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A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam)

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Fact finding hearing to consider Mother's allegations against Father in order to inform future welfare decisions about their son. At the end of the judgment Mr Justice Hayden expresses his concern that a Judge in the Family Court can still not prevent a victim being cross examined by an alleged perpetrator.

  • Neutral Citation Number: [2017] EWHC 1195 (Fam)

    Case No: FD15P00103

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 19/05/2017

    Before :

    MR JUSTICE HAYDEN

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    Re A (a minor) (fact finding; unrepresented party)

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    The applicant father appeared in person

    Henry Setright QC and Brian Jubb (instructed by Maya solicitors) for the 1st Respondent

    David Williams QC and Jacqueline Renton (instructed by Freemans solicitors) for the 2nd Respondent child

    Hearing dates: 26th, 27th, 28th April 2017 2nd, 3rd, 4th May 2017

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    Judgment Approved

    MR JUSTICE HAYDEN

    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.

    Mr Justice Hayden :

    1. This judgment must be read in conjunction with my earlier judgment reported at [2017] EWHC 949 (Fam). There I was dealing with preliminary legal and jurisdictional issues identified by Black LJ following an earlier and successful appeal, reported as Re H (child) [2016] EWCA Civ 988.

    2. Having concluded that A (the subject child) could not be returned to Pakistan pursuant to any order of the Family Court, in the light of his 'refugee status' I made provision for this fact finding hearing to consider M's allegations against F in order to inform future welfare decisions. It is integral to the father's case that M's application for refugee status was predicated on false and / or exaggerated allegations. Recognising the parameters of this Court's authority, as analysed in my earlier judgment, the father wished to pursue his applications for both residence and contact (as an alternative). F's ambition, were I to conclude that A's best interests required him to live with his father, was to take my conclusions back to the SSHD in the hope that they identified a dishonest application by the mother or, more generally, to identify material which would cause the SSHD to revoke the grant of refugee status.

    3. The allegations brought by the mother have been extensively pleaded and responded to voluminously. It had been submitted that, given my earlier decision, any application for residence by F was unarguable and should be prevented. I declined to follow that submission, in part, for pragmatic reasons. I was satisfied that whatever the nature of the order sought, the evidential material would be very much the same. More importantly however, I am resistant to denying any father a full opportunity to advance his case where the welfare of a child is in issue.

    Background

    4. The core background facts may be summarised from the earlier judgment. I incorporate them here merely for convenience. The Father (F) was born in Pakistan on 14th April 1976. He is a Pakistan national. The mother (M) was born in Pakistan on 18 June 1977. She is also a Pakistan national. M and F married on 15 August 2002.

    5. On 4 April 2006, A was born in Lahore, Pakistan. A's twin sadly died 3 hours after he was delivered by caesarean section. A lived with F and M in Pakistan until May 2012 when he moved with M to Saudi Arabia, F having already relocated to Riyadh, Saudi Arabia in October 2011 for the purposes of his employment.

    6. On 19 August 2014, A arrived in this jurisdiction with M for a visit, which had been arranged with the consent of F. A return flight to Saudi Arabia had been booked for the M and A departing on 11 September 2014. M did not return to Pakistan as had been agreed between the parents. On 6 September 2014, F came to this jurisdiction and there was an argument between M and F. F was arrested but released without charge and returned to Saudi Arabia, alone, on 11 September 2014. M and A have remained in this jurisdiction since that date.

    7. On 15 September 2014 M sought asylum in the UK. On 11 October 2014 F issued proceedings for divorce in Pakistan but they have lapsed now, due to passage of time. On 9 December 2014 A's visa to reside in Saudi Arabia expired. In December 2014, A commenced his schooling in this jurisdiction. On 6 February 2015 M and A's visitor visa for the UK expired.

    8. On 10 March 2015, proceedings commenced in the High Court, on a without notice basis, seeking the summary return of A to Pakistan. A was made a Ward of Court. On 30 March 2015 M was served with the court documents. An inter partes hearing on 14 April 2015 and again on 15 May 2015 before Russell J who gave case management directions (inter alia) directing that a CAFCASS report be prepared. On 24 June 2015 A had a meeting with a Cafcass officer, Mr McGavin.

