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IN THE HIGH COURT OF JUSTICE
B e f o r e :
THE HONOURABLE MR JUSTICE PETER JACKSON
|| AH (Father)
||L, H and S (Children, by their Children's Guardian)
||2nd- 4th Respondents
||MS and AS (Maternal Grandparents)
Alistair MacDonald QC and Christopher Poole (instructed Turpin & Miller LLP) for the Father
Charles Geekie QC and Victoria McLaughlin (instructed by Clifton Ingram Solicitors) for the Mother
Simon Miller (instructed by Griffiths Robertson Solicitors) for the Children
MS and AS (Grandparents) represented themselves
Hearing dates: 12th-14th, 17th-18th and 21st December 2012; Judgment date 14 January 2013
HEARING DATES: 12TH-14TH, 17TH-18TH AND 21ST DECEMBER 2012; HTML VERSION OF JUDGMENT DATE 14 JANUARY 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
This judgment consists of 177 paragraphs. Pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken and copies of this version as handed down may be treated as authentic.
Mr Justice Peter Jackson:
- In May 2011, Mr AH, to whom I shall refer as the father, applied for an order for contact with his three children, whom he had last seen in February 2011, at which time their mother, Ms RS, removed them from the family home to an unknown location. After doing so, she applied for injunctive relief, that application also being before the court.
- The children are:
L, a girl, born on 19 March 2003, and now aged 9
H, a boy, born on 27 July 2005, and now aged 7
S, a girl, born on 27 October 2006. and now aged 6
- The mother and father are first cousins. The mother is unwilling to allow the children to see their father or her own family. She makes serious allegations against him and against her parents, Mr and Mrs S, to whom I will refer as the grandparents. This has been a fact-finding hearing into those matters.
- The mother's main allegations are that:
(1) In 1996, the grandparents were violent towards and ostracised her older sister R because they disapproved of her behaviour. The family then moved to Pakistan, leaving R behind at the age of 18.
(2) While in Pakistan, the grandparents and sister F's husband S participated in the imprisonment and beating of their female cousin T, who later died in March 1999 in what her family described as a tragic accident.
(3) In Pakistan, in 2001, she became pregnant by her older first cousin M.
(4) On discovering this, the grandparents beat her and insisted upon her marrying the father (AH).
(5) In Pakistan, in February 2002, she gave birth to a son. She believes that her mother-in-law (the father's mother) and her own mother removed the child at birth and she never saw it again.
(6) In 2005/6 sister R separated from her husband I, alleging that he had been violent to her. The grandparents and sister F were aware of the allegations of violence but immediately sided with and gave support to I, and required the rest of the family to do so, to the father's knowledge.
(7) On a visit to Pakistan for her sister S's wedding in August 2010, the father assaulted her in the presence of wedding guests by grabbing her by the throat.
(8) On the family's return to England, the father raped her twice, the first occasion being in September 2010 and the second being in October 2010.
(9) Between September 2010 and February 2011, the father was verbally abusive, pushed the mother and children, and threw household items.
(10) Immediately after the mother left home on 6 February 2011, the family became aware that she alleged that the father had been violent to her and later that she alleged that he had forced her to have sex. The grandparents and sisters F and S dismissed her allegations and gave support and a home to the father.
(11) Since the mother's flight her family have tried to trace her in an oppressive manner.
- The mother also states that she believes that her cousin T was killed by her (that is, T's) family for dishonouring them, and also, based on information given by sister R, that her own mother and mother-in-law probably killed her first baby. However, she does not seek findings to this effect, recognising that there is no dependable evidence to support her beliefs. She also makes other allegations, which I do not record here in the light of the seriousness of those listed above.
- The mother states that by making her allegations publicly, she has further dishonoured her family and the father's family and placed herself and the children in a position of serious physical risk. Since leaving the home in February 2011, she has been living at addresses that are intended to be unknown to other family members. She gave evidence from behind a screen, but has been willing to sit at the back of the court away from the other parties during the rest of the hearing.
- The father and grandparents vehemently deny all of the allegations. They say that the mother has in recent years become involved with local drug dealers, has had a child by one of them (a man with a number of aliases, who I will call Mr B) and that she has persistently lied about this. Her allegations are a smokescreen to hide her own behaviour. They express concern for her welfare and that of the children. As to the particular allegations, they reply (insofar as the allegation concerns them) that:
(1) The mother's older sister R was not ostracised.
(2) The account of cousin T being imprisoned and beaten is a fabrication and as far as they know, her death was an accident.
(3) The mother was never pregnant in 2001.
(4) The mother was not beaten. Her marriage to the father was not forced, but arranged in the normal way.
(5) There was no baby.
(6) The family does not accept that I was violent to sister R.
(7) The mother's account of an assault at the wedding in August 2010 is a fabrication.
(8) The father states that her account of being raped later that year is a fabrication, and the grandparents accept this.
(9) The father concedes that, during the period in which the parents' marriage was plainly breaking down, he was on occasion verbally abusive to the mother in anger. He categorically denies any physical violence.
(10) The family say that the mother's account of being harmed by the father is an attempt to divert attention from her own undesirable associations.
(11) Any attempts to find the mother and children were born only of proper concern for their welfare.
- The difference between the competing accounts is stark, and there is no room for misunderstanding. One side is giving false evidence. The court's task is made more difficult by a number of features, each of which has to be carefully evaluated. Among them are these:
(1) The allegations are in some cases a good many years old.
(2) The evidence from reliable third party sources is generally thin or non-existent and the allegations are on the whole unsupported by anything other than the mother's own account. In particular, no evidence has been given by sister R. Nor has there been any investigation into the circumstances in which R has become detached from the family. In January 2012, the mother applied to Mr Justice Roderic Wood for an order that the Guardian should carry out enquiries into this aspect, including inspecting the file relating to R's divorce from I. R attended in person and opposed the application. In refusing to make a direction, the judge said this:
"Whilst on one view I can see the relevance of an examination [of the documents] by the Guardian... I do not find myself having heard her eloquent pleas from the back row of my courtroom in which she assures me nothing in those proceedings of her life illuminates the landscape that this fishing expedition intends to do. She was appropriate and calm, she was not sworn, she was not cross-examined but I would need very considerable persuasion before this court would investigate her private life..."
