Family Law Hub

M v F & Ors [2018] EWHC 1720 (Fam)

In brief: Here the father (“F”) was a litigant in person (legal aid having been refused). The mother (“M”) alleged that he had deliberately stranded her in Pakistan, separating her from her children and had subjected her to coercive, controlling behaviour as well as physical and verbal abuse. At the fact-finding hearing in wardship proceedings, the judge directed the children’s guardian, who was legally represented, to cross-examine both parents in order to prevent F from cross-examining M.

  • Comment 

    This judgment contains very useful, practical guidance about how to deal with cross-examination in these circumstances, and to anticipate these issues at an early stage and the appropriate directions available.

    Neutral Citation Number: [2018] EWHC 1720 (Fam)

    Case No: FD17P00605

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 16/02/2018

    Before :

    Mr Justice Williams

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    Between :

    M (Applicant)

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    F (1st Respondent)

    - and -

    L, M, N, O (2nd to 5th Respondent)

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    Mehvish Chaudhry (instructed by Dawson Cornwell) for the Applicant

    The Respondent Father appeared in person

    Jeremy Ford (instructed by Cafcass Legal) for the 2nd to 5th Respondents

    Hearing dates: 12- 16 February 2018

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    Judgment Approved

    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 Williams :

    1. I am concerned with applications concerning 4 children. They are

    i) L

    ii) M

    iii) N

    iv) O

    2. The Applicant their mother, she is represented by Mehvish Chaudhry, counsel. The Respondent, F is their father. He is a litigant in person although was legally aided until last week but refused on means. The Children are parties and their Children's Guardian from Cafcass High Court Team is Toni Jolly who is represented by Jeremy Ford.

    Application

    3. On 24th October 2017 the mother applied without notice to Moor J. The father and his cousin TT were made respondents to the application. Although an undertaking was given to the court to issue the application forthwith it was not in fact issued until 30 October. The application at B1 says the orders applied for are 'Wardship' in relation to all 4 children. At section 3 the C66 states that the mother wants

    'to make the children wards of court and to order the mother to return to this jurisdiction along with N. The mother alleges that she has been stranded by the father in Pakistan in August 2017.'

    Background

    4. The immediate background to the application is that on August 4th the mother and the father flew to Pakistan. For the father the main reason for visiting then was that his father was very seriously ill. The mother travelled with him although the reasons for her travelling and the circumstances in which she came to do so are very much in dispute.

    5. The father returned to England on 19th August 2016. The mother did not. Her case is that the father deliberately left her behind with her family and N, returning to the UK with her passport and visa and thus stranded her in Pakistan and separated her from the three children in England. As a result, she brought these proceedings seeking to re-unite her with the 3 children in England. Orders were made without notice broadly following the guidance given by Hogg J in Re S (Wardship)(Guidance in cases of stranded spouses) [2011] 1 FLR 319. The revised FPR PD12J which came into force on 2 October 2017 includes within the definition of 'domestic abuse' the issue of transnational marriage abandonment (see paragraph 3).

    6. At the first on notice hearing the father was represented. He drew the courts attention to the fact that a DNA test had shown that whilst N was the mother's daughter she was not the father's daughter. An issue over the court's jurisdiction over N was thus identified as she was not present in England, was not a British citizen or entitled to British citizenship and having never been present in England there was an issue over whether she could be habitually resident in the UK; see the judgments of the Supreme Court in Re A (Jurisdiction: return of child) [2014] 1 AC 1 in particular that of Baroness Hale. In addition, the father denied the mother's assertion that he had stranded her in Pakistan alleging that she had returned to see N and whilst in Pakistan had said she wanted to divorce him and stay and marry N's father. He said the mother had retained her passport and visa. The mother in turn said the DNA test was wrong and asserted that the father was N's father and that the court had jurisdiction over her under the 'parens patriae' jurisdiction because if she was the father's daughter she would be entitled to British citizenship and thus the court could (as in Re A) make an order for her return to the UK. Thus in accordance with FPR PD 12J § 16 and 17 I ordered that a fact-finding hearing be listed.

    7. The family situation thus was that the father was living in England in the former family home with L, M and O whilst the mother was living with the maternal family in Pakistan with N. As will be seen from the Chronology both L and M have lived most of their lives in Pakistan – arriving in England only in November 2016. N has lived all her life in Pakistan and has never visited England. O has lived all her life in England and has never visited Pakistan. The father has lived the majority of his adult life in England and is now a British citizen. The mother has lived almost all her life, save the period from February 2016 to August 2017 in Pakistan and is a Pakistan national with only a visitors visa to the UK which expires I believe in May 2018. As far as I can tell L and M have not seen N (nor she them) since about May 2016 and N has never met O. Thus the factual matrix raises a host of jurisdictional, factual, welfare and practical issues.

    The Role of the Guardian.

    8. In December 2017 I joined the children as parties to the application itself. Re S (above) contemplates this may be appropriate even before a fact-finding has been conducted. In this case I considered that the case fell within the parameters of FPR 16.4 and PD 16A paragraph 7.2 (b),(c),(g) & (i). Although there was some limitation on the work the Guardian could do prior to the fact-finding I considered the circumstances of the case justified an early appointment and report in particular to enable swift progress to be made after the judgment on fact-finding was delivered. The Cafcass High Court Team accepted the appointment and Toni Jolly was appointed to be the Children's Guardian. Initially I had directed that the Guardian need not attend the fact-finding hearing until the final day when judgment was to be given. I did not fix a separate Dispute Resolution Appointment as required by FPR PD12J § 20 because I intended to move immediately on after judgment to consideration of what welfare orders might be required on an interim basis and what other case management directions might be required. Thus I directed the Guardian to prepare a report prior to the conclusion of the fact-finding hearing.

    9. However as result of the combination of two developments I later invited the Guardian to consider being represented throughout the fact-finding. The two developments were firstly that the children provided the guardian with information that was potentially relevant to the fact-finding itself and secondly that the father's application for legal aid was rejected on 'means' and thus he became a Litigant in Person. As a result, it would have required the father to cross-examine the mother in person on the allegations she made both of being stranded but also of coercive and controlling behaviour and physical and verbal abuse. In Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) Hayden J made the following observations

    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.

    10. The revised FPR PD12J at § 10 and 28 requires the court to consider in such circumstances how an alleged victim may best be allowed to participate and recognises that the court may be required to put matters or to question an alleged victim or alleged perpetrator. The new provisions of the FPR Part 3A and FPR PD3AA 'Vulnerable Persons: participation in proceedings and giving evidence' requires the court to consider whether a party or witness is vulnerable and if so whether their quality of their evidence might be diminished by reason of vulnerability and for the adoption of participation directions to remedy such issues. Thus the court can and in this case did make provision for measures to be taken such as the use of screens. The recently issued Ministry of Justice 'Guidance to family courts on payments for special measures' does not address the issue of how the courts are to manage questioning of alleged victims by alleged perpetrators and vice versa. As the commentary to FPR 3A and PD3AA makes clear at 3A.8 these do not enable the court to deal with the issue of cross examination of alleged victims by alleged perpetrators. The measures that were included in the Prisons and Courts Bill as a result of the long standing concern in the family courts (summarised in Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWCA Civ 543 [2016] 1 FLR 754 ) for instance about the lack of provision analogous to section 38(4) of the Youth Justice and Criminal Evidence Act 1999 and section 19(3)(e) of the Prosecution of Offenders Act 1985 have not progressed as a result of the calling of a general election in 2017 and the loss of that Bill. Now the Courts (Abuse of Process) Bill, a private members bill would appear to introduce provisions but they are only due for a second reading in March 2018.

