuaded to return by F and that it was during this period of reconciliation she became pregnant with B.

    15. In September 2013 F started a course in air transport and pilot training at Buckinghamshire New University. In October 2013 F reported M to the police and no action was taken. M and F finally separated on 4th November 2013, when M and A left the family home M was pregnant with B. On 12th November 2013 a non-molestation order was made forbidding F from using or threatening violence against M or from going near her property for 12 months; the order was to remain in force until 12th November 2014.

    16. In December 2013, following complaints made by F about A’s health Kensington & Chelsea SSD carried out an assessment of the family; they had no concerns about M’s care. On 2nd May 2014 M gave birth to B. F has never seen B. M has been the children’s sole carer since she left and B was born.

    17. On the 13th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.

    18. Following the June incident on 14th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14th October 2016. On 15th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.

    19. F’s criminal trial took place at Bristol Crown Court on 26th February 2015 and 2nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

    These proceedings

    20. M issued applications for orders under s 8 of and s91 (14) of CA 1989 on 2nd July 2015. Decree absolute was granted on 6th August 2015 in the divorce. On 22nd September 2015 an assessment was carried out by Gloucestershire SSD following a referral by the health visitor (HV). There were no concerns raised in the assessment.

    21. While at court on 11th December 2015, in breach of court orders, including the restraining order made at the Crown Court in March 2015, F attempted to communicate with M by passing a letter addressed to M to M’s leading counsel during the court hearing before His Honour Judge Marston. The judge recorded this on the face of his order and also recorded that the document had been returned to F and the court had “reiterated that [F] is forbidden to have any contact whether direct or indirect with [M]”. The case was due to be heard on 29th January 2016 before the same judge however F was not represented and although he had applied for legal aid it was not in place. The case was adjourned to allow the LAA to process his application; to assist F in this application His Honour Judge Wildblood QC included a recital that the orders sought by M were “some of the most draconian that could be sought in private law proceedings”.

    22. F was not released from custody at the end of his period of imprisonment on 15th December 2015 because of outstanding issues regarding his immigration status and the order for his deportation.

    23. The case came back before His Honour Judge Marston (sitting as a s9 Deputy High Court Judge) on 25th February 2016; but because of the complexities of the case including the extent of the orders sought by M and her allegation that F supported or supports Islamic State (Daesh) the case was transferred to be heard by a judge of the Family Division.

    24. The case came before Mr Justice Baker on the 2nd March 2016 and it was allocated to be heard by me, in Bristol in June 2016. After this hearing F changed his solicitors and counsel. The case first came before me on 18th March 2016. Counsel for M agreed not to rely on the sentencing remarks of His Honour Judge Tabor and no legal explanation was given to me for this stance. I ordered the 1st respondent, F, to file and serve a skeleton argument setting out the legal basis for any proposed application that the court could not rely on the criminal convictions of F for breaches of the protective orders. F had been convicted by a jury, on the criminal standard of proof, following a criminal trial during which F had been represented, until he sacked his legal representatives, little more than 13 months previously.

    25. On the 21st March 2016 the court in Bristol received a letter purporting to be from the solicitors acting for F in his immigration case asking for “information regarding the pending family law proceeding and its nature.” The letter was mistyped and made reference to a bail application by F in the Immigration and Asylum Tribunal. His Honour Judge Wildblood QC made an order that if the solicitors sought information in relation to the family proceedings they must make a proper application to the court specifying precisely what it is that they seek; and that any application must be served on the other parties. No such application was made.

    26. The case came before me again on 6th of May 2016. F was now represented by Ms Sarah Morgan QC and Mr Richard Jones. F had insisted that he be brought to court for the hearing rather than attend by video-link. The case was listed at 09:30, due to limitations on the amount of court time available, and F was not collected from Bristol Prison on time to attend court; however, his counsel was instructed and made an application that the convictions of F and the fact behind it should be ignored by the court and the facts leading to his conviction should be re-heard and re-tried. I refused this application.

    27. In doing so I applied the law of estoppel and the doctrine of res judicata whereby the default position as regards a criminal conviction (even in public law proceedings where there is a limitation on the application of the doctrine issue estoppel) will be taken as evidence of the underlying facts. In this case F had pleaded not guilty and there was a full trial of the facts (unlike in Re W (Care Proceedings) [2008] EWHC 1188 (Fam) where following Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285, McFarlane J (as he then was) re-opened factual issues behind a guilty plea and the individual’s capacity at the time he pleaded guilty); F was represented for some of the trial, at least, and he chose to dismiss his legal team, he was convicted by a jury properly directed by the judge and there has been no successful appeal either as to conviction or sentence. There were no issues such as considered in Re W and Ms Morgan could not and did not seek to argue that there were.

    28. F had applied for disclosure of M’s medical records; for the police to hand over mobile phones held by them; for a forensic analysis of all text messages and emails on the phones (although he did not submit a Part 25 application identifying the expert who would carry out such an analysis); an order for the police to disclose “full transcripts of telephone calls made by M and F to the police” (without any further details of these calls; including which police force they were to be addressed to); an order against Stamford [Hill] Library to disclose F’s library records; an order for the children’s medical records to be disclosed (but no details as to whom and for what purpose); an order that a polygraph lie detector test be undertaken by F; a report to be filed by the (unidentified) HV; an order that M disclose all bank accounts held in her name. These applications were not pursued at that hearing but I gave permission to Ms Morgan to do so at the hearing in June should she be instructed to do so.

    Findings sought by M

    29. At the hearing which started on the 13th June 2016 M sought the following findings to form the factual basis for her application for CA orders; it is her case that she has to seek these far-reaching orders which include; ordering no contact, changing the children’s first names and surnames, restricting F from exercising parental responsibility to protect herself and the children from F so that he is not able to track her down and restricting F from making further applications without permission from the court until B reaches his majority.

    30. M alleged that F has physically assaulted her on numerous occasions and caused her actual physical and or emotional harm and she gave specific examples of the abuse in her written evidence which were included in the schedule of findings sought. The first was an incident on 27th June 2013 when it is said that F grabbed M by the head and hit her with toilet rolls “in a demeaning manner”.

    31. It was said that on three occasions between November 2012 and November 2013 (including 14th October 2013 which was specifically set out separately) F placed his hands around M’s neck and squeezed her neck; in other words, he was choking her, or worse, attempting to strangle her. In June or July 2013 M said that F assaulted her by slapping and kicking her, and that he placed his arms around her neck claiming to be able to break her neck in one twist. On 14th October 2013 M said that F kicked the top of M’s leg, slapped her to the face and placed his hands around her throat and squeezed her neck. M said that on 4th November 2013, when she was pregnant with B, F grabbed her by the top of her arm and shook her, F then picked her up and threw her down causing pain.

    32. It is said by M that the child A [I note that in Miss Isaacs’ schedules reference was made to the children being caused harm but as B has never been present during the abusive incidents described by M except as an unborn baby I have ignored the references to children; however, any likelihood of future harm applies to both children] has been caused emotional harm by being exposed to F’s violence towards her; in June/July 2013 F assaulted M whilst she was tending to A, risking injury to A and causing him to be distressed.

    33. M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

    34. M claims that F has behaved in a threatening way towards her and has threatened and intimidated M on numerous occasions causing her fear and emotional harm and distress; as has already been set out above and on other occasions; once, between September 2013 and November 2013, F intimated that he would kill A, by saying that he would kill the thing dearest to her which caused her distress. On numerous occasions F implied to M that he would carry out an ‘honour killing’ if M left him.

    35. On 13th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

    36. It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.

    37. To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.

    38. F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.

    39. It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.

    40. It is M’s case that the action taken by F on 13th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.

    41. As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23rd October 2013.

    42. Until the Metropolitan Police (MPS) legal department confirmed on 23rd June 2016, as a result of the order made by me of the court’s own motion on 16th June 2016, that there were no current investigations into radicalisation or terrorist activity by F, and the investigations carried out on or about 7th February 2014 did not lead to his arrest or corroboration of any allegations of involvement in such activity, M’s counsel pursued a finding that the children are at serious risk of radicalisation by virtue of the father’s beliefs and associations.

