Re A (A Child: Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Elisabeth Laing,Lord Justice Snowden |
| Judgment Date | 15 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1652 |
| Docket Number | Case No: CA-2022-000921 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1652
Lord Justice Peter Jackson
Lady Justice Elisabeth Laing
and
Lord Justice Snowden
Case No: CA-2022-000921
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Clare Ambrose (sitting as a Deputy High Court Judge)
FD21P00881
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Gration KC and Mehvish Chaudhry (instructed by Bindmans LLP) for the Appellant
Mother Nick Goodwin KC and Edward Bennett (instructed by Charles Strachan Solicitors) for the Respondent
Father Joanne Brown (instructed by Freemans Solicitors) for the Respondent Child by his Children's Guardian
Hearing date: 25 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 15 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
In the absence of some other identifiable error, an appellate court will only interfere with findings of fact made by a trial judge if it is satisfied that the decision cannot reasonably be explained or justified: Henderson v Foxworth Investments Limited [2014] UKSC 41 at para. 67. In this appeal from findings of fact arising from allegations of domestic abuse, including transnational marriage abandonment (‘stranding’), the appellant argues that this stringent requirement has been satisfied.
Context
The proceedings concern S, who was one year old at the time of the judge's decision. His parents are first cousins. His mother is a Pakistani national from Pakistan-administered Kashmir; his father is a Pakistani and British national who grew up in England. They contracted an arranged marriage in 2014 and were married in a Nikah ceremony in Pakistan in July 2016, with the father returning to the UK the following month. He visited the mother for three weeks in early 2019. In March 2020, she was granted a spousal visa and moved to England to live with the father and his family. S was born in November 2020.
The mother alleges that from the time of her arrival in the UK the father abused her physically, sexually, emotionally and financially. The father's case is that the mother has fabricated this account.
On 28 August 2021, the parents travelled to Pakistan, leaving S in the care of his paternal family. The father had purchased a return ticket for himself and a one-way ticket for the mother. While in Pakistan, they stayed with their respective families. On 17 September 2021, the father returned to England alone. On 18 October 2021, unbeknownst to the mother, he sent an email entitled “relationship breakdown” to the Home Office's dedicated email address ( relationshipbreakdown@homeoffice.gov.uk), attaching the requisite public statement that the relationship was no longer subsisting and describing the mother as his ‘ex partner’ and himself as S's ‘full-time carer’. The first time the mother saw this communication was at the fact-finding hearing in February 2022.
The mother's case is that the father removed her passport and ID document from her upon arrival in Pakistan and coerced her into reporting them as lost, which she did on 22 September 2021, before stranding her in Pakistan. The father denies having had the documents and says that the mother had indeed lost them.
The mother tried to persuade the father to help her to return to the UK. When that failed, she managed to get other support, including from the charity Rights of Women, and she took legal action. On 12 November 2021, she issued proceedings in the High Court and on that date S became a ward of court, various tipstaff orders were issued, and a non-molestation order was made against the father. On 12 December 2021, having obtained new travel documents, the mother returned to the UK. On 14 December 2021, Lieven J ordered that she should have immediate and substantial interim contact with S and listed the matter for a three-day fact-finding hearing. Since then S has divided his time equally between his parents in alternating three-week periods.
The allegations
The mother's allegations were grouped under seven heads: stranding, physical abuse and threats, sexual abuse, controlling and coercive behaviour, emotional and psychological abuse, financial abuse, and abuse of S. Forty-one allegations were made, referenced to the mother's detailed statements. Aside from the stranding claim, these included: controlling her movements, regular violence and manhandling, sometimes in the presence of S; burning her arm with a cigarette; grabbing her hair and banging her head against a wall, causing her teeth to bleed; locking her in a shed a number of times, with her once escaping through a window to attend to S; forcing her to have sex; not allowing her to breastfeed; controlling her contact with her family in circumstances where she did not have a telephone; not giving her any allowance and taking money she had received from his family as a gift.