In the circumstances of this case, I must therefore exercise caution before drawing inferences either way from this important gap in the evidence.
(3) At the same time, in circumstances where the mother's credibility is highly relevant to the determination of her allegations, she has been shown to be a persistent liar concerning the important matter of her relationship with the father of her fourth child.
(4) The grandparents do not qualify for legal aid and have had to represent themselves in the face of hugely serious allegations. Every effort has been made to enable them to present their case as they would have wished at the hearing. They have had the assistance in court of their daughter F and before the hearing from their daughter S, but that is no substitute for expert representation and pre-hearing preparation. The situation has to an extent been mitigated by the legal expertise available to the father, whose case is similar to that of the grandparents, but again this is only a partial remedy. I make full allowance for the difficulties that the grandparents face. There is no absolute right to legal representation and overall, while making no effort to hide my misgivings, I consider that they have received a fair trial.
(5) The seriousness of the allegations against members of a respectable family might normally cause a degree of scepticism, but this must be set alongside the general evidence in the statement of Ms Jasvinder Sanghera, whose experience of honour-based family systems reminds the court of the lengths to which families can go when a member is considered to have brought dishonour upon them. Her report includes these passages:
[A paragraph that describes the way in which children are taken abroad in response to a daughter running away, in order to protect the family honour.]
"It is widely documented that often the natal family support the husband's family and not their daughter."
"It is also acknowledged that the perception or rumour of immoral behaviour may be sufficient to harm or kill. Such incidents may include leaving a spouse or seeking divorce, existence of a boyfriend, pregnancy outside of a marriage."
"It is important to note that honour can be restored through either the modification of the transgressors (e.g. forced marriage) or erasure of the carrier of the dishonour (killing). Codes of honour are intrinsically linked to what the family perceive to be norms of behaviour for both sexes and are often based upon patriarchal notions of ownership and control of women."
"The killing of new born babies and female infanticide is widely documented in Pakistan and rural India
It is important to note that an aggravating factor to commit infanticide is where a woman has given birth to a child outside of marriage."
- However, I do not attach any weight to specific comments by Ms Sanghera about the likelihood of the mother's account being true, that being a matter for the court and not for a witness, even a specialist one.
Proof of facts
- The burden of establishing a fact rests on the person who seeks to prove it. The standard of proof is the balance of probabilities. So, in order to uphold a disputed allegation in this case, the court must be satisfied that the mother has shown that it is more likely than not to be true. The father and grandparents do not have to prove anything.
- In a situation such as this, where the mother is known to have lied, I also direct myself (R v Lucas) that she may have particular reasons for lying and that her lies do not necessarily mean that her evidence is also untruthful about other matters.
- I shall next give an account of the background, based upon the helpful agreed document prepared by the parties.
- The grandfather, who is aged 60, was born in Pakistan and came to England in the 1960s. In 1972, he and the grandmother married and in 1974 she joined him here. They have six children, all born in England, whom I will describe in relation to the mother as follows:
Sister F married to cousin S with five children
Sister R twice married (first to cousin I) with five children
Brother G married to N with three children
Sister S married to A with one child
Sister M married with no children
- The family has a house in Islamabad, built by the grandfather, and a home in their village of origin, which is within an hour's journey. This village is also home to the father's family.
- The father, Mr H, was born in Pakistan in 1970 and is now aged 42. He is a first cousin of the mother. His parents remain living in Pakistan.
- In addition to the three children subject to these proceedings, the mother has a fourth child, M, born on 27th July 2011 and now aged 17 months. DNA testing has shown that the father is not the father of M and that his father is a Mr B, a man of black Caribbean origin.
- In 1996, the mother travelled to Pakistan with her family. She contends that this followed sister R being beaten by the grandfather in consequence of the discovery of contraceptive pills in her school bag, after which R, then 18, ran away from home. The grandparents deny this.
- The mother contends that the grandfather made it clear that, once they had arrived in Islamabad, she would be staying in Pakistan until she was married. At the time she left England, the mother was in her pre-GCSE year and, although an intelligent person, she has never obtained any academic qualifications.
- Sister R travelled to Pakistan later in 1996. The mother contends that R was inveigled into going to Pakistan by a claim that the grandfather was very ill. The mother says that, once in Pakistan, R's passport was removed and she was told that she would remain in Pakistan until married. The grandparents deny this.
- In March 1999, a maternal cousin, T, died in Pakistan as the result of sustaining fatal burns. The mother contends that T died at the hands of the maternal family after she was discovered having a relationship with a man of whom the family did not approve. The mother says that T was chained to a toilet in the grandparents' home in Islamabad and was beaten and starved for a week. The father and grandparents contend that T died as the result of burns sustained in an accident with a tandoor oven.
- The mother alleges that sister R made an attempt on her own life by drinking antiseptic fluid but, after sustained parental pressure, agreed to marry her first cousin, I. The grandparents say that this was a normal arranged marriage.
- The mother says that she herself formed an intimate relationship with the brother of R's husband, her married cousin M. The mother says that in September 2001, he bought the morning-after pill for her as she feared she was pregnant. The mother alleges that the grandparents discovered this and that the grandfather slapped her several times and threatened her with a knife, and that the grandmother punched and kicked her in the stomach, making it clear that she was not to marry M. The mother contends that a marriage to the father was then immediately arranged for her.
- The grandparents deny the allegation of assault and state they would have been content for the mother to marry M as he, like the father, was a first cousin to the mother. The father asserts that he has no knowledge of the mother's alleged affair with M.
- The parents married in September 2001 in Pakistan. The mother alleges that the marriage was forced. She says that at the date of the marriage she was at least two months pregnant with M's child. The father and grandparents contend that the marriage was arranged but that the mother had four or five other marriage proposals.
- The mother alleges that in February 2002 she gave birth to the child, a healthy boy, in the village in the presence of her mother-in-law and sister-in-law, with the father present in the house. Following the birth, the mother contends she collapsed and awoke to find the child gone. The mother alleges that the father informed her that the child had died in hospital. She says that she has subsequently been told by sister R that the grandmother and her mother-in-law took the child to the grandparents' home in Islamabad and poisoned him.
