England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2015

Mrs Justice Pauffley :

1. In the context of wardship proceedings initiated by the father of a seven year old boy, it is necessary to resolve disputed allegations of serious domestic violence as well as abusive behaviour towards the child himself.
2. My own involvement in the case began on Tuesday 5 May when it was listed for fact finding over 4 days. Even although there had been some six or seven interlocutory hearings in the period since 29 October 2014 including a pre-trial review just last week, at no stage was I involved. More worryingly still from a case management perspective, the parties have seen no fewer than 5 different judges in the lead up to this important hearing. The reason, apparently, why the pre-trial review on 28 April was not in my list was that I was out on Circuit. Had I known of the perceived problem, I should have asked that the hearing be accommodated at Reading which could have happened without difficulty.
3. In the result, and precisely because I had had no opportunity to manage the case, it was necessary at the outset to seek to focus attention upon those matters from within the mother's Schedule of Allegations which would be of most significance. However and largely I suspect because of the parties' personal investment in terms of time and energy in preparing between them no fewer than nine overly long statements, the evidence giving exercise was lengthy and ranged over a wide area.

Legal framework

4. As for the legal framework, I should mention that paragraphs 26 and 27 of Practice Direction 12J set out the factors which are to be taken into account when determining whether to make contact orders in all cases where domestic violence has occurred: "When deciding the issue of residence or contact the court should, in the light of any findings of fact, apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence have been made, the court should in every case consider any harm which the child has suffered as a consequence of that violence and any harm which the child is at risk of suffering if an order for residence or contact is made and should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact."
5. Pursuant to paragraph 27 of the Practice Direction, "In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider; (a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;
   (b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent; (c) the likely behaviour during contact of the parent seeking contact and its effect on the child; (d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child; (e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately."
6. As Black LJ observed in Re W (Children) [2012] EWCA Civ 528 one is left in no doubt by those paragraphs as to the matters that should be considered "in every case".  Harm which the child has suffered as a consequence of violence that has been established and harm that the child is at risk of suffering in the future must be considered, and the court must only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact.  Also in every case, the court has to consider the conduct of both parents towards each other and towards the child, and in particular the effect of the domestic violence on the parent and child, the motivation of the parent seeking contact, the likely behaviour of that parent during contact and the effect on the child, his capacity to appreciate the effect of past violence and the potential for future violence on the other parent and child, and his attitude to his past violent conduct and capacity to change and behave appropriately.
7. The parent against whom allegations are made, here the father, does not have to prove anything. The standard of proof in finding the facts necessary to establish any factual issue in the case is the simple balance of probabilities, nothing more and nothing less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof in determining the facts. Generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.
8. When considering issues of credibility, I remind myself that there may be many possible explanations as to why a person in proceedings such as these might lie. The mere fact that an individual lies is not in itself evidence of culpability.
9. So much then for the legal framework surrounding a fact finding exercise of this kind.

Essential background

10. The background is set out in some detail within an agreed summary; and it is therefore unnecessary to do more than provide a context for the allegations as well as the parties' evidence.
11. The parents met in 2004 and were married in India in January 2005. They travelled to England in 2006 on six month visas. They became 'overstayers' when those visas expired and they decided not to return. They lived in a series of addresses with other families.
12. In June 2007 their only child, A, was born.
13. It is the mother's case that after about three months the marriage became unhappy – a situation which continued until the final separation in 2013. The father, by contrast, maintains they were very happy until about 2011.
14. At all events, in January 2013 the mother left the marital home for a few weeks and went to stay with a friend in the same street. At about that time, divorce proceedings were begun and there was an attempt at salvaging the marriage with the assistance of a counselling organisation. The mother maintains, but the father denies, that she moved out because he beat and kicked her out of the house. According to the father's evidence, the mother returned to the family home in early March.
15. On 12 March 2013, a ticket was purchased for the mother to fly alone to India on 8 April.
16. Overnight between 23 and 24 March there was an incident between the father and mother at the family home. The police were involved and the father was charged with common assault. On 28 March, the mother made a police witness statement making clear that she did not wish to go to court or give evidence against her husband.
17. The circumstances of the mother's departure for India on 8 April are hotly contested. She claims she was tricked into going on the strength of her husband's promise that he and their son would follow "after 15 days." The father's case is that although he earnestly wished to re-join his wife he was prevented from so doing as the result of difficulties in securing a passport for A.
18. At all events, A lived with his father, along with others who shared that household, between April 2013 and October 2014.
19. In July 2014, the mother travelled to England and sought asylum on the basis that whilst in India and living with the paternal family she was physically abused.
20. On 26 September 2014, the mother attended at A's school. She met the father and A at the gates and asked to spend time with A. The father agreed. Between then and mid October, there were 2 or 3 visits including one occasion of overnight contact.
21. On 17 October, there was an incident between the parents in A's presence which resulted in the mother calling the police. The father was arrested for common assault. He was released on bail with conditions that he did not contact the mother or A – conditions which subsequently were varied by a District Judge.
22. A was interviewed by the police on 28 October.
23. On 29 October, the father issued these proceedings seeking A's return to his care and various Tipstaff orders so as to prevent the mother from taking A abroad.