    43. It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.

    44. It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

    45. No further detail was supplied so that this court has no way of knowing what information was provided by M to the Gloucestershire Police and how and in what form the information was passed on to the MPS. The court does not know, how, or in response to what enquires or questions M “provided information” to the local police. It is not known whether she or the police themselves instigated the provision of any such information. Ten months passed before she wrote to the Home Secretary and by that time F was in custody following the breaches of the injunction in June 2014.

    46. When the information was received from the police on 23rd June 2016 M was not present at court; Miss Isaacs sought to change her case from risk of radicalisation to risk of “psychological harm”. Unsurprisingly, Ms Morgan, on behalf of F objected to this expedient, if not opportunistic, change in the way that M’s case was put. I shall return to this below.

    47. M’s case is that F has breached court orders forbidding him from causing harm to M or the children on several occasions, not least on the 12th June 2014 when F encouraged or arranged for a friend to go to M’s home, which was in itself a breach of the non-molestation order. In addition, it is her case that F continued to breach the restraining orders imposed by the Crown court on ten separate occasions between 11th and 15th December 2015. He did so by trying to pass a letter to her in court on 11th December 2015 [not November 2015 as set out in the document prepared by Ms Isaacs] by handing it to her (then) counsel; this was observed by the judge who recorded the attempt on the court order at (h) of the preamble. Subsequently, it is said, that F breached the terms of the restraining order (dated 2nd March 2015) by telephoning and texting M from prison, two days before the proposed date of his release from custody on 13th December 2015 on a total of nine occasions.

    Crown Court Convictions

    48. On the 9th March 2015 His Honour Judge Tabor described in his sentencing remarks the breaches of the non-molestation order imposed the previous year. The jury had found F guilty after a trial and the following facts are taken from the statements made by witnesses, including police officers, for the trial and whose evidence the jury had accepted. It is noteworthy that the jury found that F had previously breached the order in November 2015 by sending a letter to M, not long after the order had been imposed. By the time the breaches took place in June 2014, M was living with the two children (the younger child was barely a month old having been born on 2nd May) at an address that had been fitted with a panic button because the authorities had considered F to pose a high risk; it was only as a result of M being able to press the panic button that the police arrived so quickly.

    49. On 12th June at approximately quarter past three in the afternoon M heard someone knocking at her front door at in Cheltenham. When she answered the door, she saw a stranger (who she thought appeared to be a Muslim man) standing near the window who told her that he wanted to speak to her about her husband; he went on to complain on F’s behalf telling her that she was ruining F’s life, that he had no job, no university place and that the police were after him wherever he went. M was, she said, scared and physically shaking, but was able to take some pictures of him, she had activated the panic button and called Gloucestershire Police at about twenty-three minutes past three (according to the police evidence).

    50. The police, in the person of a PC Iliffe, arrived at about half past three as a result of the personal attack alarm being activated. He saw a man (later identified as K) standing in the gateway of the front garden path of the address; as he approached K, the police officer saw M come out of the house onto the driveway crying and in a state of distress. He asked M if she knew the man and she shouted – “No, take him away, he’s here because of my husband.” Shortly after that PC Davies and PC Forbes-George were alerted to the use of the panic button at M’s address and they, too, arrived at her home, where they saw PC Iliffe speaking to K. They spoke to M and she told them that she had been relocated as a result of domestic abuse but that F had found out her address; she said that she believed that K had been sent by F to threaten her and the children. As she spoke to PC Davies and PC Forbes-George they described her as physically shaking and breaking into tears, and that she was extremely upset and agitated by what had happened.

    51. K was spoken to by PC Davies and PC Iliffe and told them he had travelled to M’s address from Swansea to speak to M as F was his friend and he wanted her to realise what was happening to F; he said it was ruining F’s life. K said that F had picked him up from Cheltenham railway station and driven him to the street in which M was living in a white Ford (with a 2013 registration plate).

    52. K was cautioned and arrested by PC Iliffe on suspicion of harassment; he continued to refer to F as his friend and produced a piece of paper which he said he had been given by F. He said that F had given him the car keys and produced a Ford car key on a fob. The police had taken a train ticket from Swansea to Cheltenham and two receipts relating to that train journey from K, and he also produced a Lloyds TSB debit card in F’s name. K’s mobile phone was seized and he was taken to Cheltenham police station.

    53. Later on 12th June 2014, at about five or half past five in the afternoon, a neighbour became aware of a white Ford Galaxy vehicle parked unattended in a road approximately 100 yards from the junction with the street in which M lived. The same neighbour returned to the road at about quarter to nine that evening saw that the Ford Galaxy had not moved, was in the same place and was still unattended. A second neighbour also saw the Ford Galaxy car parked on the road, and noticed a man leaning into the car, and then looking through a hedge towards M’s address.

    54. On Thursday 12th June 2014 after eleven at night K was interviewed at Cheltenham Police Station by a PC Hudson in the presence of his legal representative. In his interview K said that he had known F for approximately six years during which they had been close friends. He said that that day F had told him on the phone how upset he was that he and M were separated. K said that he was aware the relationship between M and F had been “rocky” and that F had told him that M had made false allegations that he had hit her. K told the police he had never met M. He said he offered to meet F in Cheltenham to go to M’s home to try and help them both fix their relationship. He had taken a train from Swansea to Cheltenham and met F at Cheltenham railway station. They then travelled in F’s car, bought some food and discussed F’s problems.

    55. K told the police that F suggested that when he spoke to M he should introduce himself as a legal representative rather than as F’s friend, but K had refused to do this as he did not want to be dishonest. F had asked him to give M a leaflet about child access and fathers’ rights, which he refused to do, although he admitted having these documents about his person when he attended M’s address. F had told him he was not allowed to go within 100 metres of M’s home address, but said he would drop K in the area so he was only a short distance away. K then told the police that he did not question F about why he wasn’t allowed within 100 metres of M’s address. He said that F drove close to M’s home and that K then walked to M’s address and knocked on the door three times; he said that M appeared at the downstairs front window and appeared to be terrified. K said he was very shocked that M had appeared to be very scared and that he tried to reassure her that he was not there to cause any trouble and didn’t want to upset her and he would leave if she didn’t want to speak to him. A short time later, the police arrived. K told the police that he was completely unaware that F had been served with a non-molestation order and thought that any contact F had with M was legal.

    56. At about eleven the next morning on 13th June 2014 the (first) neighbour noticed that the white Ford Galaxy was still parked in the same place. Later that day, just after half past five in the afternoon, M was walking home along Finchcroft Lane pushing both her children in a pram. As she approached the junction with South View Way she saw a white Ford Galaxy car that parked to the left of the road facing her; she immediately began to panic because the car was identical to the one F drove. When she looked at the car registration number she identified it as belonging to F. At thirty-seven minutes past five she made a 999 call from her mobile phone and said she thought she may have seen F’s car parked near her house. M was, she said, really scared. She stayed on the phone to the emergency services and she rushed to get inside her house with the children. She got in, locked the door and waited for the police.

    57. At quarter past six PC Lewis and PS Rogers arrived at her address, following reports of a vehicle being parked in the location belonging to F, who was wanted for breaching a non-molestation order. PS Rogers saw the white Ford Galaxy parked on the pavement in the road where it had previously been seen, just off the street in which M lived; there was no-one in or with the vehicle. PC Lewis remained with the vehicle while PS Rogers went to speak to M who told him that although she had not seen F himself but had seen his car when she walked back home from the park that day with the children, just before she called the police. PS Rogers also spoke to neighbours on the adjoining road (where the car had been seen) who both said they had seen the white Ford Galaxy parked outside from the previous night and that it had been there all day.

    58. The police then searched the garden; PS Rogers carried out a search of the shed in M’s garden which was clear, but when the officer walked down a gap between the rear fence and the garden shed F appeared. F had a can of aerosol in his hand which he had pointed at PS Rogers’ face. PS Rogers shouted “Police, stop!”, where upon F then climbed the 6-foot-high wooden fence panel into the next-door neighbour’s garden behind M’s property. PS Rogers climbed the fence himself and chased after F. F then jumped another fence at the front of that property. PS Rogers chased after F, shouting repeatedly for him to stop at the top of his voice. The officer chased F down that street and into the road where the car was parked. F turned and sprayed PS Rogers in the face with his aerosol; forcing PS Rogers to spray F with his CS spray. F carried on running for a short distance before he eventually stopped; so that PS Rogers was able to handcuff F whilst he was on the ground. PS Rogers then shouted for assistance from PC Lewis.