- The father and the grandparents dispute that the mother was ever pregnant in Pakistan in 2002 and deny any involvement in the killing of a child.
- The mother returned to the United Kingdom in July 2002. The father remained in Pakistan.
- L was born on 19 March 2003 and is now aged 9 years old. The mother says that she informed medical staff that this was her first pregnancy, and there are references to this in the medical records. However, there are also notes at [C212] that read "Term NND I day old", referring to a previous neonatal death, and at [C190] that reads "G2P1+1(NND)", meaning that there had been two pregnancies, one birth and one death. I shall refer to this evidence below.
- Later in 2003, the mother returned to Pakistan to file a visa application for the father. The application was initially rejected and an appeal was lodged. On the mother's return to England to work, she left L with the grandmother in Pakistan for six or seven months until the age of about 13 months.
- The father came to the United Kingdom in April 2004. Thereafter the family resided together and the marriage was peaceable for a while.
- H was born on 27 July 2005 and is now aged 7 years old.
- In 2005 or 2006, sister R's marriage broke down and she asked her husband I to move out of the family home. The mother believes that there were proceedings concerning R's children. The mother alleges that her family made it clear to her that, following R's divorce, she was to have nothing to do with R, that the family were to be loyal to R's husband and that the family hounded and threatened R. R has subsequently remarried, but lives elsewhere and relations between her and the grandparents are currently distant at best.
- S was born on 27th November 2006 and is now aged 6 years old.
- In February 2007, the mother saw her general practitioner for depression. She says that this was contributed to by her responsibilities to the children while doing no less than four jobs, and that the father placed her under constant pressure to send money to his family in Pakistan. This led to continuous arguments between them.
- In October 2007 the mother underwent the termination of a pregnancy. The mother alleges that this was at the insistence of the father. The father denies this and contends that the mother did not want more children at that time as four children would be too difficult. The mother contends that she and the father began to sleep in separate bedrooms at this time, although they continued to have sexual intercourse until the middle of 2010.
- In November 2009, the mother was prescribed antidepressants. She says that her marriage was breaking down and that her family was unable or unwilling to help her. She attended the doctor on a number of further occasions in 2010.
- The father was granted British citizenship in July 2010.
- In August 2010 the mother and the father attended sister S's wedding in Pakistan. The mother alleges that at the wedding the father grabbed her by the throat and tried to strangle her, compelling guests to intervene to protect her. The father denies assaulting the mother and contends the incident is fabricated. The grandparents assert that they did not witness such an incident or hear it spoken of by other guests.
- The mother returned to the United Kingdom in August 2010 after the wedding. The father remained in Pakistan until the following month.
- The mother alleges that on the evening he returned from Pakistan in September 2010, the father forced her to have sexual intercourse. The father denies ever forcing the mother to have sexual intercourse.
- The mother alleges that following his return from Pakistan, the father's behaviour towards her changed and he became verbally abusive, would push her and the children around and threw things at her. She contends that the father was angry and violent on a daily basis, much of it in front of the children. The father denies he was ever violent or aggressive; the grandmother says that she never witnessed violence between the father and mother and that the mother appeared happy with the father.
- It is plain on the evidence that there was a significant drug problem in the vicinity of the parents' home. The father says that that the mother's mood had begun to change and she had begun associating with men known for dealing drugs in the area, including Mr B. The grandparents share this belief.
- The mother states that her relationship with Mr B began in September 2010; it is possible that it began earlier, but I do not find it necessary or possible to investigate this further.
- The mother alleges that the father again forced her to have sexual intercourse in October 2010. The father denies this.
- In late October 2010, the mother conceived a child with Mr B. The mother subsequently made a statement saying that this pregnancy was the result of a one night stand and that she had had no other dealings with this man.
- On 4 February 2011, the mother contacted the Police to inform them that she was planning to leave the father because he was verbally abusive to her and tried to control her finances. She did not inform the Police that she was pregnant.
- On 5 February 2011, the mother informed the Police that she had decided that she could not continue with the expectations of the father, that he and her family were traditionalists and she was 'Western'. She informed the Police that she was suffering from verbal abuse of increasing intensity, emotional abuse and financial abuse, and was subject to isolation or accusation when she returned from work.
- The mother left the family home on 6 February 2011. The mother asked the Police to contact the grandmother to inform her that she was safe and did not want contact from the father or her parents.
- At the time the mother left the family home, she was three months pregnant by Mr B.
- On 7 February 2011, the mother telephoned the grandfather and informed him that she would call him in a few days as she had no credit on her phone.
- On 10 February 2011, the mother informed the Police that her family had been looking for her and had contacted the children's school.
- On 14 February 2011, a person who stated that she was the mother's sister informed the Police that the mother's leaving had nothing to do with domestic violence but was linked to drugs.
- On 17 February 2011, the mother's sister again informed the Police that the mother's departure may have been linked to drugs.
- On 20 February 2011, the mother informed the Police that her landlord had been contacted by a person purporting to be from the Police asking for the mother's telephone number.
- On 2 March 2011, the mother informed the Police that she was pregnant but that the father was unaware of this. The mother informed the Police that the father was the father of the child.
- On 3 March 2011, the solicitors for the father informed the Police that the father intended to make an application to the Court for an order requiring the Police and/or Social Services to disclose the location of the children.
- On 10 March 2011, the mother made an application for a non-molestation order under the Family Law Act 1996 and a prohibited steps order under the Children Act 1989. In her statement in support of the applications the mother alleged that the father had been physically violent to her, and had forced her to have sex. She raised the risk of honour-based violence.
- On 14 March 2011, a MARAC was held in respect of the mother's situation.
- On 13 April 2011, the mother spoke on the telephone with the Family Court Advisor.
- In April 2011 the local authority initiated a Core Assessment. This was not completed due to the mother moving to a refuge in a different area.
- On 3 May 2011, the father made an application for a contact order.
- The father alleges that in June 2011 a friend of the mother's arranged a call between himself and the mother during which the mother stated that if the father dropped proceedings she would permit him contact.
