FG v HI
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] EWHC 1367 (Fam) |
| Court | Family Division |
| Date | 21 May 2021 |
Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing)
[2021] EWHC 1367 (Fam)
Mr Justice Poole
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Best (instructed by Dawson Cornwell) for the Applicant
Mr Perkins (instructed by Anthony King) for the First Respondent
The Second Respondent was unrepresented at the hearing
Hearing dates: 13–16 April 2021
This judgment was delivered at a hearing conducted on a video conferencing platform 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 child A and members of her 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.
Introduction
This judgment follows a finding of fact hearing concerning allegations of a pattern of coercive and/or controlling behaviour during the course of a marriage. The hearing has taken place shortly after the Court of Appeal handed down its judgment in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ) in which guidance was given in relation to such hearings.
I am concerned with JK, the three year old daughter of the applicant father and respondent mother. The proceedings began as an application for JK to be made a ward of court and for her return from England to a country in South Asia hereafter referred to as “Z”. The mother had removed JK from Z in October 2019, leaving the father behind. Following disclosure and location orders, the mother and child were located, passports were seized, and the mother engaged with proceedings. The child was made a ward of court, joined as a party, and an officer of the Cafcass High Court Team was appointed as Guardian. On 26 November 2020 case management directions were given by Ms Justice Russell for the parties to file and serve numbered lists of “all the complaints and allegations being made” – commonly known as Scott Schedules. The case was then listed before me for a pre-hearing review on 30 March 2021 and the final hearing beginning of 13 April 2021. Shortly before the hearing on 30 March 2021, the father conceded that the child should remain in the care of the mother in England but maintained that she should spend time with him both in England and in Z in the future. The mother does not agree to that level of contact. The Cafcass report by Ms Magson indicated that determination of the factual disputes was necessary to allow her to make a recommendation for anything other than supervised contact in England. Hence, the parties agreed that the hearing beginning on 13 April 2021 should be utilised as a finding of fact hearing with the Guardian to report further in the light of the findings made.
I have heard evidence from the mother and the father, but no other witnesses. I have been provided with a hearing bundle that includes as many as five witness statements from the mother and four from the father, a Cafcass report, a report from a legal expert in Z law, and documents from the mother's immigration application in the UK. I have also received additional evidence including translations of text messages and three videos. Much of the parties' written witness evidence concerned issues no longer in dispute, such as the protective measures for the return of JK to Z. The allegations of fact are mostly set out in their first statements.
In this judgment I shall provide a brief background and summary of the allegations of each party. I shall then set out the legal framework and discuss how to apply the guidance of the Court of Appeal in Re H-N to this case. I shall then evaluate the evidence in the case before setting out my findings of fact. For the reasons given below, and in the light of the guidance in Re H-N, I shall not set out my findings by reference only to the parties' Scott Schedules 1 but shall give a narrative account of my findings.
Background
The father was born in Z in December 1980 and is a dual Z and British national. He has married and divorced once before. The mother was born in Z in November 1985 and has indefinite leave to remain in the UK based on domestic violence. The parties entered an arranged marriage in December 2013 in Z. They had not met before the marriage and at the time they lived in separate countries: the father lived and worked in England, the mother lived and worked in North America where she had lived since 2009. They spent about one month together in Z after the marriage and then returned to their respective countries of residence. The mother visited the father in England in October 2014 and spent one month with him here. She says that this was intended as a form of honeymoon.
The mother returned to North America in November 2014. The parties continued to live apart except for a few weeks together in Z in June to July 2015, until January 2016 when the mother left North America to live in Z, staying with the father's family. The father visited for two weeks in March 2016 but otherwise remained in England. The mother's application for a visa to come to England was refused. She continued to live with the father's family in Z except for a period in December 2016 which she spent with her family who live only 20 minutes away from the father's parents. In March 2017 the father visited Z again, but only for ten days. In April 2017 the mother found that she was pregnant. A spousal visa application was successful and the mother arrived in London on 6 August 2017.
The parties began to live together in their own home for the first time. JK was born on 9 December 2017. The father's parents were staying with them at the time, returning to Z in January 2018. At about the same time, a shipment of the parties' belongings was sent to Z. In March 2018 the mother called the police to the family home in London following an alleged assault on her by the father. In April 2018 the parties and JK left England to relocate to Z. The father travelled to and from a Gulf State and the mother and JK initially stayed with the mother's family but spent some time at the father's parents' home. The father's brother celebrated a wedding in July 2018 and the mother and JK stayed with the father at the father's parents' home from then until September 2018 when the father returned to a Gulf State. In November 2018 the father's parents left for a Gulf State to visit the father and their youngest son. The mother went back to live at her own family's home.
The father returned to Z for another family wedding in December 2018, returning to a Gulf State in February 2019. There is a dispute about the time the father spent with the mother and JK during this time. After his return to a Gulf
State, the mother spent time intermittently at her own family's home and the father's parents' home until June 2019, when she and JK flew to to visit the father. In July 2019 the mother, father and JK went to a different Gulf State for 12 days to visit the father's brother. The mother's brother also lived there. The parties and JK travelled back to Z on 15 July 2019. On 17 July 2019 the mother and JK went to live with the mother's family, whilst the father continued to live with his parents. On 14 August 2019 the mother visited the father's parents' home with her brother, sister and mother and sought to collect some belongings. There was a row and the following day the father, with help from two of his brothers, delivered the mother's dowry furniture at the outside of her family's home. CCTV footage taken from a neighbour's property has been disclosed showing events as they ensuedThe marriage had now broken down. The father obtained a divorce on 16 August 2019. The mother applied for custody of JK in the Z court on 5 September 2019. The father then applied for custody himself on 2 October 2019. The mother, fearing that she might lose JK to the father, left Z for England on 10 October 2019 without informing the father who only discovered what had happened in January 2020. The mother did not reveal her whereabouts to the father who then made applications for the return of JK, and for disclosure and location orders. The mother was located and opposed the father's applications for JK to be returned to Z. The court gave directions for Scott Schedules, an expert report in Z law, and for a Cafcass report. The Cafcass report dated 5 November 2020 recommended that it was in JK's best interests to remain in England with her mother. The Z proceedings have been disposed of, the mother withdrawing her application and the father informing the court that he did not press his application at the present time. On the morning of the last hearing before me on 30 March 2021, the father indicated that he no longer pursued his application for a return order and conceded that JK should continue to live in her mother's care. He seeks contact, including staying contact in England and Z. The mother contends that only very limited contact should be permitted and that contact in Z should be ruled out.
The Allegations
The brief history of the parties' relationship reveals that although they married in December 2013 they spent barely three to four months together before the mother moved to England in August 2017; they lived together in England for about eight months; and following their return to Z they spent a total of about five months together before effectively separating in July 2019. During the five and a half years from the marriage until separation they lived apart for at least four years.
The mother says that from the beginning, the father showed her no...
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