    59. When PC Lewis heard PS Rogers call for assistance as he had been chasing F at the back of M’s address; he immediately drove around the corner searching for PS Rogers, before eventually finding F further down the road. By this time PS Rogers had F lying face down on the pavement in handcuffs. F was struggling as PC Lewis approached. PS Rogers told his colleague how F had tried to bite his right arm. PS Rogers said he had been worried for his safety throughout the incident. PC Lewis had heard PS Rogers say to F “You tried to bite me.” PC Lewis then assisted PS Rogers in gaining control of F and they stood him up before taking him to the van. This officer soon became aware that F had been sprayed with CS gas as both he and PS Rogers were suffering from the effects. Once at the van, PS Rogers told PC Davies that F had sprayed him in the face with an aerosol can before running away; whereupon PC Davies searched F and recovered a number of items from the large green jacket F was wearing. The following items were seized from F by PC Lewis, a black face covering, a torch, a foot-odour aerosol spray can, camouflage gloves, a green-coloured plastic item (later identified by DC Dalglish as a glass cutter), a black cutting tool and holder, an eye mask, safety glasses, an iPhone mobile phone, Samsung mobile phone.

    60. F was arrested by PC Rogers and he made no reply when he was cautioned by the officer. PC Rogers then returned to look at the area where he had first found F and saw a man’s jacket on the ground behind the shed. M had told him that she had noticed that her garden shed had been moved, so that PC Rogers formed the view that it looked as though this had been so that F could sleep behind it. Later, at about quarter past seven that evening M telephoned the police to tell them that a bag containing a hammer and a screwdriver had been found in her garden. At about half past nine that night the first neighbour noticed that the white Ford Galaxy was still parked in the same place and did not appear to have been moved, and remained unattended. The neighbour took a note of the registration number on their mobile phone. On Saturday 14th June 2014, shortly after midnight PC Rogers returned to M’s house with PC Seedall and seized the hammer and screwdriver, the black bag that had contained them and a jacket. Two more mobile phones were later seized from F’s car. On Monday 16th June 2014 PC Ridd carried out a further search of the garden and seized a Samsung mobile phone and charger found in a carrier bag in the garage and an iPad found in a carrier bag in the garage. All the items seized were exhibited to the jury at the trial the following February.

    61. On Saturday 14th June 2014, between half past five and half past six in the evening at Cheltenham Police Station, F was interviewed in the presence of his solicitor and an Arabic interpreter by DC Dalglish and DC Willetts. F confirmed that he was happy for the questions to be put to him in English and for him to respond in English, but his interpreter translated the police caution for him. His response when questioned in interview was mostly ‘no comment’. On Saturday 14th June 2014 M made a s9 police statement in which she stated that she was scared of F and was living in fear. On 22nd October 2014 F was charged with breach of a non-molestation order and he made no reply.

    62. On 26th February 2015 F gave oral evidence at his criminal trial. During his evidence F agreed that by December 2013 he had been aware that the non-molestation order was in force. He denied having gone to M’s home on Thursday 12th June 2014 and said he had an alibi. F denied that his car had been parked near M’s address and said that it had been at the Cheltenham mosque since about midday; he told the jury that he had driven down to the mosque that day from London where he was living at that stage to celebrate a holy day. He said he was in Cheltenham because he had decided to open a business there and he felt he should move from London to be near his son. Despite the evidence of the neighbours that his car was in the road adjacent to the street where M was living F denied having driven to the road that day.

    63. At his trial F said that when he had been interviewed by the police he was not medically fit as he had been suffering from amnesia; during the course of his evidence he produced a letter written by a prison doctor dated 9th January 2015 which stated that he was suffering from photophobia and post-concussion syndrome but no evidence that he suffered from amnesia. F claimed that he suffered from a slipped disc (one of the reasons, he told me, that he had claimed DLA) but as the judge observed in his sentencing remarks, he had been fit enough to clear two large garden fences when attempting to evade arrest. F claimed to be in ignorance of the fact that his close friend K was in Cheltenham on 12th June 2014, denying that he had collected K from the railway station, or having had contact with him on 12th June 2014. F told the jury that K had had his bank debit card for about three or four years and that he had given it to him as a friend. He denied that he had given K a leaflet to hand to M; F did agree that he had given K M’s address.

    64. F claimed to have stayed in the mosque overnight and he left the mosque on Friday 13th June 2014 at about midday to go directly to M’s address as he had agreed with M that he could see his child. He claimed to have had made arrangements with her after she had called him from her private number at about midday on Thursday 12th June 2014, although he said that he had been planning to go to Cheltenham that day for a long time. He told the jury that “She said to me, ‘It has been cancelled, the order, I’m sorry for what happened, you know, what the circumstances pushed me to do it.’ …she states non-molestation order has been cancelled’. F said M had set a trap for him.

    65. F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.

    66. In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”

    67. His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”

    68. F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.

    69. The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”

    70. This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

    Evidence

    71. I have read the documents filed in this case in the three trial bundles; this included papers from previous Family Law Act 1996 proceedings; The statements of M and of F; Cafcass analysis and s 7 report; documents from the police, from the probation service and from the Home Office; papers including statements and social services reports from Gloucestershire County Council and Kensington and Chelsea Social Services and documents disclosed by the police (Gloucestershire Constabulary) and the Home Office. I have heard the oral evidence of M, F and the children’s guardian. F was assisted throughout the hearing by an Arabic interpreter.

    72. Both parties, but particularly F, attempted to file further evidence, over and above that which was provided for in the court’s directions. I refused to allow the applicant to file a further statement, counsel applied for permission to do so after M had given her oral evidence, exhibiting an email from the police confirming their investigations into the texts and call she received from F in December 2015. I did, however, allow for a statement to be filed by the police officer himself as I considered it to be in the interests of the children’s welfare to have the information from the police as to any further breaches of court orders as it would be relevant to any assessment of future risk.

    73. PC Archer of Avon and Somerset Police filed a statement dated 21st June 2016. In it he confirmed that M had complained that F had breached the restraining order by calling her and texting her on 13th December 2015. She had recognised F’s voice. F had begged her to speak to him and although not threatening in the context of this case that would have made little difference to the impact of this communication on M. At the time F was in HMP Bristol and his cell was searched and a mobile phone was seized. F denied the phone was his saying he had been forced by other inmates to hold it for them. Analysis showed it was not the phone M had been called from however, the cell site analysis showed all the calls had been made from the vicinity of HMP Bristol and M has no friends, family or connection with that area. The case is to be referred to the CPS for a charging decision.

    74. On the 23rd June 2016 F instructed Ms Morgan to renew his applications for extensive disclosure of documents (including M’s medical records) from various sources; he also sought an adjournment of the case to adduce further evidence from various people as well as to receive disclosure of evidence from the NHS and Swansea University; this latter about his dismissal from a course he had been undertaking because of his plagiarism. Some of this was not relevant, such as that from Swansea University as I was not being asked to make a determination about what had occurred there. The court would not have ordered the disclosure of the medical records to F who is totally unqualified to interpret them. The further delay which would not have been in the interests of the children and the evidence from his friends and family members would not assist me in reaching a decision about the complaints made by M as no-one had been present at the time of the alleged incidents of abuse and violence (one was someone F had known for 3 months in 2009 who had never met M). F asked, again, to take a polygraph test, an application I refused.