- Overall, the mother's case is that she left with the children because of the increase in tension, which caused her fear in the light of previous events within the family. The father and grandparents state that the mother left because of her relationship with Mr B and with other undesirables. They made this point vigorously to the police after the mother disappeared.
- The hearing took place over six days, with evidence being given for four days, and written and oral submissions being made on a further day, following which judgment was reserved.
- I heard evidence from the following witnesses:
DC V, the officer in the case concerning Mr B
DC P, the officer supporting the mother after she left the family home
Mr IM, a cousin of the parents
- The mother's evidence naturally took the longest, lasting for some seven hours. She sat behind a screen, visible only to me and to counsel questioning her.
The mother's relationship with Mr B
- The mother gave an untruthful account of her relationship with Mr B in her written evidence to this court. In her second statement of 10 March 2011, she stated that she was pregnant and unsure if the child was the father's, but did not mention Mr B. In her third statement of 12 October 2011, she denied any involvement with drugs or unsavoury characters, despite by that time knowing of Mr B's arrest and having visited him on remand with their child. In her fourth statement dated 28 March 2012 (which contains the passage "I realise I have to open my life completely and tell the Court everything, no matter how upsetting I find it"), the Mother flagrantly attempted to mislead the Court about the circumstances of baby M's conception and the nature of her relationship with Mr B:
"It was just a one-night stand and both of us knew that, but it resulted in M being conceived. [Mr B] does not know that I fell pregnant or that I have given birth to M. I have no idea where he is or how to contact him and I have had no further contact with him since the one night which we spent together."
- Every element of that statement is untrue. This became clear when DC V was asked to attend court on 12 December to give further information about the criminal investigation into Mr B. Faced with this prospect, the mother filed a fifth statement. In it, she described an ongoing relationship with Mr B in late 2010, and to having seen him a number of times up to May 2011, when she said she last saw him. She also described giving evidence on his behalf in the Crown Court in November 2011, claiming to be unaware up to that time of his involvement with drugs. At that trial, she testified that Mr B had a reason to be in the area where he was alleged to be drug-dealing, as he had been visiting her.
- DC V's evidence was given immediately after this statement was filed. He explained that Mr B was at the head of a conspiracy to supply Class B drugs in the area of the family home and is now serving a 7½ year sentence. Mr B was arrested in May 2011 and the mother gave evidence at his trial in November 2011, saying that she received constant visits from him at her home in the months before his arrest.
- Having been informed of the nature of DC V's evidence before it was given, and having been pressed by the other parties, the mother admitted that she and M had visited Mr B on a number of occasions in prison ('about ten'), both before and after his conviction, and most recently three or four months ago. She had therefore continued to see him for over a year after May 2011.
- When referred to the paragraph containing her supposed clarification of her relationship with Mr B, the mother was obliged to accept that everything in it was completely untrue and deliberately misleading. I asked her what her explanation was.
Q What is your explanation for the lies and misleading statements, even during the course of these proceedings?
A I am scared. I am afraid for the safety of my children. M is the son of someone who is convicted ... I just wish I had nothing to do with this.
Q What do you mean by 'this'?
A I got into a relationship with a man who lied to me, and I carried his child.
Q Specifically, what is it you are scared of?
A That (baby) M might be killed by my parents or close family.
Q Is there anything else you wish to add?
- The mother has therefore knowingly filed a sequence of false statements on this issue, continuing to do so even into the course of this hearing. The further information that she has given has not been volunteered but extracted after she has been cornered. This shows that she is quite willing to lie to the court when she thinks it in the interests of herself or the children to do so.
- I also note that the mother's early statements contain a number of exaggerations. She refers to having suffered "a horrendous amount of abuse", with incidents on too many occasions to remember. This is to be contrasted with her oral evidence, in which her allegations concerned to a limited and specified number of incidents.
The mother's evidence
- In relation to the move to Pakistan, the mother described how it had happened after the grandfather found that sister R had contraceptives and she had left the home. The mother says that she was due to take her GCSEs but the family had left before she could do so, with the children knowing that they were going for a long time.
- The mother explained that her cousin T, who suffered from the effects of polio, was having a relationship with somebody from her village, but that her aunt (T's mother) opposed this. Because T, who would have been in her early 20s, kept seeing the boy behind her family's back, she was sent to the grandparents' home in Islamabad. The mother says that T was badly beaten by the grandfather and by her own father and brother S (now sister F's husband). She heard this and she believes that her brother G and sister M did too; she could not say whether sister F also knew. T was tied to one of the upstairs toilets, where she remained for a week. She was given a little food, but was wetting herself and unable to move. She would cry for help. It was in the summer, no window was open and the room stank. T was then taken back to her village and a couple of months later they heard she had died. There were several conversations in the family saying that she had brought shame on them and that she did not deserve to live. The mother described what happened to T as deeply upsetting.
- In relation to the affair with cousin M, the mother described how her parents had become aware as a result of being told by sister R. Her parents shouted and swore at her. She was taken to sister R's rented accommodation. Present were the grandmother, sister R's husband I, cousin M and the grandmother, who kicked and punched her, mainly in the stomach. Cousin M was willing to marry her, but the grandmother strongly objected because one of his brothers was already married to sister R, while the father was the son of another of the grandmother's sisters. The grandmother says that she would never accept the child as her grandchild. At another time, the grandfather put a small kitchen knife to her throat and said that she had dishonoured him. The grandparents arranged for her to marry the father within a few days. The event took place quickly and with little ceremony. The mother said that she was upset and held her head down throughout and that there are no pictures of the event that can now be seen. She describes the marriage as a relationship that she was put into by her parents without her consent. After the wedding, her father did not speak to her for two or three years, but her relationship with her mother improved after L was born.
- The mother named a long list of members of her own and the father's family who knew that she was pregnant at the time of the marriage. The grandmother definitely knew about it as she came to see her at the father's family home in the village a couple of times during the pregnancy. The baby boy was born in February 2002. Present at the birth were the father's mother, his sister S and his brother A's wife F. Also present in the house were the father and his other three sisters. The mother says that she became unconscious after the birth and that when she recovered, she was told by F that her mother and mother-in-law had taken the child to Islamabad. The father knew about the birth of the baby as he was present in the house at the time and at one point came into the room to ask if she was okay. The grandfather would also have known as he was in Islamabad at the time.