    Application for Asylum

    9. On 26 June 2015, A applied for asylum in the United Kingdom to the Secretary of State for the Home Department ("SSHD"). On 8 July 2015, the final hearing took place in respect of F's application for what was said to be the 'summary return' of A to Pakistan. During the afternoon of that hearing, F and M entered into a Consent Order which provided for A's return to Pakistan by 5 August 2015. Both F and M gave undertakings to the court. M's included an undertaking to withdraw her asylum application and that of A.

    10. In the event M did not withdraw either asylum application, and A did not travel to Pakistan. On 6 August 2015, F applied to enforce the order dated 8 July 2015 on a without notice application. On 12 August 2015 the case was listed (inter partes) and M applied to set aside the order dated 8 July 2015, claiming that she had not validly consented to it. On 23 September 2015 the Home Office informed M's solicitors that the SSHD was not agreeable to disclose the details of M's asylum application (it having been sought by F) as she had made allegations against the F in her asylum claim.

    11. On 27 October 2015, M and A were granted, separately, 'refugee status' in the United Kingdom, by the Secretary of State for the Home Department. This has been generally referred to by the parties as 'grant of asylum'. On 28 October 2015, Mr McGavin of Cafcass attempted to supervise a contact between F and A. That contact was unsuccessful as A refused to see F.

    12. The terms of the order dated, 29 October 2015, invited Mr McGavin to consider whether A should be separately represented in the proceedings. Though the order does not record it, counsel before me have agreed that this measure was thought necessary in light of the terms of the order for A's return to Pakistan; the applications before the court to set aside that order; the grant of asylum to the child in his own right (my emphasis) and the lack of contact between the child and the father.

    13. On 17 November 2015, again pursuant to the order dated 29 October 2015, Mr McGavin wrote to the Court stating that he could see no way in which the case could be satisfactorily resolved without the Court hearing evidence and making findings in relation to the serious allegations made against F. Further, Mr McGavin stated that the Cafcass High Court Team were in a position to appoint a Guardian for A, once a fact finding hearing had taken place.

    14. On 2 February 2016, at a directions hearing, Her Honour Judge Jakens (sitting as a Deputy High Court Judge) refused M's application for A to be joined to the proceedings. On 26 February 2016, His Honour Judge Bromilow (also sitting as a Deputy High Court Judge) dismissed M's application to set aside the order dated 8 July 2015 and granted F's cross application to enforce the order. As a consequence, HHJ Bromilow went on to order A's return to Pakistan forthwith and by no later than 23.59 hrs on 5 April 2016. Mr McGavin was directed to meet with A to inform him of the decision. M applied to HHJ Bromilow for permission to appeal and also for a stay, which applications were refused and thereafter M applied to the Court of Appeal for the same relief.

    15. On 10 March 2016, Mr McGavin emailed the parties' solicitors stating that he had spoken to A about HHJ Bromilow's decision. Mr McGavin noted that A continued to object to the decision the judge had made.

    The Appeal

    16. On 22 March 2016, McFarlane LJ granted M permission to appeal and a stay. On 20 June 2016, A met with Ms Laura Coyle of Freemans Solicitors. On 30 June 2016, A applied to become a party to the proceedings and for permission to appeal. On 6 July 2016, Black LJ granted A's applications. On 13 July 2016 – 14 July 2016, the Court of Appeal (Moore-Bick, Longmore and Black LJJ's) heard the appeals of M and A, and a cross application by F for permission to appeal.

    17. On 11 October 2016, the Court of Appeal handed down its judgment. M's and A's appeals were granted, and F was refused permission. The consequence of the Court of Appeal's judgment was that the orders of Her Honour Judge Finnerty, dated 8 July 2015 and the Order of HHJ Bromilow, dated 26 February 2016 were set aside and the proceedings were remitted to a High Court Judge for fresh consideration, in particular for consideration of the interplay between the wardship and immigration jurisdictions in light of the fact that M and A had both been granted asylum by SSHD.

    The Jurisdictional question

    18. Following three days of legal argument I handed down judgment on the 26th April 2017.

    Fact finding: the legal framework

    19. Though the law may properly be described as settled in this area, its application frequently causes debate in the course of submissions. It is necessary therefore to repeat some key principles, not least in order that F, who has appeared in person at this stage of the case, may have an appreciation of the framework in which the allegations are considered.