The parties' relationship – rival contentions

24. The mother's case may be summarised in this way. She claims the marriage was "horrible, very scary and not happy." Her husband caused her "lots of pain." When he had a problem he would, she said, put it on her shoulders. He had beaten her very badly; and in her culture, the mother explained, "the lady is not allowed to talk too much. (She) had to accept everything through the marriage." The mother described the father's nature as "very aggressive and violent." He had "no control … he pulled, he punched." When she was pregnant, he had kicked her in the stomach and she had been very worried "because the baby does not move."
25. The father's claim is that in the early part of the marriage he and the mother had been "very much happy." The relationship had been "very much joyful." But at the end of 2010 or the start of 2011, they had argued. The mother had, he said, begun to avoid him and there had been arguments. Two or three times a month they would argue. The father denied he had ever been violent. He said he had been told by a cousin that the mother was having an affair. She had sworn on A's life it was a lie and he had believed her that night but his "cousin had left in (his) heart a doubt."
26. Overall, it is the father's case that none of the mother's allegations against him are true. He contends that he never saw the mother with any marks or injuries. The father's claim is that the mother has made up stories against him – on one occasion at the suggestion of the man with whom he claims the mother was having an affair "to get (him) into trouble."

Overall conclusions – assessment of the parents' as witnesses

27. At the end of it all, and having heard from three other witnesses, one in support of the mother and two for the father, it is straightforward to provide answers to the key disputed issues.
28. The information provided by the police is critical to a proper evaluation of events as they unfolded at the time. So, too, the material stemming from the mother's medical records as it may tend to support her claims against the father. Finally, in this list of other evidence, I should mention the transcribed interview of A considered against the father's claim that the mother has "said bad things about him."
29. I am bound to say I was troubled by the father's ability to lie when the situation, as he saw it, called for deceit. The prime example derives from his police interview of 18 October 2014 in which he told a series of quite complex and sophisticated lies about the potential for other people to have used his mobile phone to send highly insulting texts to the mother.
30. The father admitted in cross examination that he had told lies. He said, "I was panicked at the police station. I wanted to get out of prison and to deny … Because I was panicked I denied things that were actually true." The implications for his credibility of those admitted lies are obvious. But more importantly and more generally as I listened to his evidence, my strong impression was that the father was highly defensive; he had very little interest in saying anything which could possibly have placed him at a disadvantage. His strategy seemed to be to try to fend off criticism of any kind, however compelling the evidence might be, with an outright denial. On three or four occasions he literally could not wait for the end of the question before he interrupted to deny the likely assertion. Clearly he wished to control the situation, doubtless in much the same way as he does in his everyday life. He did not appear at all comfortable when challenged.
31. Ms Chaudhry asked me to accept her client was far more balanced than the mother in the way he gave his evidence. I could not disagree more with that suggestion.
32. The mother was, by contrast with the father, a dignified, restrained and thoughtful witness who did her best to answer in English, occasionally asking for translation into Hindi. The impact upon her emotional state of the experiences she has lived through was plain and obvious. Her confidence, it seems to me, has been compromised; her self esteem dented. The mother did not seek to exaggerate or embellish her evidence. I found her a truthful and genuinely humble woman whose oral testimony was of a piece with her several interviews with police and social workers.

A's ABE interview – central conclusions

33. A may not have been able to be definitive and consistent in relation to incidental issues such as whether he had been at school on a particular day but he provided a clear, relatively detailed and consistent account of how his mother had been hurt and the consequent emotional impact upon him. He was able to correct the police officer when she suggested something with which he did not agree – "Not 'fell'. He pushed her." A certainly did fidget from time to time during the interview, as Ms Chaudhry suggests, but he made good eye contact with the police officer at key moments when he fixed his gaze upon her. He did appear to me to focus upon and answer as best he could the questions asked of him.
34. True enough, and unsurprisingly given his age, there were odd moments when A did not appear to be concentrating, for example when he said – "Then after my Mum went crying because – I don't know why her neck was hurting." But he then regained focus and was able to relate what his father had said he would do to him. A said his father had not in fact done anything but his Mum had been worried about him.
35. My overall sense as I watched the recording was of sadness for a boy who had obviously suffered the trauma of witnessing events of considerable violence between his parents, as I shall go on to find, without the ability to make sense of what had happened. Moreover and significantly, A described how he was "worried what happened to my Mum" and that in answer to an unrelated question about where he had been on a particular occasion.

