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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> P (Inherent Jurisdiction Return: Allegations of Female Genital Mutilation And Domestic Abuse: Fact Finding) [2022] EWHC 1722 (Fam) (04 July 2022) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2022/1722.html Cite as: [2022] EWHC 1722 (Fam) |
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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.
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Re P ( Inherent Jurisdiction Return: Allegations of Female Genital Mutilation and Domestic Abuse: Fact Finding) |
____________________
Miss Allison Munroe QC and Dr Charlotte
Proudman
for the mother
Mr Michael Edwards for the child by her children's Guardian
Hearing dates: 14-16 March, 18 March, 21-24 March, 5 April, 20-23 June 2022
____________________
Crown Copyright ©
remotely
at 10.30am on Wednesday 8 February 2023 by circulation to the
parties
or their
representatives
by e-mail and by
release
to the National Archives.Mrs Justice Knowles:
Publication
published
at some suitable
point
in the litigation, albeit in an anonymised form. I have therefore made limited
reference
to features of the
parties'
lives which might otherwise tend to identify them. Normally, I would not have identified the
parties'
nationality but this is an integral aspect of the case, the omission of which would
render
any judgment incapable of being understood.
Introduction
refer
to by the initial "
P";
this is not the first letter of her name. She is just over 6 years old and
presently
lives with her mother in this
jurisdiction.
She is the only child of the Applicant ("the father") and the
Respondent
("the mother").
P
is
represented
in these
proceedings
by her children's guardian. Both
P
and her
parents
are nationals of Nigeria. The father lives in Nigeria and was granted a visa to enter this
jurisdiction
in order to
participate
in the hearing and to see
P.
P's
summary
return
to Nigeria under the
inherent
jurisdiction.
It is opposed by the mother. The
position
of the children's guardian is dependent crucially on the
findings
of
fact
which I make in this judgment. Those
findings
of
fact
will inform my assessment of the risks to
P
should she be summarily
returned
to Nigeria in accordance with her best interests.
P's
summary
return
to Nigeria, it is not
permitted
to implement such an order until the conclusion of the mother's appeals against the decisions of the Secretary of State for the Home Department to
refuse
applications for asylum which the mother has made for herself and
P.
The final determination of the mother's appeals was listed before the First-Tier Tribunal of the Immigration and Asylum Chamber on 17 May 2022, but this had to be adjourned following developments during this hearing. A new hearing before the First-Tier Tribunal has been listed on 28 September 2022.
P's
parents
about the nature of their
relationship
and the circumstances in which
P
both travelled to this
jurisdiction
with her mother in December 2019 and came to
remain
here. On the father's case, this was a flagrant,
pre-planned
and clandestine abduction by the mother in an attempt to excise him from
P's
life. On the mother's, this was a holiday which the father knew about and endorsed. Following a conversation with the father on 4 January 2020, the mother decided not to
return
to Nigeria because of threats the father
purportedly
made to have
female
genital
mutilation
("FGM")
performed
on
P
immediately after she
returned
to Nigeria.
read
all the material in the court bundles and listened to evidence from the father, the
paternal
aunt, the
paternal
grandmother, the mother, her maternal uncle, her sister and a family friend. I also heard expert evidence on matters
pertaining
to FGM in Nigeria from Dr Adimula,
Professor
Bradley, Mr Zadeh, and Mr Ukwa. Miss Briggs gave evidence to me about the authenticity of the father's signature on the letter of consent used by the mother in November 2019 to apply for a visitor's visa for herself and
P
to travel to the UK. I also heard evidence from the children's Guardian. I am grateful to the advocates for their assistance and co-operation with each other.
reserved
judgment to
reflect
on all the evidence. This judgment is lengthy and would have been even longer had I listed all the evidence and submissions I heard. I have, of course, taken all the evidence and submissions into account in
reaching
my decision. A schedule of the
findings
I have made is attached to this judgment.
Preliminary Case Management
proceedings
for
P's
return
on 6 July 2020, over five months after
P
arrived in this
jurisdiction.
The first hearing after the mother and
P
were located took
place
on 30 July 2020 when it became apparent that the mother had made a claim for asylum for herself and
P
on the grounds that
P
was at risk of FGM if she
returned
to Nigeria.
Preliminary
directions for statements from each
parent
were given and information was sought from the Home Office. Interim contact of about 20 minutes' duration between
P
and the father was ordered for 6pm every Monday, Wednesday and Saturday. After the handing down of the decision of the Court of Appeal in
Re
G (A Child: Child Abduction) [2020] EWCA Civ 1185, this matter
returned
to court for further directions. On 21 September 2020,
P
was made a
party
to the
proceedings
and disclosure of information
relating
to the mother's asylum application was sought from the Secretary of State for the Home Department.
permission
to instruct Dr Adimula, an expert in Nigerian law, to
provide
an expert opinion on the law
relating
to FGM and any available
protective
measures in the event that a
return
order was made. On 24 November 2020, the mother's solicitors filed and served a
Part
25 application to instruct another expert, John Abdullah-Zadeh, an independent social worker, to
report
on
P's
welfare in the event she
returned
to Nigeria. Keehan J gave
permission
to instruct Mr Zadeh at a hearing on 26 November 2020, maintaining the date of the final hearing in January 2021.
pre-hearing
review
on 11 January 2021, Mr Richard Harrison QC, sitting as a Deputy High Court judge, vacated the final hearing because of the implications for these
proceedings
of the appeal to the Supreme Court in the case of G v G [2021] UKSC 9. It was anticipated that the final hearing would take
place
on the first available date after 30 April 2021 when it was envisaged that the decision of the Supreme Court would be available. Eventually, the matter was listed for a final hearing commencing on 10 May 2021 before Russell J, but it did not
proceed
as listed. On that date, Russell J approved the instruction of
Professor
Tamsin Bradley together with a suitably qualified Nigerian expert
proposed
by
Professor
Bradley to
provide
expert
reports
on the
prevalence
of FGM in Nigeria and the risk of FGM to
P.
The final hearing was
relisted
before Russell J on 31 August 2021 for five days. On 8 June 2021, the mother's solicitors
received
confirmation that the mother's asylum claim had been
refused
and that, as a dependent of her mother,
P's
claim had also been
refused.
P's
claim in her own right was also
refused.
Professor
Bradley was unable to
propose
details of a suitably qualified Nigerian expert to conduct face to face interviews with the father and his family on the issue of FGM. Eventually, on 24 August 2021, Mr Ukwa was approved to do so and the mother was separately interviewed by Ms Nkwunonwo, she being a
researcher
well known to
Professor
Bradley. The father's application to adjourn the final hearing on the basis that interviews with the father and his family would not have taken
place
in time for a hearing on 31 August 2021 was granted and Lieven J allocated the case to me since I am one of a small number of judges in the Family Division to whom applications for
return
orders with a linked asylum claim should be allocated.
readiness,
including the filing of a documents by each
party
setting out the
findings
each sought against the other, cross-
referenced
to the bundle. It was surprising that such case management documents had not been
previously
directed. I conducted a further case management hearing on 15 December 2021 during which I scrutinised the documents setting out the
parties'
allegations.
That
process
confirmed the need for the mother to clarify certain aspects of her case, including her
allegations
about the father's controlling behaviour. Further directions hearings were held on 20 January and 25 February 2022, inter alia, to obtain information from the Secretary of State for the Home Department and to make
participation
directions for the mother, the mother being a vulnerable witness within the ambit of Rule 3A.2A and of
Practice
Direction 3AA of the Family
Procedure
Rules 2010 by
reason
of the
allegations
she made of
domestic
abuse.
Summary of Background
proceedings,
much of which is in dispute between the
parties.
I have identified where there is a conflict on the written/oral evidence and, if I have made
findings,
I have done so in accordance with the legal framework set out later in this judgment.
parents
have both lived in Lagos since the 1970s. His father was an engineer by
profession
and his mother was a school
principal.
His
paternal
family come from Osun State but his mother is from Oyo State. Neither of the
paternal
grandparents bear tribal marks. The father's elder brother and sister-in-law are both doctors, living and working in this
jurisdiction.
His younger sister is an engineer and lives in Lagos. Neither she nor her children have, on the information available to me, been subjected to FGM. The father attended school and university in Lagos and has two degrees. He is
presently
studying for
professional
accountancy qualifications and lives with his
parents.
jurisdiction
between 2012-2014, obtaining a masters' degree. Her own mother has lived in London since 2004. From 2004 onwards, the mother and her two younger siblings lived with their maternal grandmother who seems to have been their
primary
carer. The mother's younger sister is studying in the UK as is her younger brother.
respective
employers had their offices. The
relationship
developed quickly and they married in a civil ceremony in July 2015. The mother was
pregnant
but miscarried later in the summer. In September 2015, they had a traditional ceremony of marriage and the mother moved into the father's apartment. At about the time that the mother became
pregnant
with
P,
the father began to have sexual
relationships
with other women and his infidelity continued at least, on his own admission, until 2018. Though the mother was suspicions about his frequent absences from the family home, she did not confront him about his behaviour until after
P's
birth. A
pattern
began whereby, from time to time, the mother would confront the father and he would either deny or admit an affair.
P's
birth, the mother and
P
lived with the
paternal
grandparents as was customary. The mother claimed that the father was upset when a
pre-natal
scan showed the mother would give birth to a girl and she
alleged
that the father insisted that
P
should be dressed in male clothing. In contrast, the father said he was delighted when
P
was born. He said that
P
was often dressed in gender-neutral clothing which often matched what her mother was wearing.
P
was christened at her
paternal
grandparents' home when she was about a week old. The mother
alleged
that the father forced her to agree to a change in
P's
first name on the eve of her christening, a matter which the father denied.
P's
birth, the mother complained of being isolated from her family and controlled by the father. She said he would not allow her to use her
phone
while breast-feeding and denied her any freedom,
requiring
her to ask his
permission
to visit her own family. On one occasion in 2018, she visited her family without seeking his
permission
and
alleged
that, in consequence, the father "trashed" the kitchen in the apartment they shared, saying that the home would not be a mess if the mother did her duty as a wife. She said he told her that she must
remain
at home to be a dutiful wife. The father denied all these
allegations.
jurisdiction
to visit
relatives.
At the time, the father had a valid UK visa but work commitments
prevented
him accompanying the mother and
P.
He
provided
full written consent for the mother and
P
to visit the UK and
purchased
their flights. The mother and
P
left on 14 December 2016 with
return
flights booked on 29 December 2016. In
fact,
the mother did not
return
to Nigeria until mid-January 2017, citing the need to help her mother and to await an outstanding order for spectacles. The father agreed to the delay in her and
P's
return.
allegation
of
physical
assault by the father. This
allegedly
took
place
in January 2017, shortly after her
return
from the UK. I will deal with this
allegation
later in the judgment.
resigned
from his employment. He said that he wished to
re-balance
work and family life, concentrating on acquiring a universally
recognised
accountancy qualification and on other entrepreneurial
pursuits.
The father asserted that he
remained
the main breadwinner and met the family's financial needs from various employments, business
pursuits,
savings and asset sales. In contrast, the mother suggested that the father
resigned
because he could not cope with work stress and he wanted her to become the main breadwinner. In September 2018, the mother obtained
part-time
employment and was then able to contribute financially. After he gave up his employment, the mother
alleged
that the father became frustrated and angry about the lack of money and was aggressive to her,
pushing
her and telling her to get out of his sight. She said that he left the family home overnight on numerous occasions. The father denied the mother's
allegations
and suggested that the mother often left the family home to stay with
relatives.
The father also accused the mother of having an extra-marital affair which she denied. In
fact,
the father himself continued to have extra-marital affairs with a number of different women. The mother knew about these
relationships
which were a source of additional conflict between the couple. Despite evident difficulties in their
relationship,
the mother said that she was getting on better with the father in the latter
part
of 2019. She sent the father a fulsome and loving message on his birthday, expressing
pride
at being his wife and the mother of his child.
pre-school
when the mother
returned
to employment. Both
parties
disputed who was
responsible
for taking and collecting
P
from school. The father said he dropped
P
off and then took the mother to work every day and, from time to time, would also collect
P
at the end of the school day. The mother disputed this and
produced
copies of the school
register
to support her account that she alone was
responsible
for taking
P
to
pre-school
and collecting her. The father believed that the school had connived with the mother and in 2020 made a formal complaint about their involvement. Additionally, the
parents
disagreed about
P's
medication, the mother claiming that she was not able to give
P
medication without the father's
permission.
The father denied this, but he accepted expressing some anxiety about the mother giving
P
traditional
remedies
advocated by her family.
persuade
him that they should
relocate
permanently
to the UK and work illicitly in the maternal grandmother's cleaning business until such time as they could apply for a
residency
permit
because, after a
period
of time, the mother said
P
would be deemed to be British. Alternatively, the father could
remain
in Nigeria and join the mother and
P
in due course. The father opposed the
plan
because he did not wish to live separately and did not want to live illegally in this
jurisdiction.
He then
alleged
that the mother suggested they could claim asylum as
part
of the
relocation
plan.
The mother strongly denied these
allegations.
records
showed that, on 15 November 2019, the mother applied to the British High Commission for a tourist visa to visit friends and go shopping. In her visa application, the mother said she would travel to the UK on 23 December 2019 and
return
on 3 January 2020. In support of that application, she
provided
a letter of consent signed by the father, together with a copy of the identity data
page
from his
passport.
As I explain later, the authenticity of this document came to be in issue.
P
to an amusement
park
though the father noticed the mother seemed to be
pre-occupied.
According to the father, there was a
plan
for the family to visit the
paternal
grandparents on 28 December 2019 as
part
of their Christmas celebrations. The mother disputed the existence of such a
plan.
On 27 December 2019, the father said that the mother told him she wanted to go with
P
to her office to collect a Christmas gift and then to visit her sister. Later in the afternoon, the mother
phoned
to say that she could not
find
an Uber ride home. Later still, the father called her to
find
out where she was and the mother explained she had decided to spend the night at her sister's home. She said that her sister's husband would then drive her and
P
home in the morning. During this telephone conversation, the father spoke to
P
and asked her what she was doing. The mother interrupted to tell
P
to say that she was
playing
with a cousin. Subsequently, the father attempted to telephone the mother but her
phone
was switched off. It was common ground that the father did not accompany the mother and
P
to the airport and that the mother and
P
were at the airport in Lagos when the father spoke to
P
that day. However, the mother maintained that the father's account of events on 27 December 2019 was a fabrication. She said that he knew she was travelling to the UK and that her sister took her to the airport because of
problems
with the father's car.
phoned
the father from Heathrow airport to announce that she had arrived in the UK with
P.
The father said she told him that she had gone to
find
a better life in the UK. He told her he had not agreed to
P's
removal
and called on her to
return
P
to Nigeria immediately. In contrast, the mother stated that she telephoned the father to tell him that she had arrived safely and that he was happy with that news.
plans.
The father then drove to the
paternal
grandparents' home and they tried to assist by calling the maternal grandmother.