    11. One of the options available to the court in such cases was identified by the Master of the Rolls in Re K & H (above) at §52. This is the guardian conducting the testing of the factual evidence. Fortunately, in this case the children were already parties and the guardian had carried out enquiries and obtained information from the children which led to the Guardian taking the view that she could properly test the evidence of the parties. Thus, when the father became a Litigant in Person some 3 days odd before the fact-finding hearing commenced Mr Ford was instructed to cross examine both the mother and the father and the need for the father to cross-examine extensively or for the court to do so was largely avoided. The fact that the father himself required an interpreter and did not desire to extensively cross-examine the mother resulted in a situation where I was satisfied that the mother was in a position to give her evidence effectively and the father's challenge to her evidence was appropriately put. The alternative to the Guardian testing the evidence would have been for the court to do so; either myself or by a Family Court legal advisor. Whilst these options are available as was accepted by the Court of Appeal in Re K & H (above) it would in this case where extensive questioning via interpreters on hotly contested factual matters have been inappropriate. I am grateful to the Guardian for her acknowledgment in this case that this was the appropriate route. It will not be appropriate in all cases.

    12. Until such time as Parliament enacts legislation to patch this gaping hole in the fabric of family justice, courts across the country will have to continue to determine which of the following alternatives achieves the best balance of the need for the evidence to be heard and tested and the need to protect alleged victims from further harm or abuse

    "[52] ……These include: (i) a direction that the order that Y should give oral evidence is made subject to the condition that the father questions her through a legal representative (this may not be a viable option if the judge's finding about the father's inability to pay stands); alternatively (ii) Y should be questioned by the judge himself; (iii) Y should be questioned by a justices' clerk; or (iv) a guardian should be appointed to conduct proceedings on behalf of K and H. …"

    13. What is crucial is that the possibility that a Litigant in person who is the alleged perpetrator might be cross examining an alleged victim is identified at the earliest possible time so that the court can give directions about which option is to be pursued. If the situation is evident at a FHDRA then it should be addressed then. If as in this case the issue arises after the last directions hearing but before the hearing at which the evidence will be heard the parties must bring the matter to the attention of the court which might then list it for further directions or if the alternative is agreed approve such alternative if the court is satisfied that is appropriate.

    Legal Framework

    14. The applications engage the court's paramount welfare jurisdiction.

    15. In exercising that jurisdiction, the court has to consider a number of other issues.

    Domestic Abuse, stranding and PD12J

    16. In proceedings relating to a child arrangements order – which would usually be included within applications in wardship, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption in s.1(2A) Children Act 1989 applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm. PD12J applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.

    17. The 'General principles' set out in PD12J include

    'Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic 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 domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents. '

    18. The Practice Direction sets out some of the definitions relevant to domestic abuse, including the following

    "domestic abuse" includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

    "abandonment" refers to the practice whereby a husband, in England and Wales, deliberately abandons or "strands" his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;

    "coercive behaviour" means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

    "controlling behaviour" means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

    "development" means physical, intellectual, emotional, social or behavioural development;

    "harm" means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

    "health" means physical or mental health;

    "ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical;

    19. The Schedule of Allegations contains elements which reflect many if not all of the aspects of domestic abuse set out in the Practice Direction. Any findings made would therefore be likely to be of significance in relation to the future of the children, although given the complexities in the family situation there would still be many other issues to be resolved.

    The Findings Sought

    20. The Schedule sought in accordance with the observations made by McFarlane LJ (§37) in Re V (a child) (inadequate reasons for finding of fact) [2015] 2 FLR 1472 and Hayden J Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) to focus on those which were relevant to the issue of stranding and aspects of the parental relationship which would inform the child arrangements in future. By and large the Schedule has been sensibly focused on relevant issues although some of the allegations have required consideration of evidence covering significant periods of time and underlying many of the allegations is the elephant in the room; namely whether the mother bore a child during the marriage fathered by another man. In addition to the Schedule and arising out of the Guardian's report Ms Chaudhry invited me to make findings that the father had emotionally abused the children by encouraging them to make up an account that the mother had been physically abusive to them and neglectful and she invited me to dismiss the allegation that the mother had in fact been physically abusive including cutting M's finger and hitting them with a shoe or rocks so as to cause scars on their heads.

    21. The Schedule (which contains a degree of duplication and which is not always in Chronological order) is as follows.

    1. The father stranded the mother in Pakistan in August 2017. He removed her passport and returned to England and on 21 August 2017 he wrote to the Home Office to cancel the mother's visa. He therefore forcibly separated the mother from L, M and O

    2. The mother was subject to controlling behaviour by the paternal grandfather and paternal aunt with the approval of the father while she was living in the paternal family home.

    a. Her movements were restricted

    b. She was made to perform domestic chores for the entire family

    c. She was verbally abused on occasions

    d. She was physically kicked out of the paternal family home on occasions

    3. Around October 2015, the paternal aunt was verbally abusive to the mother; she accused her of having an affair; she physically assaulted the maternal grandmother; the father was also verbally abusive to the mother on the telephone.

    4. The father exercised controlling and coercive behaviour over the mother. While in England the mother was isolated, she had no funds, no mobile phone and was generally denied access to her children in Pakistan by way of telephone calls.

    5. After L and M arrived in England in September 2016 the father continued to deny the mother access to N by way of telephone calls – she only spoke to the maternal grandmother once throughout this time and this was to ask her to take N into her care.

    6. The father was verbally abusive to the mother while she was living in England. In May 2016 when the DNA report came out he pushed the mother out of the paternal family home and she had to seek refuge at the paternal uncle's house.

    7. After the mother was abandoned in Pakistan, the father refused to let her have contact with L, M and O

    8. The father misled the mother into believing that he was making an application for N to return with them to England but in fact he abandoned the mother in Pakistan in August 2017 and did not make any application for N

    9. The father and paternal family members falsely accused the mother of having an affair and the father denied paternity of N.

    Fact-finding

    22. In respect of the task of determining whether the 'facts' have been proven the following points must be born in mind as referred to in the guidance confirmed by the President of the Family Division in the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 – 24. See also the Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26. That is:

    (a) the burden of proof lies on the person making the allegation, if there is one and in most aspects this lie on the mother.

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

    (c) 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.

    (d) 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.

    (e) the evidence of the parents and 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.

    (f) 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).

    23. All the evidence is admissible notwithstanding its hearsay nature. The court should give it the weight it considers appropriate: Children Act 1989 s.96(3); Children (Admissibility of Hearsay Evidence) Order 1993; Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703. Much of the evidence before me is in the form of statements – significant parts of which have not been capable of being properly tested due to the interpretation and technological limitations.

    24. Insofar as matters of fact are in dispute I determine them on the basis of the normal civil standard, namely whether it is more likely or not that a matter occurred or did not. I take account of all the evidence I have heard and place it in the context of other evidence. To the extent that lies have been told I give myself a Lucas direction and remind myself that people lie for many reasons and that just because they have demonstrably lied on one issue, does not mean they have lied on all others.

    25. In evaluating the parties' credibility, I have regard to the totality of their evidence and how it fits in with other pieces of evidence, how consistent it is internally and with other items of evidence and of whether they have a motive to lie and how they gave their evidence.

    This Hearing.

    26. I have been provided with a Court Bundle which contains the statements of the parties and their supporting witnesses along with the evidence from Ms Jolly, from the Home Office, from the children's school.

    27. On the second day of the hearing the father produced witness statements from 4 other witnesses, including TT who was originally a party to the proceedings. Given their late production outside the timeframe for filing evidence which I had provided for in my earlier orders and the difficulties that placed the mother in in giving instructions and responding I did not allow him to rely on 3 of the witnesses.

    28. The mother produced some photographs of the children which it was pleasing to see. They are all attractive and smiling children who deserve better than the current predicament that their parents have created for them.