    75. Additional Evidence received during and after the trial The court received some additional evidence during and after the hearing took place. The evidence of PC Archer is referred to above. The court was provided with the children’s GP records by the children’s solicitor; this included confirmation that A had, indeed, suffered an infection to his penis after circumcision took place when he was an infant as his mother had said he had. The court office in Bristol received information from the Home Office during the hearing which was, unfortunately, not drawn to my attention until after the trial. On 22nd June 2016 an email was received from the Home Office, Immigration Enforcement Criminal Caseworker in Croydon which said that F has been confirmed as an Egyptian National. He was scheduled to attend the Egyptian Embassy on 8th June 2016 for a face to face interview and to collect his ETD (travel documents) but that F had refused to go saying that he had a family court hearing. There was no hearing on 8th June 2016. Throughout the hearing and afterwards (the email from his father sent to my clerk says they are Syrian Nationals) F persisted in claiming Syrian nationality and did not inform the court of the refused interview with the Egyptian Embassy or the confirmation of his Egyptian nationality. I have no doubt that he hopes to avoid deportation by claiming he will be deported from Egypt to Syria, however there is absolutely no evidence before me which supports these claims, nor F’s assertion that he is a Syrian national.

    76. M’s evidence M gave her evidence from behind a screen. The fact that she did so did not, of itself, influence my assessment of her evidence as the purpose of putting the screen in place was to enable her to give her best evidence and is an increasing common practice in the family courts. During her evidence M was, at times, clearly distressed and she was in tears on more than one occasion; notably when she was speaking about A’s circumcision when the baby was crying and in pain. She was palpably frightened and I find that her fear was genuine and heart-felt. After she had given oral evidence on the second day of the hearing, M decided not to participate in the hearing by video-link (which had been put in place) and gave instructions by phone.

    77. M described to me her fear that F would, again, track her and the children down and attempt to harm her and them, or try to abduct the children. Her fears are not without foundation, even if only based on F’s behaviour in June 2014 which led to his conviction at the Crown Court. The fears that she has have been re-enforced by the police and other professionals that she has dealt with; I have in mind the MARAC meetings, the advice that M has been given; including fitting her home with a personal alarm or panic button which she then had to use. M will have been aware of the sentencing remarks of His Honour Judge Tabor (which I have set out above) and his comments about F’s motivation and intentions when he breached the protective orders put in place by the Family Court.

    78. M’s evidence was consistent with the written statements that she had given, and when challenged in cross-examination she was not shaken but remained adamant that she had suffered abuse and violence as she had described in her statements. F denied being violent towards her and had accused her, amongst other things, of being abusive towards him and cruel and uncaring towards A. The children’s GP records which he had asked to be disclosed did not, as he had said they would, disclose that he had complained about M’s behaviour towards “the children” before she “took my children away from me.” As a matter of fact, he could not have made complaints about “my children” as B was not born until after M had left, but in any case the GP’s records made mention of no complaints by him rather they referred to the children being at risk and subjects of multi-agency risk assessment conferences (MARAC); and to a referral being made when M disclosed that she “was a victim of domestic violence” in July 2013.

    79. F had said that M needed psychological help; while she accepted that she had had counselling and CBT after she had left F that was a result she said of her state of mind and low self-esteem brought on by F’s treatment of her. In her evidence M was questioned about and made reference to F’s behaviour in respect of the situation in Syria. She spoke of F meeting a person who was due to travel to Syria and giving them items to take, including gas-masks, night-vision goggles, knives, and bullet-proof clothing which he had bought for that purpose. She described him speaking admiringly of “freedom fighters” in Syria and that he had “tried to suggest he had a number of contacts through Islamic State”. F had posed for photos in which he was dressed in battle fatigues, glorifying war and posing with weapons including a large sword or cutlass (these pictures were exhibited to her statement). F said that M had forced him to pose in this way.

    80. M said that F used this to threaten her and that she had become more fearful that he would take A away and that she would never see him again. She said that F threatened to kill A and had told her so directly and by implication. He had said that he would kill the thing that she loved the best if she tried to leave him. F accepted that he had said this but claimed that he had be referring to himself as the thing she loved the best. I find this suggestion incredible; even if he was deluding himself about the state of their relationship such a phrase used in that way could only have referred to A. Whatever he meant by it, F meant to threaten M and it was emotionally abusive. M described how F had bought the baby a toy replica of an AK47 assault rifle for his first birthday and had then posed for pictures copying the stance of fighters who have posted their images on-line. His behaviour was deliberately bellicose and manipulative, with the aim of cowing M and ensuring that she was compliant with his wishes.

    81. M complained of F’s behaviour in using aspects of what he claimed to be his interpretation or understanding of Islamic teaching and faith. M said he had used this to try to control her and to justify his behaviour towards her; and expressed extreme views about the treatment of women and homosexual men; saying that if a woman left the faith it was acceptable to kill her and that it was both acceptable and expected that the mother of a homosexual son would get the weapon to kill him.

    82. M said that F was dismissive, if not contemptuous, of the society in which he was living; which, M said, was demonstrated by lying to claim a high-rate DLA (and a Mobility vehicle) to which he was not entitled. M said that F had not told her about what he was doing but that she had later found the paperwork he had used for his claim. It was her evidence that he had been signed off by his doctor attending the appointment in a wheelchair the day after which he was pictured walking down the steps to Chelsea Registry Office. F accepted that he had done this in his evidence to some extent, at least, as he told me that he was in a wheelchair for a short time only, a matter of a few months but that he accepted had gone on receiving high-rate DLA until he was put in prison on remand after being arrested in June 2014. Later, in his oral evidence, he said that he had realised it was wrong to have done and that now would work to support his family, or get his father to support them financially.

    83. M’s evidence was that she recalled F’s flat “had been searched by police officers on at least one occasion on suspicion that he had been engaged in terror activities.” As a statement of fact that concurs with the email from the MPS. M was interviewed by Gloucestershire police and as a result investigations were carried out by the MPS counter-terrorism officers. There is no evidence of “radicalisation” as pleaded on behalf of M by Miss Isaacs; however, that does not mean that what M has said about his behaviour towards her, and the opinions she says that she heard F express, are an untruthful account of what had gone on when M and F were living together.

    84. F’s evidence F has filed two statements in these proceedings, dated 23rd February and 23rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic”, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”

    85. If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

    86. F’s evidence was inconsistent; he raised complaints and described incidents in his second statement that had not been mentioned at all in his first statement or before such as detailed descriptions of M’s alleged racist behaviour, including towards him and about their child; her abusive behaviour towards A, leaving him to cry and ignoring him F had mentioned before but now he added, hurting the baby’s mouth by brushing his teeth too hard and making his mouth bleed, cutting his nails every day and making his fingers bleed. He contradicted himself saying that M would not remove her hijab even at home in his first statement and that she insisted in always being veiled to, in his second statement, saying she had dressed “as a prostitute” and saying she would sell herself.

    87. F said that M suffered from agoraphobia and that she hardly took the baby out so that he had vitamin D problems (no such concern is mentioned in the GP records) so reclusive was the life they led; while, in the same statement just above that paragraph, claiming that she regularly racially abused innocent passers-by when she was out, from “the poor innocent Jewish children” in the public library in Stamford Hill to “when she was walking in the Hackney town centre she pushed a black man with her shoulder to make way for her.” I do not intend to set out each and every contradiction but to use these as example of F’s evidence.

    88. I found F to be a witness wholly lacking in credibility and any ability for self-reflection in contrast to M, who had, for example, carefully considered and answered questions about how she had brushed her baby’s teeth and cut his nails, conceding in both her written and oral evidence that that she had nicked the baby’s fingers when cutting his nails on one occasion. F’s continued denial of the circumstances which led to his conviction caused me particular concern; as did his lack of honesty about his nationality as there can be little doubt that he is highly motivated by his desire not to be deported.

    89. F told me that his mother is Egyptian and that all his immediate family live in Alexandria but insisted that he was Syrian. In his own statement (dated February 2016) he says that he and M had talked “about the possibility of living in Egypt with my family.” Again this is an apparent contradiction in his evidence as he claims that he cannot return to Egypt as he will face deportation as a Syrian national to Syria. From the information received from the Home office, it would appear that he is not and that his entry into the UK was based on a deception as was his claim for disability allowances. While, as I have regard to R v Lucas [1981] QB 720, I remind myself that the fact that F has lied about one issue does not mean he has lied about another, or about anything else, particularly the allegations of abuse, these matters are, nonetheless, intertwined as they are bound up in his determination to remain in the UK; and it is almost impossible to accept anything he says as being truthful.