Presciently,
that telephone call was
recorded
and a transcript was available. The
paternal
grandparents told the maternal grandmother that the family was supposed to be visiting them that day, but the mother had called the father to tell him that she had
relocated
to the UK. The maternal grandmother was surprised and said she understood the mother and
P
to be on holiday in the UK with the father's knowledge. She said that she would speak to the mother and call the
paternal
grandparents back. On 29 December 2019, having had no further contact from the maternal grandmother, the
paternal
grandparents spoke to the maternal grandmother once more in a
recorded
telephone conversation which was transcribed. Contrary to what had been said the day before, the maternal grandmother confirmed that it was the mother's intention to
relocate
to the UK. The maternal grandmother understood this was a joint decision and that the father would join the mother in due course. The
paternal
grandparents made clear that this was not the case. Later that same evening, the father spoke to the maternal grandmother in a telephone conversation which was
recorded
and transcribed. The maternal grandmother maintained that the mother had told her that the father agreed to her
relocating
to the UK. The father managed to speak briefly with
P
during this conversation.
phone
conversation on 4 January 2020, the mother claimed that the father told her that he had already made arrangements for
P
to be subjected to FGM upon her
return
to Nigeria on 8 January 2020. The mother said that she
pleaded
with the father for this not to be done but his
response
was that it had been dragging on for too long; it had to be done before
P
was five years old; and all the arrangements had been made. The mother said the father demanded to speak to
P,
was aggressive and yelling, and said inappropriate things which upset
P.
He said that all women were dirty whores and
P
would not be one of them. Until that conversation, the mother stated that she intended to
return
to Nigeria but was now terrified of
returning
for fear of what would happen to
P.
The father vehemently denied the words attributed to him and accused the mother of fabricating the entire conversation as an "after the event" and concocted explanation for
P's
abduction. No telephone
records
confirmed a call between the mother and the father on 4 January 2020.
perform
FGM on
P.
In April 2019, when
P
was three years old, the father had
allegedly
threatened to take her to his home village so that the elders of that community might
perform
an FGM ceremony. The mother said that the father told her if she did not attend, she was a disgrace to his family and community. He asserted that the earlier FGM was
performed,
the less
painful
it became. When the mother objected, she said that the father became aggressive and
responded
by telling her that she should not forget that, in Yoruba land, the man owns the child and that she did not have a say. The mother said that she hoped the father would change his mind and that she loved him and would stay with him. Again, the father denied that he had ever threatened
P
with FGM or made any arrangements for her to be cut and he asserted that the mother's account was a complete fabrication.
P's
birthday, the father contacted an old friend of the mother to ask her to intercede on his behalf so as to enable him to wish
P
happy birthday. The day before
P's
birthday, the father sent the mother an email but
received
no
response.
On
P's
birthday, the father sent a birthday message to the mother's
phone
and tried to ring her. He was connected to
P
on Instagram and spoke to
P
for the first time in several months. He said that when
P
saw him, she cried because she missed him. However, the mother said that it was the father's inappropriate comments to
P
which made her cry. He called the mother a "bad mother" and said that she must
return
to Nigeria immediately.
Legal Framework
The
Inherent
Jurisdiction
remains
the decision of the House of Lords in
Re
J (A Child) (Custody Rights:
Jurisdiction)
[2006] 1 AC 80. The following
principles
can be gleaned from the judgment of Baroness Hale:
a. The court has a statutory duty to
regard
the welfare of the child as its
paramount
consideration; the focus has to be on the individual child in the
particular
circumstances of the case there should be no assumptions about what is best for an individual child; and
reference
should be made to the welfare checklist in s1(3) of the Children Act 1989;
b. There is no warrant to extend the
principles
of the Hague Convention 1980;
c. "Thirdly, however the court does have
power,
in accordance with the welfare
principle
to order the immediate
return
of the child to a foreign
jurisdiction
without conducting a full investigation of the merits" [
paragraph
26];
d. "The most one can say, in my view, is that the judge may
find
it convenient to start from the
proposition
that it is likely to be better for a child to
return
to his home country for any dispute about his future to be decided there. A case against his doing so has to be made" [
paragraph
32];
e. Rather than focusing on the technical concept of habitual
residence,
the court should ask itself: what is the child's home country?
Factors
such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his
religion,
his culture and his education so far will all come into this evaluation; and
f. The
period
of time spent in each country is also a
relevant
factor.
paragraph
49, Lord Wilson commended the use of the welfare checklist, although it is not expressly applicable to making orders under the
inherent
jurisdiction:
"…their utility in any analysis of a child welfare has beenrecognised
for nearly 30 years. In its determination of an application under the
inherent
![]()
jurisdiction
governed by consideration of a child's welfare, the court is likely to
find
it appropriate to consider the first six aspects of welfare specified in section 1(3)… and, if it is considering whether to make a summary order, it will initially examine whether, in order to sufficiently to identify what the child's welfare
requires,
it should conduct an inquiry and, if so, how extensive that enquiry should be".
paragraphs
56-63 of In the Matter of NY (A Child), Lord Wilson set out a number of matters which the court should consider before exercising its
inherent
jurisdiction
to
return
a child to a foreign state. The
relevant
matters are as follows:
A. Whether the evidence before the court was sufficiently up-to-date to enable the court to make a summary order;
B. Whether the court could make
findings
sufficient to justify the summary order;
C. Whether, in order to sufficiently identify what the child's welfare
required
for the
purposes
of a summary order, an enquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that enquiry should be;
D. Whether, in the light of
Practice
Direction 12J, an enquiry should be conducted into the disputed
allegations
made by the mother of
domestic
abuse
and, if so, how extensive that enquiry should be;
E. Whether, without identification in evidence of any arrangements for the child in the country to which
return
was
proposed,
in
particular
of where the child and the mother should live, it would be appropriate to conclude that the child's welfare
required
a
return
to that country;
F. Whether, in the light of the matters identified above, the court should hear oral evidence and, if so, upon what aspects and to what extent;
G. Whether a Cafcass officer should be directed to
prepare
a
report
and, if so, upon what aspects and to what extent; and
H. Whether a comparison between the
powers
of the court and the
powers
of the court in the country to which
return
was
proposed
was necessary to
reach
a speedy
resolution
of the substantive issues between the
parents
in
relation
to the child and for the court to satisfy itself that the court in the country of
return
had the
power
to authorise the mother to
relocate
back to the country of
return.
Female
Genital
Mutilation
profound
and life-long. In Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC412, Baroness Hale observed the following in
respect
of FGM [
paragraph
94]:
"… theprocedure
will almost inevitably amount to either torture or to other cruel, inhuman or degrading treatment within the meaning, not only of article 3 of the European Convention on Human Rights, but also of article 1 or 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment,
article 7 of the International Covenant on Civil and
Political
Rights, and article 37(a) of the Convention on the Rights of the Child."
In the same case, Lord Bingham said at
paragraph
8:
"FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, decorations,
resolutions,
pronouncements
and
recommendations
… Therefore, those cultural
practices
that involve "severe
pain
and suffering" for the woman or the girl child, those that do not
respect
the
physical
integrity of the
female
body, must
receive
maximum international scrutiny and agitation. It is imperative that
practices
such as
female
genital
mutilation,
honour killings, Sati or any other form of cultural
practice
that brutalises the
female
body
receive
international attention, and international leverage should be used to ensure that these
practices
are curtailed and eliminated as quickly as
possible."
required
to make as
part
of this hearing was the extent of the risk of FGM to
P
were she to
return
to Nigeria. In
Re
X (
Female
Genital
Mutilation
Protection
Order No.2) [2019] EWHC 1990, Cobb J gave guidance on analysing the risk of FGM by
reference
to the contextual "macro"
factors
(i.e.
prevalence,
societal expectation, effectiveness of local laws) together with associated safeguards, and the individual "micro"
factors
and safeguards
pertaining
to the
facts
of the
particular
case and child. These
factors,
set out in
paragraph
91, are listed as follows:
Contextual considerations/Macro
factors
a. What is the
prevalence
of FGM in the country to which it is
proposed
that the child will be taken?
b. What are the societal expectations of FGM in the country?
c. If known, what is the
prevalence
of FGM in the specific
region
of the country to which it is
proposed
that the child will be taken?
d. Is FGM illegal in the country to which it is
proposed
that the child will be taken?
e. If illegal, how effective are the authorities in the country in question in enforcing the
prohibition
on FGM?
f. Given the extraterritorial
reach
of the 2003 Act, and the
fact
that the act of carrying out FGM (and aiding and abetting, counselling or
procuring
the act) is a crime
punishable
on indictment to imprisonment not exceeding 14 years, is there an extradition treaty between the UK and the country to which the child will be taken in the event that there is evidence of a breach of the order?
g. What formal safeguards are available in the country to which it is
proposed
to take the child to mitigate the risks (access to local tourist
police,
FCO
representatives/consular
assistance, NGO workers)?
h. At what age are girls commonly cut in the country to which it is
proposed
that the child will be taken? (how does this compare with the age of the subject child?)
Individual considerations/Micro
factors
i. Is there a history of FGM in the child's wider family, or in the family to which the child will be exposed abroad?
j. If so, on which generation or generations of women has this been
perpetrated?
Specifically, what is the
position
in
relation
to the younger generation(s)?
k. What are the attitudes of the mother and/or father to FGM generally, and/or in
relation
to their daughter?
l. Is FGM/circumcision
regarded
as a woman's issue or a man's issue within the family? Where is the
power
balance in the family?
m. What are the attitudes of the wider family to
female
circumcision generally, and/or in
relation
to the subject child?
n. What safeguards can the family themselves devise and imposed to mitigate the risk?
o. How well have a family cooperated with the authorities?
p. What is the
professional
assessment of family
relationships
and of the capabilities of the
parents?
q. Are there any other special features of the case which make FGM more or less likely?
refused
the mother's and the child's asylum applications based on a fear of FGM if they were to
return
to Nigeria. In A (A Child:
Female
Genital
Mutilation:
Asylum) [2019] EWHC 2475, the
President
gave guidance on how the family court should approach cases of FGM where the risk had been
previously
assessed by both the Secretary of State and the First-Tier Tribunal. He
rejected
a submission that the First-Tier Tribunal's assessment of risk should be the starting
point
or default
position
for the family court and that the court should only deviate from that assessment if there was good
reason
to do so. The approach to risk assessment in a family case was a different exercise from that undertaken in the context of immigration and asylum. Though the family court would take account of any risk assessment by the First-Tier Tribunal, the exercise undertaken by a tribunal was not a comparable
process
with that
required
in the family court. The family court had a duty to form its own assessment, unencumbered by having to afford
priority
or
precedence
to the outcome of a similarly labelled, but materially different,
process
in the immigration
jurisdiction
(
paragraph
56). The
President's
decision was upheld by the Court of Appeal in
Re
A (A Child) (
Rev
1) [2020] EWCA Civ 731. The
reasoning
set out in
Re
A is equally applicable to the determination of risk by the Secretary of State alone.
return
of
P
to Nigeria but on whether the mothers
allegations
about the father and the
paternal
family are found
proved
which is a question of credibility. In that
regard,
Lieven J stated in AB v AN & Anor [2020] EWHC 2048 (Fam) [
paragraph
34]:
"In contrast, the
present
case turns on the credibility of the Applicant. She has not suggested that FGM is so
prevalent
in Nigeria or in southern Nigeria/Lagos where she was living that it is the simple
return
to Nigeria which
poses
the risk. Her case is that the risk is
posed
by the Father's family as set out in the emails I have
referred
to above. That is a matter of assessing the evidence that she has
produced
and her oral evidence. If the court accepts her evidence then the order may well be made, if her evidence is not accepted then the child has no separate interest or case to be advanced. Dr
Proudman
argued that it is important that the child is not disadvantaged by the taint that exists on the Applicant's credibility. However, on the
facts
of this case, the Applicant's credibility is central to the existence or otherwise of the risk. In that sense it is different from
Re
A where there was strong
reason
to believe the risk existed quite independently of the credibility of the mother. It is clear in the light of the Suffolk County Council case that in assessing the Applicant's credibility the Family Court must consider the matter for itself and not simply adopt or follow the view of the FTT. For the avoidance of doubt, I make absolutely clear that the Family Court must address the Applicant's credibility wholly independently from the
findings
of the FTT."
Fact
Finding
Hearings
allegations
of
domestic
abuse
in this case by
reference
to the definitions contained in
paragraphs
2A and 3 of
Practice
Direction 12J of the Family
Procedure
Rules 2010,
recently
amended in consequence of the enactment of the
Domestic
Abuse
Act 2021. Of
particular
importance in the context of this case are the definitions of coercive behaviour and controlling behaviour contained in
paragraph
3. 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" and 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".
paragraph
26 of
Re
B-B (
Domestic
Abuse:
Fact-Finding)
[2022] EWHC 108 (Fam), Cobb J admirably distilled the
principles
governing the court's determination in a
fact-finding
exercise. I have applied those
principles
in coming to my decision and set them out as follows:
"i) The burden ofproof
lies, throughout, with the
person
making the
allegation.
In this case, both the mother and the father make
allegations
(in some
respects
overlapping) against each other on which they seek adjudications;
ii) Inprivate
law cases, the court needs to be vigilant to the
possibility
that one or other
parent
may be seeking to gain an advantage in the battle against the other. This does not mean that
allegations
are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication;
iii) It is not for eitherparent
to
prove
a negative; there is no '
pseudo-burden'
on either to establish the
probability
of explanations for matters which raise suspicion;
iv) The standard ofproof
is the civil standard – the balance of
probabilities.
The law operates a binary system, so if a
fact
is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this
principle
must be applied, it is
reasonably
said, with 'common sense';
v) Sometimes the burden ofproof
will come to the judge's
rescue:
the
party
with the burden of showing that something took
place
will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to
rely
upon the burden of
proof;
![]()
vi) The court can haveregard
to the
inherent
![]()
probabilities
of events or occurrences; the more serious or improbable the
allegation
the greater the need for evidential 'cogency';
vii)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; it is for the
party
seeking to
prove
the
allegation
to "adduce
proper
evidence of what it seeks to
prove";
![]()
viii) The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering eachpiece
of evidence in the context of all the other evidence. I must have
regard
to the
relevance
of each
piece
of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case
put
forward by the
person
making the
allegation
has been made out to the appropriate standard of
proof;
![]()
ix) The evidence of theparties
themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and
reliability;
![]()
x) It is, of course, not uncommon for witnesses to tell lies in the course of afact-finding
investigation and a court 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. I am conscious that 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); I have borne firmly in mind what Lord Lane CJ said in Lucas, namely that:
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it mustrelate
to a material issue. Thirdly the motive for the lie must be a
realisation
of guilt and a fear of the truth. The jury should in appropriate cases be
reminded
that
people
sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
xi) That my function inresolving
disputes of
fact
in the family court is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal made clear in
Re
R [2018] EWCA Civ 198:
"Theprimary
![]()
purpose
of the family
process
is to determine, as best that may be done, what has gone on in the
past,
so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court's eyes open to such risks as the
factual
determination may have established" ([62]
Re
R).