- The mother described how the midwife who attended her at the time of L's birth had noticed that she already had a tear and asked if she had had a baby before. This was confirmed by the mother and her sister F, who was supporting her. She had only spoken of it during the labour, and not since.
- The mother described the marriage in this way. The first year was very unsettled, but after L was born the relationship improved and was good until the end of 2004/early 2005. She says that she had no choice but to accept the position and decided to try to make the marriage work. Difficulties then arose around financial issues and disagreements between the mother and the father's sister S.
- Referring to events in Pakistan in August 2010, the mother described what she says was the first occasion of violence on the part of the father. She explained that a number of family members and close guests had come back to the grandparents' home after a celebration of S's wedding at a wedding hall. She was in a bedroom, getting changed, when the father walked in. He was angry that pictures of his family had not been taken. She started to shout at him and it turned into a physical fight, during which the father grabbed her by the throat. Voices were very raised and guests who were outside in the lounge area came in Mr IM (who gave evidence), sister F and her husband, and brother G's wife N. IM grabbed the father off her and took him out. The mother was very upset and remained in the bedroom for a couple of hours, during which time the grandfather came in and started shouting at her for making a scene. She suffered a lot of pain and some redness around the neck. At that point she considered that the marriage, which had been going through a rough time before, was over and she did not speak to the father while she remained in Pakistan. The grandmother was unhappy that she was not doing more to make the relationship work.
- The mother described in detail the evening of the father's return from Pakistan, his giving presents to the children, and his later forcing sexual intercourse upon her after they were asleep. She confirmed the detailed account of a similar event in October 2010, as described in her statement.
- She described how on one occasion he had thrown a trainer at her and on two occasions he had broken crockery.
- The mother spoke emotionally, even angrily, about her feelings of being unsupported by her parents at key times. She said that her relationship with her father had not been very strong since her affair with cousin M. She spoke to her mother several times, and to her sisters, but they said that they could not help, even though the mother says that her sister F suffered violence in her own marriage. Her mother said that she should continue as a good Muslim wife, and that she had suffered violence herself. As to the children, the mother says that she is proud of them all, but it is the men she is ashamed of.
- The mother said that she believed that the family had discovered where she and the children are now living, and that she feels uncomfortable. She described contacting sister R in 2011 because she had gone through similar experiences. In the same way that her family supported R's first husband I at the time she left him, they have now supported the father against her.
- The mother said that she had been scared to tell the truth about her relationship with Mr B, as by doing so she would increase the risk that she and the children face from her family. She also said that she had not given full information to the police because she felt isolated and just wanted to get out. Her reason for leaving was not Mr B, but because she could not tolerate being at home any longer and her family was not going to support her. She describes the father as having wonderful children but being an unfortunate father as a result of what he had done.
The father's evidence
- The father gave evidence through an able interpreter. He described his first meeting the mother when she came to Pakistan. They were neighbours in the village. By 1998 or 1999, he had begun to think of marriage. She liked him and he was in love with her. Her parents gave her time and she had a number of other proposals. The matter went on for two or three years and it was her own decision to get married.
- The father was not aware of any affair with cousin M or of any pregnancy. The marriage arrangements were very good, with three or four months of planning and 70 or 80 guests. He has no photographs of the wedding because the mother has taken them all.
- There was no birth early in the marriage. He, like the grandparents, suggested that if the mother had been pregnant, she might have arranged a termination herself.
- The father described the early years of the marriage as happy, but said that problems arose when she started to see the local drug dealers and he raised objections. In response, she would say that she would not let him see the children. There were no arguments about money, except that she would insist upon him sending money to his parents. He talked to the grandparents about his difficulties with the mother.
- The father denied pressuring the mother into having the termination in 2007.
- Asked about sister S's wedding, he says that there was no trouble at the house afterwards, either in the shape of violence or verbal arguments, and that the mother did not stop talking to him at that time.
- There was no violence in the marriage, although he admitted to some swearing on his part in relation to the mother's involvement with drug dealers.
- He strongly denied forcing the mother to have sexual intercourse and said that none took place after the departure for Pakistan because the mother was unwell.
- The father believed that the mother had left because the drug dealers were giving her money. He did not want to threaten her or harm her, he just wants to save his children, who will be missing him a lot. He said with emotion that he had loved his wife and that he loves these children and wanted a happy family.
- After the mother and children left, he stayed with the grandparents for two or three months before going to live in another property owned by the family.
- Although the father has been entitled to monthly indirect contact for the past 10 months, he has only attempted this four times, saying that he cannot read or write.
- The father conceded that contact between sister R and the grandparents is limited, and thought that it may be because R considers that they supported her first husband against her. The father's oral evidence about the reasons for that divorce did not accord with his written statement, in which he refers to alleged violence towards R by her husband. He now says that he did not believe R, because her husband, I, is "a coward" who would not do that.
- The father said that the mother could not be afraid of him or her parents, and had been seen around the local area, including by him.
- He described the problems that he experienced as a result of the mother's involvement with the local drug dealers. He heard that the mother was visiting Mr B in prison from a cousin who was serving a sentence.
The evidence of the grandparents
- The grandfather explained his difficulty in obtaining legal representation and said that it was hard representing himself. He said that from the start he and his wife had been concerned to protect the mother and children from bad elements, and they felt let down by the authorities. Their natural concern was interpreted as wanting to find and harm the mother. They have known where sister R has been living, but they have not harmed her in any way.
- The grandfather described his arrival in the United Kingdom and his long work record. He and the grandmother are not related. In relation to the move to Pakistan in 1996, he said that this was because of sister F's wedding. They had been due to stay for two or three months. It was the children's first visit and because they liked it, the family stayed on.
- Asked about sister R's disappearance when she was 18, he said that she had gone to school and didn't come home. He did not know why. She said she had a problem, but he did not know what it was and until she came to Pakistan later he did not know where she was living. He described R as his 'star'. She was very good at school and the only child to get into a grammar school, but she left her education in the middle. He had had no concerns about her morals or about her being sexually active.