    90. During his oral evidence, when he was assisted by an interpreter in Arabic, F continued to deny any abusive behaviour on his part apart from shouting at M when he was exasperated by her unreasonable behaviour which he now knew (having taken courses in prison) to have been caused by a psychological disturbance common to all women in pregnancy and post-birth. In this way he sought to pass the blame for the minimal abuse that he was willing to accept that he had perpetrated. His evidence was larded with fresh allegations against M; for example, that M had forbidden him to take the medication prescribed to him for the nightmares and depression he had described to the doctor. At the same time as telling me he had suffered and been diagnosed with PTSD, depression and had a “nervous breakdown in 2014” F denied that he had suffered any difficulties in his mental health. He said that M was paranoid, that she was guilty not him, and that she was taking revenge, but did not make it clear for what she was taking revenge.

    91. F did accept that he had tried to communicate with M other than through his instructed solicitor as in the restraining order, by sending a letter to her through her father. He did not accept that there was any harm in this, saying that he thought it would “reach the children at some point.” The restraining order extends to communication with the children so that F was in breach of the order to trying to ensure that a letter reached the children notwithstanding that he wrote the date at the end of the restraining order at the top – “because I knew it was the end of the restraining order”. If anything the inclusion of that date is evidence of his determination to continue to circumvent the orders of the courts.

    92. Further the fact that F has tried to communicate with M and the children when there is an order of the Crown Court forbidding him from doing so is clear evidence that he continues to have no respect for the orders of the court. As he is in prison there is nothing else that he can do apart from trying to contact M and the children through third parties or by phone. The additional fact that the court received an email which purported to be from his father, through my clerk in July 2016 (after the hearing had concluded), and that the email attached an email for M, which would be in breach of the restraining order, served only to further raise concerns about what F would attempt to do if he was at liberty. Whether F accepts it or not, the email is more likely than not to have been sent at his behest; it was certainly sent on his behalf. The court, however, has no evidence about the origin of the email and it is not known whether it came from F’s father, from F himself, or from some unknown third party on behalf of F.

    93. F denied trying to communicate with M when in the Family Court in December 2015, saying that he had handed the letter, which was addressed and written to her, to the judge, and not to her counsel. The order of the court records that he handed the letter to her counsel and that the court warned him about the terms of the restraining order which means that F had breached paragraph 1 of restraining order in the face of the court. He is forbidden from “Contacting [M], [A] and [B] directly or indirectly except via a solicitor acting on his behalf contacting a solicitor instructed by [M] to discuss the custody and care of the two named children [A] and [B].” He attempted to do so again by breaching paragraph 4 when he encouraged his father (if it was from his father and not from F himself) to email a letter to M through my clerk. Paragraph 4 reads “Not to instruct or encourage in any way any person to contact in any way [M], [A] and [B] except [via] his instructed solicitor as permitted in paragraph one.” Nothing in his conduct or evidence, or in the evidence before this court begins to indicate that he would do anything in future other than continue to ignore the orders of the court and to try to locate M and the children.

    Law

    94. These are civil proceedings and as such the burden of proof falls on the applicant who brings this case. The standard of proof is the civil standard; the balance of probabilities as set out in the seminal case of Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 14, to which I shall refer further below.

    95. The court is concerned with the welfare of these children and as such its principle concern is the children’s welfare. The paramountcy principal as set out in s 1(1) of the Children Act (CA) 1989 applies to the applications before this court and to this end I have in mind the welfare checklist contained in s 1(3). In addition to the application for child arrangement orders under s8 of the CA 1989 (as amended) I have been asked, by counsel for the children and their guardian to make an order restricting FY’s ability to make further applications pursuant to s91 (14) of the CA. The time that the guardian suggests that the restrictions should apply is until B is eighteen.

    96. The decisions I must make are governed by the CA 1989 and the Children and Families Act 2014. The standard of proof in all cases involving the welfare of children is the balance of probabilities as set out by the House of Lords in the case of Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141, confirmed by the Supreme Court in Re S-B (Children) [2009] UKSC 17. In addition, this court is well aware of the amendments to section 8 of the CA and that section 1(2A) now includes the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further that child’s welfare; but, the presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. Section 1(2B) of the Act defines ‘involvement’ as meaning involvement of some kind, either direct or indirect, but not any particular division of a child’s time. This case is unusual as both the applicant/mother and the guardian on behalf of the children are saying that it is not safe for F to have any involvement and that if there were there is a risk to the children’s safety both of physical harm and to their emotional well-being.

    97. I remind myself of the judgment of the Court of Appeal given in Re J-M (A Child) [2014] EWCA Civ 434 in particular to paragraphs [23]- [25] which set out some guidance where the Court is considering making an order for no direct contact as follows:

    i) “The welfare of the child is paramount;

    ii) It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;

    iii) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;

    iv) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view;

    v) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child’s welfare.

    98. I keep that guidance in mind the need to ensure that any decision reached must be compliant with the obligation under the Human Rights Act 1988 s6 (1) not to determine the application in a way which is incompatible with Art 8 rights that are engaged and is consistent with the principles outlined by Lord Justice Munby (as he then was) in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [2011] 2 FLR 912. European case law (by which we are presently bound) emphasises the positive obligation to respect family life as cited recently by the Court of Appeal in Re F [2015] EWCA Civ 882.

    99. In the case of Re M [2013] EWCA Civ 1147, the Court of Appeal allowed a father’s appeal against a judge’s order for no contact in circumstances where he sought unsupervised contact as a disproportionate response, however, but the circumstances of that case related primarily to the safety and emotional stability of the mother and not, as in this case the children themselves and their mother and has limited application in this case in terms of the facts. Mindful of the United Nations Convention on the Rights of the Child, the court had ordered the children be joined as parties to ensure that their voices were heard, and I keep in mind, too, each child’s right and need for a relationship with both of their parents in this case. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166. Lady Hale in considering article 3(1) said that:

    [23] …… In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.’

    100. The emphasis in a case such as this must be the need to safeguard the welfare of the children. It was not in the children’s best interests for there to be a continuation of these already prolonged private law proceedings as this will only create anxiety and instability and lead to further conflict and it was in large part for that reason that I refused a further adjournment for F attempt to delay the decision and to attempt to adduce further evidence; this approach has a statutory basis following enactment of the CFA 2014.

    101. The children’s mother and their guardian invited the court to make an order that any further applications by F in respect of A and B should be restricted only to those where he has been granted the court’s prior permission pursuant to s91(14) CA 1989 for and that it should remain in place throughout the children’s minority. F resists this application. The approach to be taken in considering applications under s91 (14) CA 1989 have been set out by the Court of Appeal in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 and in numerous decisions since which follow that approach. The court is to carry out a balancing exercise between the child’s welfare and the right of unrestricted access of the litigant to the court. The jurisdiction of the court to restrict applications is discretionary and I must weigh in the balance all the relevant circumstances in the exercise of that discretion. I shall return to the law in respect of this and the other applications at the end of my judgment.

    102. M seeks orders which effectively remove F’s ability to exercise parental responsibility so that she is able to make any or all decisions about the children’s upbringing without consulting him. M also wants to change the children’s first and family names to stop F being able to locate them by using the children’s names as they are recorded on their birth certificates. The guardian supports these applications. The restraining orders remain in force in any event. These are unusually severe orders but it is within the court’s jurisdiction to grant them if it is considered to be in the interests of the children to safeguard and promote their welfare.

    Findings of Fact

    103. I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.

    104. These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.

    105. F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.

    106. F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.

    107. In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”

    108. Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.

    109. It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.

    110. The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

    111. M has been criticised by F for changing the children’s first names already. She accepted in her oral evidence that she had done so and that A had struggled with calling himself and B by different first names but that they are now used to them. The guardian was aware that she had done so and did not criticise her because she understood why M had done it; the guardian was also under the impression that it was not wrong for her to do so, and of the opinion that it had done the children no harm. This latter view has some force to it, children are often called nicknames or call themselves by a different name to their given name and it does them no harm at all. In this I follow the decision of the Court of Appeal in Re H (Child’s Name: First Name) [2002] 1 FLR 973, CA and keep in mind, as observed in that case, that it is regarded as commonplace for a child to receive different given names during the course of family life.