Apoint
which I myself considered in F v M [2019] EWHC 3177, in a judgment which was
referenced
with approval in
Re
H-N (see §69/70).
xii) At all times, I must follow theprinciples
and guidance at
PD
12J of the Family
Procedure
Rules 2010."
40. When assessing the
allegations
of
domestic
abuse,
I have endeavoured not to make stereotypical assumptions about how
alleged
victims of
domestic
abuse
tell their story and
present
to others and, indeed, in a courtroom. My focus was on listening very carefully to the contents of the mother's evidence and cross-checking her evidence against that from other sources rather than allowing myself to be influenced by generalised assumptions about her behaviour. That approach is not novel and accords with the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391. In
paragraph
41, the Court of Appeal stated as follows:
"Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective andreliable
approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or
probable
![]()
facts."
41. I have also
reminded
myself of the comments of
Peter
Jackson LJ in
paragraph
61 of
Re
L (
Relocation:
Second Appeal) [2019] EWCA Civ 2121, cited with approval in
Re
H-N [2021] EWCA Civ 448, to the general effect that:
"… not all directive, assertive, stubborn, or selfish behaviour, will be 'abuse'
in the context of
proceedings
concerning the welfare of a child; much will turn on the intention of the
perpetrator
of the
alleged
![]()
abuse
and on the harmful impact of the behaviour."
The
Allegations
42.
Pursuant
to my directions, both
parents
prepared
lists of the
findings
they sought.
43. The father's case was straightforward and stark: he
alleged
that the mother
removed
P
from Nigeria without his knowledge and consent and thereafter, obstructed
P's
relationship
with him and then concocted
allegations
of FGM as a device to
prevent
P
from
returning
to Nigeria. He denied the mother's
allegations
of
domestic
abuse,
including controlling behaviour, and invited me to make
positive
findings
that the mother had concocted various incidents with a view to impeding his
relationship
with
P
and to frustrating her
return.
44. The mother's case was the
polar
opposite. She maintained that the father knew and consented to the trip to the UK in December 2019, and she only decided to stay here when the father made clear to her his
plans
for
P
to be subjected to FGM upon her
return
to Nigeria. The mother accepted there was a
period
of time when
P
had limited contact with her father, but
relied
on having
promoted
and facilitated contact throughout these
proceedings
in defence to his overarching
allegation
that she had obstructed
P's
relationship
with him. It was common ground that, for the first seven months of 2020
prior
to the intervention of the court, the father was only
permitted
to speak to
P
on two occasions.
45. The mother sought
findings
about
abusive
behaviour
perpetrated
by the father. Those
findings
can be grouped into three broad categories of
allegations,
each containing a number of examples.
46. Firstly, the father had expressed the intention of subjecting
P
to FGM on a number of occasions. The rationale for FGM was so that
P
could control her sexual urges when she was older, the father's belief being that the mother could not control her sexual urges because she had not been cut as a child. The mother had told the father on numerous occasions that she objected to FGM but the father's
response
was "who is going to stop me?". Specifically, on 4 January 2020, the father told the mother that he would show her "who the man is" and that he would
perform
FGM on
P.
47. Secondly, the father and the
paternal
family had subjected the mother to controlling and coercive behaviour throughout their marriage. For example, she had been isolated from her own family; controlled when she wished to use the telephone;
required
to seek
permission
in advance if she wished to leave the home or to visit her family; forced to agree a change to
P's
name the night before her christening; forced to buy male clothing when
pregnant
as the father hoped the
prenatal
scan was incorrect when it showed that they were having a
female
child; forced to dress
P
in male clothing after she was born; and forbidden from giving
P
medication without the father's
permission.
48. Thirdly, the father had
physically
assaulted the mother in 2017 by
punching
her on the left thigh whilst the father was driving and the mother breastfeeding
P.
This incident was linked to the mother's
allegations
about a
prophet
at the
paternal
family home telling her that
P
should not be fed "ewedu", a local delicacy.
The Hearing
49. All the lay witnesses with the exception of the mother and the father gave evidence by video link from Nigeria. On occasion there were
problems
both establishing and maintaining the link which imported some delay into the
proceedings
and meant that an extra day's hearing had to be accommodated on 5 April 2022.
50. Having made
allegations
of
domestic
abuse,
the mother was a vulnerable witness within the meaning of Rule 3A.2A of the Family
Procedure
Rules 2010 and I decided to make a number of
participation
directions to assist her to give her best oral evidence and to limit any anxiety she might experience during the hearing. The directions I made in advance of the hearing were as follows:
a. The mother and father should enter and leave the Royal Courts of Justice by separate entrances and exits;
b. There should be separate conference rooms on separate floors for the mother and the father;
c. Whilst in court, the mother should at all timesremain
in a screened area where she could not see or be seen by the father including when she was giving her evidence. The father should not enter the screened area. During the father's evidence, the mother was
permitted
to attend by video link with her camera switched off;
d. Counsel for the father should alert the mother during cross-examination, when moving to a new topic;
e. The mother should bepermitted
to have
regular
breaks during cross-examination;
f. The advocates should complete the witness template in advance of the commencement of the hearing so that the mother knew the likely length of any cross-examination.
Infact,
the mother
remained
in court whilst the father gave his evidence. When she came to give her evidence, the father was not
present
in court but viewed and heard her evidence on screen in a conference room within the court building.
51. At a directions hearing on 15 December 2021, I indicated that it would be helpful if the mother's solicitors filed and served a copy of her 2019 application for visas to visit this
jurisdiction
together with the letter from the
relevant
UK Government agency granting the mother visas for herself and
P.
A direction was made to that effect. Accordingly, the trial bundle contained this material but what was missing were the documents supplied by the mother in support of her application. Those documents went to the heart of one of the key issues in the case, namely whether the mother had obtained the father's written consent for the
removal
of
P
to the UK for the
purpose
of a holiday in late December 2019. If she had, this would lend credence to her account that, contrary to his assertions, the father knew about the trip.
52. On 24 March 2022, I granted an application by the father for the disclosure by the Secretary of State for the Home Department of the complete visa applications made by the mother in November 2019 (including documents lodged in support), which
resulted
in two year visit visas being granted on 3 December 2019 and issued on 16 December 2019. In compliance with my direction, the Secretary of State disclosed the
relevant
material which contained a letter of consent dated 1 November 2019
purportedly
written by the father giving his consent for
P
to travel to the UK with her mother in late December 2019 for about a fortnight's holiday. Having
reviewed
the disclosed material, the father asserted that the signature applied to the letter of consent was not his and had been forged by the mother and/or her associates. On 5 April 2022, Mr Hames QC made an application for the instruction of a handwriting expert to analyse the signature and
prepare
a
report
for the court. That application was unopposed by the mother and supported by the children's Guardian.
53. The instruction of a handwriting expert is unusual within family
proceedings
concerning a child. However, I granted that application for these
reasons.
Firstly, a key issue in the case was whether or not the father knew and consented to
P's
removal
from Nigeria in December 2019. Secondly, for the first time in her March oral evidence and when being cross-examined on behalf of the father, the mother asserted that the father had
provided
his signed written consent to a visa being obtained on the child's behalf. She stated she had taken that document to the British High Commission to be notarised and scanned into the electronic document system, in support of her application for a visa. The mother asserted that she had left the hardcopy version of that document in Nigeria so it was no longer in her
possession.
Thirdly, disclosure from the Secretary of State had
revealed
a typed "Letter of Consent"
purportedly
signed by the father. Fourthly, the father asserted that the signature on the document was not his but was a forgery. Finally, the father was able to
provide
original examples of his signature over a
period
of time - both
prior
to and after the disputed Letter of Consent - for scrutiny by a handwriting expert even though the disputed Letter of Consent was not in an original form. That
rendered
the instruction of a handwriting expert worthwhile. Given these circumstances, I decided that the instruction of Elisabeth Briggs, an independent forensic document examiner, was necessary and
proportionate
to assist me to determine the veracity of the
parties'
competing and diametrically opposed accounts.
54. The instruction of Ms Briggs necessitated the adjournment of the hearing
part
heard until the week commencing 20 June 2022. In that week I heard oral evidence from Ms Briggs, the mother and the father. I also heard the oral evidence of the children's guardian. The
parties
then
provided
written submissions and they spoke to those submissions on 23 June.
Expert Evidence
55. Mr Zadeh is an independent social worker who was instructed to
provide
a risk assessment with
respect
to FGM if
P
were to
return
to Nigeria. His first
report
was dated December 2020 and assessed the risk of FGM if
P
remained
in her mother's care as minimal, since the mother came from a tribe/state that was not
preoccupied
with FGM in the
practice
of its traditions. With
respect
to the father, Mr Zadeh had no
reasons
to be confident that FGM was not a risk
factor
for
P.
He did not think the mother could
protect
P
if
P
returned
to Nigeria without her and, if the mother herself were to
return
to Nigeria, he was of the opinion that her
protective
influence would be diminished. He opined that there was a greater risk of FGM in that the father might use it
potentially
to settle scores with the mother in the context of acrimonious
private
proceedings.
He
recommended
that
P
should stay here and be cared for by her mother. As he had failed to speak with the father and the
paternal
family when writing his
report,
Mr Zadeh was directed to
produce
an addendum
report
in February 2021, taking account of evidence filed by the father. In that
report,
he did not alter his
recommendation
and suggested the best solution would be for the father to live in this
jurisdiction.
He emphasised
P's
need for stability, safety and emotional security together with her strong attachment to her mother.
56. In his oral evidence, Mr Zadeh confirmed that he had not
reported
in a case concerning the risks of FGM in Nigeria. He had not explored with the mother if she would
return
to Nigeria if the court ordered that
P
herself was to
return
there. The delivery of his oral evidence was somewhat disjointed as Mr Zadeh had not
read
the updating statements so I gave him time to consider these. Nevertheless, Mr Zadeh maintained his view that the risk of FGM to
P
was high if she
returned
to Nigeria. He was very sceptical, if not scathing, that laws in Nigeria were effective at
protecting
women and children from FGM.
57. I found that Mr Zadeh's knowledge and experience of Nigeria and of FGM in Nigeria was significantly more limited than that of either Dr Adimula or
Professor
Bradley. His conclusions about
P's
welfare were based almost exclusively on the macro
factors
identified by Cobb J since his interviews with both
parents
were
relatively
short. Equally unfortunately, his
report
was
peppered
with generalisations such as, all children were at risk of FGM in Nigeria. I came to the conclusion that his evidence to me about
P's
welfare was of limited value, being somewhat dated and now overtaken by subsequent events.
58. Turning to the experts specifically instructed with
respect
to FGM, Dr Adimula and
Professor
Bradley took
part
in an experts' meeting on 28 February 2022. Both were in agreement that the
prevalence
of FGM in Lagos was unknown but could not be said to be zero. They also agreed that:
A. FGM in Nigeria was declining (subject to any new data emerging);
B. Theprevalence
of FGM in Nigeria was complicated and
required
consideration of a number of aspects, including ethnicity and family association with FGM;
C. Lagos is an urban, developed city which indicatedpotentially
a lesser risk. However, it is also a multicultural city and so there may well be
pockets
within that society that were more likely to have higher rates of FGM; and
D. Although the experts used similar datasets, they differed on the assessment inrelation
to the specifics of the risk
posed
in the
present
case.
59. Dr Adimula is a lawyer based in Nigeria who was instructed to
provide
an opinion, amongst other matters, (a) on the legal status of FGM in Nigeria (including whether FGM was a criminal offence); (b) any legal sanctions against FGM; (c) the availability of support services in
respect
of FGM and
domestic
abuse;
and (d) whether mirror orders could be made
protecting
P
if she were to
return
to Nigeria. Her
report
dated October 2020 confirmed that there had been a drastic
reduction
in rates of FGM in Nigeria as a whole and much more so in Lagos due to increased education and legal
reform.
There was a legislative framework for a variety of
protective
orders in
respect
of
domestic
abuse
and FGM. Though there had been no successful
prosecution
of a case of FGM, the legal system was
reliable
and
responsive
if it was necessary to
protect
a child from FGM by seeking
protective
orders. Dr Adimula was of the opinion that it was safe for
P
to
return
to Nigeria and to Lagos in
particular
as FGM was not a threat. The
practice
- in her words -was dying out. In April 2021, Dr Adimula
provided
a
response
to further questions from the
parties,
amongst which was a question asking her to clarify her expertise since her
report
had commented on the
prevalence
of FGM and the likelihood of FGM being
performed
in
P's
family. She asserted her expertise in those matters stemmed from her academic and
practice
credentials in child
protection.
60. In her oral evidence, Dr Adimula maintained her stance that FGM had been
reducing
since 2017 and
particularly
that there was little risk of FGM in Lagos as opposed to in rural areas. She had no experience as a lawyer of obtaining
protective
orders in
respect
of FGM but confirmed that a
protective
order could, in theory, be obtained which would last for 30 to 60 days and might be capable of further extension. She had not dealt with any case of FGM and had never heard her colleagues talk about FGM. She maintained her assertion that FGM was not
prevalent
in Lagos.
61.
Regrettably,
I concluded that Dr Adimula strayed outside her area of expertise by stating that
P
could
return
to Nigeria "without any risk of FGM" though she had not been instructed to and had no expertise in carrying out a risk assessment. Furthermore, her evidence left me unclear as to the efficacy of
protective
measures against FGM if these were
required
in
P's
case. Her
report
failed to identify support services for women and girls with
respect
to FGM or
domestic
abuse
and she failed to explain the
process
for or give a timeframe for obtaining mirror orders in Nigeria. I found her overly keen to emphasise that FGM was no longer a
problem
in Nigeria.
62.
Professor
Bradley is a
professor
of International Development Studies at the University of
Portsmouth.
She was instructed to
report
upon (a) the
prevalence
of FGM in Nigeria especially in Lagos and Osun state; (b) the current measures to
prevent
FGM or to oppose it in Nigeria, especially in Lagos and Osun State; and (c) the risk of FGM to
P.
Her first
report
dated June 2021 identified that the most
recent
survey of FGM in Nigeria
put
the
prevalence
in women aged between 15-49 at 24.8%. The
practice
of FGM varied across Nigeria, with the south-west and the south-east leading on
prevalence.
FGM was higher among Yoruba women and girls in the southern states. The
prevalence
of FGM in Osun state was very high: a 2003 study found it to be 85% whereas a 2016/2017 study found that it had declined to 67.8%. The comparable figures for Lagos in
respect
of both studies were 40.3% and 25%
respectively.
She concluded that FGM was a very serious
problem
across all the Nigerian states associated with
P's
family: in Osun state 82% of girls underwent FGM before the age of five and FGM was higher in urban as opposed to rural locations. In Lagos, the highest
proportion
of cut girls were Yoruba girls aged from 0-14 years.