    29. The father produced some additional documents including O's Red Book. As a result of my enquiries he also produced the invoice for the tickets he had purchased to travel to Pakistan in August 2017. At the outset of the hearing there was an issue over what documents the father and mother's immigration solicitors might hold and I invited Ms Chaudhry to make contact with them. It so happened that the senior partner, Munira Hussain, was attending this court building on Thursday and she came to offer her assistance to the parties and the court. Both parties gave their consent to her disclosing information to the court. Although she was not sworn she disclosed in the course of telling the court what documents she might have on file two matters of some significance to the case. Firstly, she said that after the DNA test she had told the father the options for N to come to England were limited to either waiting until the mother became naturalised in which case she could sponsor her or alternatively they could make an application outside the Immigration Rules based purely on human rights grounds. She said the father had never returned to her to pursue either of these options and she was unable to confirm that the father had discussed adopting N with her. Of more concern to Ms Chaudhury was the fact that Ms Hussain told me that whilst the mother had initially said the DNA test must be wrong she had subsequently admitted to an affair. Subsequently this caused Ms Chaudhry to modify the mothers stated case so as to assert that the father had threatened her at the solicitor's office to admit an affair rather than maintain it was a mistake.

    30. Arrangements had been made in advance for a video link with Pakistan and for Urdu interpreters to attend to interpret for the mother, father and witnesses. As ever with a video link the connection was poor which led to considerable problems with hearing the witness – the mother's younger brother. However of more concern was the fact that it emerged that both parents and 2 of the witnesses needed interpreters with different dialect skills, not the Urdu/Punjabi interpreters who had been requested by the parties. This resulted in the maternal grandmother being unable to give any useful evidence at all because while she could understand Urdu/Punjabi she could not speak it sufficiently to give evidence. The maternal uncle was able to give evidence. The video link could not be re-arranged although the new interpreters were arranged for 3 of the 4 days of the hearing.

    31. I thus heard oral evidence from

    i) The mother

    ii) The father

    iii) The maternal grandmother Maternal grandmother to a very limited degree

    iv) The maternal uncle

    v) The paternal great uncle

    vi) The paternal 'aunt' (actually the fathers first cousin), TT

    vii) Ms Toni Jolly, the children's guardian.

    I had the benefit of a Position Statement and oral submissions from Ms Chaudhry, the father, and Mr Ford.

    Chronology and Findings

    32. In reaching my conclusions I have sought to take account of all the witness evidence (both oral and written), the documentary evidence and tried to piece it together with a degree of common sense in order to reach conclusions of fact on the balance of probabilities; namely what is more likely than not to have occurred. In most areas I have been able to do this.

    33. I shall address what I consider to be the principal aspects of the parties cases within my consideration of the evidence and my analysis of it.

    34. Hearing oral evidence from the parties has been of considerable assistance both for the content of what was said (and how often it was repeated) but also in being able to see the demeanour of the parties and their reaction to each other and what was said. I confess though that neither of the parents were easy to gauge as witnesses. Both gave evidence through an interpreter and although the interpreters seemed to be proficient there were times when the use of their language caused some interpretation issues. The mother I think understood little English – hardly surprising given her history. The father clearly understood much of what was said in English – on occasions he began to answer before the interpreter had interpreted what had been said – but he is clearly more at ease in his language. Both the mother and father presented as very flat emotionally; neither were visibly moved either to distress or to anger or any other obvious emotion. Both appeared quite guarded in their answers although on occasions there were moments when they gave spontaneous evidence about particular events which clearly seemed to me to indicate them recalling something from their memory; the mother in dealing with M's cut finger and the father in recounting the journey from the airport in August 2017. However, in respect of the evidence which was at the heart of the allegations both were more guarded and less spontaneous. When pressed for detail in respect of controlling behaviour matters emerged which undermined her case; in particular for instance in relation to her ability to travel (which seemed limited by her reticence to travel alone rather than by control) and her role within the paternal family household which on examination was clearly not as onerous as she described. Her account in relation to some matters was frankly not credible. Her suggestion that she had never met 'RB' the man she is alleged to have had an affair with when he lives either next door or very close and is married to the paternal aunt and has been for several years was simply incredible but understandable in the context of her denial of having had an affair with him. Likewise, her overnight assertion that the father had threatened her to admit an affair whilst at the solicitors getting the DNA test results both contradicted her earlier evidence and made no sense; save that it would 'explain' why she admitted an affair. On the other hand, the father's account in respect of O's birth seemed clearly spontaneous and recalled from memory and this did not support the mothers (in fact neither did hers) account of her giving birth alone, ignored and unable to contact anyone rather than a quick onset of labour which took all including the mother by surprise and was dealt with appropriately by the father, cousin and medical services. At times the father seemed unable or unwilling to answer any question with a straight answer; resorting to the security of the mother's infidelity and deceit and blaming her for the family predicament. In other areas his account was simply inconsistent. His explanations about the circumstances in which he bought the mother's single ticket in England varied considerably between his statement and his evidence and his attempts to explain the contents of the divorce or the circumstances in which it was obtained were wholly unconvincing, he being completely unable to explain what problems in his own family led to his being unable to live with the mother. The father's evidence ultimately became dominated by his repeated reference to the injustice the mother had done to him and his family and how the situation was not of his making. His thinking was clearly dominated by the fact that the mother had fathered a child by another man and he returned to the theme again and again. Although I asked him in the course of his evidence how he thought it helped me to understand the case for him to repeatedly answer questions about factual matters by referring to the mother's deceit ultimately it did assist me simply because it became absolutely clear over the course of his evidence that this event underpinned what had happened to the family after May 2016 – it dominated his thinking and I conclude that of his family. Equally it became clear that the mother was completely unable to accept the reality of N's conception and that she had been unable to accede to the paternal family's desire that she forget about N if she were to continue in a marriage to the father. As became clear these positions underpin much of what happened after May 2016 and much of what is now asserted to be the case. I shall return to this later.

    35. It is therefore quite clear that in some respects the mother has told lies or exaggerated matters. Similarly, the father has told lies or sought to minimise matters. Neither are straightforward historians – there is simply too much at stake for them and neither are sufficiently honest or objective to overcome the constraints those high stakes place on them. Their lies are told in the context of in the mother's case seeking to pursue a case to achieve the reunification of herself and her children and to deny an event which might have serious consequences in Pakistan. The father's lies are told to (as he would see it) protect his family unit and to avoid condemnation. Neither are wholly reliable or unreliable – classic 'Lucas' territory. The reliability of their account on any matter can only be judged accurately by reference to the issues in play and the totality of the other evidence and how it fits with the overall picture which emerges from the evidence.

    36. The other witnesses who I heard from were only slightly more detached than the parents. The mother's brothers written account was in many respects a duplicate of his mothers and given he was either a young child or living in Dubai not Pakistan at material times there was much of his evidence that I do not feel secure in accepting. In other areas his account fitted in with other evidence or was consistent with the undercurrents. The father's uncle was perhaps the most detached of all and his evidence and I thought was broadly reliable; the limitation in respect of his evidence was that as a result of that detachment he was not sufficiently involved in the family to be in a position to provide evidence of the most critical aspects of the case. However his account of the mother's life in England insofar as he observed it I accept was reliable. His account of the day the father and mother travelled to Pakistan I thought rang true as did his account of the meeting with the mother and her uncles in Pakistan. TT was plainly uncomfortable giving evidence. She actively sought to avoid answering questions which might require her to give evidence which might be favourable to the mother although she did not seek to actively denigrate the mother. She is the father's first cousin and clearly amongst his closest family and confidantes in this country. Having said that there were aspects of her evidence I thought rang true; her account of the mother's life with her during the separation I thought had much truth in it.