    20. In Re X (Children) (No.3) [2015] EWHC 3651 at paras.20-24 Sir James Munby (P) set out the key points, which I summarise:

    1) The burden of proof lies on the person making the allegation;

    2) The standard of proof is the balance of probabilities (i.e. that it is more likely than not that the event occurred and this must be applied with common sense;

    3) Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. However, the court can have regard to the inherent probabilities;

    4) The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to a conclusion. If a matter is not proved to have happened, I approach the case on the basis that it did not happen;

    (7) The evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability and explains how and why their oral evidence was relevant;

    (8) It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720). The fact that someone has lied about something does not prove the reverse of that lie. The lie must be viewed in the context of a wider canvas to determine what inference can legitimately be drawn from it. Credibility generally is relevant not just to establishing the facts, but also to the evaluation of the welfare issues when considering risks and capability.

    21. I addressed the broader questions of admissibility of hearsay and, in particular, section 96.3 of the Children (Admissibility of Hearsay Evidence) Order 1993 in Re H (A Child), Re (Interim Care Order : fact finding) [2017] EWHC 518 (Fam); see also Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703.

    This hearing

    22. The jurisdictional questions having been resolved, this hearing, in essence, is a private law dispute between two separated parents. There is an international complexion to it, in the sense that F lives in Pakistan and has attended this hearing, via video link, from there. There are serious allegations made by M against F and allegations of physical abuse have also been made by A against his father. Having heard the evidence I have found the unvarnished truth, at times, to be illusive. I have reminded myself in the passages below that there may be a variety of reasons why people feel unable to provide a wholly honest and accurate account, notwithstanding the terms of the oath they take. Here there are subtle concepts of family pride and loyalty which have to be negotiated. Judges at all levels of the Family Justice system have become used to assessing them in the many multicultural cases that come before these Courts. The process is inevitably imperfect but it requires the Judge to do the best he can to establish clear facts on the balance of probabilities.

    23. What is required, at fact finding hearings, is that the lawyers hone and narrow the issues and focus on those matters that are most likely to effect the ultimate welfare decision. I do not intend to be critical of those who have had responsibility for the preparation of this case. Indeed I am quite certain that the lawyers concerned have addressed their task with diligence and great integrity. However, the evidence is unbridled and unconstrained. By way of illustration I need only point out that the mother's most recent statement, filed on the 5th April 2017, is 102 pages in length. Her earlier statement (13th October 2015) is 108 pages. The father, both when represented and more recently, as a litigant in person, has responded with similar prolixity.

    24. From all this was 'distilled' a 9 page Schedule containing 21 separate allegations. Mr Setright QC, on behalf of M, whose task it was to prosecute the allegations, found himself, inevitably, overwhelmed by the magnitude of the material. He, entirely correctly in my judgement, elected to focus on those allegations which were key to establishing M's case. Mr Williams QC, on behalf of A, adopted a broadly similar approach. Nonetheless, the case took 5 days of court hearing. Had it not been reduced through the efforts of experienced leading counsel it might otherwise have been much longer. I should also say that F is an intelligent, educated businessman who cooperated with these forensic objectives and displayed an easy facility with the electronic bundle.

    25. It is necessary here to re-emphasise the observations of the Court of Appeal in Re V (a child) (inadequate reasons for finding of fact) [2015] 2 FLR 1472. There McFarlane LJ observes, at para 37:

    "But matters move on and practice develops and the current practice is embodied in the Family Procedure Rules 2010, Practice Direction 12J, which in turn builds on predecessors, each of which dealing with the topic "Child Arrangements and Contact Order: Domestic Violence and Harm". Again, I am certainly not going to read all of that Practice Direction into this judgment but I quote the following:

    "5. Domestic violence and abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to violence or abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which violence or abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with violence or abuse, and may also suffer harm indirectly where the violence or abuse impairs the parenting capacity of either or both of their parents."

    Then at paragraph 6 the court is exhorted to evaluate a number of factors at all stages of the proceedings. Those factors include the following:

    "Consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms."

    Then later at paragraph 14 the following is said:

    "The court must ascertain at the earliest opportunity whether domestic violence or abuse is raised as an issue of risk of harm to the child which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically on the making of any child arrangements order."