Professor
Bradley noted that, within the Yoruba, the decision to cut a child did not
rest
with
parents
but rather was made by wider senior family members and even community leaders. To be uncut was considered shameful and the level of
pressure
placed
on
parents
who did not wish their daughters to be cut was high. Girls were often taken against the wishes of their
parents
to be cut.
63. The Violence against
Persons
(
Prohibition)
Act 2015 ("VAPP") was the first federal law in Nigeria attempting to
prohibit
FGM across the whole country. It had been
passed
in Lagos and Osun state. To date, the law had not been effective in bringing
prosecutions
for FGM. Though a girl-centred approach to combating FGM had become more common, that strategy had limited impact in Nigeria where the age of cutting tended to be early. Whilst the evidence was limited,
Professor
Bradley
pointed
to the emergence of more cross-state cutting in which families took girls into states where VAPP had not been ratified. Similarly, urban families took girls into their rural communities to undergo FGM. Those worrying trends made it very difficult for civil society to act
preventatively.
64.
Professor
Bradley noted that (a) the father's sister had undergone a medical examination and
presented
a certificate to demonstrate she had not undergone FGM and (b) all the other
female
members of the
paternal
family stated that they had not undergone FGM. She raised concerns about the usefulness of the medical certificate, commenting that FGM can be hard to detect especially when carried out on a baby girl. It was also not uncommon for a woman not to
realise
it had been
performed
on her, again because of undergoing the
practice
at a young age and having no memory of it. She drew attention to two other
relevant
factors
in
respect
of the
paternal
family: there was no direct link between whether someone was a
professional/educated
person
and whether they had undergone FGM; and
religious
belief had no
proven
link to FGM. Analysing the
factors
in the case,
Professor
Bradley was of the opinion that
P
was at high risk of undergoing FGM if she
returned
to Nigeria.
65. In September 2021,
Professor
Bradley
produced
a further
report,
having been asked to assess the risk to
P
based on interviews with the
paternal
family as well as with the mother. For the
purpose
of the addendum
report,
the mother had been interviewed by Ms Nkwunonwo and the
paternal
family had been interviewed by Mr Ukwa.
Professor
Bradley and her colleagues all concluded that:
"This is a highly complex and emotive case from both sides of the family. The interviews with all family membersrevealed
a concerning lack of knowledge of FGM. Given the
prevalence
levels,
particularly
in
relation
to Osun and Lagos, it is unlikely that family members would have no knowledge. The denial of knowledge made risk hard to assess however the family living arrangements and lack of connection with Osun and traditional Yoruba marks suggests that it is very
possible
they do not observe FGM.
However, the mother's fears must be taken seriously not least because of the highprevalence
in Osun. We therefore
recommend
that if the daughter is to travel to Nigeria to see her father and his family she should be accompanied by an anti-FGM trained advocate who must
remain
with her at all times.
Furthermore, werecommend
all members of the family undergo FGM awareness training. This should include the mother who needs to understand the enabling/
protective
options available in Lagos. She should be encouraged to
reach
out to make contact with stakeholders who may be able to offer her support and give her confidence that her daughter can be kept safe. Having this greater understanding of the risks of FGM as well as the
protective
options in Nigeria will serve to help her to empower her daughter as she grows."
66. In her oral evidence,
Professor
Bradley was clear that she would have expected the family to have known more about FGM though she conceded that they might be nervous in talking about it. Nevertheless, she would have expected them to know that many families in their home state
practised
it. Though the father's family had been willing to engage in the
process
of discussion about FGM, they were unwilling to delve into their family history and did not accept it was a cultural
practice.
It was frustrating that they had not been more open.
Professor
Bradley confirmed that the availability of FGM support and advocacy services in Nigeria was under threat because of a decline in funding.
67. I found
Professor
Bradley's evidence about the
prevalence
of FGM in Nigeria
persuasive.
It was grounded in close familiarity with a wide range of international and local data about FGM in Nigeria.
68. Mr Ukwa also gave evidence to me about his interviews with the father, the
paternal
grandparents and the
paternal
aunt. He has been working on issues around gender-based violence in Nigeria for about seven years and has conducted many interviews assessing the risk of FGM. The entire
paternal
family
presented
as being unaware of FGM which Mr Ukwa found quite alarming given that the
practice
was very
prevalent
in Osun state. However, the
paternal
aunt was clear that FGM was an abhorrent
practice,
describing it as torture. Neither grandparent
professed
any knowledge of FGM though the grandmother confirmed that she had not been cut herself. Mr Ukwa considered that he had been unable to have an open discussion with either of the grandparents.
69. In cross examination by Miss Munroe QC, Mr Ukwa confirmed that,
prior
to the criminalisation of FGM in 2015, FGM was
practised
openly without a sense of shame and often celebrated in families who considered it enhanced their daughters' lives. Those associations had not disappeared but had gone underground though celebrations were no longer commonly or openly held. He considered the
paternal
family's
response
to stem from either ignorance or denial. Mr Ukwa's oral evidence chimed with the contents of his interviews with the family and was straightforward and measured.
70. Turning to the evidence of Ms Briggs, she is an independent forensic document examiner who was asked to determine whether or not the signature on the Letter of Consent dated 1 November 2019 was written by the father. The Letter of Consent was submitted by the mother to the British High Commission in support of her application for travel visas so that she and
P
might travel to the UK in December 2019. In addition to the scanned copy Letter of Consent, Ms Briggs was
provided
with 22 documents bearing known signatures of the father, the majority of which were in original form with a small number of copy documents. The signatures were dated between 2009 and 2022 and therefore
pre-and
post-dated
the questioned Letter of Consent. Ms Brigg's
report
was dated April 2022 and concluded that the questioned signature showed a close
pictorial
similarity to the known signatures of the father but there were some differences in detail. Her examination had been limited to an extent by being unable to examine the original Letter of Consent. This meant that she was unable to consider some of the finer details such as fluency or how the letters were constructed. Nevertheless, in her opinion, there was some limited evidence to show that, on the balance of
probabilities,
the questioned signature was not written by the father. The father's signature was written in a stylised form followed by a complex series of loops and illegible features. His known signatures were all fluently written and were similar to each other, showing the degree of variation typical of that found in the normal signature of one individual. The known signatures were all suitable for comparison
purposes.
In her oral evidence, Ms Briggs told me that it was unusual to have so many known signatures available to her for examination,
particularly
known signatures across a
period
of time, some of which were contained in original documents.
71. Despite some similarities, Ms Briggs found a number of differences between the questioned signature and the known signature of the father. The chances of all these differences appearing in one signature was unlikely in her view, especially as two of the differences she identified did not appear in any of the known signatures. Though the questioned document was a scanned copy, the method of scanning would not explain the differences which she found. She had considered carefully whether the Letter of Consent was good enough for her to fulfil her instructions but had come to the conclusion, following a detailed examination of all the material with which she had been
provided,
that the Letter of Consent
provided
sufficient information for a well- grounded analysis. For example, one of the differences identified by Ms Briggs was a final angled line drawn separately across the signature in the Letter of Consent. This was not a natural feature of the known signatures and was a significant difference from the continuous angled line flowing initially to the left and then to the right across all the known signatures. She concluded that, though the strength of the evidence was weak, she considered on the balance of
probabilities
that the questioned signature was written by someone other than the father. She agreed that her evidence should be
placed
in the context of the
rest
of the evidence.
72. Ms Brigg's evidence was measured, straightforward and impressive. She had clearly engaged in a thorough and careful evaluative
process
in order to
reach
her conclusions.
Assessment of the
Parties
and the Lay Witnesses.
73. The mother. She gave her evidence calmly to me over two days in March 2022 and again on 20 and 21 June 2022, at all times with the benefit of the
participation
directions I had made. I was able to form a clear impression of her, bolstered by
reading
the significant number of documents filed in this case. She is an intelligent and articulate woman who often asked counsel to be more
precise
in the questions they
put
to her. That, in
part,
indicated to me a degree of anxiety on the mother's
part
about her oral evidence. Her love for
P
was
plain
to see – her face was radiant with smiles when asked to describe her little girl.
74. In many
respects,
the mother was a highly unsatisfactory witness. For
reasons
which will be apparent later in this judgment, I found it necessary to have at the forefront of my mind when assessing her evidence that a witness may be untruthful about some matters but truthful about others. In
part
because it was corroborated by the father's own evidence, I found her account of the marital difficulties between her and the father had credibility whereas this feature was lacking in her account of both how
P
came to arrive and stay in the UK and the
allegations
of FGM made against the father. Some aspects of her evidence were exaggerated such as the degree to which she was isolated from her own family and friends following her marriage and the degree to which the father
prevented
her from giving medication to
P.
75. It was obvious to me that the mother was upset by the father's confirmation in the witness box that he had been serially unfaithful to her from the very early days of their marriage onwards. Those
revelations
in the father's oral evidence would also have been humiliating for the rather
private
woman in the witness box. There were other times in the mother's evidence when I had the strong sense that she was withholding information from the court because it might disadvantage her. Thus, she was less than forthcoming about her own mother's circumstances in the UK and her claimed lack of knowledge about the status/circumstances of her mother's marriage to her stepfather struck me as disingenuous. The mother's account that she had not asked her mother to come to court and give evidence because she was emotional and would not be coherent was unpersuasive. The maternal grandmother was very closely involved in the events following the mother's arrival in the UK and the mother's failure to call her suggested more than mere concern that the maternal grandmother might be upset by giving evidence in support of her daughter.
76. These broad observations about the mother's evidence will be supplemented by more detailed analysis later in this judgment.
77. The father. The father gave evidence to me over two days in March 2022 and again on 20 and 21 June 2022. As with the mother, I was able to form a clear impression of him. He too is an intelligent,
proud
man who loves his daughter and, like the mother, found the
process
of exposing family life with all its difficulties embarrassing and stressful. At times, he found it hard to express his emotions – for example, when talking about
P
– but he had no difficulty in being highly critical of the mother's
parenting,
accusing her of using excessive
physical
chastisement on
P.
Though he admitted he had not spoken about this to anyone in his family and had been content to leave
P
with her mother, that
allegation
did him no credit whatsoever. His evidence about the mother's
parenting
ran counter to everything I
read
and heard about the close and loving
relationship
between
P
and her mother. I found his evidence on this issue to be untruthful.
78. The father admitted to lying in his written statements that he had not had sexual affairs during the marriage. In chief, he accepted that he had been serially unfaithful to the mother from almost the very beginning of their marriage. His infidelities began when the mother was
pregnant
with
P
and continued in a manner which suggested that the father was a man who would do what
pleased
him, almost
regardless
of the consequences for others. His admissions caused me to apply to his evidence the approach outlined in R v Lucas (see Legal Framework above) and to
remind
myself that
people
lie about some matters for a variety of
reasons
but this did not necessarily entail a wholesale
rejection
of the entirety of their evidence. His lies about his own conduct in the marital
relationship
were, in my view, an attempt to bolster up a just cause and to avoid
P
knowing that he had behaved badly to her mother. That exercise backfired spectacularly. However, there were other aspects of his evidence about which I was able to have a greater degree of confidence, namely his account of
P's
travel to the UK and events thereafter. This was because there was a degree of contemporaneous evidence from other sources which supported the father's case.
79. Overall, the father was slow to admit fault in himself and defensive about the
paternal
family's involvement in his marital affairs. He was indulged by the
paternal
family and steeped in traditional Yoruban values, such as the husband being in the driving seat, and sought to apply these to married life. Nevertheless, he eventually showed some grudging insight into the effect of his behaviour on the mother though he maintained that
P's
exposure to marital rows had had no effect on her.
80. The
paternal
aunt. She is educated to degree level and is in full-time employment. She is married and has three daughters under the age of 10. She
produced
a medical
report
from her GP to confirm her assertion that she had not been subjected to FGM and she was adamant that her own daughters would not be cut. In her statement, she described FGM as "an archaic and inhumane act, which my family has never
performed
and which is unheard of amongst the educated class in Nigeria". Her statement also averred that, despite
regular
contact with the mother, the mother had never mentioned any concerns about the father either having extra-marital affairs or being
abusive
and controlling towards her.
81. In her oral evidence, the
paternal
aunt accepted that she might not have known about the degree of dispute or unhappiness in the marital
relationship
of
P's
parents.
However, she described the mother as being like her younger sister and would have expected her to indicate something of her troubles. With
respect
to FGM, the
paternal
aunt said she did not know anyone who had been cut and considered the
practice
not to be
prevalent
in her community. From limited discussion with her mother about the topic when she was a teenager, the
paternal
aunt was clear that FGM was a bad thing and that the
paternal
grandmother thought so too. Surprisingly, she had not asked her own mother if she had been cut or sought to establish whether her maternal aunts were cut. The
paternal
aunt felt comfortable with her knowledge of FGM and said that, now she knew more about it following the interview with Mr Ukwa, she would take steps to stop it if she became aware of it in her circle of acquaintance. However, she had taken no
real
steps to educate herself after the interview with Mr Ukwa. She indicated a willingness to undertake FGM awareness training if the court thought this would be helpful though her ability to do so might be circumscribed by her other commitments.
82. The
paternal
aunt was
protective
of the father and found it hard to accept that he might have behaved badly towards the mother. Her belief that the mother would have confided in her struck me as a little naïve given the strong bonds of filial loyalty of which the mother would have been well aware. It was clear to me that the
paternal
aunt had been on something of a voyage of discovery about FGM because of these
proceedings
and was anxious to
reassure
me that she took the issue seriously even though she did not believe her brother had made any threats about
performing
FGM on
P.
I found her lack of interest in and awareness of FGM somewhat concerning.
83. The
paternal
grandmother. She was a secondary school teacher for 35 years, finishing her career as a school
principal.
In her statement, the
paternal
grandmother denied
placing
pressure
on the mother to conform to traditional expectations of wives and mothers in Yoruban culture. She
rejected
any
abusive
or controlling behaviour as
alleged
by the mother. Finally, she was adamant that FGM was not
practised
in her family and she
regarded
it as "abhorrent". Knowing her son, she was certain that he shared her views about FGM and would never cause it to be carried out on
P.
84. In her oral evidence, the
paternal
grandmother was at
pains
to speak well of the father and found it extremely difficult to accept that he might have behaved
poorly
towards the mother. She intimated that what went on between the father and the mother was a
private
matter of which she would have little knowledge. However, she admitted that there was one occasion in about 2018 when she had begged the mother's forgiveness for the father's infidelities. She said the father had been
present
when she did this. The mother confirmed this event in her oral evidence though not that the father was
present.
The
paternal
grandmother was a woman with evident
pride
in her Yoruban heritage, identifying with the culture, food, dress, and
personality
traits common in Yoruba culture.
Prior
to giving her evidence, she had spoken to the
paternal
aunt about her evidence and, in
particular,
about a conversation they had about FGM when the
paternal
aunt was a teenager. Notwithstanding that discussion, the
paternal
grandmother was vague about the
reason
for that conversation and, in broad terms, what had been discussed. She
professed
to little awareness that FGM might be
prevalent
in her community and did not believe it was.
