Y v S

JurisdictionEngland & Wales
CourtFamily Division
JudgeMr. Justice Francis
Judgment Date17 February 2017
Neutral Citation[2017] EWHC 1020 (Fam)
Date17 February 2017
Docket NumberNo. FD16P00514

[2017] EWHC 1020 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Before:

Mr. Justice Francis

(In Private)

No. FD16P00514

Between:
Y
Applicant
and
S
Respondent

Mr. A. Perkins (instructed by Dawson Cornwell) appeared on behalf of the Applicant.

Mr. M. Fiddy (instructed by HRS Family Law Solicitors) appeared on behalf of the Respondent.

Mr. Justice Francis
1

The court is concerned with a young girl called M, who is six years and eight months old. The applicant is her mother and the respondent is her father.

2

This hearing is the listed hearing for the final determination of the mother's application for the summary return of M in accordance with the UK-Pakistan Judicial Protocol on Children Matters of January 2003.

3

M was brought to England from Pakistan by her father on 6 th June 2016 in circumstances which I shall describe shortly. By 12 th July 2016, the mother had contacted the police where M now lives with her father expressing concerns about the cancellation of Skype contact.

4

On 19 th September 2016, the mother issued Wardship proceedings and M was made a Ward of Court. The return date was 28 th September 2016 when interim contact arrangements were made by way of Skype contact and possibly telephone contact. The court directed the local authority to file a s.37 report and the court also provided for the filing of witness statements. (I should add that it has been pointed out to me by counsel that it is at least possible that, when the Judge ordered a s.37 report on 28 th September 2016, she may possibly have intended instead to order a s.7 report since there did not appear to be concerns which would be likely to give reason for the Local Authority to intervene.)

5

There was a further directions hearing on 17 th November 2016 when this matter was set down for final hearing with a time estimate of two days. This is my judgment in that final hearing.

6

The mother was born in 1984 in Pakistan and is a Pakistani national. The father was born in 1951 in Pakistan and he is a British national and has a British passport.

7

The mother and father were married in 2009 in Pakistan. It was an arranged marriage. The parties lived together following the marriage until July 2010 when the father returned to England when M was but a few weeks old. Accordingly, the couple lived together for about ten months after they were married is their only child. She was born in Pakistan and spent all of her life there until June 2016 by which time she was almost exactly six years old.

8

It is common ground that the mother has been M's primary carer from her birth until June 2016 when M was brought to England by her father. It is also agreed that the father was absent from the home in Pakistan from 2010, when he left for England, until late April 2016 when he returned to Pakistan.

9

It will be obvious, therefore, that the mother has been a central and pivotal part of M's young life and, as I have said, her primary carer, albeit with the assistance of maternal and paternal family in Pakistan until June 2016; and that the father was not in practical terms such a central and pivotal part, although he had indirect contact with her during this time.

10

During the period of his absence, the father sent money to the mother for her and M's upkeep. There is an issue between the parties as to the quantum of the sums sent. This was not analysed at all during the hearing and has not formed one of the issues relevant for today's determination.

11

The father has alleged that the mother was unfaithful to him whilst he was away and that she had an affair. I have been shown no evidence to corroborate this allegation beyond the father's assertion, which is strenuously denied by the mother. Moreover, as the father is aware, an allegation of adultery against a woman in Pakistan is extremely serious and a criminal offence.

12

The mother points out that she lives in a small village and that, if she had an affair, it would have been known in the community very quickly and that serious actions would be taken against her. Whilst noting the allegation, I cannot attach any significant weight to the father's uncorroborated allegation of such a serious matter.

13

The mother, for her part, suspects that the father was having an affair whilst he was in England. She says that from about March 2014 he was collecting the daughter of Ms. B from school on a regular basis. I am unable to know whether or not this is correct, but its relevance is that the father is now married to Ms. B. Ms. B travelled to England with her daughter in about December 20l3 leaving her husband behind in Pakistan. The mother asserts that in the summer of 2015 the father stopped paying child maintenance. This is denied by the father.

14

In April 2016, the father arrived back in Pakistan unannounced. On 2 nd May 2016, he met with M. It is said that, on this date, the paternal and maternal family persuaded the father and the mother to reconcile.

15

It is common ground that the father left Pakistan with M and without the mother on 6 th June 2016. There is a substantial factual difference between the parties as to the circumstances of their departure. This has not been a fact finding hearing and I have not heard live evidence.

16

The mother's initial application for Wardship, pursuant to the inherent jurisdiction of the High Court, was supported by a statement by Shabina Begum who is a solicitor employed by Dawson Cornwell who represent the mother. In that statement, Ms. Begum said on instructions that:

"The respondent discussed the applicant and M joining him to live as a family in England. The respondent told the applicant that he would register M at a school and then make an application for the applicant to join them in England. I am instructed that the applicant said that she did not trust him and did not want to be separated from her daughter.

The respondent father then reassured her that he would only take the minor for a month, register her at a school and then send her back to Pakistan so that she could travel with the applicant mother in time to start a new school year in England. The applicant allowed the subject minor to travel with the respondent on this basis."

17

In a statement dated 11 th November 2016, the mother said:

"My agreement to them travelling temporarily with the respondent to England was on the basis that she would return to Pakistan after about four weeks and remain with me there whilst he made arrangements for us to live together as a family in England."

18

It has been argued on behalf of the father that the mother's case has varied in this regard. In para.10 of her statement dated 11 th November 2016, she said:

"It is not true that we came to an agreement that M would travel to England for the purpose of education and then return after two years. The agreement was that M and I would travel to England so that the three of us could live together as a family. The respondent said that he would make arrangements for M's education first and then he would make an application for my Visa. I agreed to allow M to travel with the respondent to England in June 2016 and stay there for a month with the understanding that the respondent would register her in a school. The agreement was that M would return to Pakistan, then M and I would travel to England together so that we could start a life together as a family. Our daughter had never had this opportunity. Her father was a stranger to her, so I felt it was important that we should all be together for her sake."

19

It seems to me that these three accounts are broadly consistent with each other even though there are some differences. I accept entirely, however, that the mother did not say in terms that she only agreed to the removal on the basis that they remained married.

20

The mother says that, on 9 th June (i.e. just three days after M travelled to England with her father), she found a USB stick which contained a video of the father and what she asserted was his new girlfriend, B. The father denies that he was having a relationship with Ms. B at this time.

21

In any event, in July 2016, the mother was forcibly removed from the paternal family's house, and, shortly after that, the father pronounced Talaq over the telephone and stopped communicating with the mother. Contact between the mother and M then ceased.

22

Mr. Fiddy for the father draws my attention to the fact that the mother made no mention of M having been wrongfully retained in the United Kingdom when she made her complaint to the police in July 2016. He says that the mother does not state within any of her witness evidence that she told the police that M was being cared for by the father against her will and that she wanted her to be returned to Pakistan. Indeed, Mr. Fiddy says, the mother asserts through her solicitor, Ms. Begum, that it was after her Skype contact was stopped that she called the police.

23

At para.6.2 of the s.37 report, the author describes the complaint to the police in the following terms:

"Children Services only became aware of M and her father on 12 th July 2016 when Ms. Y contacted British police that she had not contact with M for two weeks. Police visited and Ms. Y was happy to speak to the child in the presence of the police. The mother was described as upset and the police understand that this was a joint arrangement in order for M to gain a better education and life."

24

Mr. Fiddy makes the point that the period that the mother says that she had agreed M could spend in the UK with the father would have passed by the time she contacted the...

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