    26. McFarlane LJ goes on to deconstruct the practice direction in terms which, in my judgement, also require to be reiterated and, once again, widely disseminated:

    "The key word to my eyes in those two passages is relevant and I draw attention to that because my concern in this case is that most, if not all, of the allegations listed on the schedule were not in fact relevant to whether or not young T in 2012/2013, who had been having contact with his father, including staying contact, at whatever regularity could carry on having contact to his father in the future. The allegations relate to conduct between the parents at an earlier stage, either before T's birth or when he was much younger, and did not directly impact upon him with respect to contact. It may be that some would be relevant to the current and the future but that would need to be evaluated, and it is not plain to me from what we have been told by Mr Von Berg and Ms Huda that Judge Wulwik engaged in the process that the Practice Direction requires in deciding whether what is on the schedule of allegations is relevant to the issues which would be current in the subsequent welfare decision for the child."

    27. I would respectfully and enthusiastically endorse McFarlane LJ's emphasis on 'relevance'. There is great danger in allowing evidence endlessly to expand and run to seed. Sometimes important issues are eclipsed by an excess of peripheral detail.

    28. Mr Setright and Mr Jubb frame their approach to the evidence, in Closing Submissions, in this way:

    "Inevitably, the view formed by the Court on the whole of the evidence will tend to be different in some respects from the picture painted by both contestant parties, and that too is plainly within the prerogative - and indeed part of the obligation - of the Judge who hears it. Linked with this is the obligation, also well-known to the Court, to recognise that blanket findings on credibility may be inapposite, that witnesses depart from the truth for different reasons, that those reasons may be important to reaching an understanding about them and their evidence, and that a person may be untruthful or exaggerate on some matters, but give an authentic account on others. The Lucas direction which the Court will undoubtedly give to itself will include a consideration of why a particular part of a witness' evidence may be untrue - and that exercise may be particularly illuminating in the present case.

    4. It is likely to be unhelpful to the Court (which will by now have formed its own view on its extensive exposure to both the parents) to attempt to be prescriptive as to findings about their respective personalities and reliability - but some broad observations (before turning in this document to the specific allegations) may be of assistance, and these may be expanded upon in oral submissions.

    29. I broadly agree with this approach.

    Analysis of the evidence

    30. Accordingly, following the approach of the parties, I have focused below only on the key allegations i.e. those which are relevant in enabling me to do justice to the case as a whole.

    31. The mother (M) and the father (F) met when they were both students at the Lahore University in Pakistan. It was obvious listening to F's evidence that he was attracted to M and very quickly i.e. within weeks of their meeting, decided that he would like to be engaged to be married to her. As was the custom for both families this was arranged between senior extended family members. There appeared to be no difficulties or objections and the engagement was approved.

    32. In a case where the parties have, for a complexity of reasons, been dishonest about their emotions, I was struck by F's clear and, in my judgement, compelling account of his life as an engaged man. More than any other feature of his evidence it was this period in F's life that he was able to talk about with candour and detail. Unusually for modern Muslim couples (so I was told) this couple remained engaged for 4 years. F told me that the marriage was delayed in order that he 'could establish himself'. In his evidence he described how they had little money and so limited their entertainment to long walks, sometimes 'on the beach'. Frequently they would buy 'street food' and eat outside. When describing these small details to me F showed obvious pleasure. This, he told me, was a very happy time in his life, his demeanour as he talked about it changed dramatically. He seemed visibly more relaxed.

    33. M told me that in the early stages of the relationship F talked to her about his life as a child: the sad and premature death of his mother and his relationship with his widowed father. She told me that F had blamed his father for the death of his mother. He described him as a bully who would beat his mother. F was sent to Pakistan military school which M told me he described as a brutal and brutalising regime. In his evidence F denied having said these things. He told me that he enjoyed military school and had only positives to say about his father. I do not accept his evidence on these points. I see no reason why M should lie about them and even within F's own written statements it is certainly plain that there were times in his adolescence when he did not get on well with his father. However, I do not think F's disavowal of his accounts to M cast much light on his credibility generally. His father is now dead and I do not believe that F feels able to speak adversely about him. Couples often speak intimately about their lives and families in the early stages of relationships and I have little difficulty in preferring M's account, which resonates with the evidence more generally.

