England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT

		64 Victoria Street Blackburn Lancashire
		15th June 2015

JUDGMENT
1. THE JUDGE: This case concerns a little girl, T (born 9^th January 2011). Specifically, I am dealing with a finding of fact exercise with T's mother, A, making a number of very serious allegations against T's father, N.
2. The proceedings within which I am making findings of fact are an application by T's father for contact to his daughter. The application is resisted by her mother who asserts that there should be no contact whatsoever. This is the first time I have had involvement in this case. The application by father was made in 2013 and I am now hearing this part of the application in mid-June 2015. These proceedings have taken far, far too long. That said, it may well be that, had they been before the court at an earlier stage, I would not have had much of the relevant information that is currently before me.
3. T's mother has been represented by Miss Stone of counsel, her father by Miss Thomas of counsel, and T has been represented by her solicitor, Miss Latham, instructed by her guardian. I have a substantial volume of documentation including statements from both parents, several from mother and one from father. I have very extensive police disclosure involving investigations both against the father and against the mother. The current state of play as far as the police are concerned is that they have dropped all potential proceedings against the father and they have charged mother with attempting to pervert the course of justice. She faces a Crown Court trial on that allegation in October of this year. She tells me that she intends to plead not guilty. There has been disclosure of mother's medical records. These are extensive. She is a very regular visitor of her general practitioner. I have been given some isolated documents, judged by the solicitor for T to be potentially relevant to the issues in this case. I have heard evidence from the mother and the father and no one else, although it is clear from mother's case that if her account of what has gone on is accurate then there are several other members of her family and potentially independent witnesses who might have been able to give relevant evidence.

The Law

4. In any fact-finding exercise, it is for the party making the allegations to prove them and to prove them on a balance of probabilities. That is to say, to establish that they are more likely to have occurred than not. In carrying out that exercise, the findings that I make must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. In this case, some of the material relevant to my investigation is contained in the medical records and in the police documentation. That is hearsay evidence, some of it second and third hand. As far as much of the police evidence is concerned, the mother disputes the veracity of that material but no attempt has been made to put the original material before me whether in the form of documents or by calling the police officers. Indeed, it may well be the case, from orders for directions made in the Crown Court proceedings, that although the police have given extensive disclosure, they have significantly more material that they have not released into these proceedings. I will spell out with some care how I deal with that evidence when I deal with the particular matters it relates to.
5. I need to give myself a Lucas direction as to how to deal with lies. I must keep in mind that even if a person lies about one thing it does not follow that all their evidence is untrue. Experience has shown that people can lies for many different reasons not least because they may not think the truth will be believed. Once a lie has been told it can sometimes be difficult to retract. In this case it is not possible for both parents to be telling me the truth.

The Allegations

6. There is a schedule of allegations pursued by mother. I have allowed amendments to that schedule at the very start of the case so that the schedule reads as follows:

"(1) In April 2010 the father raped the mother within two weeks of father arriving in the UK.

(2) The father raped the mother seven or eight days after the rape in allegation (1).

(3) In May 2010, whilst the mother was pregnant, the father raped the mother.

(4) In July 2010 the father tried to push the mother down the stairs.

(5) On 17^th January 2014, the father threatened the mother with violence at Audley Range, Blackburn, outside a cash machine.

(6) On 1^st April 2014, the father assaulted the mother, punching her in the face twice."

The Background

7. Let me set a little background to this case. The mother and the father are both 31 years of age, having been born within days of one another. They are first cousins. Their respective mothers are sisters. The mother has lived her whole life in the United Kingdom, her mother having come to the United Kingdom before she was born. There was some evidence from her about her own mother who is described in the papers as having learning difficulties. That is an inapt phrase. What the mother meant was that her own mother lacks education, not that she lacks intelligence or cognitive functioning, as might be implied by the use of a technical description in regular use in the family court. The mother has held responsible jobs. The father's mother has lived her life and remains in a village in rural Kashmir, Pakistan. The father spent his life with his mother in the family village until moving to the UK in April 2010. He speaks the language of his village and although he has been in this country now for five year, has yet to become fluent in English. He has had the assistance of an interpreter. He has worked throughout his time in this country.