85. I found the
paternal
grandmother's evidence on the issue of FGM troubling. She had not
reflected
why FGM might be happening in her community and
regarded
it as a non-issue which had only arisen because of the mother's
allegations.
I found her to be overly indulgent of her son's behaviour even when she knew he was having affairs and had begged the mother's forgiveness for his behaviour.
86. The mother's work colleague, Ms Z. She had become acquainted with the mother in about September 2018 and had worked with her until the mother tended her
resignation
from her employment in January 2020. Ms Z described the mother's
resignation
as a shock. She said she had only had occasional contact with the mother since then. Ms Z described the mother as a bubbly and lively
person
who only appeared to be sad on rare occasions. In her statement, Ms Z described a conversation with the mother in about April/May 2019 when the mother broke down in tears, saying she was frightened for
P's
life. She explained that her husband said that
P
needed to be circumcised as soon as
possible
in accordance with their traditions. Ms Z said she had told the mother to explain the disadvantages of FGM to her husband and urge him not to carry out his threat. She said that they had not discussed the issue again as Ms Z did not want to upset the mother. It was very unusual for the mother to talk about her family as she was a very
private
person
and Ms Z had been surprised that FGM appeared to be an issue in the mother's family life. Ms Z confirmed the conversation about FGM when cross-examined on behalf of the father. In her statement, Ms Z said that she had also spoken to the mother after her arrival in the UK when the mother told her that the father had made definite arrangements to
perform
FGM on
P
when she
returned
to Nigeria. In her oral evidence, the chronology of her conversation with the mother was confused and she could not
remember
whether the mother was in the UK when they spoke.
87. Ms Z had only met the father on one occasion in February 2020 when he arrived at the office in an attempt to ascertain contact details for the mother. According to her statement, he told Ms Z that he had
plans
for
P
and wanted her to be
returned
as soon as
possible
and suggested that Ms Z should do everything she could to
persuade
the mother to
return.
Ms Z inferred from that conversation that the father would do as the mother had intimated to her.
88. It was
plain
that Ms Z did not know the mother well. If the mother was being truthful about the risk of FGM in April/May 2019, Ms Z's evidence tended to support the mother's contention that the father wished to subject
P
to FGM when she was still a small child.
89. The maternal uncle. He had been a
pastor
with the Truth Evangelical Mission for more than a decade. In his statement he described a visit from the father in January 2020, during which the father
reportedly
stated that the maternal family should order the mother to
return
to Nigeria so that
P
did not miss out on the traditional rights which were essential for a
person
from Osun state. When the maternal uncle asked the father to clarify what these rites were, the father
refused
to say and stormed out of the house in an angry manner. Afterwards on the same day, the maternal uncle spoke to the mother who told him that the father was
referring
to FGM.
90. The maternal uncle was more expansive in his oral evidence and, when being cross-examined on behalf of the father, he indicated that he had a conversation with the mother about FGM in 2016 after
P's
birth. She told him that the father had decided
P
should be subjected to FGM and the uncle had advised her to try and change the father's mind. The maternal uncle went on to say that he had spoken to the father on the telephone to try and talk the father out of his desire for FGM. However, the father had told him not to intrude into his family affairs. The account of the 2016 FGM conversation with the mother followed by the telephone call to the father was entirely absent from the maternal uncle's written statement. He claimed to
remember
this incident when being asked questions by Mr Hames QC. I found this sudden
retrieval
of memory about so significant a matter unconvincing.
91. Much of the maternal uncle's other evidence was contradictory and confused. He claimed in his statement that he had celebrated Christmas 2019 with the mother but this was not the case and, in
fact,
he had not seen the mother or the father over that Christmas
period.
He contradicted himself over the details of the mother's trip to the UK, describing it as a short break when he knew nothing about the
planned
duration of that trip. I have approached his evidence with very great caution.
92. The maternal aunt. She is a widow with a young child who came to the UK in 2022 to study human
resource
management at university. She speaks to the mother about three times a week and did the same when she was living in Nigeria. She went to visit the mother about once a month. In her statement, she explained that the father had called her late husband in January 2020 to complain about the mother's behaviour which was disrespectful of Osun tradition and culture. She believed that the father was talking about FGM as she had
participated
in a youth service scheme in Osun state where FGM was common. She was adamant that the father had known about the trip to the UK in December 2019 as she had been in the marital home on Christmas Day, helping the mother
pack
for the trip. On 27 December 2019, she had taken the mother and
P
to the airport with the father's full knowledge as his car had broken down. Her statement made clear that the father had asked her to take the mother to the airport.
93. Her oral evidence expanded on the issue of FGM and she made
reference
to a conversation in June 2016 with the mother about this topic after
P
was born. The mother said the issue of FGM had been raised by the father and the maternal aunt advised her to
persuade
the father that this
practice
was not necessary. The maternal aunt also indicated that the mother had spoken to her about the risk of FGM to
P
several times in 2019 before she travelled to the UK. In December 2019, the aunt had spent Christmas Day with the mother and the father and, during her visit, had spent time with the mother in the bedroom
packing
the mother's suitcase for her trip to the UK. The aunt
recalled
bringing some clothing for the mother to take to the maternal grandmother. On 27 December 2019, the aunt came to the mother's home to bring the
rest
of the clothing for the maternal grandmother. She stated that she did not see the father on 27 December 2019 and did not speak to him, contradicting what was in her written statement. The aunt did not know the details of mother's travel
plans
but had known of her intention to travel to the UK since about November 2019.
94. A significant
portion
of the maternal aunt's evidence was not contained in her witness statement though it touched on some of the central
factual
matters in issue between the mother and the father. Her oral account of 27 December 2019 contradicted her written statement in which she said that she had spoken to the father who had asked her to take the mother to the airport. Her oral evidence about her conversations with the mother in January 2020 was confused: first, she said she did not speak to the mother about FGM but spoke about "issues" the mother was having with the father; but then her evidence changed to explain that she had spoken about FGM to the mother later in January. The aunt struck me as a witness who was anxious not to say anything which might harm the mother's case. She could not explain - save to make
reference
to her bereavement - why her statement made no
reference
to many of the matters in issue between the
parties.
I have approached her evidence with caution.
95. The children's guardian. She had met
P
four times
prior
to the start of the hearing in March 2022. She also saw her when she facilitated the
re-introduction
of face to face contact between
P
and the father on 18 March 2022. Her assessment was that
P
had a close and loving
relationship
with her mother which gave rise to no safeguarding concerns.
P
was an active, social child whose characteristics suggested a
positive
adjustment to life in the UK where she was obviously thriving. If
P
were to
return
to Nigeria, the children's guardian thought, on balance, she could manage this given (a)
reassurance
from both her
parents
and (b) clear
practical
arrangements being in
place
for where she might live and go to school.
P
had the
requisite
degree of
resilience
to adapt to a
return
to Nigeria. Though
P
would miss her life in the UK, the children's guardian drew attention to the losses
P
had experienced consequent on her
removal
from Nigeria.
96. From her observations of both video contact and direct contact, the children's guardian was clear that
P
and her father had a loving
relationship.
The father appeared to be attentive and
patient
with
P,
taking care to adapt himself to
P's
own
pace/wishes/needs.
She was clear that the father had
played
a
positive
role in
P's
life
prior
to her arrival in the UK even though there might be dispute about the extent of his involvement. If
P
were to
remain
in the UK, her
relationship
with the father would be curtailed and would be limited to holiday times or such times when the father could afford to travel to and was
permitted
to enter the UK on a tourist visa. Her evidence was firm in
refuting
any suggestion that the mother had alienated
P
from her father.
97. The children's guardian confirmed that the mother had told her that, if a
return
order were made, she would
return
reluctantly
and sadly with
P
to Nigeria. In her opinion, were that to happen, it was in
P's
best interests to live with her mother in Nigeria rather than for there to be a change in her living arrangements. She accepted in cross-examination by Miss Munroe QC that, were
P
to
return
to Nigeria, she may be
returning
to a situation where there was conflict about her between the mother and the father. Such conflict was harmful for a child if a child had no other stability in its life.
98. If the court were to
find
that the father had threatened FGM as
alleged
and/or that the
paternal
family's
position
on FGM increased the risks to
P,
the children's guardian would not support a
return
to Nigeria. If no such
finding
was made, the children's guardian wanted further information about the
practicalities
of a
return
to Nigeria before the court made a final decision about a
return
order.
Analysis: Generally
99. As Mr Edwards
put
it in his submissions, there were three touchstone
factual
issues in this case which the court had to
resolve,
namely the
allegation
of FGM, the abduction of
P
to the UK including whether this was facilitated by a forged letter, and
domestic
abuse.
I
propose
to address each in turn but make it clear that, in coming to my conclusions about
factual
matters, I have surveyed the wide canvas of evidence rather than adopting a compartmentalised approach and come to a view about the totality of the evidence before deciding the
facts
underpinning each of these touchstone issues.
100. This is a complex and highly emotive case in which the stakes for each
parent
could not be higher. The father faced the
prospect
of being found to have threatened FGM, an abhorrent form of gender based violence, against his small daughter. Were that
finding
made, he knew that his application for
P's
return
would be dismissed and that his future contact with her was likely to be indirect via video and, if face to face contact occurred, it was likely to be supervised or otherwise circumscribed. If the mother's case on FGM was not established, she knew it was likely that – unless she obtained the grant of asylum via the judicial
process
in the Immigration and Asylum Chamber - this court would consider making an order for
P
to go back to Nigeria. That would unravel their new life in the UK and
plunge
her back into a situation in Nigeria from which she had fled. In
fact,
the stakes were even higher for the mother because if her
allegations
about the father's threat of FM were disbelieved, this court's judgment might be disclosed to the First-Tier Tribunal and become highly influential in the asylum litigation. My general observations about the
parents'
and other lay witnesses' evidence make it
plain
that the high stakes for each
party
impacted on the evidence before the court in an unsatisfactory manner. That was entirely unsurprising.
101. The difficulties with the evidential landscape
presented
obstacles to a
fact
finding
court, aiming to construct a coherent narrative which could explain all the evidence I
read
and heard. I have
resisted
the temptation to create a narrative which might explain everything and account for the different and apparently contradictory narratives before me because such an exercise is, in my view, futile when so much
remains
hidden or obscure and when witness evidence is tainted by untruthfulness and evasion. Thus, though I may have determined the
factual
matters in issue, there may be evidence which is at odds with that
factual
determination. If there is, I have identified it and explained its
place
in my thinking.
The Abduction to the UK
102. On the father's case, the
removal
of
P
from Nigeria in December 2019 was a clandestine and deliberate abduction, underpinned by the use of a forged letter of consent
purporting
to be signed by the father. Contrariwise, the mother asserted that the father knew about the trip and had consented to it by signing a letter of consent which was then
produced
to the British High Commission to obtain a tourist visa for
P.
103. In his first statement dated September 2020, the father described a conversation with the mother in about October 2019. She told him she wanted to visit her mother with
P
and they discussed how this trip might be funded. The mother suggested borrowing money from the maternal aunt's husband or asking her mother to divert the
rental
proceeds
from
properties
in Nigeria to the mother's bank account. The mother said she would
repay
the maternal grandmother eventually by working illegally in this
jurisdiction.
The father became suspicious that the mother was
planning
to stay in the UK
permanently
and she confirmed to him she was
planning
to
relocate
here and work with her mother or work in an office. She suggested that the father could join her later. She told the father that, when
P
was about nine or 10 years old, she and
P
would be able to claim
residency
because, after that length of time,
P
would be
regarded
as a citizen of the UK. According to the father, the mother suggested that the
process
of settlement in the UK would be faster if asylum could be claimed. The father
pointed
out to her that they had no right to claim asylum because they were not living in a
part
of Nigeria where terrorism was commonplace. However, the mother told the father that there were other misrepresentations that Nigerians could use to make asylum claims but
refused
to
provide
any examples. The father expressly told her he was not interested in being
part
of such an illegal scheme and that it was not in
P's
welfare to be separated from him. He made it
plain
that he would only consent to a legal means of travelling to and staying in the UK. The mother told him that she would discuss this with him at another time.
104. In the second week of December 2019, the father
reminded
the mother that they had not had any further discussion about this topic. The mother then told him that she had already applied for a visa to go to the UK. The father asked her what document she had used to apply for
P's
visa as the father had not signed a letter of consent. The mother told the father that the British High Commission no longer
required
a letter because
P
had a history of travelling to the UK with his consent. She
promised
the father she would give him the
passports
with the visas when these were
returned
by the High Commission in early January. She
reassured
the father that she no longer had
plans
to travel to the UK because he did not approve. Notwithstanding the mother's assurance, these exchanges aroused the father's suspicions and the following week he covertly
recorded
a conversation with the mother on 17 November 2019 in which he asserted that she had not told him about
P's
visa application before submitting it. The transcript of the conversation appeared in the bundle and I have scrutinised it in some detail. Though the father suggested that the mother had applied for a visa application without his consent, the mother did not unequivocally admit to doing so in the transcript I have
read.
105. The mother denied any conversation with the father about
relocating
to the UK without
proper
leave to enter and asserted that the father fabricated these
allegations
once he knew that the mother had accused him of wishing to
perform
FGM on
P.
In her second statement dated December 2020, the mother asserted that,
prior
to 4 January 2020, she had no intention of
relocating
to the UK since she was financially better off
remaining
in Nigeria. She said that the father knew about the visa application and her travel
plans.
In her third statement dated April 2021, the mother stated that, in December 2019, the father agreed to allow her and
P
to visit the UK.
106. Turning from the contents of the
parties'
statements, it was accepted that, on 15 November 2019, the mother applied for a tourist visa for herself and
P
to visit friends and go shopping. In support of
P's
visa application, the mother submitted a letter of consent
purportedly
signed by the father and accompanied by the identity data
page
of the father's
passport.
In her oral evidence in March 2022, the mother asserted that she had obtained the father's written consent for the visa application. She had scanned and uploaded the letter of consent when making the visa application. The mother
purchased
the tickets to travel to the UK on 18 December 2019 and
paid
for them herself. She said the father knew about the visa application and the arrangements for her and
P's
travel as he had the ticket details.
107. As
previously
explained, disclosure of the documents supporting the mother's 2019 visa application was obtained from the Secretary of State and the authenticity of the father's signature on the letter of consent was called into question. Following
receipt
of Ms Briggs's
report
about the questioned signature, both
parents
filed short statements. The father maintained his assertion that he had not
provided
written consent for
P
to travel to the UK and he was not aware of the trip. He
produced
the letter of consent he had
provided
for the mother's trip to the UK with
P
in 2016 together with an email to the mother attaching that document. The mother continued to assert that the father had signed the letter of consent and that she had witnessed him do so. She had made a scanned copy soon after he signed it, explaining that she had scanned the letter of consent using an app on her
phone
which created a
PDF
copy. The letter of consent was submitted with an attached copy of the father's
passport
identity data
page
to verify that the letter of consent was signed by him. The mother asserted that the father was the only
person
who had access to his
passport
and was the only one who could have made a copy of it to
provide
to her for the
purpose
of the visa application.