    37. I therefore turn now to the history of this family. Regrettably because of the inability of the parents to be transparent and objective the picture which they each give is only a partial one and in respects will be distorted to fit the narrative they seek to convey. I have had to approach much of their account and indeed those of the witnesses with caution and have had to seek to discern through the smoke and mirrors, lies and distortions what is the most probable version. Sometimes this has been close to or in accord with either the mother's account or the father's version but more often than not is has lain either somewhere between the two and ultimately is an evaluation based on a mix of the evidence and preponderance of probability based on a common-sense evaluation built on the backdrop of the underlying events. In the absence of some obvious anchor in the form of a patently honest and objective witness or other incontrovertible documentary evidence this is the best evaluation I have been able to reach. I am conscious in some respects my evaluation is close to a 51/49% assessment – in others it is much clearer but in order to provide a foundation upon which future decision making for these children will be constructed and in the context of the legal framework within which the decisions have to be made that is the inevitable consequence of the evidence the parties have presented to me.

    KEY FACTS

    F born in Pakistan: Fact

    M alleges she performed all domestic chores: Mother's case

    Father said that the mother had Father's case

    The evidence I heard from the mother; my conclusions on the evidence

    Date

    Event

    01.01.1977

    F born in Pakistan. Dual national: UK and Pakistan; Certificate of Naturalisation: 19.8.2009

    UK passport: 5 Sep 2009 – 5 Sep 2019

    04.09.1986

    M born in Pakistan: Pakistan national: Pakistan passport valid from 19 June 2012 to 19 June 2017

    Granted spousal visa valid from 6 Feb 2016 to 6 Nov 2018. Not permitted to public funds.

    25.08.2007

    Parties marry in Pakistan

    F living in England at time of marriage but travels to Pk for marriage.

    M moves to paternal family home with F. F returns to England after a few months

    M alleges she performed all domestic chores. Says she became pregnant. Says not allowed to visit parents [C3] M says her mobile (given her MGF) was removed by PGF.

    F denies this.

     

    The evidence I heard from the mother, the father, maternal uncle and the written statements combined overall to create a picture which was not consistent with the allegation that the mother had been abused, or subjected to coercion and control. Rather she moved to a small farm in a relatively remote region on the outskirts of a town and following tradition she helped in that household – taking on a significant part of the inside chores and being expected as the new daughter in law to take over from her elderly mother in law the bulk of domestic chores. In that she moved from a home where she was the eldest of 3 daughters to a household where she was the only young woman that represented a change and I accept that she did much if not most of the ordinary domestic chores; cooking, cleaning, washing. I also accept that she helped outside – occasionally milking or assisting with hay cutting. However, I also conclude from the mothers account and the fathers that the paternal grandmother also did some of the chores – particular when the mother was either heavily pregnant (she used the expression unwell or ill to describe pregnancy but this was merely an example of different language use). It was also clear that the paternal grandfather and the farm helper did the majority of the work around the farm.  The evidence of the mother, father, maternal grandmother (written) and maternal uncle was that the mother was able to visit her family every couple of months or so. Sometimes she went alone, sometimes she took the children. Her account of this was not a depiction of her visits being used as a form of control or the children not being permitted to go as a form of control but rather a mix of logistical difficulties and the mother's own reluctance to travel by herself – she preferred another adult to go with her. I think this was to help with the children rather than not wanting to travel alone per se. She described having either to pick up the bus somewhere down the road from the farm of having to get a car and the impression I was left with was that whilst the journey was only about 1-1.5 hours by bus it was not a simple journey to undertake.  The mother told me that she had a mobile phone or 2 – she gave somewhat different accounts of who she got it from and what happened to it. I am not satisfied that she was kept isolated from her family by the removal of her phone. maternal uncle's evidence that she never phoned was not convincing. He was aged 7 when the mother left and was in Dubai for 3 years from 2014-17. His evidence came across as rehearsed and unconvincing. She appears to have been able to contact them at times (she said when she visited her mother would sometimes meet her ½ way – how was that arranged if not by phone calls) and she was able to visit them – both alone and with the children. The frequency of her visits – seems little different to many other families living some distance apart and where the logistics of getting small children by bus from one place to another inevitably lead to a stretching of the family ties.  The father said – and it was not challenged that the mother was studying at college for 2 months to pass the test to gain immigration status – this does not suggest close control. The overall picture of domestic life was of the mother living a fairly modest and perhaps mundane existence looking after her in-laws and the children; perhaps in fairly straightened circumstances financially but an existence essentially of a young mother with her in-laws following an arranged marriage where her husband lived in England for the vast majority of the time. In her evidence I did not detect any particular hostility to her in-laws or any particular sadness or regret about her life with her in-laws. They seem to have simply got on with the lives they led and for the vast majority of time it was an ordinary unremarkable existence. I accept that the relationship with the father's sisters was probably tenser but it is hard to discern what the position was before 2015 because events of 2015/16 have so coloured recollections that the pre-2015 picture is harder to clearly discern.   The father returned once every 2 years on average for up to a month and the marriage appears to have been satisfactory when they were re-united. The mother makes no particular complaint about the father on his visits. I am prepared to accept that there were occasional arguments between the mother and the paternal family. I am prepared to accept that the paternal aunts were more vociferous and that the mother was told on isolated occasions that if she didn't like the home she could always leave; and that the mother did on occasions leave either by being told to get out or of her own volition. The evidence of maternal uncle who would have been about 11 at the time of the specific row which the mother alleged appeared to me to be a construction rather than a memory. The mother's own evidence of the row with F's Sister which led to her leaving for the night sounded no more than a bad argument between sisters in law which was relatively easily resolved the next day. Thus I conclude were no more than the typical family row that may sometimes develop particularly when people are living in close proximity and where the pressures of daily life occasionally get on top of people. Thus within the spectrum of normal family existence.

    31.05.2008

    M says this is L's date of birth.

    27.08.2009

    L birth registered in Pakistan,

    [M says F incorrectly recorded DOB]

    F stays in Pakistan for a week after L's birth

     

    L being born in May 2008 would be consistent with his conception shortly after the marriage. It does not seem that his birth was registered contemporaneously with his birth and there is no medical record which relates to his birth. The Birth registration document records the date of registration as 5 Apr 2013 and significantly that it was the Mother who reported it to the Union Council. This all seems to have been as part of the collation of documents in relation to an immigration application as M's birth was also recorded then. The mother said she attended the offices with the paternal grandfather and that the father was on the telephone. That may have been so but the mother accepted that it was her who is recorded as the person who reported the births and provided the information. She says the father told her to give that date of birth. The mother has not suggested any coherent reason why the wrong date would be insisted upon by the father and I am unable to determine- and do not need to determine what in fact was L's true DOB. What it does illustrate is that the mother was involved in formalities rather than being side-lined as might be the case if she was controlled and dominated by the father.

    19.08.2009

    F naturalized as a British citizen

    02.09.2010

    F returns to Pakistan for around three months

    Pk Passport valid: 19 June 2012 – 18 June 2017

    2013

    F applies for a spouse visa for M but this is rejected (F says) due to inadequate means to support.  F decides to apply for British passports for boys. Applications rejected (F says M gave wrong DOB for L)

    2014

    F applies for children's right of abode in UK. M applies for right of settlement which is again refused

    18.05.2015

    F travels to Pk.

    F alleges that he hears rumours of M entering into an affair. F says that he confronts M and she denies it – swearing on the Quran.  M does not accept this account,

    The issue of whether the mother had an affair and conceived a child with another man is not part of the fact-finding but it is essential to understanding the events which followed – in particular the stranding allegation.  It is clear from the mothers and the fathers evidence that at some point there was concern that the mother was having some sort of relationship with another person. When this issue arose is not at all clear. The father's evidence about when the mother swore on the Quran that it was not true varied from being prior to his visit to Pakistan in May 2015 through to whilst he was there or possibly in October.  The mother accepted that she had sworn such an oath and so there was obviously an issue. 

    7.2015

    M tells F she is pregnant.

    11.2015

    M alleges that wider family become involved and accuse M of having an affair. F's sisters paternal aunt and TT tell F M is having affair.

    There is then an argument where members of the maternal family are assaulted.

    M says she was kicked out of the house but later allowed to return by TT.

