HU v SU
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Keehan,Mr Justice Keehan |
| Judgment Date | 03 March 2015 |
| Neutral Citation | [2015] EWFC 535 |
| Court | Family Court |
| Date | 03 March 2015 |
| Docket Number | Case No: FD14P00997 |
[2015] EWFC 535
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keehan
Case No: FD14P00997
Catherine Piskolti (instructed by Orion Solicitors) for the Applicant father
Markanza Cudby (instructed by Barrett and Thomson) for the Respondent mother
Hearing dates: 10 11 and 19 February 2015
Introduction
I am concerned with four children:
a) SaU dob 28.7.00 (14)
b) ShU dob 7.11.02 (12)
c) FU dob 25.5.04 (10)
d) YU dob 9.10.10 (4)
The three older children have, since 11 September 2014, lived with their mother, SU (35). YU has lived with his father, HU (42) in the family home.
The parties have had an acrimonious relationship over the last few years. There were previous proceedings when the parties separated in 2011 but they were settled when the parties effected a reconciliation in 2012. Their marital difficulties have led to the involvement of the children's department of the London Borough of Hounslow and the repeated involvement of the police.
Since the parents finally separated on 11 September 2014. YU has had regular contact at a contact centre with his mother and siblings. The three older children, however, have said they do not wish to have contact with the father.
The mother has made divers allegations of violence by the father towards her and towards the children. The father alleges the mother has assaulted YU.
Accordingly on 15 December 2014 I listed the matter for a fact finding hearing and, if possible, a final welfare hearing. As the fact finding progressed, in the circumstances described below, it has only proved possible to conclude that aspect of the matter.
Law
The burden of proving a finding of fact rests on that party who makes the allegation.
The standard of proof is the simple balance of probabilities: Re B (A Child) [2013] UKSC 33.
When considering the evidence I bear in mind a modified Lucas direction namely where I am satisfied that a witness has lied in his or her evidence I should only take account of the same if I am satisfied there was no reasonable explanation for that lie.
Background
The parties, who are both of Afghani origin, married in June 1999. Each contends the marriage was turbulent. In 2011 the mother alleged the father had been violent to her. He was arrested and released on bail with a condition that he not reside at the former matrimonial home. Three months later the police notified the father that they were taking no further action in respect of the mother's complaint.
When the father attempted to return to the family home the mother denied him entry. He commenced proceedings in the county court for an occupation order and a non molestation order against the mother. He also applied for residence orders in respect of the children.
After some months, however, the parties agreed to effect a reconciliation and on 26 March 2012 the private law proceedings were concluded with the consent of both parties.
On 6 August 2014 the mother made a complaint to the police that the father had sexually assaulted her and blackmailed her on 24 July 2014. On 7 August 2014 the mother made a further complaint to the police that the father had sexually assaulted her a number of times between March 2013 and March 2014. The father was arrested, interviewed and bailed with a condition that he must not reside at the family home. On 10 September the parties were notified by the police that no further action would be taken against the father and that his bail would be cancelled the following day.
It is the mother's case that it was shortly before these events that the mother discovered that the father had taken a second wife. The emotional and psychological impact of this on the mother cannot be overstated.
On 11 September the father attended the family home in the company of a police office. There was no one present. The father entered the property and changed the locks; the property was rented and the tenancy was in his name.
The mother returned. The father refused to let the mother into the house. An argument ensued. YU was present. Both called the police who attended. The mother was advised she would have to secure alternative accommodation. In the police records, which the mother disputes, it noted that the parties reached an agreement that the children would remain living at home with the father until the mother had secured an alternative property.
In the event YU remained with the father and the mother collected the older three children form school and took them to the home of a friend. They remained living there for a few days until the mother obtained a property from the local council. I note the mother alleges she had been served with a notice to quit by the landlord of the family home which expired on 21.9.14. In preparation for the pending move the mother had started packing the children's clothes and told them they would have to move to a new home.
On or shortly after 11 September the mother accepts she told the 3 older children that their father had thrown them out of their home and had told the mother that she and the children could sleep on the streets. This was not the first time, nor sadly the last, when the mother was wholly negative, in what she told the older children about the father.
Preparation for the Fact Finding Hearing
On 15 December 2014 I gave directions in preparation for this fact finding hearing. The mother's solicitors were to take the lead in obtaining disclosure from the police relating to incidents between the parties in 2014. Thereupon and in any event by 4pm on 10.1.15 the mother was to file and serve a concise schedule of findings sought and a statement in support. The father was to file and serve a schedule of findings sought by him against the mother, a response to the findings sought by the mother against him and a statement in support by 4pm on 24.1.15. Thereafter the parties were to file and serve a composite schedule of findings sought by 4pm on 3.2.15.
The solicitors for the father sent an email to my clerk on 30.1.15 seeking an urgent directions hearing. They raised a number of concerns:
i) by a letter dated 29.1.15 they were notified by the mother's solicitors that her legal aid certificate had not been extended to cover any further hearings after the hearing on 15.12.14 until 13.1.15;
ii) accordingly an application had not been made to the police for disclosure, as per the order of 15.12.14 until 14.1.15;
iii) the mother's solicitors contended that they were unable to file and serve a schedule of findings sought and/or a statement until they had received disclosure from the police; and
iv) no application had been made by the mother's solicitors to the court for a variation of the directions given on 15.12.14 and/or for an extension of time in which to comply.
In the premises I listed the matter for an urgent directions hearing on 4.2.15. I directed that the Commissioner of the Metropolitan Police make disclosure of relevant identified documents by 12 noon on 5.2.15 with liberty to apply to vary or discharge the order. The time for the mother to serve the father with the police disclosure, a schedule of findings sought and a statement was extended to 12 noon on 6.2.15. The time for the father to file and serve a response to the same, a schedule of findings sought and a statement was extended to 4pm on 9.2.15.
The mother's statement exhibited 175 pages of police disclosure.
At the hearing on 4.2.15 I was not given a satisfactory explanation as to why the mother's solicitor had not brought the delay in seeking police disclosure to the attention of the court and/or why no application had been made to extend time for compliance with my directions. Accordingly, I indicated I would consider the costs implications of the urgent directions on 4 February at the conclusion of the fact finding hearing (see from paragraph 47 below).
Evidence
I have read the relevant statements, reports and other documents. I heard oral evidence from Ms Odze of the High Court CAFCASS team, the contact supervisor who supervised contact on 15 January 2015, the mother and the father.
I had requested Ms Odze to undertake a limited piece of work with the children to ascertain their wishes and feelings. She saw YU with the father but despite the father's best efforts, YU would not engage with her.
SaU, ShU and FU each said their father had hit them. They had nothing positive to say about him and were clear that they did not want to see him. All three of them spoke of how much they missed YU and that they wanted to see more of him.
Ms Odze was of the view that the mother must have discussed the marital difficulties with the three older children. They were all upset that the father had married a second wife and that he had not told them about it. She told me the children had become embroiled in the parental hostility which would be increasingly harmful if it continued. She recommended that the parents and the children engage in family therapy.
The mother initially used a Farsi interpreter to give her evidence. As matters progressed she increasingly gave her answers in English, especially when she became animated and emotional.
In the early part of her cross examination she said, "why did he hide the second marriage from me? This is a big point. He spoilt the lives of our 4 kids. He should have talked to me. He used my body – he used me like an animal. This is the main point. Why not divorce me first?" The fact that the father had married a second wife and then continued to have sexual relations with her is a very substantial source of the mother's strongly expressed negative feelings about the father.
I...
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