108. On 20 June 2022, the mother told me that she had seen the father sign the letter of consent. She denied that she had forged the father's signature and moreover asserted that the father had selected signatures for examination by Ms Briggs which were not truly
representative.
She stated that she had used a scan of the identity data
page
of the father's
passport
taken by her in 2019 to support the letter of consent. In cross-examination, she could not explain why her last statement had omitted the significant detail of her witnessing the father's signature. She was unable to explain why, until her evidence in March 2022, she had failed to mention obtaining the father's written consent for the visa application. She accepted that she had been less than forthcoming in her accounts of how the letter of consent was created and came to be signed.
109. On 21 June 2022, the father
produced
to his legal
representatives
an email which he sent to the mother in February 2017, attached to which was a scanned copy of the identity data
page
of his
passport.
Visual comparison of the data
page
attached to the email indicated that it was identical to the identity data
page
attached to the 2019 letter of consent because both documents contained a small dark mark in the same
place
on each, accidentally made in the copying. The father asserted that, contrary to the mother's evidence on 20 June 2022, she thus had access to a copy of the identity data
page
from his
passport.
When
re-called
to give oral evidence on 21 June 2022, the mother accepted
receiving
the 2017 email and accepted that she had used the identity data
page
emailed to her in 2017 for the
purpose
of the visa application in 2019. She told me that she had taken another
photograph
of the father's identity data
page
in 2019 but when she tried to upload it, the quality was
poor
so she used the 2017 copy of that
page
already in her
possession.
In cross-examination on behalf of the father, she maintained that she had asked the father in 2019 for a copy of the identity data
page
and denied that she was lying. When cross-examined by Mr Edwards, it became apparent that the mother had access to a copy of the identity data
page
sent to her in 2017 on her
phone
at the time she made the visa application in 2019. When asked where the
photograph
of the identity data
page
taken in 2019 was, the mother claimed she did not have it because she had lost data when she started to use a Samsung
phone
rather than an iPhone.
110. The mother's account
relating
to the 2019 letter of consent and how it came to be signed by the father developed during the course of her oral evidence. First, she failed to mention the letter of consent until she gave oral evidence despite filing four lengthy
previous
statements. Giving the mother the benefit of the doubt as a non-lawyer, the letter of consent was crucial and should have been mentioned by her and a copy
provided.
Second, her evidence about the identity data scan made no sense. On 21 June she said that the 2019 scan was not good enough to use so she submitted the 2017 copy instead. This contradicted what she said on 20 June, namely that she had used the 2019 scan to support the disputed letter of consent. Furthermore, I found her explanation for a failure to
provide
the 2019 scanned identity data
page
unconvincing. Third, and contrary to her final statement, the mother had access to the identity
page
of the father's
passport
all along – it was irrelevant where the father kept it in their home as she had a copy of it on her
phone.
111. The expert
report
and oral evidence of Ms Briggs was clear and
persuasive.
She
factored
the
poor
quality of the disputed signature into her overall assessment and the number and range of sample signatures
provided
by the father were good for an assessment of this type. The questioned signature had a number of differences which led her to the conclusion on the balance of
probabilities
that the father had not signed the 2019 letter of consent. I
reject
the mother's contention that the father had manipulated the signatures submitted for analysis – there was no evidence to support it. Entirely appropriately, Ms Briggs accepted that her assessment had limitations and should be seen in context.
112.
Returning
to the evidence of the mother and the father, the mother asserted that the father had been fully aware that she was going to the airport on 27 December 2019 for a flight to the UK and
relied
on the evidence of her sister. By contrast the father said that he had no idea about the mother's travel
plans
and insisted that, on 28 December 2019, both he, the mother and
P
were to visit the
paternal
grandparents as
part
of the Christmas celebrations. I have already indicated difficulties with the evidence of the maternal aunt who contradicted herself about whether she had seen and spoken to the father on 27 December 2019. On 28 December 2019, the mother rang the father having arrived in the UK. According to her, the conversation was loving and
pleasant
as the father knew about the trip. By contrast, the father was stunned to
find
that the mother and
P
were in the UK since the mother had told him on 27 December that she was spending the night at her sister's home. He video-called her on WhatsApp and saw that she was at the airport with
P.
The father stated that the mother told him she had gone to
find
a better life in the UK. He told her he did not consent to
P's
removal
from Nigeria and said they should
return
home immediately. On hearing that, the mother ended the call. The father managed to speak to her a short time later but the situation between them
remained
unresolved.
113. The father travelled to see his
parents
in accordance with the
plan
for the two families to spend time together on 28 December 2019. He told them that the mother had taken
P
and
relocated
to the UK. Later that day, his
parents
called the maternal grandmother and that call was
recorded
and subsequently transcribed. It was absolutely clear that the
paternal
grandparents informed the maternal grandmother that the father had told them the mother had
relocated
to the UK. In
response,
the maternal grandmother said the mother had told her she was here for a holiday and that "her husband knows she was
processing
the [word omitted to avoid identification] visa". The maternal grandmother
promised
to clarify the situation and ring the
paternal
grandparents back.
Pausing
there, this call made no sense whatsoever if the father knew about and had agreed to the trip. On 29 December 2019, the
paternal
grandparents spoke once more to the maternal grandmother who said that the mother had explained it was a joint decision for her to
relocate
to the UK so
P
could have a future. The mother had told her it was agreed with the father that he would join her later. When that account was challenged by the
paternal
grandparents, the maternal grandmother said the mother had told her that the father knew about the visa and it was his idea she should travel to the UK. Later on 29 December 2019, the father spoke to the maternal grandmother and made it clear that he had not consented to
P's
removal
and wanted her
returned
at once. The maternal grandmother continued to assert her understanding that this was an agreed,
planned
relocation.
I observe that the father's conversation with the maternal grandmother made no sense if
P
had arrived in the UK the
previous
day on an agreed trip. Both calls made to the maternal grandmother on 29 December 2019 were transcribed.
114. No challenge was made by the mother to the transcripts
produced.
However, in her oral evidence, she asserted that these family
phone
calls took
place
because of a disagreement between her and the father about when and if she was going to visit his elder brother and sister-in-law. The mother accepted in her oral evidence that the
paternal
grandparents and the maternal grandmother did not speak often so I infer from this that the mere
fact
these calls took
place
was unusual and likely to be in
response
to something untoward within the family. The mother also denied that her mother had said she was
relocating
to the UK. I found myself disbelieving the mother's explanation for the family
phone
calls since there was no mention in the transcripts either of the
place
where the father's brother lived or of the elder brother at all.
115. Further, it was accepted that the mother had failed to facilitate any
phone
or video contact between
P
and her father from 28 December 2019 to 4 January 2020. The father spoke to
P
briefly on 29 December 2019 at the conclusion of his
phone
call to the maternal grandmother. In an effort to understand the silence between the
parents,
I asked the mother why she did not just ring her husband to talk to him about what – on her account - appeared to be a
relatively
minor issue (namely, the trip to visit the father's brother), causing a large amount of upset between the maternal and
paternal
families. Her
response
was "I was too angry" which I found wholly unpersuasive and inadequate to explain the situation.
116. Drawing these various evidential strands together, I have
reached
the conclusion and
find
that the mother abducted
P
from Nigeria without the father's consent and did so clandestinely. That conclusion is supported by the events which occurred on 28 and 29 December 2019, namely the
phone
calls between the extended family as well as the contents of those calls. The mother's evidence and that of her sister was contradictory and unpersuasive but it was the maternal grandmother who gave the game away by asserting on 29 December 2019 that the mother's journey was for the
purpose
of
relocating
here rather than for a holiday. In coming to this conclusion, I have taken into account the entirely unsatisfactory evidence given by the mother about the letter of consent and the use of the father's identity data
page
to support the visa application. My
profound
misgivings about that evidence were
reinforced
by Miss Briggs' opinion as to the authenticity of the father's signature. This
pointed
to a covert application for a visa by the mother who knew that the father would not have consented to the
real
purpose
of the trip. I
find
that the mother took the necessary steps – including forging the father's signature – to obtain the travel
permits
from the British High Commission. I accept the father's account about his ignorance of the trip and his lack of consent thereto which was congruent with the contemporaneous evidence, my analysis of the deficiencies in the witness evidence, and with the conclusions of Miss Briggs'
report.
I have also drawn an adverse inference from the mother's failure to call the maternal grandmother as a witness. She was a key
participant
in what happened in late December 2019/early January 2020 who could have helped the court. I
find
that the mother did not call her because she knew that what the maternal grandmother would say when confronted with the transcripts of the telephone calls made on 28 and 29 December 2019 would have undermined her case.
117. When I address the
parties'
relationship
later in this judgment, my conclusions on that topic serve to
reinforce
my
findings
about the
removal
of
P
from Nigeria.
Female
Genital
Mutilation
118. The mother's
allegation
that the father threatened to have FGM
performed
on
P
is one of the most serious
allegations
that one
parent
can make against the other. If found
proven,
the consequences for the father would be
profound:
he would
represent
a grave risk to
P's
physical
and emotional well-being and would likely have his contact with her severely circumscribed. It would be almost impossible to envisage a court
returning
P
to Nigeria in those circumstances. I note that the mother's core
allegation
is not that the father would take
P
surreptitiously and in secret to have FGM
performed
on her, but wanted to do it as
part
of a ceremony in his home village.
119. Turning first to the
allegation
that, during a
phone
call on 4 January 2020, the father threatened to
perform
FGM on
P,
the mother's first statement described a telephone call from the father making known "his stand that he had made arrangements for [
P]
to have the FGM
procedure
carried upon our
return
on 8 January 2020 and he wanted to confirm our arrangement…. I was shocked and I
pleaded
with him not to do this. He told me that this has been dragging on for too long and as far as he is concerned, he has had time to think about it while we were away, and this must be done before she is four years old, at least. He said all arrangements have been made and this was happening, and I must comply. He then demanded to speak to [
P]
but he was aggressive and yelling on the
phone
about me, saying inappropriate and upsetting things, thereby upsetting [
P].
He was saying things like, all women are dirty whores and his daughter would not be one of them….". The mother then blocked the father's calls and described herself as being in a state of shock and fear. In her third statement, the mother described
receiving
a telephone call from the father who told her that, when she
returned
to Nigeria, he would "show me who was the man, why I should listen to him and that he would immediately have FGM
performed
on [
P]
and nobody could stop him". It was this conversation with the father which, according to the mother, turned what was a holiday for the
purpose
of shopping into an unexpected and unwanted
relocation
from Nigeria. The mother claimed asylum on the basis of this threat. I note that there was no evidence
produced
from the mother's telephone to support her account of
receiving
a telephone call from the father on 4 January 2020
120. In his written statement, the father said that he messaged the mother on 4 January 2020 but she did not
reply.
He exhibited the call log on his
phone
which showed a message to the mother that day, asking to speak to
P.
That message was not answered by the mother and she did not call him from her telephone. Nevertheless, the father called the maternal grandmother at 19.58 since this was his only means of
reaching
the mother and he asked to speak with
P.
The maternal grandmother allowed him to speak with
P
and the father said that, after he had done so, he asked the maternal grandmother to give him the mother's current
phone
number so that he could call to speak to
P.
He denied making any threat of FGM during that telephone call which lasted almost 6 minutes. In his second and third statements, the father confirmed that the last conversation he had with the mother was on 28 December 2019 when she had arrived in the UK and was at the airport. The call log
produced
by the father as an exhibit to his first statement showed no telephone calls between him and the mother from 28 December 2019 and certainly no telephone call on 4 January 2020. The father's case is that the mother fabricated her account of a conversation on 4 January 2020 in order to bolster her
relocation
to the UK.
121. In her oral evidence, the mother asserted that she had spoken to the father on 4 January 2020. It was unclear to me from her oral evidence whether she had done so on the maternal grandmother's
phone
at about 8 o'clock that evening when the father managed to
place
a call to the maternal grandmother. The mother described a row with the father during which he threatened FGM on
P
when they
returned
to Nigeria. She confirmed that she had
permitted
the father to speak to
P
during that telephone call. Contrary to her written evidence, she did not
repeat
her
allegation
that the father shouted "dirty whores" during that call. Strikingly, and again different from her written statements, the mother asserted that
P
was happy during her
phone
conversation with the father. The mother was unable to explain why, according to her written evidence, she had
permitted
the father to talk to
P
after he had used offensive language and was shouting at her. Why she had done so after the father had
allegedly
threatened FGM was another matter for which the mother had no
real
explanation.
122. I make the following observations about the
alleged
phone
call on 4 January 2020. First, the call logs
produced
by the father do not support the mother's account that he telephoned her on that date. She has
produced
no call log in support of her version of events. Second, it was unlikely in my view that the mother would have
permitted
the father to speak to
P
immediately after he had used offensive language and made a threat of FGM. Third, the mother's oral evidence about the effect on
P
of her conversation with the father was significantly at odds with her written evidence. Fourth, it made little sense for the father to threaten FGM whilst the mother and
P
were away from Nigeria since the threat gave them a
perfect
reason
to
remain
in the UK and abandon any
plan
to
return.
The father could easily have waited until they
returned
to Nigeria before carrying out any threatened FGM.
123. I turn now to the
alleged
previous
threats of FGM made by the father. The mother's case was that, since April 2016, the father had expressed his intention to have FGM
performed
on
P.
His
reason
for this was so that
P
could control her sexual urges when she grew up. He believed the mother could not control her sexual urges because she had not been cut as a child. He told the mother that
P
would need to be cut before she was five years old. The mother told the father on numerous occasions that she objected to FGM but the father's
response
was "who can stop me?".
124. In the mother's first statement, she said the father had raised the subject of FGM shortly after
P's
traditional naming ceremony at the
paternal
grandparents' home. This was because it was
part
of the traditional rites for those from Osun state and, according to the father, would
prevent
P
from harassing her husband for sex in the future as her mother did. The mother objected because it was an atrocious thing to do to a girl and no one in her family had undergone FGM. The mother said that the father continued to speak about FGM for
P
in 2017 and she understood him to be
referring
to a ceremony before the elders of the community at which she and the father would be
present.
In April 2019, the mother asserted that the father threatened to take
P
to his home village the following week to
perform
FGM. He said that the earlier FGM was
performed
the less
painful
it became for the child. The mother objected strongly but the father became aggressive and said that, in Yoruba land, "the man owns the child" and the mother did not have a say. According to the mother, she
persuaded
him to wait a while whilst she thought about his
proposal,
hoping that she would be able to change his mind. The mother
reiterated
her concerns about FGM in her third written statement and emphasised that the
paternal
family were well connected and would take
P
from her to
perform
FGM. In his written evidence, the father denied ever making any such threats and asserted that FGM was not a
practice
in his family. He stated his willingness to give any
reassurance
required
by the court that
P
would not be at risk of FGM in Nigeria. Exhibited to his first statement were two affidavits sworn in Nigeria, one from the father and one from the
paternal
grandfather, affirming that they would not allow FGM to be
performed
on
P.