    Father said that the mother had a scan which said the expected date was in late January. He says that this was not consistent with 40 weeks from his visit [NB end of January is about 36 weeks from 18 May]. He accepted there was a family meeting at which he says that the mother's family was aggressive and violent.

    I conclude that it was in the autumn that the issue of a possible affair emerged and that it surfaced as a result of the information about the expected date of delivery. I am not in a position to resolve the issue about who did what at the meeting and I do not need to. I am satisfied that there was a very highly charged meeting at which the mother was accused of having an affair. In any marriage this would be explosive – with the cultural overlay in that traditional and conservative area it must have been a matter of huge significance. That a heated row ensued I accept. It would be more likely to engender anger initially in the paternal family but equally the maternal family might be angered at the accusation particularly given the mother denied it and swore an oath on the Quran to that effect. 

    26.01.2016

    N is born in Pakistan.

    Relevant medical entries

    -       Condition: FTP (Full term pregnancy)

    -       Weight 3.2 kg 7lb

    -       Letter says after 8m pregnancy 

    F says M said she was premature.

    6.02.2016

    M obtains spousal visa valid until 7 March 2016.

    M says applied for renewal successfully

    18.02.2016

    Registrar-General of Pakistan issues Family Registration Certificate.

    This was no doubt obtained in anticipation of the immigration applications being pursued.

    28.02.2016

    M travels to England alone, the children remain in Pakistan

    (boys with paternal family)

    (and N with the maternal family).

    M says she originally planned to return to Pk after 2 weeks but the father did not want to pay for her to return to Pk and then return again to England alleges that she was isolated and not allowed out of the house and contact with children restricted, financially dependent on F and not permitted to leave the house.  M says only ever visited town centre once.

    In 2nd statement M says F took her jewellery, 

    I am satisfied that having spent so many years seeking to get a visa to travel to England and having a 1month visa granted that both the mother wished to go and the father expected her to go to England in order to further pursue the immigration application for leave to remain. I have little doubt that the mother hoped to return in a fairly short space of time. Perhaps both she and the father were over-optimistic. Once she arrived in England the process plainly took longer than she had expected. Probably the father was more realistic in his expectations and but I do not accept that he insisted she came against her will or that he forced her to stay. He having been separated from his children for most of their lives perhaps under-estimated the importance to the mother of being with them and how much she would want to get back. I conclude that whilst there was an expectation that she should remain to see through the immigration process and she accepted this – this was not outside the boundaries of normal marital obligations and was not a form of control.

    The mother's account of not being allowed to speak to the children or to leave the house and being locked if was not at all convincing. It seems clear the father spoke to his parents and the boys fairly regularly and the mother's assertion that he wouldn't let her speak simply didn't ring true. Her account of asking to speak and not being allowed to – although she gave no explanation as to why he would not and was unable to explain what she said or did was not persuasive. Although she said she had no access to a phone the father, TT and paternal great uncle all in different ways explained (spontaneously) situations where she had access to a phone and how they had given her top up cards or money for them. I do not doubt there were occasions when she was without credit on her phone and as a result she was unable to call as she wished but I don't accept this was a form of isolation or control. The family had a limited income and no doubt needed to budget carefully; I remind myself that the father had on I think two occasions been unable to sponsor the mother as he was unable to show he could support her financially.  She clearly was able to get in and out of the house – she sent the children to the shop when O was born. I found the evidence of TT and paternal great uncle of the freedom she had to go out far more compelling than her account.  I have no doubt that the mother was responsible for the majority of domestic tasks and when the boys arrived she was their primary carer. The father appears to have worked long hours in his shop.

    Early March

    M says F informs M that he will submit an immigration application for N and that both parents need to travel to Pakistan together.

    I am sure that the father at that stage was pursuing applications for all three children.

    20.04.2016

    Parties have samples taken for DNA test

    -       Children's were taken sequentially according to numbers, by registered medical practitioner and with id

    -       Parents sequentially but different sequence

    -       Lab is HO approved

    -       Chain of custody is dealt with by proof of birth certificate and photo id.

    -       Chain of custody was confirmed at laboratory

    -       Tested according to international standards and originals re-tested

    28.04.2016

    Date DNA results obtained for children's settlement applications

    -       F and M are parents of L

    -       F and M are parents of M

    -       M is mother of N

    -       F is NOT father of N

    03.05.2016 –

     

     

     

     

    Parties receive DNA test results. Immigration solicitors see them separately due to the results.

    Solicitor says M denied results initially and said they must be wrong but then admitted an affair with RB.  She said she advised the father that the only immigration applications that could be made for N would be to wait until the mother obtained citizenship when she could sponsor N or to make an application outside the Immigration Rules on human rights grounds. She said the father never returned to her to further these applications.

     

    F says he was devastated and crying. He says M admitted the affair.

    He called TT and asked her to take M whilst he thought what to do.

    M says he was very distraught but not violent or angry but asked TT to take her and they packed some clothes and left.

    M says F was very upset (in oral evidence) but also angry and that he tried to hit her and TT stopped him and then she was pushed out of the house. M subsequently said that after the father had seen the solicitor that he came out and threatened her saying that she must admit an affair when she saw the solicitor.

    I am satisfied that the DNA test is accurate. There is nothing to undermine the chain of custody or integrity of the testing process. Had the samples been interfered with the mother would not have tested positive as the mother of N. The suggestion that the Laboratory has been interfered with the paternal family is without any evidential foundation. The Lab is HO approved and is located in Germany. There is no reason to suppose the results are inaccurate – particularly given the results for L and M. The results are consistent also with the earlier suspicion the mother had had an affair. N was born around 36 weeks after the father's arrival in Pakistan; she could have been premature but I accept the father's evidence that it was the EDD that initially caused the suspicions to arise. I note that N's birth weight was almost identical to O's who as far as I am aware was born full-term. There is then of course the admission the mother made to the immigration solicitor which she accepts was made but which she now says was made under threat from the father. I reject that account. I accept that Ms Hussain's evidence of the mother initially denying the test but then accepting it is correct, that is what the father says occurred and that the mother admitted it to him. It is not essential for me to reach any conclusion about how N was conceived or who her father was. I do not believe the mother's assertion that she had never met RB who she named as the person she had an affair with   but now denies.  She named him although I am not all sure that this is the truth. The person who is the father would no doubt be at some risk from the paternal family and it maybe RB was named in panic, or as someone who might be immune from revenge as his is married to the paternal aunt, or to spite her sister-in-law. Ms Jolly records L saying they had visited the man's house but I am unsure what to make of this. The assertion by the father that the mother drugged his parents and brought the man to their house I conclude was a wild allegation – perhaps now believed in the paternal family but I do not believe it to be true.  Ultimately, I cannot make any finding as to who is N's father – the evidence simply does not permit me to do so. Nor can I make any finding as to the circumstances of her conception. Although given the chance in questioning to offer an explanation for N's conception with a man other than the father the mother was unable to take up that opportunity. Therefore, until the mother is able to make a full acknowledgment the identity of N's father and the circumstances of her conception will remain a secret known only to the mother. The fact that the mother conceived a child by another man with the huge cultural significance that had then and has had since and that she has not disclosed the true circumstances of N's conception does have some impact on any assessment of the mother's capability as a parent of prioritizing the interests of her children. Conceiving a child with another man was likely to have huge detrimental consequences for her children and she did not put their interests first.

    I am satisfied that the father was devastated by the DNA results. The personal betrayal must have been immense, the fact the mother had lied under oath on the Quran, the shame in front of his family and community must all have contributed to his being devastated. From the way he spoke of the mother and their marriage I conclude that the father was committed to the mother and the marriage and the family both for religious reasons but also because he was attached to her emotionally.  I don't accept that he was violently angry – I am satisfied his emotions came out in distress and shame rather than anger. His demeanour in court, the mother's account of him historically and his account and that of TT all combine to support his version. What he did want to do though was to remove the mother from his presence so he could decide what to do and so he did insist on her leaving whilst he considered the position.