- When sister R separated from her husband I in 2005/6, he was in Pakistan and he had no idea why it had happened. He understood that she had made allegations of violence but he had formed no opinion about them as he had not been able to talk to her about it in case she thought he was following her.
- Concerning cousin T, his niece, the grandfather says that she would visit from the village for a couple of days at a time. He had been told that her clothes caught fire while she was lighting a bread oven, something that quite often happened in Pakistan. The mother's account of T's imprisonment is a fabrication from beginning to end.
- He was happy about the marriage of the mother and father and could not imagine any relationship between the mother and cousin M. He heard no rumour and was not aware of any pregnancy. Had she been pregnant, he would certainly have known about it. However, if she had become pregnant by M, that would not be a problem for him, but for M's family and his wife's family. From his point of view, there would be no shame. He did not beat the mother or threaten her with a knife.
- Back in England, the mother never complained about the father's behaviour. He was concerned about the mother's associations with drug dealers before he made a trip to Mecca in April or May 2010, and he spoke to her about it. His information came from an anonymous source who made several telephone calls to him.
- He was clear that no incident could have happened at the time of sister S's wedding as he was in the house at the time.
- He had no explanation for the breakdown in the relationship between himself and his wife and the mother, saying that it was what she had chosen to do. They had taken the father in because he had nowhere else to go. They did not think that the mother's allegations of violence and sexual assaults could be true and believed that she had invented these incidents.
- The grandfather says that the fact that baby M has a black father does not shame him, and if the community has a problem, that is their problem.
- The grandmother gave evidence through an able interpreter. She said that she had done nothing to have this situation brought upon her. She hopes that she will get her children back and bring the mother close to her. Her relations with four of her children are good. As to sister R, they see her if they go to her town, but do not go to her home as they have a problem with her husband F arising from a long-standing land dispute with his family in Pakistan. F's father and the grandfather are first cousins.
- The grandmother had not spoken to the mother since she left in February 2011. She wanted the mother to be happy and to be away from bad people. The mother had never complained about the father to her and gave no indication that she was about to leave. She did not believe the mother's allegations of violence and said that the sexual allegations could not be true. None of her children had ever been subject to domestic violence at the hands of their husbands. She did not see or hear any difficulties at S's wedding.
- She had no idea why sister R left home, and she was happy there.
- She had no knowledge of the mother having had an affair with cousin M, and denied having punched and kicked her. No baby was born in 2002 and no mother could take a baby from her daughter in that way. The mother had trusted her with L when she was a small baby.
- If the mother had become pregnant she would have told her, and she would have had a right to know. She would have talked to M's mother, her sister, and a marriage could have taken place when children are happy, parents support them.
Evidence of sisters F and S
- Sister F made a statement and gave brief evidence, having sat with her parents during the proceedings. She is a social worker, having graduated in 2011.
- She described how her parents discussed her marrying her cousin S, and how she was happy with this. If she had any issues with her husband, she would discuss them with her parents as it was their right to know and because they were responsible for the marriage.
- Sister F was present throughout the birth of L. Asked whether she remembered the midwife asking about a tear, she replied: "I did not tell the midwife that my sister had had a child in Pakistan. I don't recall my sister saying that she had had a child born who died at one day of age." There was no discussion at all of the kind recorded in the nursing notes.
- In relation to sister R, F said that she thought that after her separation from her husband I, she had told her that she had been hit by her husband. F thought that maybe this did happen. However, she later said that no daughters in her family got beaten up, and that she herself would not accept domestic violence.
- F said that if an incident had happened at S's wedding, she would have heard it or heard of it. In fact, the mother was really happy and had a good time at the wedding.
- She did not believe what was said about cousin T (her sister-in-law). Such an inhumane thing was not characteristic of her parents or her in-laws. In Muslim families, daughters are very precious. In addition, a statement from her husband S (T's brother) affirms that he was in England between 1997 and 2005 and could not have participated in any abuse of his sister in 1999.
- F was not able to say why sister R had left the family.
- Sister S gave evidence. She works in a bank and is a law student in addition to being a mother. Her husband is her paternal first cousin. She has been closely supportive of her parents since the mother and children left, and was their main spokesperson with the police.
- She said that the mother had never mentioned any violence to her until she left home. She did not believe the allegations against the father and supported him. She had no doubt that the sexual allegations were untrue. She had not spoken to her sister since she left.
- There was one other live witness. IM is a first cousin to both parents. He comes from the same village. He says that he has lived in England for some 20 years, returning to Pakistan roughly every two or three years. On one occasion he saw the parents together, talking about marriage. He thought this had been going on for three years. He heard nothing of a baby in Pakistan. As far as he was concerned it was not a rushed or forced marriage. He also says that he went to S's wedding and there was no trouble between the parents, so he did not have to pull the father off the mother. The mother had never spoken to him about problems in her marriage (something she has asserted).
- In assessing the evidence of IM, regard has to be had to the poor quality of the initial interpreter, who had to be replaced during the course of the witness's appearance.
- Next, the evidence of the two police officers was helpful in establishing some of the facts set out above, but I did not find that it went any further than that.
- Finally, there is a body of peripheral evidence about events following the mother's departure (alleged sightings, gas bills etc.) that I did not find of assistance in assessing the main allegations.
The submissions of the parties
- Detailed written submissions have been presented by the parties and have been supplemented by brief oral argument.
- On behalf of the mother the essential arguments of Mr Geekie QC and Ms McLaughlin are that:
- Firstly, while her case is made precarious because of her lies, careful scrutiny should lead the court to conclude that her case is made out. Those parts of her evidence that are shown to be unreliable can be compartmentalised and do not infect her core account. Her lies relate to a specific issue, and her oral evidence about that was given very differently to her other evidence.
- Secondly, in addition to her own account, there are threads of evidence from other sources which subtly but powerfully lend support to the mother's case:
Thirdly, the mother contends that Ms Sanghera's evidence describes patterns of behaviour and a code of conduct known to be found within the culture that she describes. Those find strong resonances in the life described by the mother. The code of conduct provides a unifying feature which explains the most striking aspects of the case: the treatment of sister R, the departure to Pakistan in 1996, the treatment of the baby, the response of the family to the mother's departure.