125. In her oral evidence, the mother maintained her
allegations
but stated for the first time that, in April/May 2019, she had told the maternal uncle and aunt about the father's
alleged
threats. She denied telling her sister and uncle about the threat of FGM in 2016. When the father threatened FGM in 2019, the mother explained she had become scared and anxious. The father maintained his denials about FGM in his oral evidence.
126. Documents associated with the mother's claim for asylum were available to me in the trial bundle. In her asylum interview on 7 December 2020, the mother described the father speaking about FGM shortly after
P's
naming ceremony. She said that she was able to
persuade
him not to go ahead. When asked about the first time the mother understood the father to be serious about the threat of FGM, the mother explained that this was in 2017 when they were watching a movie. However, after 2016/2017, the mother said "there was not much story around FGM", seemingly because the couple were
preoccupied
with financial difficulties. There was no
reference
initially to any threats or discussion about FGM until 4 January 2020 but, on being asked further questions, the mother said the father had mentioned FGM in 2019, but she thought he was joking. She explained that she had confided in a work colleague in 2019 and felt she was close to separation from the father at that time. I note that this latter assertion contradicted both the mother's oral evidence to me about being happy in her
relationship
with the father from about the summer of 2019 onwards, and the contemporaneous evidence of the August 2019 text message which was effusive in its
protestations
of love for the father.
127. I have already indicated a degree of concern about the maternal family's evidence, both generally and on this topic. That concern was
reinforced
by the mother's denial in her oral evidence that she had ever spoken to her sister or her uncle about the issue of FGM in 2016 though both of them asserted the mother had done so. Neither the maternal aunt or uncle mentioned in their statements any discussion with the mother in 2019 about the father's threats of FGM. The witness who supported the mother's case was her former work colleague, Ms Z, who spoke about conversation they had had in 2019 when the mother appeared upset and spoke about the father's threat to
perform
FGM on
P.
128. What can be gleaned from the evidence of the
paternal
family? All the
paternal
family were as one in denying that FGM was
practised
in their family. Mr Ukwa found his interviews with them alarming as he was met with either denial or ignorance about the topic of FGM. This was surprising given the family background which originated both in the Yoruba tribe and from a state in which FGM was especially
prevalent.
Nevertheless, Mr Ukwa accepted that there may have been other explanations for the attitude of the
paternal
family such as embarrassment. He observed that the context of this case made it difficult for them to discuss FGM openly. Both the
paternal
grandmother and the
paternal
aunt demonstrated a limited knowledge, understanding or
reflection
about the issue of FGM in their community. They were defensive about the issue but may have felt that they should not show any acknowledgement or understanding of FGM in case this impacted adversely on the father's case. This defensiveness did not necessarily mean they
posed
a risk of FGM to
P.
129. My assessment of any risks
posed
by the
paternal
family was dependent on my
finding
against the father as to whether or not he threatened FGM. If he did, the
paternal
family either shared his views or at best were unaware of his intentions. In either
respect
they would not be a
protective
factor
for
P
were she to
return
to Nigeria. If the father did not threaten FGM, the risk
posed
by the
paternal
family was more limited as it was unlikely that the
paternal
family would be able to organise/
perform
FGM against the father's wishes. The risk of FGM to
P
would be based on her age and ethnic background and its
prevalence
in Nigeria,
particularly
the area in which
P
lived.
130. Ultimately, on this
particular
issue, it was the credibility of the witness evidence which was decisive. Having found that the mother clandestinely abducted
P
from Nigeria and acted dishonestly in obtaining entry to this
jurisdiction,
it would be
relatively
straightforward for me to make a
finding
that the mother had also been untruthful about the
allegation
of FGM. After all, according to the contemporaneous evidence in the
phone
call between the
paternal
grandparents and the maternal grandmother on 29 December 2019, the mother had not intended to
return
to Nigeria when she landed in the UK on 28 December 2019. I have not followed that linear line of thinking but instead have scrutinised carefully the accounts given by the witnesses and such other evidence as is available to me in order to come to a holistic appraisal of the evidence on this issue.
131. Looking at the macro
factors
identified by Cobb J, FGM was
prevalent
in the
regions
identified in this case, all of which were
regions
from which the
paternal
family originated. Further,
P
was at an age when FGM would be
performed
on a girl. Though FGM was unlawful in Nigeria, the Nigerian judicial system seemed to be incapable of
providing
any
real
criminal or civil safeguards, with no
prosecutions
having been made. Though there were organisations which might be available to mitigate the risk to a child, these were few and far between and were afflicted by a funding crisis. I do not
regard
the existence or otherwise of an extradition treaty between this
jurisdiction
and Nigeria as
relevant
in this case as
P
would be
returning
to her country of origin.
132. Turning to the
relevant
micro
factors,
the attitude of the
paternal
family was concerning in seeking to question the
prevalence
and to dismiss FGM as an extinct
practice.
They had no
proposals
for safeguards because they held the view that FGM was not an issue for them. Though they cooperated with the assessment carried out by Mr Ukwa, it
remained
moot whether the
paternal
family would undertake the FGM awareness training
recommended
by
Professor
Bradley and Mr Ukwa. However, any risk they might
pose
was very significantly diminished if I did not accept that the father had threatened FGM.
133. Those
factors
provided
the backdrop to my assessment of the key witness evidence about FGM. Making every allowance for the fallibility of memory in the witness box, very little of the evidence
relied
upon by the mother was
persuasive.
On her own case, the mother could not even demonstrate that there had been a telephone call from the father to her on 4 January 2020. Her own evidence was
peppered
with inconsistencies as I have already highlighted above. The supportive accounts given by the maternal aunt and uncle were unreliable on this issue. The high water mark of the mother's case was the evidence of Ms Z, a witness who did not appear to have an axe to grind but who
professed
to being unsure about the detail of what had happened. Ms Z was, of course, only as
reliable
as the source of her information, namely the mother. Ms Z's evidence struck me as an insufficient basis upon which to make the serious
finding
that the father had threatened FGM to
P
when set against the
rest
of the evidential landscape.
134. Thus, I
find
that the mother has not established on the balance of
probabilities
either that the father threatened FGM on 4 January 2020 or that he had done so on earlier occasions. No
findings
of
fact
were sought in
respect
of the
paternal
family and FGM.
135. It struck me as inappropriate to make a
finding
that the mother had concocted the
allegation
of FGM as a device to
persuade
the Secretary of State for the Home Department to grant both her and
P
asylum. That is or may be a matter for another tribunal.
Domestic
Abuse
136. Leaving to one side the issue of FGM, the mother's
allegations
of
abuse
against the father can be categorised as examples of controlling behaviour, as defined by
PD12J.
There was one
allegation
of
physical
abuse
in 2017. In submissions on behalf of the mother, Miss Munroe QC submitted that, whilst it was important to contextualise this case in its cultural and ethnic milieu, the behaviour by the father went beyond traditional Yoruba gender roles with its concepts of deference, subservience and the obedience of a wife to her husband.
137. In their written statements, the mother and the father
portrayed
diametrically opposed accounts of their marriage. According to the father, this was a happy marriage despite his suspicions that the mother may have been having an affair in 2016/2017. For her
part,
the mother described a controlling
relationship
from the start of their marriage and a husband engaged in countless affairs with other women. This
provoked
numerous rows which made the mother deeply unhappy and isolated.
138. The oral evidence of the mother and father was a great deal more
revealing
about the true nature of their marital
relationship.
First, the father admitted to serial infidelity from the very beginning of their married life. Though the mother had her suspicions about his behaviour, the father would deny being unfaithful and this would
provoke
rows between them. He conceded that he had apologised to the mother when she
read
text messages from and saw the names of other women on his
phone.
He also admitted to spending money on other women but claimed this had had little effect on the marital finances. I found that evidence demonstrated his sense of entitlement in doing what he
pleased
rather than thinking about whether his behaviour affected his wife and child. In a rare moment of insight on this issue, the father accepted that the marriage was not loving and happy. He told me that there were moments of happiness but he and the mother were often like two strangers with different agendas. However, the father was anxious to suggest that the mother was secretive and did not appear to be concerned about his affairs or the state of their marriage. Second, both the mother and father used the word "toxic" to describe their
relationship
from time to time. Both admitted to rows in which voices were raised but neither told me in their oral evidence of
physical
altercations between them during such arguments. The impression I gleaned from listening very carefully to their evidence was that arguments could be started by either
parent
and would escalate quickly into a full-blown dispute. Both accepted that
P
was exposed to this unhappy environment. I had little difficulty in accepting the mother's evidence that
P
was affected by the arguments she saw and heard, becoming withdrawn and needing more
physical
affection. I also had little difficulty with the
proposition
that, on the whole, the mother felt isolated and unsupported in the marriage.
139. During the course of closing submissions, I suggested to Miss Munroe QC that the evidence confirmed a
palpably
unhappy marriage between the mother and the father. Neither she nor the father dissented from that view. This couple married after a very short courtship and, I suspect, had no
real
understanding of each other or of the compromises needed for a fulfilling couple
relationship.
There were evident stresses in their
relationship
which I describe as follows. In my assessment of their
relationship,
I have considered very carefully the lack of truthfulness in certain aspects of their evidence and
reminded
myself that lies about some matters do not mean that a witness has lied about everything.
140. The father's infidelity and his suspicions that the mother was having an affair generated corrosive mistrust and conflict in the
relationship.
Until April 2017, the father was working long hours and had a long commute. The mother felt unsupported by him and was low in mood – if not depressed - from time to time. It was
plain
from the mother's evidence that the experience of
P's
birth had been
particularly
traumatic and upsetting for her. She had a long and
painful
labour and a caesarean section was mooted by the doctor. There was delay in getting consent from the father for that
procedure
and no consultant apparently available to
perform
it. Though matters eventually
resolved
themselves and
P
was born a healthy baby, the mother was
patently
upset by what she
perceived
to be the father's lack of support following the conclusion of her labour. He had gone home and did not
return
until the following day, appearing surprised when – in answer to his question about what she needed - the mother burst into tears, saying she needed him to be with her and to support her. Though the mother did not
produce
medical evidence to support her assertion that she had had
postnatal
depression, she described a six week check-up following
P's
birth at which her gynaecologist told her she may be suffering from the baby blues. I found that evidence credible though, in the absence of supportive medical evidence, I do not
find
that the mother had been diagnosed with
post-natal
depression.
141. In
response
to feeling unsupported by the father and unhappy with his absences from the family home, the mother would often leave with
P
for extended
periods
to visit her family. Though the father told me in his oral evidence that he had no difficulty with these trips, in his written evidence this was clearly
problematic
for him. The mother complained that she had to seek the father's
permission
for these trips as this was expected within the father's family and culture. I am inclined to accept the mother's evidence that she had to seek the father's
permission
to visit her family. On one occasion, the mother complained that she had visited her grandmother who was unwell without seeking the father's
permission.
On her
return
to the family home, the mother said that the father had trashed the kitchen to teach her to do her duty as a wife (though I was unclear what "trashing the kitchen" actually amounted to). The father denied behaving as the mother
alleged.
In cross-examination by Mr Edwards, the mother complained about
finding
the kitchen messed up by the father on her
return
from work which
provoked
rows between them. I am inclined to the view that "trashing the kitchen" was likely to mean leaving it in a considerable mess for someone to clear up. Though the father is a
proud
man who demanded
respect
from the mother in accordance with his family and cultural traditions and would have been angered by what he would
regard
as her disobedience in not seeking
permission
for the trip to the grandmother, I doubt he would have wrecked the kitchen as seemed to be suggested by the mother. That would have cost money of which there was
precious
little at that time and the father was very conscious of the strains on their finances. It was far more likely in my view that the kitchen was extremely messy when the mother
returned,
a mess created by the father.
142.
Pressures
on the couple intensified after April 2017 when the father left his well-
paid
employment to study for accountancy qualifications and
pursue
other business interests. In cross-examination, the father conceded that his various business ventures had failed and that his
parents
had given him money,
presumably
to make ends meet. The mother went back to work in spring 2018 in order to contribute to the family finances and explained to me that, though the father was bringing in what he could financially, she needed to work because the couple owed
rent
on their apartment. In my assessment, their straitened financial circumstances were an ongoing stress until the time the mother left in December 2019. The
reduction
in their income and standard of living made both the mother and the father unhappy and frustrated and caused rows between them.
143.
P's
upbringing also appeared to be a source of dispute. The mother
alleged
that the father
prevented
her from giving
P
necessary medicine unless she obtained his consent. The father denied this though he admitted expressing his concerns about
P
being given traditional
remedies.
In her oral evidence, the mother explained that the couple's financial
problems
meant that they could not take
P
for
private
medical treatment and there were times, in the mother's view, when
P
did not get
proper
medical treatment. Whilst that may have been so, I am simply not
persuaded
that the father would
require
the mother to seek his consent before giving
P
medication – that would have been grotesquely impractical and at odds with the father's evident love and care for
P.
144. A major tension in the couple
relationship
was the influence of the
paternal
family and the cultural expectations of the mother in her role as a wife and the mother to a young child. It is
plain
from the evidence that the
paternal
grandparents espoused very traditional views about the role of a married woman and that their influence over the father was considerable. The mother was expected to be obedient and subservient to her husband and to offer him
respect.
In
part,
I suspect, because this couple married in haste without knowing each other well, fulfilling those expectations in the eyes of the father's family came as something of a shock to the mother. According to the mother, overlaid on these traditions was the
paternal
family's faith in
prophets
who would experience visions and
revelations
grounded in the Christian faith which were then used as a form of advice and guidance for daily life. In her oral evidence, the mother explained that nothing these
prophets
said was
particularly
awful or objectionable so, though she did not like the
paternal
family's faith in these individuals, she accepted it.
145. The mother complained that, from September 2015 until May/June 2016, she was not allowed to visit her own family because of advice the
paternal
grandmother had been given by a
prophet.
She said this made her lonely and isolated. For six weeks after
P's
birth, the mother said she was also
prevented
by the father and his family from making or
receiving
calls from her family or using a mobile
phone
when breastfeeding
P.
She agreed not to speak to her family whilst breastfeeding
P
and did so when
P
was asleep. She now
regarded
this as a form of controlling behaviour. The father denied that the mother had been isolated from her family during her
pregnancy.
She had moved in with his
parents
a few days before her due date and, in accordance with custom, had stayed at the
paternal
grandparents' home for six weeks after
P
was born. He asserted that her family were free to visit at any time after
P
was born and denied keeping her from her family during her
pregnancy.
I
find
that it is likely and, in accordance with his expectation that the mother should obey him, that the father
required
the mother either to ask his
permission
to go out when she was
pregnant
or to tell him where she was going. However, I doubt that she was forbidden to see her family throughout her
pregnancy
– neither her sister or uncle mentioned this in their evidence. In any event, there was no difficulty with the maternal uncle being called to the hospital when the mother was in labour which seems oddly inconsistent with a ban on her seeing her family when
pregnant.