The parent's cases

8. The accounts I have heard from each of T's parents could not be more different. They agree on virtually nothing. The one fact on which they have given identical evidence is the date on which they separated. The mother's medical records indicate that they are almost certainly both wrong.
9. It is undoubtedly the case that they met when they were young. I am not clear that they agree how many times they met when they were young but it is father's case that they met as teenagers, when mother was on a visit to her wider family in Pakistan. It is father's case that they fell in love. Mother denies that was the case, although accepts that they were friendly, as cousins, towards one another. It is father's case that thereafter, for a number of years, they were in regular communication, one with the other, conducting a long distance relationship of boyfriend and girlfriend. It is his evidence that she is the only girlfriend he has ever had or wanted to have. He produced documents he said were from her appearing to be rather juvenile declarations of love and affection, which mother denies have emanated from her. There was undoubtedly a period where they did not communicate with one another, which father accepts was a period perhaps as long as five years where, as he described it, "everything went quiet". It would appear from an entry in mother's general practitioner records that she may have been having a relationship with someone closer to home.
10. It is father's case that, out of the blue, he was contacted by the mother, who proposed that they get married. I was not entirely clear as to how this marriage arrangement was thereafter brokered, but it appears that their respective mothers had something to do with it. Mother denies that any of this was the case, but says that on a visit to Pakistan in 2009 to go and see her father's grave, he having died when she was relatively young, she was, together with her mother and sister, effectively kidnapped by the father and his family, had their passports removed at gunpoint, and that she was forced to marry the father totally against her will. It is her case that after their wedding they had sexual relations, not in any consensual sense, but that she was raped against her will. Father denies that there was any coercion of the mother and has produced photographs of the wedding party in Islamabad, where the ceremony took place, which appear to show the mother at ease and smiling. I am, of course, well aware that photographs can be deceiving.
11. The records show that father first came to the United Kingdom, following the marriage, in April 2010. Mother had been back in the UK from about two weeks after the marriage ceremony took place. It is the father's case that once he arrived in the United Kingdom he began to share a home with the mother together with her sister, her brother and her sister in law. That was a two-bedroom house – on that they are agreed – although they do not agree on its address. It is the father's case that they had a good relationship right from the outset, that mother was helpful to him in every way that she could be and that they had a perfectly happy sex life together.
12. Mother's account of what happened following father's moving in to live with her could not be more different. She describes a man who would not take no for an answer, was not interested in them getting to know one another, but wished to exercise what he saw as "his marital rights" and did so in a most brutal fashion. She alleges that she was first raped within two weeks of his arrival, so that would be perhaps around about 21^st to 28^th April 2010. As a result of that rape, in all probability, she conceived Alina. If it was not then it was a second occasion of rape which occurred a week or so later. In her final sworn statement and in her evidence, she gave a detailed and graphic account of how she was raped. Father denies the truth of any of what mother says.
13. The third occasion she says she was raped was 18^th May 2010. Again she described a brutal rape, leaving her with a sore and damaged vagina. She says that she escaped to go to work, the rape having occurred early in the morning following her alarm clock having gone off. During the course of the day she began to bleed from her vagina. She called for her brother to collect her from work and take her to hospital. He arrived with her husband in the car. I have in the papers the hospital records of mother's visit. Nowhere does it record her saying to any of the hospital staff that she has been raped. Her explanation for that was that she did not dare; her husband was there, controlling what she could and could not say, and threatening her both with worse to follow if she told anybody and threatening to defile her father's grave. The records do not disclose damage being found to her vagina.
14. The next incident she said occurred was not very long after the third rape when she was pushed down the stairs. By this stage she knew she was pregnant. Her allegation throughout the proceedings was that she had been pushed down the stairs. When she filed her final sworn statement she described a push at the top of the stairs but being able to grab the banister rail to prevent herself falling. The context, she says, is that father heard her talking to her sister when she described the results of a scan showing that she was expecting a daughter, and that he made it plain he was not interested in having a daughter. Father denies that any such incident took place and contends that he was delighted to learn that he was to have a daughter.