    112. In determining whether the children’s surname should be changed I shall apply the law as confirmed by the House of Lords in Dawson v Wearmouth [1999] 1 FLR 1167, HL and summarised by Lady Justice Butler-Sloss in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 namely i) each case must be decided on its own facts; ii) the child’s welfare should be the paramount consideration; and iii) all the relevant factors should be weighed in the balance at the time of the hearing. M intends to change her surname too so that they are all known by a name that is not known to F so it will be difficult for him to locate them in future.

    113. The second local authority assessment, carried out by Gloucestershire County Council in July 2014, records that at no time has M’s care of her children been the subject of concern of any professional who has come into contact with the family, except in respect of domestic abuse by F and the risk of future harm. The local authority recorded their concerns noting that F had breached court orders previously and that they [the court orders] had not been successful in ensuring the family’s safety and that it was “imperative to recognise that there has been a non-molestation order in place which has been breached, [M] has fled London and moved to a new local authority however [F] has continued to exert fear, control and the threat of significant violence with these safety measures in place. Social care and all agencies involved with [M], [A] and [B] must recognise the power, control, violence and level of intimidation that is being exerted over [M] now and previously. It is imperative that the correct support is established to ensure that [A] and [B] are safe. [M] is living in fear that due to proceeding with the prosecution against [F] that he will kill her and the children when released [if] he is [aware] of where they are residing as [M] feels that he has nothing left to lose, especially after the private law case in relation to contact being rejected by the court in relation to [F].”

    114. The report went on to refer to the circumstances in which F was arrested and found in the garden of the family’s home, along with a screw-driver and a hammer saying that it was imperative to recognise the extent F would go to, to control M and has the potential to cause serious harm to her and to the children, even with a non-molestation order in place; and that it was “clearly highlighted that [F] is not accepting of the legal orders”. It concluded that there was also a “significant risk of honour based violence, [M] had converted to the Muslim faith prior to meeting [F] and has now renounced this conversion…” as a result of which the local authority reported its concerns that the fact that M had left the marriage and F significantly increased the risk to both her and the children, especially as she had followed through with the prosecution. This court cannot and does not ignore or set aside this risk assessment which is based on F’s actions and his threats. It accurately reflects the reality of the situation.

    115. As I have set out above there is nothing in F’s behaviour or in his evidence since that report was written which ameliorates the high level of risk that he poses. Nothing has changed since his conviction; he continues to deny the offences with which he was charged and convicted. He has shown no remorse. Worse than that he has continued to try to circumvent the restraining order by trying to contact M by phone, text message and letter; to the extent he tried to pass her a letter in court and, having been criticised by the judge for doing so, tried to do so again with a letter from his “father” by email through my clerk. As F appears to be oblivious to what he is told by the courts and by judges there is no reason to suppose he will act within the law and comply with court orders in future.

    Extremism or Radicalisation

    116. The manner in which this issue was pleaded and the eleventh hour change to the basis of the application was largely caused by a failure on the part of those representing M, led by Miss Isaacs, to ensure that the necessary information was obtained from the police. It was not until the court took the matter in hand during this hearing before me that the MPS provided the information which I have set out above. On the 23rd June 2016 Miss Isaacs, faced with this information, sought to change the schedule she had prepared from the children being “at serious risk of radicalisation by virtue of the father’s beliefs and associations” by replacing the word “radicalisation” with the words “emotional harm”.

    117. The court would not have made the findings sought in respect of radicalisation, in any event, as they were vague, generalised and there was no evidence he was involved with, or actively supported Daesh (or Islamic State), had openly espoused their dogma or aims or that he had encouraged others to do so. Furthermore, despite the schedule of finding sought expressly setting out that the risk of radicalisation was by virtue of F’s beliefs and associations, there was no examples given of any associations with groups or individuals who expressed extremist views in the document; nor was there any evidence before the court from M of any such association.

    118. The court was left with the clear impression that it was intended that disclosure from the police would provide the necessary evidence to pursue this aspect of the case as contained in the schedule. The result was that the schedule, prepared by Miss Isaacs had effectively, sought to equate Islam with radicalisation, and whether or not it was intended to do so, it was, at best, poorly drafted. It is not acceptable, in any case where findings are sought to base the schedule on anything other than the evidence that is actually before the court; schedules should not be based evidence that is anticipated, much less evidence that can only be speculative. If additional evidence becomes available the schedule can be altered, particularly if the welfare of the children requires that the court takes it into consideration.

    119. Secondly, and I emphasise this, extremism, or radicalisation, is a sensitive subject and there must be no suggestion that the courts would accept or tolerate any suggestion that adherents of the Islamic Faith, or any other faith, are, ipso facto, supporters of extremism.

    120. It was because the suggestion of extremism was left hanging before the court that I made an order, on the 16th June 2016, for the Commissioner of the MPS to disclose the status and extent of any past or present investigation concerning F and his involvement in extremism. I asked Miss Isaacs to provide an explanation of why this aspect of the case she was presenting and pursuing was not properly prepared. Miss Isaacs has been instructed in this case since March 2016 and I do not accept her explanation that she did not have enough time to take instructions or to follow up what M was saying about the police investigation of F. It is simply not acceptable for leading counsel to plead lack of time for preparation and to have prepared, so inadequately, a case in which they have been instructed in good time. These were allegations of a most serious nature and should never have been pleaded in this way on the evidence that was available.

    121. In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation".

    122. The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.

    123. In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation".

    124. I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.

    125. F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

    Analysis

    126. It is the guardian’s view that the breaches of the orders alone are sufficient cause for concern and place M and the children at risk; it is said on her behalf that it is an “unassailable fact that F has committed a sinister offence (breach of the non-molestation injunction) for which he has been convicted and has subjected the M to an ordeal of terror as a result.” On behalf of the children the guardian supports all the applications made by M. It is notable that her view is similar to that of other agencies concerned with the safety of M and her two young children.

    127. I have found that the case against F goes much further than the breaches of the orders; I have found that he was repeatedly violent, threatening and dominated every aspect of M’s life before she left him, and that he had deliberately set out to intimidate and control her, using his religion, and hers, to justify and normalise his brutal and aggressive behaviour. He has threatened and attacked M in the presence of A when they were living with him and would have done so again, after they had left, had she not had the personal alarm system in place. This is a case where a mother of two very young children has been continuously and systematically abused, she has been forced to move home, more than once, to keep herself and her children safe from a violent man who acts as he wishes, regardless of court orders put in place to keep him away from her, and to keep the children and their mother safe. On the evidence before this court M, and the children, remain at risk from F as long as he is able to locate them.

    128. Ultimately, the court is concerned with the welfare of two very young children, A, who is three and a half, and B, aged two. F has only known A and has not met B; he has not had contact with A for almost 2 years. Neither child has any relationship with him, and, as a matter of fact, he is the author of that situation. As is observed on the children’s behalf, although the court is only concerned with the welfare of these children during their minority, the nature of the orders sought by their mother and supported by their guardian are such that, if I made them, their impact will affect the children for the rest of their lives; this is not something that can be discarded lightly.

    129. Despite his imprisonment, F denies M’s allegations completely and does not accept the any of the facts behind his conviction. At its highest, F has only accepted screaming at M occasionally and walking out on her for a short time; but, even this admission is diluted by F saying that he only did so in retaliation to M’s behaviour towards him. F says that M is paranoid and that these allegations are part of a conspiracy against him by M and other unidentified people, and the professionals who have been involved with the family. He says he is a changed man having completed relevant behaviour and anger management courses while in prison, about which I have already made comment; the guardian observes that to be effective such courses are aimed at perpetrators who have acknowledged the abuse they have perpetrated against their victim. F has not acknowledged, or accepted to any meaningful extent, any of the violent and controlling behaviour I have found he meted out to his wife and infant son, nor has he shown the slightest insight into the impact on M and the children of his actions. It was submitted on behalf of the children that F had displayed “a complete and abject failure to take responsibility for anything he has done” and that there was nothing in his evidence to show he had any understanding of the aims and purposes of the courses he had undertaken in prison. I accept this submission and agree that the “court can derive no reassurance from the fact that F attended and completed this work, in fact quite the opposite.”