    3.05.2016

    M moves to TT's home for M says 5 months.  

    May 2016

    I am satisfied that it was at this point that N was removed from the paternal family home and separated from L and M.  The accounts given by the parents about when she moved were hard to unravel. One said she was 3 months, one said she was 9 months. The obvious reason for her removal at this point when she was about 3-4months old was that she was not the fathers and therefore his family would have wanted nothing to do with her and she would become the obligation of the maternal family.   What was said to L and M about her departure it is hard to know. From what I have heard from both the mother and the father it appears that the father's family have felt more strongly about the mother's behaviour and been less willing to forgive than the father. Given what they now say about her I suspect that they were told at that stage that she was not their sister and that is why they now feel so distanced from her. At that point they would have been developing an attachment to her but that is now close to 2 years past. 

    May-  24.09.2016

    The mother says that whilst she was at TT's house she discovered she was pregnant. F says M visited him and they attended ante-natal appointments and they decided to reconcile. F says he wanted to adopt N.

    The mother says that when she was at TT's home she was isolated and controlled. I do not accept this. The mother's own account and that of TT was that she was involved in helping with the family.  TTs evidence of her going shopping, having a mobile phone, visiting the father's shop and going to the house to get clothes or bathe seemed to me to be true.

    I am satisfied that the father and mother decided to reconcile in order to try to pursue a family life together. I believe the father was fond of the mother and wanted for a variety of reasons to continue with the marriage; particularly with another child on the way. Likewise, the mother wished to continue with the marriage. If she had been isolated and controlled as she described she could have remained separated and gone to her maternal uncle but she did not. I conclude both the father and the mother had affection for the other and wanted the marriage to continue for a mixture of reasons which included religious and cultural expectations but also for personal reasons. I have little doubt that this was not in accordance with some of his family's wishes. He perhaps was able to bring them round on the basis that N would not be a part of it and would be put aside. Perhaps he told them that the mother had agreed to put N aside. Plainly the mother never did agree that but I conclude that the father hoped that given N could not come to the UK that the reality would be that N would not be a part of the family and he was prepared to take the mother back on this basis.  His evidence was that he told the mother she needed to concentrate on the children who were with her. I believe that when the mother mentioned N he would have fobbed her off – perhaps leading her to believe that an application would be made when he knew that there was little chance of succeeding. I do not accept he ever intended to adopt N. I conclude that the reconciliation was a genuine attempt to reconstruct the marriage – albeit almost certainly built on different expectations. I don't believe the father deliberately misled the mother about N – he is not sufficiently cunning or manipulative to do so.

    18.11.2016

    L and M granted entry clearance and they travel to England (in care of parental uncle) and are enrolled in school.

    Upon arriving I am satisfied that the mother resumed the primary care. When she was heavily pregnant she may have done less for the boys but overall, I do not accept that she was neglectful of them. When she was taken up with O on her arrival they may have felt that they were somewhat side-lined but I do not accept that the boys were neglected in any way.  

    17.01.2017

    O born at home

    M says in the hall of the family home on her own

    F is informant for Registrar

    The account of both the mother and father supplemented by TT depicts the sudden onset of labour. The mother described O as coming quickly. The father described coming home with TT after the boys came to the shop to tell him the baby was on the way. His detailed description of O's birth satisfies me that he returned home quickly, that he called the ambulance, that he assisted until they arrived, that he was present as the mother gave birth and did what he could. I do not accept that the mother was isolated, alone and unable to contact anyone. Her inability or unwillingness to call medical help on a phone was a function of her inability to speak English and the knowledge that the father was only minutes away in the shop.

    06.2017

    Paternal grandfather is diagnosed with cancer

    06.2017

    M renews current Pakistani passport. 

    18.06.2017

    M & E's Pakistani passports expire

    19.06.2017

    M's Pakistani passport expires

    M says she renewed it

    I accept the mother's account that her passport was held by the father for safekeeping.

    02.08.2017

    F says he receives call from family saying father very ill.

    03.08.2017

    Tickets purchased for travel to Pk. F purchases return for himself leaving 4.8.17 and returning 19.8.17. F purchases single for mother.

     

    M says F informs M that he has purchased tickets for M and F to travel to Pakistan. M says F said they would complete papers for N whilst there.

    M's case is that she was not aware of this until the day of travel and did not want to go without children

    F says he wanted to travel and M wanted to go with him – he didn't want her to as the children needed to be looked after.

    The oral evidence of both parties was not dissimilar in respect of the circumstances in which they came to travel to Pakistan.  The father obviously received a call to inform him of his father's deteriorating health. He said he would go to Pakistan. I am satisfied the mother said she wanted to go with him – she had not seen N for 18 months and must have been desperate to see her again. I accept that money was not freely available to travel and that the father expected the mother to remain in England to care for L, M and O. The father at times in his evidence spoke of how it was the mother's responsibility to look after the 3 children.  The mother I believe insisted on being able to travel to see N.

    As I have said above I conclude there was a fundamental disconnect between the father and the mother in relation to N. For the mother she was her child – adored like the others. She felt the separation keenly. The father had, without making a plain statement of his intent, by his inaction over the immigration position and by his silence hoped to erase N from their consciousness. I do not accept that he wished to include N in his family by adoption or otherwise. Whilst he may have said this on occasion to placate the mother and whilst he perhaps genuinely believes it is not N's fault I conclude that the father was only prepared – or perhaps emotionally able - to maintain a family unit of himself, the mother and their 3 children – not N. Given his dogmatic repetition of the mother's deceit and he being the victim I am in no doubt of how strongly he felt the mother's betrayal and how keenly he felt the pain. I conclude his way of dealing with the tension between wanting to maintain a family unit for the children and for cultural reasons and his pain was to try to create a situation where the mother forgot about N, where she disappeared from their lives and was not a reminder of the betrayal. The father did not come across as a man of anger or violence or temper even and I conclude he felt that if he forgave the mother the family unit could survive. The quid pro quo though for his forgiving the mother her infidelity was that she commits to him and their three children.  I cannot conclude that this was an express condition that he put to her – he is not the sort of man to openly deal with matters in this way. I conclude this is what he wanted and he felt that by indirect action and hints this was what he hoped the mother would accept.  It was of course not difficult for him to erase N; he had never seen her and he was not her father. He singularly under-estimated the bond of motherhood though. I have no doubt that after their reconciliation and O's birth that the mother would not let the issue of N fade away. There were probably times when N was little spoken of and perhaps then the father hoped she was fading from the picture and he would get his wish. Then the issue of N would surface again. I conclude that when the issue of a visit to Pakistan arose in early August and the mother insisted on travelling to Pakistan to see N and pressed the father then to sort out N's immigration position this was the final straw for the father. I have little doubt that his family would have expressed considerable anger at the idea that the mother was coming back to collect N. If he had given the impression to them that the mother had agreed to forget N this is not unexpected. Perhaps combined with the stress of his father's terminal illness, almost certainly with his family, in particular his sisters, putting him under pressure, he recognising that he personally could not cope with the complex emotions connected with N and the mother   he decided that he had reached the end of the road with the mother and that a decision was taken that she would travel back to Pakistan but would not be returning. Hence on 3 August 2017 he booked a return ticket for himself and a single for the mother.

    I have no doubt that the father was in possession of the mother's passport and visa. He was the head of the house and I accept the mothers evidence that after she had renewed her passport that it as the father who held it. I note that the father told Ms Jolly that the mother would send the boys to the shop asking him for her passport and a ticket. I think this is an elaboration in that it probably only happened at the beginning of August 2017 but it illustrates that the father accepted he had the mother's passport. The mother I am satisfied thought she was going for a short trip to see N and to try to move her immigration application forward.

    04.08.2017

    Parties arrive in Pakistan

    M says she was taken to the maternal family home as there were family disputes which meant it would not be appropriate for her to stay there. M says F told her his sisters were causing problems and it was better for her to stay with her mother. M says F had her passport and Visa card.