The parent's cases after T was born

15. T was born on 9^th January 2011 by caesarean section. Mother spent three or four days in hospital recovering from her operation and T's birth, and when she came out of hospital she spent four weeks at the home of her own mother so that both she and T could be looked after. She and T then moved back to the home mother and father shared. Father agrees that that is what happened and agrees that, having returned to live together, it was no more than two weeks later that he was asked to leave.
16. Mother's case is that he was asked to leave because of what he had been doing to her and her belief that their relationship had broken down completely. Father, in his evidence, accepts that their relationship had had some difficulties in the summer of 2010 but says that it was his mother in law, who he referred to throughout as "auntie", who insisted that he leave for two reasons: firstly, that father, according to auntie, had become infected or infested with some sort of evil spirit; and secondly, that he was not providing the financial support to his auntie's sons – in other words, his male cousins, mother's brothers – that she required of him. Whatever the circumstances that led to his leaving, leave he did. He has not seen T since he left. He has had spells working away, and more recently he has lived in Accrington whilst mother and T have lived in Blackburn.
17. Mother has complained of a variety of incidents. She made an application to the court, seeking, amongst other things, an injunction against the father on 21^st August 2013. From that moment on, her allegations escalated. In August and December 2013 she complained of threats being made to her by men other than the father, those threats referencing these proceedings. She then made two complaints that form allegations 5 and 6 in the schedule, where, in January and April 2014, she alleges that father firstly threatened her and then secondly assaulted her.
18. Mother has made her complaints to the police. As a result, beginning in early 2013, father has been arrested on some six or seven occasions. He has, on most of those occasions, been held in custody, he has been interviewed and he has been released subject to bail.
19. The picture changed in January 2015 when the police interviewed mother. Having investigated the two incidents from early 2014 by looking at the wider material available from CCTV footage, information from a taxi computer system and from mobile phones, the police concluded that mother had fabricated the incidents of January and April 2014. This is what has led to the criminal charges she faces and the Crown Court trial she has pending.

Findings not made and findings not sought

20. Let me observe that I do not feel it necessary for me to make a finding in relation to every single disputed fact the parties have put before me. I propose to make only those findings necessary to help me reach a conclusion on the matters in the schedule.
21. Miss Latham on behalf of the guardian has raised concerns that the mother, during the course of her final statement and in her evidence in court, has made allegations against the father which directly concern T's welfare. Firstly, when mother was breastfeeding T, so when she would have been very small and vulnerable, the father pushed and shoved mother and grabbed her hair in circumstances which could clearly have caused serious injury to T. The guardian has observed the mother to be a caring and committed mother and so has difficulty understanding why mother firstly does not pursue that as an allegation against the father relevant to the issue of contact, and why that matter was not pursued with, for example, the police in order to protect T from a violent and abusive father.
22. Secondly, mother, in her final sworn statement and in her evidence, refers to threats made by the father to kidnap T, take her to Pakistan and torture her. It is difficult to conceive of a more serious threat to be made against a small, defenceless child. Mother says that that was reported to the police in a phone call of 31^st March 2013. In the police record there is no trace of that allegation. Mother is adamant that that is what she said and that the police must have failed to record it. It is not unknown for the police to either fail to record things or mis-record things, such is the nature of human error, but for the police to miss that threat to T would be a very serious failing on their part. Again, asks the guardian, why is that not a matter that mother would want a finding in relation to within these proceedings as that is plainly relevant to the question of whether T should have contact to her father?
23. Thirdly, the guardian is concerned about the allegation relating to the push down to the stairs. That did not feature in mother's complaints to the police, nor did mother take any steps to protect her unborn child. Again, the guardian asks why that should be, although on this occasion mother does seek a finding.