- This is turn tends to support her claim of a forced marriage.
On behalf of the father, Mr MacDonald QC and Mr Poole submit that the allegations raised against him are not made out on the balance of probabilities, except for some limited verbal abuse consistent with a marriage under pressure. They submit that the mother's credibility is fundamentally undermined by her extensive lying about Mr B and her exaggeration of other matters. The lies cannot be compartmentalised but go to the heart of the matter.
As to specific allegations that concern the father:
- The mother was clear in her evidence that he did not know about any relationship between herself and cousin M and that he had nothing to do with any mistreatment of cousin T.
Issue is not taken with Ms Sanghera's generic opinions but the father distinguishes and takes issue with those parts of her report that stray into expressing an opinion about the facts themselves.
- There is no reliable evidence of any affair between the mother and cousin M(azhar). The father did not know about the mother being pregnant and it would be unusual for a man knowingly to marry a woman who was pregnant by another man.
The grandparents naturally benefit from the submissions made on behalf of the father. They say that statements made by the mother had been shown to be untrue and unreliable. This indicates that much of her case is intended to conceal her involvement with unsavoury characters. It is clearly shown that "all her allegations are fabricated and untrue". The manner in which she gave her evidence was unsatisfactory. "This was all done to conceal her affair with the 'main player' of a drug empire."
The grandparents deny that they are capable of such horrendous crimes: "Otherwise why is she still alive to tell the tale?" Their door remains open to her and their grandchildren. "We are not a family who disowns or frowns upon anyone who strays."
As to sister R: "She herself made it very clear when she was summoned to court that her leaving home was an adolescent mistake and that it was nothing to do with the family. We at the time and even to date do not know ... why she fled home ... She has not caused us offence in any way." Likewise, they did not support R's first husband I against her.
With regards to the move to Pakistan, the grandparents say that this was planned to be for a few weeks for sister F's wedding, and was not a consequence of R leaving home.
At the time of cousin T's death, they were not in Pakistan, and nor was cousin S.
They do not accept that the mother was pregnant in Pakistan, but if she was, she concealed it. Her reference to any morning-after pill clearly indicates that "it is [she] who has killed the baby and no one else."
There was nothing abnormal about the wedding arrangements between the mother and the father.
They never had any indication of violence between the parents, and they would not have tolerated it. Had there been an assault at the wedding, the mother would have been able to call witnesses.
The mother's recourse to antidepressants "was all because this was her elaborate plan to make her reasons for fleeing home sound and look true." If the mother was afraid, she would not have gone to places, such as the children's school, where she could be seen.
They have not tried to trace the mother and are only concerned for her safety and that of the children. This concern has been turned against them.
They do not approve or tolerate the views that Ms Sanghera describes. They have lived in England for most of their lives and have two daughters with professional qualifications.
The grandparents invite the court to make allowance for their lack of representation.
On behalf of the Guardian, Mr Miller does not contend for specific findings but makes the following observations:
This judgment cannot encompass every matter raised by the parties in evidence or argument, but I have had the advantage of time to study my notes and the written presentations, and have them all in mind when reaching my conclusions.
- The benign expressions of the grandparents towards baby M may need to be viewed with caution, given the identity of his father.
Discussion and conclusions
This is a very serious matter, with profound implications for the relationship between these children and their father and wider family on both sides, and possibly for the safety of the mother and the children.
Some fact-finding hearings concern the events of a single recent moment involving no more than one or two people. In this case, the court is asked to survey a period of 15 years and events that concern many members of this large and interrelated family. Inevitably, the focus can only be on a limited number of alleged events. I propose to make primary findings about the central allegations regarding (1) the move to Pakistan, (2) cousin T, (3) the birth of a child, (4) the marriage, (5) events at S's wedding, (6) sexual assaults, (7) other domestic abuse.
As I have already said, the court is here working with far less information than is sometimes available. This is not a case in which the person making allegations builds a case brick by brick to create a solid and unshakable structure. But a reliable structure need not be made of brick or stone. It can consist of lighter materials, provided it has integrity.
In considering the evidence of each witness I have taken account of the extent to which it is consistent with their own previous statements or supported by the evidence of other witnesses or by any contemporaneous records, and the manner in which the witness gave evidence.
I find that the mother's evidence about the central allegations has been broadly consistent, although in some cases the details have emerged over time. Her account is singularly unsupported by other evidence, but if it is true this would not be surprising as the other witnesses would all be family members.
The only contemporaneous record that the mother can point to is in L's maternity notes.
The mother gave evidence about her allegations with conviction. Her descriptions were spontaneous and detailed, as if from memory, suggesting that they are either true or carefully learned and rehearsed. In contrast, her evidence about Mr B was laboured, vague and unconvincing.
The evidence of the father, the grandparents and the sisters was nothing if not consistent, though the father departed in certain ways from his written evidence. In general, they presented a blanket denial. This is natural if the allegations are false, but (reminding myself that they do not have to prove anything) they did not provide alternative information that might throw doubt on the mother's account. Instead, their approach was that because the mother is a liar nothing she says can be true.
Concerning the move to Pakistan, I bear in mind that the mother was aged only 16 and cannot have known about all the affairs of the family. I nevertheless find that her account of the reason for the family's abrupt removal to Pakistan for (in her case) six years is probably true. I find the grandfather's explanation that the family had gone for weeks and stayed for years because the children were enjoying themselves unconvincing in the context of a family where children do not make the decisions. It does not account for the fact that sister R was abandoned in England at a young age, or for the sabotaging of the mother's academic education.
The mother's account of the treatment of cousin T was so striking that it would be almost impossible for her to have invented it, and her written and spoken evidence about this persuaded me that she was describing something that she had seen. In contrast, the denials of the grandparents and sister F lacked conviction. I do not forget that her husband, cousin S, who is implicated by the mother, denies being in Pakistan at this time and offers to show his passport, but my conclusion would be the same whether or not he was involved.
