A v J
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Judd |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] EWHC 1993 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD22P00623 |
and
and
[2023] EWHC 1993 (Fam)
Mrs Justice Judd
Case No: FD22P00623
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Naomi Wiseman (instructed by Dawson Cornwell) for the Applicant
Jacqueline McIntosh (instructed by Lonsdale and Mayall) for the 1 st Respondent
Mai-Ling Savage (instructed by Cafcass Legal) for the 2 nd and 3 rd Respondents
Hearing dates: 17 th–19 th July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 st July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is an application in relation to two children, H who was born in 2012 and C who was born in 2018. The parents of the children are A and J. Both the parents are currently living in England although the mother (A) only arrived here in May of this year.
Background
The father is now in his early 50's and the mother some 15 years younger. They met and married in Y Country in 2009. Although the father has family there, he was brought up here and is a British citizen. During the course of their marriage the parents lived separately. The mother, H and then C lived in Y Country and the father here although he visited Y Country (which is in South Asia) from time to time. In 2012 the father married a second wife, AA. He brought her to live with him in England, and they have two children.
Passports were issued for the mother and children in 2019. In December 2021 the father applied for visas for the children which were issued in January 2022. In February the father flew here with the children. He took them to live with his second wife and children.
In September 2022 the mother issued wardship proceedings alleging the children had been wrongfully separated from her. She said that the father had told her that she could follow the children to the UK within three months but that this had not happened. In her application the mother said that she was concerned about the welfare of the children because the father had previously been violent to her in front of them. Locations orders were made by Francis J on 21 st September and the matter was first heard on notice by Microsoft Teams on 3 rd October. At that stage the father was unrepresented. In the recitals to the order the father was said to have made submissions that he was not in a position to sponsor the mother to come to this country and that she was involved with another male. He also said that the mother was fully aware of the whereabouts of the children. The children were joined as parties and a guardian appointed.
In February 2023 the father was ordered to contribute to the mother's air fare to this country following a contested hearing. In March 2023 there was an incident in the father's home whereby there was (putting it neutrally) an altercation between the father and his second wife which led to her fleeing the home and making a complaint to the police. The incident took place in front of the children.
A few days after this there was another incident where the children were said to have been left in Tesco's in the local town by the father, leading to Children's Services becoming involved and instigating a section 47 investigation.
The mother arrived in the UK in May 2023 and went to live with members of her family who are living here. The children went to have overnight contact with her and during the course of that visit H told the mother that she did not want to return. An urgent hearing took place in June and there was no order for the children to return to the father. They have remained with their mother ever since.
The issues
The date for this hearing was set down in an order of Cohen J on 17 th January. It was recorded on the face of that order that the issues to be decided were (i) the circumstances in which the children were brought by the father from Y Country to the UK; (ii) with which parent and in which country they should reside and (iii) contact arrangements for the non-resident parent.
A great deal has happened since 17 th January without any further elaboration of the issues to be decided at this hearing. The parties have filed statements which deal with the circumstances of the children's arrival in the UK, and also as to the incidents in March 2023. Social services and police records have been disclosed but no schedule of findings sought was ordered or prepared until Ms Wiseman submitted one at the beginning of this hearing. None of the counsel before me at this hearing had been instructed in any of the hearings this year. Nonetheless as these are wardship rather than pure Children Act proceedings the parties have had representation pretty much throughout.
Whilst I appreciate why Ms Wiseman produced a schedule of findings as she did I consider it came too late and it would be better to deal with the issues in accordance with the order of 17 th January. It was plainly envisaged that the court would consider the question as to whether the father stranded the mother in Y Country without the children. As part of the welfare assessment that must be carried out to decide where the children should live and what contact they should have with the non-resident parent it has been clear from the beginning that it would be necessary for the court to consider matters such as any harm that the children have suffered or might be at risk of suffering, and the capabilities of each of the parents. The incident of alleged domestic abuse witnessed by the children on 12 th March 2023 is obviously relevant to this, as is the behaviour and attitudes of the parents to each other and the children. The documents in the bundle reflect the expectation that the court would be considering all these matters.
The mother's case was that the father led her to believe that the plan was for her and the children to come and live with him in this country. She thought that he had applied for a visa for her as well. When it became apparent that she was not going to be able to accompany them she was led to believe she would be able to follow shortly afterwards. She said she had no idea the father had taken another wife, nor that this wife was living with him in England with two more children. It was only when the children were here that she became aware of the situation and that he had no intention of sponsoring her to come here. The mother said that the father had been physically and verbally abusive to her during the course of their marriage and she was concerned about the welfare of the children. She asks the court to make orders that the children live with her and have contact with their father in accordance with the recommendations of the Guardian.
The father's case was that the children came over to live here with the agreement of the mother. He said that she was well aware that he had another wife and that in those circumstances it would not be possible for him to sponsor her to come to this country. He said that he had intended to take the children to Y Country from time to time, for example during the summer holidays. He denied all violence to the mother and said that she was dishonest and had affairs. Her care of the children was inadequate and she and her family had encouraged the children to make false allegations against him and AA. He said that the children would have a better life with him and that the children's views as expressed to the Guardian were a product of the mother's influence.
The father accepted that there was an argument between himself and AA on 12 th March that had become physical, but presented it as something for which they were jointly responsible.
The hearing
I read all the documents in the bundle, as well as the position statements on behalf of all the parties and local authorities. I heard oral evidence from the social worker from the area where the mother is living and the social worker from the area where the father is living, the mother, father, and Guardian. After a discussion about special measures at the start of the case it was agreed that each party would be able to give evidence without being observed by the other party. During the mother's evidence the father sat behind a screen, and the converse applied when he gave his evidence. Fortunately the parties were all represented so that the mother was cross examined by counsel, Ms McIntosh. I wish to commend her for the way in which she presented the father's case, asking searching and probing questions in a courteous manner and making well-presented submissions. I am also very grateful to Ms Wiseman and Ms Savage for their skill and assistance to the court.
The law
The law in this areas is not controversial and can be briefly summarised. The burden of proof is on the person or party making the allegation. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence and not speculation or suspicion. The court must take into account all of the evidence in a case, and furthermore consider each piece of evidence in the context of all the other evidence. It must not be assessed in separate compartments.
The evidence of the parties is of vital importance, and will...
To continue reading
Request your trial