Hearsay evidence from mother's medical records

24. Where, then, do I look for help to determine which of these parents is telling the truth; whether it is the case that mother has suffered grievously at the hands of an abusive husband or whether these are wicked lies? It seems to me that I must start with the independent evidence, in so far as it helps me, from the records.
25. The first time that mother made any complaint that she had been raped – any complaint to anybody – was on 13^th July 2013. That is over two years since the parties separated, two years since father left, and two years during the course of which she had had no contact with him. It is of note that that was some three weeks before she issued her application to the court for an injunction that started off this whole process. There has been no adequate explanation as to why she delayed for that enormous length of time both to seek protection for herself but, more importantly, to seek protection for T.
26. Is there any help in the records as to the state of the relationship between the parties when they were together in this country before separation? Well, there are three entries in the mother's general practitioner records which may have some relevance. These specifically relate to the period after T was born. Prior to her birth, there is really no reference to the marriage or any consequences arising from it. Indeed, the separation of the parties did not get a mention to mother's general practitioner.
27. On 24^th February 2011, mother attended her general practitioner complaining that she was getting persistent vaginal bleeding every day since she had had her C-section two months before. She was also complaining of abdominal pain.
28. A month later, on 20^th March 2011, mother saw the practice nurse at the GP's. This is at a time, on the parties' accounts, that they had already separated. The entry is recorded as being eleven weeks postnatal from C-section. I do not need to read it all into this judgment. The relevant entries are as follows:

Firstly: "Uses contraceptive sheath."

Next entry: "Sexual advice. Has resumed intercourse. Condom did split. Pregnancy test today negative. Has had a period since birth – light one. Feels she would like to commence the pill. Advice given re this."

On 7^th April 2011, mother was back with the practice nurse at the GP surgery, having a cervical smear test. This is noted:

"Chatted re uncomfortable intercourse. Advice given re lubricant and relaxation et cetera."

None of that strikes me as being consistent either with parties who have by then separated or, more importantly, with a relationship between the parties where, on mother's account as she gave it in evidence, every single episode of intercourse was against her will and was rape.

Assessment of the witnesses

29. What did I make of the parties as they gave their evidence, as they faced questioning and as I listened with care to their explanations? Mother gave her evidence in a determined and forceful way. She was adamant that she was telling the truth. The difficulty her evidence presents me with is that there were a number of highly significant matters that emerged during the course of her evidence both in chief and under cross-examination, which were new, and which were highly significant. The whole suggestion that her marriage had been a forced marriage which took place in circumstances where she and her family members had been kidnapped, had their passports removed and were being held at gunpoint was new. I am afraid I cannot accept mother's explanation that those were matters that she had not mentioned before because she had never been asked about them. It seems to me inconceivable that such fundamental issues as to the nature of her marriage, its start, and the fact that she was raped whilst in Pakistan were all matters that she had failed to raise at an earlier stage, and all undermine the credibility both of those allegations and mother's evidence generally.
30. The evidence that both parents gave about their relationship was striking. Father was describing what has been said to have been a juvenile crush when they were about 15 or 16 years of age. The correspondence he produced would be consistent with that. Of course, I bear in mind that if it were his plan to come to the United Kingdom then to have material of that nature to support his application to show that this was a love match and not a marriage of convenience might be of significant help to him to facilitate his entry into the United Kingdom.
31. Father gave his evidence in, initially, a careful way. It was apparent that he found the process of having his evidence translated somewhat exasperating, and the more he was pushed, the more vehement he got. He told me that whatever the allegations mother makes against him, he still loves her and will continue to love her. He was describing a sort of "puppy love" where whatever she might do or say, his feelings would remain unaltered. When it came to discussing his alienation from T, he got visibly upset. I must observe that whatever the rights and wrongs of what happened in the privacy of their bedroom, when he was asked to leave, whether it was for good reason or ill, he left and he kept away.

The 2014 allegations

32. On mother's account, that all changed in January 2014. It is her case that whilst she was at a cash point outside a travel agency in Audley Range, Blackburn, close to a building where father worked for a spell during the marriage, he came up behind her, threatened her and ran off before she could get a response from the police. Some three and a half months later, on 1^st April 2014, the parties should have been in this court building, to deal with the further directions in T's case. Instead of being at court mother stayed away and, late in the morning, was outside her mother's home to attend to the gas meter outside the house. At this time she told me she was rarely going out because she was fearful of what might happen to her if she were to meet father again. It is her case that at that moment, father alighted from a taxi, punched her twice on the face and cut her shoulder with some sort of a sharp instrument. Father had been at court. He got a taxi from court to return, he says, to his home, and that at no stage did he go near the mother on that occasion nor on 17^th January.