    34. Following the marriage there appears to be agreement that F had to travel away to work. M was somewhat surprised by this, having been engaged for so long. She told me that the marriage went wrong from the very start. She said that F told her 'he would only give her one child'. Though she negotiated the evidence respectfully and sensitively she was very clear that F did not appear to enjoy the physical intimacies of married life and quickly withdrew from them. Messrs Setright and Jubb submit that F is 'abnormally restrained and buttoned up'. They point to his answers in cross examination where it was plain that he did not like to be seen naked by his wife and, on his own account, had only seen her naked on a couple of occasions.

    35. M told me that she had twice discovered F naked and apparently communicating with women via the internet. The first occasion, it seemed to me, plainly shocked M. She mentioned it only with great reluctance, in my assessment. I sensed it was something that she struggled to understand. Although F denied this ever happened I found M's evidence entirely convincing. She told me that she had entered the room on this occasion having heard a woman's laughter and gone in to investigate. This little detail lent credence to the allegation. By contrast F's account is simple denial.

    36. On the 4th April 2006 A was born by caesarean section. A had a twin who sadly did not survive. F was asked about this in his evidence and in particular whether he thought it might have had some enduring impact on M. F denied that there was any problem at all. He could see no reason why there should be. Neither could he see why A might benefit from having a sibling. It was clear to me that he is a man who struggles to understand others. To some extent I think F recognises this short coming in himself but the extent of his self awareness is limited.

    37. F undoubtedly has great ambition for his son, he wishes him to achieve the very best of his potential. He told me how he had set creative homework for him, which they worked on together. I accept this, indeed the mother does not dispute it. F was, however, unable to communicate to me anything of A's personality or character. I do not believe, that in this respect, he was being evasive in any way. It was, I consider, simply that F has very little understanding of his son. He could not see, for example, how if A were to be returned to Pakistan now it might cause him distress, to leave his friends, his school where he is evidently thriving and a pattern of life where he is, according to the CAFCASS officer, now very settled. Nor could F really accept in any instinctive or intuitive way that A is very closely attached to his mother and would be distressed if separated from her. F told me that in comparison to their life in Pakistan, M and A were now living 'like beggars' supported by the English state. It had not occurred to him that his continued failure to provide financially for his son might also be viewed as controlling behaviour. Mr Williams QC and Ms Renton, on behalf of A, identified F as 'able to shut down his emotional response'. They submitted that he 'seems to convey no emotion' and regards himself as 'superior'.

    38. Both M and F hold traditional views in some respects. Though F was prepared to support M financially in post graduate studies, he nonetheless expected her to behave conservatively, modestly, to obey him and to look after the household. I gained no sense from M that she found these expectations unreasonable.

    39. As M's account unfolded it became clear that the couple's physical and sexual distance soon lead to conflict. M told me that F would make disparaging remarks about her family and her caste. A transcript of a Skype recording referred to F telling M 'Ur (sic) intelligence is weak'. By August 2014 that Skype recording shows that F considered 'we both needed escape… we are both unbearable for each other'.

    40. M contends that between 2011 and 2014 F displayed explosive temper and was regularly physically violent to her. In his cross examination F avoided, entirely, engaging with any of the specific details of the allegations against him. His approach was to seek out inconsistency of whatever weight and cogency, in order to undermine M's credibility as a witness. He was in some instances successful in this technique. I do not believe that M has given a wholly accurate description of this unhappy marriage either. What however remained from M's evidence was a coherent, internally consistent account that unified the evidence as a whole. By contrast F offered no alternative narrative, confining him self predominately to simple denial. It is important that I record that his command of English is excellent and he was often insistent on forensic precision.

    41. There is no technique by which a Judge may unassailably determine disputed facts. The Court simply has to rely on established techniques, looking for e.g. consistency, coherence, external support and detail. At the same time there must be an evaluation of the witness's demeanour, in simple terms, how he or she presents in the witness box. What is particularly striking about M's allegations is her capacity to record detail. She alleges, for example, that as long ago as December 2011, her parents were invited to F's family for dinner. It did not go well and during the course of it M asserts that she was pushed and slapped by F. Though it had not been recounted in her statement I asked her, somewhat tangentially, who had prepared the food and what it was. She was able to tell me spontaneously about the entire menu. In response F said there was indeed a dinner, it all went very well, there was no fight. He was unable to say more. Once again I found M's spontaneous capacity for detail to be supportive of her account.