     

    F says that his cousins arrived to pick them up and they drove for several hours before they had a meal. They then drove on to Poona and M wanted to be dropped off to see MGM and N. F says they dropped her off at about 4/5pm – he says he didn't go to see MGM or N but drove off with cousins for the remaining 1 hr journey to his fathers. F said he didn't see her again until at court.

     

    The truth lies in a combination of the two accounts. I am sure that the mother was not welcome at the paternal family home. Her infidelity – said by mother to be with RB – was a source of considerable hostility in the family for two reasons. One the infidelity itself but secondly that the mother had named RB – which no doubt he denied and which had inflamed F sister's disapproval of the mother to something far more intense. The decision having been taken that the mother was not returning to England the father and his cousins dropped her off at her family – where she wanted to be to see N and on the pretext that she was not welcome at the paternal family home for the reasons given.  I think it probable that the mother's passport and visa were disposed of by the paternal family at this point in time.

    11.8.2017

    F says he called the mother and she said she wanted a divorce and to marry N's father, MGM was abusive and threatened to have him killed. He became fearful. He said he decided to divorce her. He was unable to explain why he didn't go to see her to discuss matters or what he did to try to establish why she was saying this or how they would deal with the children. He later in evidence suggested she said words to the effect of they are your children and you look after them and I will look after N. His evidence as to whether she had subsequently married RB was frankly ludicrous – he suggested he didn't know whether she had married him, saying he had not spoken to his sister. He says he did not report the threat to kill him to the police as he was fearful.

    M says F called her and made arrangement to meet her and then to travel to Islamabad to get N's immigration application done on 21 Aug but then did not turn up.

     

    The mother's account of events over the succeeding days was more coherent and made more sense than the fathers. His account was at times frankly nonsensical. That the mother would ask for a divorce to marry RB – the father's own brother in law – and that his elderly mother in law threatened to kill him are fabrications. No mention is made of them in the Talaq divorce. He took no action on them. I am satisfied that when he spoke to the mother he simply fobbed her off with excuses and led her to believe that they would be travelling to Islamabad to deal with N's application.

    14.8.2017

    M's police report puts this as date of arrival in Pk

    This is self-evidently inaccurate but the mother's evidence generally on dates was not reliable.

    15.08.2017

    F says that he grants M an Islamic divorce following threats from M and MGM

    [C64] says divorce is due to family problems of 'Executant' (i.e. Father) and that W wanted divorce. No mention of N, no mention of threats – he said although she had insulted his family he did not want to reciprocate.

    In pursuance of his decision to put the mother aside he took steps to divorce her. Although I wondered by reference to the contents of the letter to the Home office whether this was indeed a genuine divorce I am satisfied on balance that it was. The father's account although somewhat garbled suggests on balance they did travel to the Union Council and did prepare a Talaq which was registered with them. It seems to have been prepared at a roadside lawyer outside the Union Counsel or similar. Given the mother subsequently sought a meeting with paternal great uncle particularly to deal with a concern the father was divorcing her I do accept that the mother somehow was given notice of the divorce. 

    15-18.8

     M says F called her each day and told her they were returning to UK on 26 or 27 Aug,

    19.08.2017

    F says he returned to England. He says there were telephone calls in which he told her he had divorced her.

    M learns that F has returned to UK

    M says that during subsequent calls with F he states:

    -       He does not have M's passport and wants the children to live with him

    -       He would never let her return to England

    -       She is only permitted to speak to the children occasionally

    I think it probable that after his return and after he had written to the HO that he did behave in this way.

    21.08.2017

    F write to the Home Office informing them that the relationship has ended and can the mother's residence card be cancelled.

    The letter does not say that he has divorced her on 15 Aug but suggests that they have separated and the marriage will not (future) continue.

    F says he felt obliged to inform the Home Office as he was no longer sponsoring her. He was unable to identify any downside from the children's perspective

    I accept that the father wrote this letter not out of a sense of obligation of his civic duties but in order to make it harder for the mother to return,

    Late Aug

    M and her 2 uncles ask to meet paternal great uncle. They ask him to intervene to prevent F divorcing M and he says he will do what he can for the sake of keeping the family together. M throws her scarf on the floor (a pleading gesture) for him to help her.

    This suggests there may have been some indication in a phone call of the F's intention to divorce.

    31.08.2017

    M reports missing documents to the police in Pakistan

    This supports the conclusion that the father had indeed abandoned the mother. Had his version been correct why would she have been making this report and seeking a meeting with paternal great uncle? The fathers evidence that he did not know whether she had subsequently married RB was frankly ludicrous but was an indication of the extent to which he now adopts the position that the mother's life is an irrelevance to him

    14.09.2017

    Copy police report attested

    15.09.2017

    F's father dies. (F does not attend funeral – nor do M or her family)

    20.10.2017

    Statement of Sulema Jahangir

    No reference to issue of N's paternity.

    24.10.2017

    Moor J

    -       Ex parte order

    -       TT made party

    That the mother made no mention of the DNA test to Ms Jahangir is a serious deficiency. Orders were obtained on an ex parte basis where the duty of disclosure is at its highest. The court was misled by the mother over N. I do not accept that the mother genuinely thought N was the father's child.

    29.10.2017

    F served with application and Tipstaff passport order executed

    30.10.2017

    M issues application under the IJ  

    By operation of the SCA 1981 and the FPR N made a ward by the application when there was no jurisdiction over her. She remains a ward given the way the rules work. It is probably an oversight that the previous rules which discharged the wardship if it was not confirmed within a set period but that does not appear in the FPR; See IS-v-DBS & JS [2015] EWHC 219 (fam)

    31.10.2017

    Williams J: order

    01.11.2017

    Disclosure from the Home Office confirming M has spousal visa vaid until 6 November 2018 and that no application has been submitted for N.

    21.11.2017

    F's first statement

    28.11.2017

    M's statement

    6.12.2017

    Williams J

    -       Children joined

    10.01.2018

    Order: (reschedule Cafcass)

    18.01.2018

    Maternal uncle statement

    18.01.2018

    Maternal grandmother's statement

    29.01.2018

    Letter from Dr confirming that N was premature and born after 8 months

    31.01.2018

    M's 2nd statement

    02.02.2018

    Statement from (paternal uncle)

    06.11.2018

    M's British Residence card due to expire

    Fact Finding

    38. Drawing on all of those findings and returning therefore to the Schedule my findings are as follows.

    1. The father stranded the mother in Pakistan in August 2017. He removed her passport and returned to England and on 21 August 2017 he wrote to the Home Office to cancel the mother's visa. He therefore forcibly separated the mother from L, M and O

    Finding:

    The father did strand the mother in Pakistan. I conclude that he wanted her to forget about N and to concentrate on their three children and to try to build a life in England and put N behind them. Having N in their lives would I conclude have been too great an emotional strain for him to bear – a constant reminder of her infidelity and his shame. She however – not surprisingly could not put N aside. He said it was not N's fault and he may have believed this but he could not take it beyond that and actually include her in their family. Had he done so he could as the immigration solicitors said have made an application. He therefore left her in Pakistan, removed her passport and wrote to the Home office to hinder her ability to return. He had decided to separate her from the 3 children in England – he considering it better she remain in Pakistan with N and he live in England with the 3 children. I do not believe this was done maliciously – with intent to harm the mother or the children – but was the product of the father's inability to cope emotionally with a marriage where the consequences of the mother's infidelity would be a constant presence. Self-evidently there were other and far better ways of dealing with that issue.

    2. The mother was subject to controlling behaviour by the paternal grandfather and paternal aunt with the approval of the father while she was living in the paternal family home.

    a. Her movement were restricted

    b. She was made to perform domestic chores for the entire family

    c. She was verbally abused on occasions

    d. The was physically kicked out of the paternal family home on occasions

    Finding:

    I do not accept that any of this is established. Life in the paternal family household followed an ordinary pattern consistent with the mother's expectations and cultural and family norms. It was not abusive.