The father denied every allegation. He alleged that the mother had falsely alleged domestic abuse as part of a plan to fabricate a false case on stranding, and that her conduct in Pakistan had been an attempt to support an immigration case for an independent visa.
The hearing
The hearing took place on 23–25 February 2022 before Clare Ambrose, sitting as a Deputy High Court Judge (‘the judge’). The main written evidence was contained in three substantial statements, two from the mother, the first created while she was still in Pakistan, and one from the father. The judge heard evidence from the parents and from the mother's sister (remotely from Pakistan), with the mother and sister using an interpreter. A Children's Guardian had been appointed for S, but she did not participate in the fact-finding hearing.
On the first morning of the hearing Ms Chaudhry applied for an adjournment to allow for an intermediary assessment of the mother and to respond to the father's statement; alternatively, she applied for a number of special measures. After hearing submissions, the judge refused an adjournment and allowed most of the special measures.
At the end of the hearing, judgment was reserved. A draft judgment was circulated on 17 March 2022, with judgment being formally handed down on 20 April 2022. The mother sought permission to appeal, and this was granted by King LJ on 26 July 2022.
On 26 April 2022, the proceedings were re-allocated to a Circuit Judge sitting in the Central Family Court. The father was ordered to participate in a Domestic Abuse Perpetrator Programme but the programme provider has refused to accept him in view of his denials. A final welfare hearing has been fixed for early 2023.
The judgment
The judge described the procedural and factual background. She gave herself a substantial legal self-direction that included reference to Practice Direction 12J of the Family Procedure Rules 2010 and Re H-N [2021] EWCA Civ 448 on domestic abuse and fact-finding; Re A [2019] EWCA Civ 74 on transnational marriage abandonment; and Re P [2019] EWFC 27 and R v Lucas [1982] QB 720 on witness credibility.
In regard to domestic abuse generally and stranding in particular, the judge gave herself this direction, which rightly affirms that stranding is a very serious form of domestic abuse:
“38. These authorities make clear that domestic abuse takes many forms and may cover behaviour that looked at in isolation might not be abusive, but when taken as part of the broader picture is relevant to the child's welfare. International stranding or abandonment is regarded as much more serious for a child than abandonment in a domestic context since the separation of the child from its parent or home will be less easily remedied, and the stranded parent is left more vulnerable, with significantly less legal protection (and also more exposed financially and culturally). The abandoning parent can exploit his stronger immigration status to assert control over the child and the other parent, even after the relationship has ended. For all these reasons it is treated as abusive within a relationship, and also as a way to end a relationship between parents.”
The judge then summarised the parties' cases and described her approach to the allegations:
“54. There were 41 separate allegations, grouped under 12 main headings, and 7 different types (including stranding, physical abuse and threats of violence, sexual abuse, controlling and coercive behaviour, psychological and emotional abuse, financial abuse and abuse of S).
55. I have taken account of the law set out above, and as set out in the mother's position statement. Here the mother alleged patterns of coercive and controlling behaviour together with specific allegations of serious violence and sexual abuse. The matter was listed without a pre-trial review to achieve a prompt listing for fact-finding. Neither side asked for fine-tuning of the issues by way of further case management. Instead, counsel carefully used the time available to address the issues raised, which were all serious. I have carefully looked at the matter alleged as a whole, and as part of patterns of behaviour, as well as the specific allegations made. The specific allegations made are set out in the schedule attached and addressed there, with further reasons provided in this judgment. I will not repeat the allegations within the body of the judgment.”
In the remainder of the judgment, the judge assessed the parties' evidence (paras. 56–66), and then reached conclusions about stranding (67–76), physical abuse and threats of violence (77–86), sexual abuse (87–88), coercive and controlling behaviour (89–103), financial abuse (105), and emotional abuse and abuse of S (104, 106–108). She entered her findings in the table provided by the parties which she annexed to her...
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