    42. In May 2013 when the couple were living in Saudi Arabia, M told me that it was F's habit occasionally to come home for lunch. She told me that he would often enter the house extremely quietly, something that plainly unnerved her and she believed was intended to. She had formed the view that he wanted to sneak up on her. M told me that this particular afternoon a row developed and F pushed her deliberately along the tiled floor. He did so, she said, with such force that her foot was fractured. M described how she told A, at the time, that F had caused her injury. She was very clear that she did not keep anything from her son, as others in these circumstances sometimes try to do. When asked whether she might have been placing an adult burden on her 7 year old child, she seemed unable to comprehend the point. There is a naivety to her account which, in my judgement, belies a tendency on M's part (which I have seen elsewhere in her evidence) to funnel her emotional energy into her son, which strikes me as sometimes putting her needs over his. This said, her candour here only serves to enhance the reliability of her account.

    43. In another allegation, settled upon by Mr Setright, M told me that F had a cousin who was killed in circumstances arising from an infidelity in the course of marriage. F accepted that there had been such a killing but purported to have no knowledge of the reasons behind it. It is plain that this incident profoundly disturbed M. It, in my assessment, developed in her a sense of her own fragility. She told me that F would often threaten to kill her. Whilst the family were together in Saudi Arabia M states that F told her that he had sought advice from a Dar Ul Aloom on a suitable punishment for her as he believed she was having an affair. M's evidence was that F told her that he had obtained an edict that she would be 'subject to lashes or killed'. As I understand M's evidence, she took this seriously enough to make her own enquiries of the Dar Ul Aloom. F contends this is simply made up. Again I accept M's evidence. It is rooted in an established fact (i.e. F's continuing belief that M had an affair), it is characterised by detail and it is consistent with M's narrative of her marriage. By contrast it is met by F's simple and blanket denial.

    44. Whether M was having an affair became a significant issue in this case and requires to be addressed. M said that F became convinced that she was having an affair but, entirely to her surprise, became much nicer to her and far more solicitous at least for some time. I watched her carefully as she described this and it struck me that she had no greater understanding now than she did at the time why F responded as he did. I do not believe that I have heard a true account of this relationship from either M or F. M denies there was any affair. However, F produced an email, dated 2nd July 2012, addressed to his email account. In it the author castigates F as 'an egoistic and self centred man'.

    45. He goes on to state:

    'its true, I love her and love her a lot, not because of any odd reason what can come to a narrow minded person like you, but I love her but because for me she deserved to be loved and deserved to be respected and admired as an ideal life partner and a friend, which she is of course."

    46. The email continues:

    "…you married someone out of your ego not love. Then you kept on doing all the injustices with her. You have beaten her, you didn't give the basic rights which one husband give to one's lady as for granted. You left here just because of your ego, you left her to beg to you for the basic necessities of a marital relation. Don't even dare to say that you haven't done this, I have digged down into your life to level you can't imagine…"

    47. Finally, the author of the email concludes:

    "In spite of all this she was sincere and loving wife for you and no one on this planet can know this thing with more clarity than I do… and I promise you, whether you take a month, a year or years I will wait for her."

    48. What is striking about this document is that, despite M's denials, it resonates so much with M's own case, particularly as it has unfolded in evidence. It also echoes my own observations, earlier in the judgment, that F seemed proud to have an educated and attractive wife but recoiled from physical intimacy. The author of this email appears to have taken a very similar view. M refuses to engage with any of this. She denies categorically that there was any affair. However, it is very clear that she had formed a relationship with a man who admired her, in whom she confided but by whom she feels compromised. In the light of what I have said above about M it may be that to acknowledge this relationship would also be seen by her as compromising her own safety and reputation.

    49. In response to her husband's questioning on this issue, as more generally, she was unfailingly respectful. She was equally respectful about his family. Having considered the contents of the email and M's responses I am satisfied that this was not an adulterous relationship though I am equally sure that M has not been frank about it. To the extent that M seeks to insinuate that the email may be a document fabricated by F, I entirely reject that. Not least because its content is of an emotional complexion far beyond F's ability to forge. As Mr Williams points out, the email does not say that M loved the author, nor is it asserted that they were in love. This also struck me as telling. I have formed the impression that at this point in her life M wanted security and safety for herself and her child to the exclusion of any other emotional feelings.