Police material and hearsay evidence

33. The police put the results of their investigation into these matters to the mother in an interview in January 2015. In the January 2014 incident at Audley Range, they were able to secure CCTV footage of the cash point, showing mother queuing behind a man dressed in precisely the clothes she described father wearing when he ran off. The CCTV footage did not show the man speaking to the mother, according to the police, nor did it show the man running off. In her evidence in court, mother was asked about how she says she knew it was the father. She had maintained up until that point that she recognised his voice. In evidence, for the first time she said she got a glance of his face.
34. In relation to the Audley Range incident, the police described to mother further CCTV footage timed shortly before mother said she had been confronted by father. It was said to be of father's movements in Accrington at a bank, showing the way he was dressed, which was different from the man shown in the CCTV at the cash point mother was using. The police's point in interview with mother was that it would have been quite impossible for father to get from where he was shown to be to where mother was shown to be at the cash point and get changed and, as it happens, have a shave, and be there to issue threats.
35. As far as the gas meter incident in April was concerned, the police took mother through their technology investigation. They had traced the taxi and they had traced the taxi driver. They had inspected and interrogated the taxi firm's computer system. The taxi firm's computer system is a particularly sophisticated piece of kit. Not only does it capture all telephone communication between the base and their drivers, it captures all telephone communication between drivers and customers, who are encouraged to give a mobile number. More significantly the machine within the taxi itself sends a signal back to the base which records the precise journey that the taxi makes. The police were also able to record the journey made by father's mobile phone as that gives off signals each time it passes a mobile phone mast, recording its presence, locking into the system. By that methodology, the police told mother that they were able to demonstrate that father had gone nowhere near where mother claims she was assaulted.
36. The difficulty with all of that technological evidence is that there has been no opportunity to test it. As I indicated earlier, mother, within her criminal proceedings, has called for that evidence to be disclosed to her. As far as I am aware, that has not yet happened. Therefore, all I have to go off is the description of that evidence by the police put to mother in interview.
37. I must be careful, however. It seems to me that whilst that evidence is admissible within family proceedings as being hearsay evidence, the weight I can give to it can only be limited. It seems to me the decision by the police to prosecute mother rather than to prosecute father, again, as yet remains untested and is not a matter that should weigh in the balance.

Conclusion

38. Taking an overview of this case, I have to decide whether I believe mother. If I do then, on a balance of probabilities, she will have proved her case. If I do not believe mother but believe father then she will have failed to prove her case. The matters that weigh most heavily with me in assessing this matter are as follows:

a. Firstly is the way in which mother's case grew during her evidence, becoming more and more implausible and unlikely.

b. Secondly, the inconsistencies between mother's account and the medical records all indicate that what mother was saying in evidence was not true.

c. Thirdly, the failure by mother to protect T whilst, at the same time, making serious allegations against the father about his behaviour specifically towards T was both difficult to understand and only capable of being understood if what mother was saying was untrue.

d. Fourthly, I was impressed with father; I believed what he was telling me.

e. Finally, the incidents in January and April 2014 require highly improbable events to have taken place, for father to have been aware of where mother was at precisely the moment she was there when there was no way that he could have known that she was there. Mother has variously described him as very clever, very well connected and a man whose threats must be taken seriously. I reject that.

I do not believe the mother. I do believe the father.

39. The real damage in this case has been done by mother making wicked and false allegations against this father. I do not understand why. It is clear to me that she has been put under pressure by members of her family. I have not mentioned in this judgment so far a debt that was incurred for the purchase of a takeaway business at the time father came to the UK. A bank loan of some £40,000 was put in mother's name to buy a business about which she knew, on her own account, absolutely nothing. She told me she borrowed a large sum of money to buy a business without seeing the books of the business, without understanding what was being transferred to her or the terms of the tenancy, et cetera, none of which she appeared to know the first thing about even now.
40. There is clearly more going on in the background of this case than I have been told. It was hinted that the marriage had taken place in Islamabad rather than the village in Kashmir because of some ongoing difficulties within the family. Whether that remains part of the problem, I have no idea.
41. So far as these allegations set out in the schedule at paragraph 6 above are concerned, none of them are proved. The only fact I am satisfied is proved is that mother has lied, lied and lied again.