In
fact,
the maternal uncle confirmed the father's evidence that it was traditional for the
paternal
family to care for a woman after she had given birth. In similar vein, the
prohibition
on the mother using the
phone
near
P
when breastfeeding was more likely due to fears this might harm a small infant, as the mother herself conceded in her third statement.
146. Cultural expectations also seem to have
played
a role in the complaints the mother made about the father's behaviour
prior
to and after
P's
birth. According to the mother, the father was not
pleased
when a
pre-birth
scan showed the couple were expecting a little girl because he wanted a son. The mother said that the father forced her to buy male clothing as he hoped the scan was incorrect and, after her birth,
P
was apparently dressed for a while in this clothing. She
produced
a
photograph
of
P
allegedly
wearing male clothing though it is hard to discern exactly what
P
was wearing other than something with blue and white stripes which did not strike me as gender-specific. For his
part,
the father's statement denied being displeased that the couple were expecting a little girl. He explained that,
prior
to learning the
result
of the scan, they had
purchased
gender neutral clothing such as baby-grows. He exhibited
photographs
to his third statement showing the entire family wearing
pink
coloured head gear for
P's
naming ceremony and showing that
P
was often dressed in clothing matching that of her mother. Both confirmed their
respective
accounts in their oral evidence. Whilst I
recognise
that, in some cultures, the birth of a male child may be
preferred,
I heard no evidence to suggest this was so in either the Yoruba culture or in the father's own family. Moreover, all the
photographs
I have seen of the family show both
parents'
pride
and love for
P.
I accept that
P
may have worn some clothing after her birth which might not have been quite what the mother wished but I am not satisfied that her account of being forced to buy male clothing
prior
to
P's
birth or of
P
being dressed in male clothing was credible and
represented
an aspect of controlling behaviour by the father.
147. The mother made another complaint about
P's
birth, namely that, on the night before the naming ceremony, the father unilaterally altered the name they were to bestow on
P.
This was because the
paternal
grandmother wanted a name which would rhyme with that of the father. The father said that they both agreed
P's
first name and the mother chose
P's
middle name. He denied the mother's
allegation.
His oral evidence shifted on that issue and the father said that he alone had chosen
P's
first name and the mother had chosen the middle name. In her evidence, the mother accepted that it was customary for the father to choose a child's first name, but insisted they had agreed on another first name for
P.
In both her written and oral evidence, the mother gave no details of the name they had apparently chosen together. I note that, in otherwise unsatisfactory evidence, the maternal uncle confirmed that it was customary for a father to choose the first name of a child. Given the custom, I
find
the father chose
P's
first name and the mother her second name but I am doubtful that the couple agreed another first name which was altered at the last minute. Given his character and
respect
for customary
practices,
it struck me that the father would be all too keen to choose
P's
name himself without too much interference from the mother.
148. In January 2017, the mother
alleged
in her third statement that, during a visit to the
paternal
grandparents' home, a
prophet
who was
present
advised her not to feed
P
"ewedu", a local delicacy, in order that
P
might be successful in life. In the car en route back to their apartment, the mother voiced her concerns about this advice. The father became angry and told her to
remember
her
place
and to obey him. He then
punched
her on her left thigh whilst she was breastfeeding
P.
The father's
punch
caused
P
to jolt. Fearing what the father might do, the mother rang the
paternal
grandmother who told the father that both of them must
return
to the
paternal
grandparents' home. On their
return,
the mother was told that she should not question advice from a
prophet
or any instruction given by the
paternal
family. The mother said she was very fearful during this incident. The following morning, the mother was obliged to kneel and apologise to the father in the
presence
of his family which she did, being fearful of what might happen otherwise. In his statement, the father
alleged
that this entire incident had been concocted by the mother and was adamant that he had not
physically
assaulted her. He stated that he and his family
regularly
ate ewedu, it being a staple food in Nigeria. In their oral evidence, both the father and the
paternal
grandmother maintained a denial that this entire incident had occurred.
149. Further details about this incident were forthcoming in the mother's oral evidence. The traffic en route home was bad and the mother and father were arguing about the
prophet's
advice. During the journey the mother was breastfeeding
P
and sitting in the back seat. The mother described the father becoming very angry, telling her to shut her mouth and threatening to beat her. He swung back with his arm through the gap in the front seat and
punched
her on the left knee.
P
was feeding from the mother's left breast so the
punch
jolted her. The mother confirmed that it was the only time the father had hit her and said that this
punch
had left her with a
reddish
bruise. The mother rang her own mother as well as the
paternal
grandmother. I note that the mother's oral evidence about the threat by the father to beat her and the telephone call to her own mother were details missing from her written statement. When asked why she had mentioned these two matters for the first time whilst being cross-examined, the mother told me she had mentioned them because, in the witness box, she had an opportunity to explain better what had happened.
150. I did not
find
it straightforward to determine whether the entirety of this incident was as described by the mother or whether, as I consider more likely, there has been a degree of exaggeration about some elements of the account. I was less troubled by a witness
remembering
some additional details which added to what was already
plain
from a witness statement (such as
phone
calls to other family members or the heated exchange between the mother and the father) as I would be about an entirely new and significant element added to an account. Either by admission (the father) or by my earlier
findings
(the mother), neither adult had been truthful in their evidence to me. Doing the best I can, I am, on fine balance,
persuaded
that, following a visit to the
paternal
grandparents' home, the
parents
rowed in the car on the way home. Uncharacteristically, the father lost his temper and hit the mother clumsily in the way she described, but I am not
persuaded
he threatened to beat the mother as she suggested. His behaviour was careless of
P
who was suckling her mother's breast. When the mother demonstrated in the witness box the movements used by the father in the car, I struggled to accept that the awkward angle at which, whilst in control of a moving vehicle, the father would have struck the mother, would have caused her significant bruising. The father's behaviour
prompted
the mother to make
phone
calls to both the maternal and
paternal
family and I accept that she and the father
returned
to the
paternal
grandparents' home.
151. What of the role of the
paternal
grandparents? I found the
paternal
grandmother's evidence wholly unclear with
respect
to her views about and connections with so-called
prophets.
She was adamant that no advice by a
prophet
had been given about ewedu as suggested by the mother. I found it odd that the mother should have been advised not to give
P
ewedu when this was a common foodstuff eaten by the entire family without any apparent ill-effect or
particular
symbolic meaning. I am not convinced that this detail or that about a
prophet
advising the mother was established, but I accept that being at the grandparents' home in some way sparked the row going home in the car. As for what occurred when the
parents
returned
there, it strikes me that the
paternal
family were likely to have supported the father in any dispute with the mother and made
plain
to the mother that she should demonstrate obedience to her husband. The mother's account of having to kneel and apologise to the father in front of the
paternal
family members struck me as consistent with the deferential and obedient role a Yoruban wife was expected to
play
in a family which adhered to traditional values.
152. Finally, the mother
alleged
that, during a video call with
P
in spring 2020, the father told the mother she was a bad mother and should
return
to Nigeria immediately.
P
began to cry and the mother ended the call. She maintained this accusation in her oral evidence. For his
part,
the father explained in his third statement that he had been able to speak to
P
on her birthday.
P
was happy to see him but found the experience overwhelming and cried, having not seen or heard from the father for several months. In his oral evidence, the father explained that he was only able to speak to
P
because he had emailed a friend of the mother's asking her to
persuade
the mother to allow him to speak with
P.
Though the father believed strongly that the mother wrongfully abducted
P,
I very much doubt that he would have spoken to the mother in front of
P
as she described. As he himself acknowledged, he would have gained nothing by doing so. I
prefer
the father's version of events and consider that the mother was untruthful about the cause of
P's
distress when the father rang. Given the evidence I heard about the close and loving
relationship
between father and daughter (including from the mother who accepted that
P
really
missed her father and was sad not to see him), I consider it very likely that
P
found the experience of seeing and hearing her father after so much time apart difficult to emotionally
process
and became upset as he described.
153. I have set out the
findings
I have made on the mother's
allegations
in a schedule to this judgment. Those
findings
fall short of the wide ranging case advanced by the mother, but where I have indicated controlling behaviour by the father, I am satisfied that this was
abusive
within the meaning given in
PD12J.
In my view, the father's behaviour went beyond the directive, stubborn and selfish behaviour identified in
Re
L (
Relocation)
(Second Appeal) (see above). Further, I do not excuse the father's behaviour because, as Miss Munroe QC submitted and I accept, it transcended traditional Yoruba gender roles and had the effect on the mother and, indirectly,
P
which I have described.
154. In her closing submissions, Miss Munroe QC questioned why the mother would have left a comfortable life in Nigeria to become an asylum seeker here, living
precariously
on a meagre income and unable to work. My analysis of the marital
relationship
may indicate why she took that step. In my view, the mother was a deeply unhappy woman whose marriage fell far short of her expectations. The father was a selfish adulterer, used to getting his own way and
requiring
obedience from her as was expected in his family and Yoruban culture. Feeling isolated and unsupported, I infer that the mother sought an escape route, especially when money became tight and, in her eyes, the father failed as a good
provider.
Highly
regrettably,
the mother acted dishonestly in achieving her goal of a new life in the UK where she could be closer to her immediate family. That analysis does not account for some evidence such as the effusive, loving text the mother sent the father in the summer of 2019 but, in the absence of a truthful account by the mother about why she took the course she did, it is an analysis which
plausibly
answers Miss Munroe QC's rhetorical question.
Next Steps
155. If I
rejected
the mother's case on FGM, Mr Hames QC invited me to make a
return
order,
reminding
me that this was an application for a summary
return
to Nigeria. He accepted that such an order could not be implemented before the First-Tier Tribunal had
reached
a decision on the mother's appeal against the Secretary of State's
refusal
to grant either her or
P
asylum. He drew my attention to the father's
proposals
for
return
set out in his first and second statements. If
P
were to
return
to Nigeria, the mother said she would also
return.
If that were to be the case, the father would not seek for
P
to live with him and support her home with her mother. With assistance from his family, he would be willing to
provide
the mother with a year's
rent
on suitable accommodation in Lagos and to meet
P's
school fees. He would give whatever assurances were necessary to satisfy this court that he would never
permit
FGM to be
performed
on
P.
156. Miss Munroe QC made oral submissions sceptical about the father's
proposals
and suggested that there was a
real
risk that the mother would cease to be
P's
primary
carer. She would be
returning
in shame as the "loser" in this litigation and would be beholden to the father and his family. She submitted that there was a
real
lack of detail about any concrete
proposals
for the arrangements for
P's
return
to Nigeria. I note that the mother has not
responded
to the
proposals
set out in the father's statements.
157. On behalf of the children's guardian, Mr Edwards noted that the guardian had
previously
advocated a two-stage approach, namely
fact-finding
followed by a welfare hearing. This had been overtaken by events and the very significant delay in obtaining expert evidence and the guardian accepted the
reason
why I listed this case with a view to making a final welfare decision. However, Mr Edwards submitted that this case might now
require
a welfare stage albeit in a shortened form to address the concrete
proposals
for
P's
return.
The father should be
required
to
put
real
flesh on the bones of his
proposals
and the mother should
respond.
He
reminded
me that
P
had been through
real
upheaval in the
past
two and a half years since she left Nigeria. She had coped well with this and the Guardian's assessment was that she was
resilient
enough to cope with further change. There was no obvious benefit to
P
in making a
return
order now since she could not be told about it
pending
the decision of the First-tier Tribunal. The court should also have some evidence about whether a mirror order to secure
P's
home with her mother and to
possibly
clarify contact arrangements for the father was available in Nigeria.
158. As indicated, it had been my intention to make a final welfare decision alongside any
findings
of
fact.
However, I found Mr Edwards' submissions
persuasive
and
realistic.
There is going to be a delay before the First-Tier Tribunal hearing in late September 2022 which could be
productively
used to give
real
substance to the father's
proposals
and to investigate the
position
on mirror orders in Nigeria given the consensus that
P
should continue to live with her mother. Further, the tribunal
process
may have some distance to run even if the First-Tier Tribunal can hold an effective hearing in late September and come to a decision shortly thereafter. It strikes me that there is a
real
danger that, if made now, a
return
order may well be challenged and this court invited to set it aside with all the difficulties that
process
entails. I am thus
persuaded
that I should delay making a
return
order for the time being and further timetable this matter to a conclusion once I have heard the
parties'
submissions on when that hearing should take
place
and what further directions are necessary to
progress
this matter to a welfare
resolution.
Conclusion
159. The schedule of
findings
attached addresses the case advanced by both
parents.
If a matter in the schedule of
allegations
produced
by each
parent
is not
present,
it is because I have either not considered it necessary/appropriate to make a
finding
about it or because the evidence did not warrant such a
finding.
160. That is my decision.
FINDINGS
A. The mother
removed
P
from Nigeria to the UK without telling the father and without seeking his consent.
B. The mother applied covertly for a travel visa for
P
from the British High Commission in Lagos, submitting a letter of consent from the father and having forged his signature to that document.
C. On 4 January 2020, the mother has not established, on the balance of
probabilities,
that the father threatened to have FGM
performed
on
P.
D.
Prior
to 4 January 2020 and when living in Nigeria, the mother has not established, on the balance of
probabilities,
that the father threatened to have FGM
performed
on
P.
E.
Prior
to
P's
birth and when she was
pregnant,
the father
required
the mother to either ask his
permission
to go out or to tell him where she was going. This was controlling behaviour on the father's
part.
F. Following
P's
birth, the mother had to seek the father's
permission
to visit her family. This was controlling behaviour on the father's
part.
G. On one occasion, following an urgent visit to her grandmother when she had not obtained the father's
prior
permission,
the mother
returned
home to
find
the kitchen extremely messy. The father told her he had done this to teach her to do her duty as a wife. This was controlling behaviour on the father's
part.
H. The father chose
P's
name and the mother chose her second name.
I. In January 2017, the mother and father rowed in their car on the way home from the
paternal
grandparents' home.
Reaching
between the seats whilst driving, the father
punched
the mother's left thigh. In so doing, he was careless of
P
who was being breastfed. She was jolted but was otherwise unhurt. The mother was hurt and upset by the father's behaviour. This was the only occasion on which the father hit the mother.
J. Following the above incident, the couple
returned
to the
paternal
grandparents' home where the
paternal
grandparents made
plain
to the mother that she should be obedient to her husband. The following morning, the mother was
required
to kneel and apologise to the father in front of the
paternal
family. This episode demonstrated controlling behaviour by the father which the
paternal
grandparents supported or acquiesced in.
K. The father left his job, causing serious financial strain for the family. This caused loud arguments between the couple in which both raised their voices. These, on occasion, were witnessed by
P
who became withdrawn and needed additional
physical
affection as
reassurance.
L. Throughout the marriage, the father conducted affairs with other women which caused loud arguments between the couple, in which both raised their voices. From time to time,
P
witnessed those arguments and became withdrawn and needed additional
physical
affection as a
result.
M. In consequence of the above, the mother was unhappy in the marriage and felt isolated and unsupported.