    50. I am required to consider a number of allegations made by A, now aged 11 years. An application was made on his behalf for him to attend to give evidence. I did not consider that he could have fully appreciated what was involved. I did not wish to embroil him further in parental dispute and I was certainly not prepared to contemplate direct cross examination of him by F. I refused the application.

    51. There are three central allegations made by A himself. The first arises in Saudi Arabia when he was 6 or 7 years of age. It is said that he witnessed his father slap and punch his mother. It is unnecessary for me to resolve this. I have, above, already concluded that F both slapped and punched the mother. I find that she did not conceal this from her son and, in any event, I am satisfied that no party took any measure to protect A from the adults conflict in this household. Thus, it is entirely unnecessary for me to consider the extent to which A's recollection, now aged 11, of an incident which occurred 4 or 5 years ago in Saudi Arabia, is accurate or reliable. Moreover, such a finding might only stand as an obstacle to any future relationship between A and his father.

    52. The two further allegations involve A being locked in the bathroom and his father threatening to send him to army school where he was told he would be beaten or sent to fight as a jihadist.

    53. During the course of the hearing I heard from a Ms Sana Majid who is a close relative of M's. In a case where the families are so divided, I must regard her account with a healthy degree of scepticism. What struck me however, was the extent to which her evidence lacked drama or embellishment. She told me that F was quick to anger and had locked A in the washroom on one particular occasion. If she were determined to lie, in a partisan way, one might have thought she would have fabricated an account rather more damning than this. The significance of Ms Majid's evidence is that it resonates with M's account, A's own complaint and my own impression of F. He is quick to anger and easily irritated. Indeed, F revealed something of his predisposition to become irritated in his cross examination of Ms Majid.

    54. F's ambition for his son knows no bounds. He is very keen that he achieves his full potential. Almost all this aspiration is focused on academic achievement and, it strikes me, that F was at times, simply too hard on his son. I do not know whether F threatened to send A to the Pakistan Army or to fight as a jihadi. Sometimes otherwise loving parents say stupid things. What I am clear about however, and what it is important for A to know is that F would, in my judgement, never carry out such threats. The real harm to A in consequence of F's actions was his prolonged exposure to physically and emotionally bullying behaviour (towards his mother) and a home life which was lived in a corrosive atmosphere of parental conflict.

    55. It is necessary for me to summarise my findings in order that they are unambiguously clear:

    i) From the beginning of the marriage F was short tempered, domineering and cold towards his wife;

    ii) F's easy irritation gradually developed into violent outbursts of temper in which he would frequently slap and push his wife;

    iii) On the occasion referred to at paragraph 42 (above) F's pushing of his wife lead to a fracture of her foot;

    iv) The parental conflict was not hidden from A;

    v) F's verbal threats to M, detailed above, were such as to create the real impression on her that her life was in danger. This was the intended effect of F's threats;

    vi) F's behaviour throughout the course of the marriage had eroded M's confidence and self esteem to such a degree that she found life intolerable for herself and her child.

    vii) Though he loved his son, F verbally chastised him in a manner which was excessive and inappropriate. On occasion that also included F locking A in a washroom.

    56. If F is able to address some of these issues he may very well have much to offer his son who, I emphasise, he clearly loves. CAFCASS have indicated a willingness to assist both parents by making a referral for a Child Contact Intervention, to facilitate professional assistance in supporting the family. I consider that to be a helpful suggestion which I hope will be pursued.

    Cross examination

    57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M's allegations of violence, choosing to conduct a case which concentrated on undermining M's credibility (which as emerges above was largely unsuccessful).

    58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

    59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

    60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

    61. The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK [2014] EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J's case he called for 'urgent attention' to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31 and again in his 'View from the President's Chambers (2016): Children and Vulnerable Witnesses: where are we?'

    62. In that document the President highlighted the Women's Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:

    "Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control."

    Commenting on this, the President asked 'who could possibly disagree?' The proposition, in my view, is redundant of any coherent contrary argument.

    63. I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.


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Published: 23/05/2017

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