    130. The guardian’s view that F remains a dangerous individual who presents a grave risk of harm to these children, is one that is shared by other child protection agencies, and the extent and seriousness of the breaches are amply illustrated in His Honour Judge Tabor's sentencing remarks. The guardian prepared three reports for the court in which she has fully considered all the evidence in this matter and in the latest of the three she has assessed the oral evidence of both parties in order to reach her recommendations. She has told me that her anxieties about the risk posed to the children by F were heightened by his statement of 23rd May 2016 together with his oral evidence. I would have been concerned if they were not, F’s final statement is an extraordinary document which is full of lengthy descriptions and allegations of M’s racism, mental problems, bad behaviour and abuse which had never been raised before. It is a diatribe against M and reads as though a work of fiction.

    131. While the guardian did not seek to advance any particular case in respect of the findings sought, she pointed out in her report that M’s version of events is compelling in its detail and consistency, and that M did not depart from her account in her oral evidence. This observation concurs with my assessment of M’s evidence; as did her further observation that “it was apparent from her oral evidence that she is extremely fearful of F and of the risk he presents past, present and in the future.”

    132. In relation to all of the applications, section 1 CA 1989 (as amended by the CFA 2014) applies and each child’s welfare is my paramount consideration. The court should presume, unless the contrary is shown, that the involvement of each parent in the life of the child concerned will further the child's welfare; but as submitted on behalf of the children the presumption only applies when any parent can be involved in the child's life in a way that does not put the child at risk of suffering harm. In this case, on the evidence before me, and on the findings I have made, I cannot treat F as if there is not a risk of A and B suffering harm because it is clear, from his past behaviour, the repeated breach of court orders, and his total lack of remorse, that his involvement in the children's lives would put them at risk of suffering significant harm whatever the level of that involvement.

    133. There will be a child arrangements order (in respect of each child) that the children will continue to live with M. This does not appear to be contentious; the children have always lived with their mother and there is no suggestion that they should live anywhere else; nonetheless I consider that this order is necessary in the circumstances of this case to ensure that there is no doubt about the legal framework for the other orders I shall be making.

    134. M, supported by the children’s guardian applies for an order that there should be no contact. I am very well aware that the Court of Appeal has, in the past, been clear that domestic violence is not a bar to direct contact and must be assessed in the circumstances as a whole; and that the court must address the parents' and child's article 8 rights under the European Convention on Human Rights (ECHR). Lady Justice Macur LJ held, in Re M (Children), applying Re L (Contact: Domestic Violence) [2013] EWCA Civ 1147 at paragraph 24 (to which I have been referred);

    “However, there is no question but that an order that there should be no contact between a child and his non-residential parent is draconian. In this case, the order dated 17 May 2013 can only be lawful within the meaning of Art 8(2) of the Convention if the order for no direct contact is necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm. In order to reach that conclusion, the court must consider and discard all reasonable and available avenues which may otherwise promote the boys’ rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father.”

    135. I was referred to Re A (A Child) [2013] EWCA Civ 1104 where the Court of Appeal highlighted the approach the court should adopt when considering making an order for no contact: “Such an order should only be made where the court is satisfied that there is a serious risk of harm if contact were to be ordered.” It is my view that this is such a case. The assumption in favour of contact is based on the harm that a child would suffer if contact with a parent were to be denied, that contact is the right of the child and not the right of the parent and on the right of a child to know the non-residential parent; but that assumption can always be displaced if the child's interests indicate otherwise. This is well established law going back many years: Re KD (A Minor) (Access: Principles) [1988] AC 806.

    136. I have considered Art 8, and am aware that severing ties between a child and parent can only be justified in very exceptional circumstances. It was submitted on behalf of the children, that it was their guardian’s view that the conviction, along with the additional findings I have made, mean that direct contact between the children and F would place them at an intolerable risk of harm, based on his past behaviour. I have found that there is a risk of significant harm, as F would use contact to locate and get to M, to physically harm her and so to expose the children to physical and emotional harm; or that he would abduct the children or try to abduct them.

    137. There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.

    138. The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.

    139. F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

    140. It is more than unfortunate that these children will grow up without the involvement of their father in their lives which will deprive them of part of their dual heritage; half of which is that of the rich and varied Egyptian culture, and it is something that troubles the court. Their mother has told the guardian that she would welcome her assistance in carrying out life-story work; to create a book for the children and that she will do her best to equip herself with the knowledge and skills to promote the children’s racial, cultural and ethnic heritage throughout the children’s lives.

    141. It is a matter of regret to this court that F has not taken the opportunity to assist the guardian in starting this work. The guardian accepted that she has not made any enquiries herself of the paternal family, but, I accept, that this is because F did not ever suggest to her that he wanted his family involved with contact nor did he volunteer any information that would have made their participation possible. The involvement of his family was something he expediently raised during the hearing, after I had made some enquiries about the children’s extended paternal family. Thus, the guardian was not able to assess what, if any, risks they may present to the children or whether or not they would collude with the F in using information to locate M and her children. The manner in which F suddenly was willing to produce information about his family at the end of the hearing; none of which could be checked or confirmed is evidence, I find, of his determination to try to control events including court proceedings. Again, this mirrors the remarks made by His Honour Tabor in the Crown Court.

    142. The same issues apply to the question of whether the court can safely make an order for indirect contact. The guardian raised additional concerns on her part about F’s suggestion that the paternal family could be the conduits for indirect contact all of which carry weight; first and foremost, they have not been the subject of any kind of risk assessment. Quite how any assessment could be carried out when even their identity is not clear, much less their circumstances or addresses, begs more questions than it answers. In F’s first statement he refers to one brother, not two brothers or a twin brother; these persons were introduced during his oral evidence. No-one including this court or the guardian knows what, if any, information F has shared with the family about his current circumstances and what their views are about M or the children. F has said he has had no contact with them for two years; yet, again for the first time, in his final statement and oral evidence, he claimed that his father would be willing pay for private health care and education for the children.

    143. The guardian considers that it is important for the children to have information about the paternal family and has suggested a one-off one-way exchange of indirect contact from the paternal family to the children, through her. The suggestion, made by F, that his family could Skype the children from the maternal-grandfather’s house, is further evidence of F’s unwillingness or inability to grasp the effects of his behaviour on M and the children. M and the children are not in contact with their maternal-grandfather because M has been unable to trust him to take seriously the need to keep their location secure. Secondly, even if they were, they would not be able to Skype as they are very small children who do not speak Arabic and have never met F’s family. This court will not make any order for indirect contact.

    144. The guardian recommends that the court makes a Family Assistance Order for six months to enable her to carry out the necessary work with M and with F if he will assist; I shall make such an order.

    145. M has made an application under s 8 of the CA for specific issue and prohibited steps orders preventing F from accessing any information from schools or health services; the effect of these orders would be to fundamentally curtail F in exercising his parental responsibility. Although this would be an unusual step for the court it is not unknown, when such orders are made to safeguard the child’s welfare. I have been referred to the line of authorities in which the termination of parental responsibility was considered; these include Re P (Terminating parental responsibility) [1995] 1 FLR 1048 and CW v SG [2013] EWHC 854 (Fam), and the decision in the High Court of Mr Justice Wood, A v D (Parental Responsibility) [2013] EWHC 2963 where he followed the approach taken in both of the earlier cases and terminated the father's parental responsibility in a case where father was serving a lengthy prison sentence for grievous bodily harm committed against the child's mother. In that case it was decided that to leave the father as a joint holder of parental responsibility would leave the mother in an intolerable situation and would lead to profound instability for the child. Furthermore, the father, who had failed to express any interest in the child and had shown a lack of commitment, was considered to be principally interested in controlling the mother.

    146. In the instant case, as in any when determining whether or not to terminate parental responsibility, the welfare of the child is the court’s paramount consideration, and I keep in mind that such a step should only be undertaken with caution, and only where the welfare of the child requires it. I have reminded myself of the words of Lord Justice FitzGibbon in Re O’Hara as cited in Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806 to which I have been referred.