The evidence about the birth of a child is curious. I accept that it would be unusual to make a finding that a child has been born when there is no official record, but if the mother is telling the truth there would be none in this case. In relation to the mother's allegation of having had an affair with M, I bear in mind that the court has no evidence from him. However, it is a strange and possibly risky allegation for the mother to make if it was untrue. While there is little detail about the relationship apart from the mention of the morning-after pill, the mother was able to describe those present in the home at the birth, , including the father, with clarity.
The evidence that convincingly persuades me that the mother probably gave birth to a child in Pakistan is the entry in L's maternity notes. I am confident that the mother and sister F gave this information to the midwife and neither the father nor the grandparents nor F could offer any reason for them having done so if it was not true. F herself seemed not to know how to deal with the issue and I find that, perhaps in the emotion of the labour, she and the mother both spoke briefly of something that was a family secret.
I do not go so far as to find that the parents' marriage was a forced marriage in the fullest sense of the word. It would perhaps be more accurate to describe it as having been firmly arranged by the grandparents. I accept the mother's description of it as being a relationship that she was put into by her parents, but it cannot be overlooked that the mother's pregnancy presented her and the family with a big problem that had to be managed somehow, as the prospect of a birth outside wedlock would not have been acceptable. The grandfather's assertion that it would not have been a problem for the family that the mother was pregnant outside wedlock struck me as highly improbable.
While it would be unusual for a man to marry a woman who was pregnant by someone else, as the father did, any objection he may have felt may have been overcome by the prospect of marrying someone with the mother's personal qualities and by the prospect of coming to the United Kingdom in due course.
The mother's account of events at the time of S's wedding was detailed and credible. The evidence rebutting it did not lead me to the view that she had invented it, and I accept that this assault took place and that the family and Mr IM know that it did. It is telling that the mother makes no complaint of this kind against the father before that date, and that she freely acknowledges that there were some good years in the marriage. Further, if she had wanted to invent an assault, it is unlikely that she would have chosen a relatively public event as the setting.
In general, the mother was able to give detailed and spontaneous information about who was and, equally, who was not involved in each episode. So, for example, she was clear that the father was not involved in the abuse of T, and nor did he know about her affair with their mutual cousin M.
I also accept the mother's evidence that the father carried out two serious sexual assaults on her following his return to England, along with other relatively minor incidents of domestic misconduct. The descriptions are detailed and coherent. I am afraid that the description of one assault having been carried out while a sleeping child was on the bed does not make it any less likely to be true.
Stepping back, the court must ask itself whether the above conclusions are shaken by the fact that the mother has been proven to be such a determined liar about other matters. Are those lies so damaging that they destroy the structure of her case?
The mother's dishonesty about her dealings with a serious drug dealer and his associates is deplorable. The court relies upon parents to tell the truth so that the right decisions can be taken in relation to children. The mother's lies have made it harder for the court to do this. She has gone to considerable lengths to cover up the fact and extent of her relationship with Mr B, and even now I have no confidence that she has given a full or truthful account.
However, having had a full opportunity to consider this issue while judgment has had to be reserved, I conclude that the mother's lies do not undermine her other allegations. Her explanation that she was attempting to protect herself and the children, and that she was embarrassed is credible when one considers this family history.
I take account of the fact that the reason given by the mother for her flight is at one level linked to her allegations, but I find the family's suggestion that she has invented these detailed allegations as a smokescreen for her involvement with a drug gang quite uncompelling. Whatever the depth of the mother's involvement with undesirable people, I do not see why it would have been necessary for her to lie (or indeed go to the police or to a refuge) if she did not in some way fear for her safety. If the family philosophy is as benign and supportive as its members protest, her actions would have been unnecessary. Likewise, the grandparents' assertion that they have never known why sister R left the family (twice) is not credible.
Considering all these matters, I accept Mr Geekie's submission that it is the family code that provides a unifying explanation for the most striking aspects of the case. This code may have led sister R to absent herself from this bitter family dispute and it places sisters F and S in a very difficult position. Although they are both educated persons, they are not free agents.
As to the father, faced with the mother's allegations, it is in his interests to identify himself with his in-laws. I do not doubt his strength of feeling for his children, but the quality of his evidence overall cannot be compared to the mother's, and I reject his denials of violence.
I also reject the evidence of the witness IM, who gave the impression that he was attending to provide whatever support the family required.
Weighing the evidence and assessing the inherent probabilities, I reach these conclusions by way of primary findings:
(1) In 1996, the family moved to Pakistan, leaving R behind at the age of 18 after she had run away from home.
(2) While in Pakistan, the grandparents participated in the imprisonment and beating of cousin T.
(3) In Pakistan, in 2001, the mother became pregnant by her older first cousin M. On discovering this, the grandparents beat her and arranged for her to marry the father.
(4) In Pakistan, in February 2002, the mother was delivered of a child, which was removed from her at birth.
(5) Following the separation of sister R and her husband I in 2005/6, and despite R alleging that he had been violent to her, the family sided with and gave support to I.
(6) In August 2010, on a visit to Pakistan for her sister S's wedding, the father assaulted the mother during an argument by grabbing her by the throat.
(7) On the family's return to England, the father raped the mother twice, the first occasion being in September 2010 and the second being in October 2010.
(8) Between September 2010 and February 2011, the father was verbally abusive, pushed the mother and children, and threw household items.
(9) After the mother left home on 6 February 2011, the family became aware that she was alleging that the father had been physically and sexually violent to her. Despite this, they have given support and a home to the father.
I further find that despite its inauspicious beginnings, the parents' marriage was reasonably calm until about 2007, but that it then deteriorated and the mother became increasingly dissatisfied and unhappy. She began to associate with people who were involved in drug-dealing in the area of the family home and from September 2010, if not before, she became involved in a relationship with the ringleader, Mr B, by whom she now has a child. The mother has persistently lied about these matters and the truth is not yet known; however, this does not invalidate her allegations against her family or the father.
I make no findings about the death of cousin T or about what happened to the mother's first child.
These primary findings will form the basis for an assessment by the court of the level of risk that the mother and the children may now face, and for orders about the children's future. The mother alleges that her family have made threats to kill her and have said that they want to take away the children. While it would not be safe to discount the existence of risk in the light of my findings, I reach no further conclusions at this stage. I will hear from the parties as to how the matter should now be progressed.
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