    3. Around October 2015 the paternal aunt was verbally abusive to the mother; she accused her of having an affair; she physically assaulted the maternal grandmother and the maternal great grandmother; the father was also verbally abusive to the mother on the telephone.

    Finding:

    I conclude that there was a family argument which was heated on both sides. I do not accept it was abusive in the way the mother describes.

    4. The father exercised controlling and coercive behaviour over the mother. While in England the mother was isolated, she had no funds, no mobile phone and was generally denied access to her children in Pakistan by way of telephone calls.

    Finding:

    I do not find that the father was controlling or coercive. The marriage was traditional in nature and the roles were taken on accordingly. The mother was not deliberately isolated, she had funds albeit modest, she had a phone and she was able to speak to her children.

    5. After L and M arrived in England in September 2016 the father continued to deny the mother access to N by way of telephone calls – she only spoke to the maternal grandmother once throughout this time and this was to ask her to take N into her care.

    Finding:

    Up to the point of the DNA tests there was no reason for the father to limit the mother's contact with a child he believed to be his own. After May 2016 I conclude the father wished to distance N from the mother, himself and the children. In the period from May – September the mother was not with the father and was able to speak to her mother in Pakistan. After the reconciliation the probably did disapproved of her calling, he may have made it difficult but I do not accept she had no access to a phone.

    6. The father was verbally abusive to the mother while she was living in England. In May 2016 when the DNA report came out he pushed the mother out of the paternal family home and she had to seek refuge at the paternal uncle's house.

    Finding:

    I do not find the father was verbally abusive. He was distressed and ashamed and insisted she leave his home. I do not accept there was any physical force. The father arranged for her live with his cousin whilst he considered his response to the revelation he was not N's father. The father is a fairly passive individual and displayed no temper or anger in court. The mother also is a fairly passive, perhaps submissive individual.

    7. After the mother was abandoned in Pakistan the father refused to let her have contact with L, M and O

    Finding:

    This is established.

    8. The father misled the mother into believing that he is making an application for N to return with them to England but in fact he abandoned the mother in Pakistan in August 2017 and did not make any application for N

    Finding:

    I accept the father had led the mother to believe such an application would be made. This is to be seen in the context of his belief that the marriage could only continue if the family consisted of the mother, father and their 3 children. For reasons of pride, family pressure and the loss of trust he felt the father could not bring himself to include N in the family.

    9. The father and paternal family members falsely accused the mother of having an affair and the father denied paternity of N.

    Finding:

    The father and the paternal family rightly accused the mother of conceiving a child with another man. The father rightly denied paternity of N.

    39. The mother also pursues a finding that the father had emotionally abused the children by encouraging them to make up an account that the mother had been physically abusive to them and neglectful and she invited me to dismiss the allegation that the mother had in fact been physically abusive including cutting M's finger and hitting them with a shoe or rocks so as to cause scars on their heads. I do not accept that the father has deliberately planted stories in the children's minds. I conclude that the atmosphere in the father's household and wider circle is one which is either very hostile to the mother or where she is viewed as non-person. The boys are aware of and have adopted this approach to her. They view N as someone who is not their sister because that is the attitude in their home and wider family.

    40. It has been alleged that the mother has been neglectful of the children over the years and physically abusive. These allegations emerge out of what the boys said to Ms Jolly when she interviewed them. I note that in the father's statement there is no reference to the mother being abusive to the boys. It is clear from the report of Ms Jolly that since the father's return in summer 2017 that the father has not promoted their relationship with the mother. It is equally clear that the father has a deep-seated hostility to the mother because of her betrayal of him. That attitude dominates his thinking about her – she has chosen N over him and the three children in England; she has betrayed him; this situation is her fault. I have no doubt that he does not insulate the children from this view and they in his household and within the wider family she is seen as a bad thing. After some considerable effort he eventually conceded that he had made no attempt to institute contact between the children and their mother between his return in August and the proceedings commencing in October. That in itself illustrates the extent to which he would like to erase the mother from the picture – in evidence he said it would be easier if he had these children in England without the mother and that she should have N in Pakistan. That the children have picked up and adopted this attitude to her is hardly surprising. M was injured whilst he was a little boy in Pakistan. He told Ms Jolly his mother was cutting grass and she hit him with the blade. The impression I gained was that this was accidental. The mother gave a detailed account of how M got this injury – she said M and his cousin were playing with a garden implement and that M accidentally cut himself. I am unable to determine which version is correct – what I can say is that whether it was the mother or the cousin involved it was accidental and no blame attaches to the mother for it. In respect of the general assertion that the mother had hit the boys and had caused scars to their heads I am satisfied that the mother was not abusive in the way suggested by the allegation. I have little doubt that it has been amplified in the boys' minds to fit in with the current narrative and attitude to the mother in the father's home. Ms Jolly's evidence of their presentation and lack of distress when describing this is not consistent with them having suffered extensive and punitive chastisement. I am prepared to accept that the mother may have used physical chastisement on the boys to a modest degree – her evidence that she had never been hit at home or at school and had never hit the children did not strike me as genuine. I think it likely that in Pakistan in particular where corporal punishment is still far more prevalent and acceptable that she did occasionally hit the boys – that is consistent with what they say but it was no more than reasonable physical chastisement and does not amount to a form of abusive behaviour.

    41. The father in particular has acted in ways which have had serious consequences for the children – separating them from the mother, distancing them from her and their sister both physically and emotionally. He put his needs before the needs of the children. However, the mother also acted in a way which has exposed the children to harm by fathering a child by another man and where it was self-evident that there would be serious repercussions for herself, the father and her children of so doing. She put her needs before the children's although the consequences are of a less direct nature than the fathers.

    42. Both of the parents have been seriously dishonest in the accounts they have offered to this court orally and in writing. The mother's suppression of the truth in her first statement was a very serious instance of dishonesty and although it may have arisen from a degree of embarrassment and denial I also have no doubt there was an element of seeking to hide evidence which she was aware would somehow be relevant to the courts decision-making. The father's denial of the events of August 2017 and construction of an alternative and false account was also seriously dishonest.

    Conclusions

    43. The result of those findings is that

    i) This court has no jurisdiction over N unless it can be established that she is habitually resident here despite never having been present here. Given she was born in Pakistan and her mother was habitually resident in Pakistan at her birth and her father is almost certainly habitually resident in Pakistan and she has lived all her life in Pakistan on any factual analysis I cannot see how N could have acquired habitual residence here. She is not present here. There is no evidence to suggest N might be entitled to British citizenship. Unless the court were persuaded to exercise some form of 'forum necessitatis' jurisdiction (and there is currently no evidence to suggest that Pakistan cannot exercise jurisdiction over her) this court has no jurisdiction over N. The wardship must be discharged.

    ii) The court has jurisdiction over the 3 children who are undoubtedly habitually resident in England.

    iii) The court must determine the welfare of the 3 children. This is not a straightforward process. The court has made adverse findings about each parent. The findings against the father amount to domestic abuse within the meaning given to it involving as it does stranding the mother. Clearly that will be relevant to the determination of the welfare of the children. However, that is not the only relevant matter. The path ahead is not clear for these children. If the mother is unable to remain in England for immigration reasons the position becomes even more complex. If N is unable to join the mother and her ? siblings how will the mother respond? How will the boys respond to contact with the mother and N having been exposed to the atmosphere in their home and community which so roundly condemns the mother. I know not to what extent this can be ameliorated and whether there are cultural or religious issues which will have to be addressed in order to enable these three children to have appropriate relationships again with their mother and sister.

    iv) Progress must begin immediately to re-establish some form of relationship between the children and their mother and sister. I will hear more on that today.


Judgment, published: 06/08/2018

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Published: 06/08/2018

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