    147. The guardian supports M’s application as she believes that to do otherwise would enable F to jeopardise the safety, security and stability of the children. It is her view, and one that I share, that to allow F to access health and educational information would inevitably lead to F finding out where the children and M were living. F has already demonstrated what he is likely to do once he has such information. I conclude, on the evidence and facts of this case, that to share information about the children’s GP or schooling with F will not promote the children’s welfare in any sense. Not only has F already shown how he would use the information to the detriment of the children and their mother, the pernicious effects on M, of the knowledge that F has information that may lead to F locating the family, are already apparent in the way that the family’s lives are circumscribed. Any obligation on school or GP or local authority or agency to share information with F in the future would deeply affect and undermine the children’s mother’s ability to put down healthy roots in a community and establish a level of security and consistency in their schooling and in the provision of health services for the children, because of her well-founded fears. This conclusion concurs with the guardian’s views and as she recommends I shall make the orders sought.

    148. I have made reference above to the different legal approaches to a change of first name or a change of family or surname. In Re H (Child's Name: First Name), Lord Justice Thorpe said “Given names have a much less concrete character. It is commonplace for a child to receive statutory registration with one or more given names and subsequently, to receive different given names, maybe at baptism or, maybe, by custom and adoption. During the course of family life, as a child develops personality and individuality, parents or other members of the family, maybe attracted to some nickname or some alternative given name which will then adhere, possibly for the rest of the child's life, or possibly only until the child's individuality and maturity allow it to make a choice for itself as to the name by which he or she wishes to be known…If the parents are separated, the primary carer simply establishes with the entry of the child, either for school, for general practice medicine or for hospital treatment, the given name that is customary in the primary home.”

    149. The children’s mother has called them by different first names, for understandable reasons, as a direct result of F’s own actions and they are now used to those names. I was struck by her oral evidence, when she described the fear that she felt when the children would use their distinctive first names in an ordinary, everyday setting, such as on a bus; she was scared that if their names became common knowledge within the local community F would be able to track them all down. To be made to live in such fear is wholly unacceptable, and I can understand a reluctance on behalf of the guardian to criticise M for having already changed their names. Even if I considered that their names should be changed back, and I do not, it would be unnecessarily confusing for the children.

    150. Re W, Re A, Re B (Change of Name) [2002] EWCA Civ 190 set out key guidelines when considering an application for change of surname to which I have been referred and I do not intend to set them all out, however. I have reminded myself of all of them and in particular the following that, on any application, “the welfare of the child is paramount and the judge must have regard to the s 1(3) CA criteria; and, among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father… Registration is always a relevant and an important consideration but it is not in itself decisive… The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way… The relevant considerations should include factors, which may arise in the future as well as the present situation… Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight.”

    151. In any case the principles in Dawson v Wearmouth [ibid], are still good law, and are as follows; that, a change of surname should not be permitted without evidence that it would improve the children's welfare; registration was a factor to be taken into account and is not necessarily a major factor in every case, particularly where, as in this case, the children are so young as to be incapable of understanding the significance; and, the attitude and views of the individual parents are only relevant insofar as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child. The Court of Appeal has held that maintaining a link with the child's paternal family through possessing the same surname as the paternal family is of great importance, particularly when the father plays a role in the child's life.

    152. In previous cases, such as this, where there are real and substantiated risks to a child's safety which justify changing that child's name, applications to change the child's name have been successful; such as the case of AB v BB and Others [2013] EWHC 227 (Fam) when the mother was given permission to change the child's surname when there had been history of violence by the father stretching back six years; the mother’s security and the child's welfare justified the need for the child's surname to be changed. In this case, as in others where a change of surname has been permitted, there was a real threat that the father would abduct the children.

    153. I have concluded that a change of surname is needed to provide extra protection against abduction which is in the children's welfare. It was a proportionate response to the risks posed by the father as to do otherwise would be, as the guardian says, to expose the children to an unacceptable level of risk from F were he to either directly or indirectly track them down if their names remained the same. Any detriment to the children of losing any part of their identity is to be balanced against the fundamental issue of their future safety both in the short and the long term. The family assistance order will be in place for six months to allow the guardian to work with M on issues of identity for the children.

    154. To determine whether there should be an order under s 91(14) of the CA, as I have set out above, the court has to carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the parent to the court. The welfare of the child is the paramount consideration and the power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances. This court is well aware that it is a power to be used with great care and sparingly, it is the exception and not the rule.

    155. While it has generally been seen as a “useful weapon of last resort” in cases of repeated and unreasonable applications, appropriate circumstances, and where there is clear evidence, a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. This is a case where I am satisfied that the facts go beyond the commonly encountered need for a time to allow for the dust to settle on a regime ordered by the court, indeed, there is no such regime in place. The facts of this case go well beyond the usual situation where there is understandable animosity between the adults, because they have been in dispute, and there is a serious risk that, without the imposition of the restriction, the children and M (as their principal carer and de facto sole parent) will be subject to unacceptable strain if the case is brought back to court by F making an application.

    156. The court can impose a restriction which may be imposed with or without limits of time; as the Court of Appeal said in Re S (Permission to Seek Relief) [2006] EWCA Civ 1190

    “In our judgment, however, orders made without limit of time and orders expressed to last until a child is 16 should be the exception rather than the rule, and where they are made, the reasons for making them should be fully and carefully set out."

    157. This case is exceptional on its facts as F has shown a flagrant disregard for court orders. While there is no history of vexatious applications the courts have granted orders in such circumstances in the past, and, the fact is, that further applications will bring the children and the family back into court and heighten the risk of F being able to track them down again. In fact, and I have this in mind when making this order, it does not deprive F of access to the court, or restrict his ability to make any number of applications, what it does is to impose a filter which would require the court to consider the factors set out in s10 (9) CA in deciding whether to grant leave for any future application to proceed; when balanced against the need to protect the children from being located and the risk of harm or abduction, it is not a disproportionate order.

    158. It is certain that if M were to receive notice of an application this would lead to considerable distress and anxiety, which would be more likely than not to impact on her ability to care for the children. F would have to able to demonstrate evidence, of some substance, that the risks he presents to the children have been reduced before permission to apply could be granted. The guardian does not oppose M’s application for the orders to last until the end of the children’s minority, and submits that some filter is required to protect the children against applications, and which would ensure that F cannot make any applications without evidence that he no longer poses any risk to their well-being and that of their mother, on whom they depend. The order will be made and will remain in force until B is sixteen.

    159. F has made an application for B to be circumcised. His final position seemed to be that, although the order should be made now, it shouldn’t necessarily take effect until B is 6 years old, unless there are medical reasons for it to happen earlier. How and by whom this is to be decided is unexplained. M is strongly opposed to this, not least because she had to watch A suffer this procedure when he was clearly in pain. M no longer intends to bring the children up as Muslims and would only agree to circumcision if there is a medical necessity.

    160. As to the law, the Court of Appeal supported the decision of the High Court in Re J (Circumcision) [1999] 2 FCR 345 when a Muslim Turkish father's application for a child to be circumcised was opposed by an English (non-practising Christian) mother. The judge had decided that although the religious beliefs and practices of the parents were relevant factors to be kept in the balance, a maternal veto was a very powerful consideration in the welfare equation; particularly where the parents were estranged, the mother did not share the same cultural and religious stance as the father and she was the resident-parent. The court was influenced by the fact that the child would in reality not be brought up as a Muslim. The child was living with the mother who was a 'non-practising Christian' and the father described himself as a Muslim but he was not strictly religious; as I have observed the same lack of strict adherence in F, who himself declares himself not to be a strict observer of Islam, so I keep this in mind.

    161. The fact that A will have been circumcised and B cannot carry much weight if any. The fact that the difference in the appearance of their genitals will have to be explained to them, does not of itself form sufficient reason enough to make an order for the circumcision of B. Not only is he not to be brought up as a Muslim, his mother is opposed to the surgery and it is almost impossible to conceive of how, and what circumstances, such an order could be enforced. It is not hard to imagine the distress and confusion that would be caused to B if this were to be carried out when he turned six.

    162. The guardian does not support the Father's application for circumcision and the order which F seeks is untenable in view of the other order which I have made; the application is refused.

    163. This is my judgement.


Published: 28/07/2016

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