Incident on 24 March 2013

36. My starting point in evaluating key events is 24 March 2013 at 07.36 when the mother called the emergency services. In the transcript of that call, made from the bathroom, she asked for help saying her husband had tried to kill her. She said he had beaten her "yesterday night really badly." She asked the police to come quietly because her son was sleeping.
37. Shortly before 07.52 two police officers attended at the family home. According to his statement, one police officer "immediately noticed that (the mother) had a 'black' right eye. Bruising along the bottom of the eye from left to right about ½ an inch thick" was observed and later photographed. The mother told the police the father had grabbed her hair, placed his hands around her throat applying pressure and slapped her around the face a few times causing bruising and a scratch to her right eye. They had argued, so she told the police, because her husband wanted her to go back to India.
38. A police officer asked the father, "How did your wife get the black eye" to which he replied, "She did it with her own nail" and showed the officer that his own finger nails were cut short. At 07.52 the father was arrested for actual bodily harm and taken to the police station.
39. In his ABE interview, A described an incident which occurred before his mother had gone to India. He said, "my Dad thought that my Mum was telling him something wrong … and then, after … he like putted her hand … around her neck and then he squeezed it. And then, after, he pushed my Mum and she banged her head on the glass and … that's all." Later A was asked whether he remembered seeing what he had described and he replied, "No I mean I was five years old." In answer to the question as to whether he had heard what his parents had said he replied, "I don't know what they said because they said it in Gujarati and I don't understand, but now I do understand." A was then asked again whether he remembered seeing his mother falling on the glass. He responded, "Not fell. He pushed her… And then after he slapped her." The police officer challenged him once more as to whether he remembered seeing that and he nodded affirmatively.
40. Ms Chaudhry submits that the mother's 999 call was trumped up and that the matters she complained of to the police were invented because the mother was angry and annoyed. Ms Chaudhry invites me to accept that the colour photograph does not depict a black eye. She suggests I should place reliance upon the mother's subsequent visit to the police station on 28 March when she indicated she did not wish to proceed with the charge. Ms Chaudhry described that as a retraction.
41. I have not heard oral evidence either from the police officers or from A; and it was very sensibly agreed between the parties that it would not have been appropriate to require him for cross examination. Ms Chaudhry did not apply to cross examine the police officers; Ms Sultan plainly relies upon the matters described within their statements. I exercise caution, therefore, when I consider the extent to which it is appropriate to place weight on the information supplied from those three individuals. The police witness statements made pursuant to the provisions of the Criminal Justice Act 1967 have greater evidential weight, quite obviously, than the police logs or CRIS reports but I'm conscious nonetheless that there's been no cross examination. My real interest has been in the father's response to the material recorded by those two police officers.
42. Ultimately in relation to the events of 23 / 24 March, and conscious of everything said by Ms Chaudhry on behalf of the father as to the evidential value of A's interview with the police, I am in no doubt at all as to what happened. I am entirely satisfied that the mother was indeed assaulted that night as she has claimed both in the immediate aftermath of events and in discussion with the many professionals, both police and social workers, who have interviewed her subsequently.
43. I reject the suggestion that in this and the other allegations of violence made by the mother, she has been intent – as Ms Chaudhry suggested – upon boosting her claim for asylum. Nor do I accept that A was anything other than an essentially truthful interviewee given his age, maturity and levels of understanding.
44. The evidence of the father about events on 24 March was completely incredible. I did not believe him at all. His suggestion that his wife did not have a 'black eye' as reported by the police officer and clearly demonstrated on a good quality colour photograph defies understanding. I reject without hesitation the father's ludicrous suggestions that the obvious injury to the mother's eye had been caused by her own finger nail or that she had been "forced by her friend to do something to get (the father) into trouble."
45. The facts are easily ascertained from the material supplied by the police as supplemented by the mother's evidence and A's ABE interview. Moreover there is a consistency and coherence to the mother's account in the several versions given to professionals about this incident as referred to in Ms Sultan's Schedule of Corroboration and Recent Complaint.
46. I am entirely satisfied that the mother's reasons for saying to the police on 28 March that she no longer wished to carry on with the charge against the father were as she described in evidence. The father had "come to the home the next day and apologised to (her). He had been crying at (her), trying to convince (her) to go to the police station and take back the charges. He was illegal in the country and very scared. Then he tried to threaten (her) with community members." The mother went on to describe how she did not know the police here would help or protect her. She did not know they "would support women here." If she had known that, she said she would never have gone to India."

17 October 2014 incident

47. The next matter for discussion is the incident which occurred on 17 October 2014 outside the father's home in the presence of A. The father described in his written evidence a heated argument between the parents when A was returned after evening contact at 22.45. The mother was interviewed by the police on 20 October and gave an account consistent with that provided in these proceedings. She claims the father was angry that A was being returned late. The father had waved his hands in the air as if to threaten the child, screaming "What time do you call this" and "I'll show you" with a slapping gesture. The mother had asked him to calm down. He became angry, pulled at her traditional dress scarf and attempted strangulation by crossing over the ends of the scarf. A had shouted, "Daddy" whereupon the father had stopped but then in a violent and aggressive manner pushed the mother backwards.
48. When she gave evidence, the mother confirmed her written account, said the father had been very aggressive and had said to A, "Go upstairs or I'll break your legs." The mother denied the suggestion that she had instructed A to say things against his father. She said, "I saw my son after long time. I had time to love him – I am not like a mother who would say anything bad against his father."
49. In his ABE interview, A was asked what the father had said to his mother. His reply was as follows, "He didn't say anything. He just said, 'Go to your room' and 'Look what I'm going to do to you.' He was about to hit me but then he didn't … and he said 'Get out' and pushed – and squeezed my Mum's neck again and pushed her and she banged her head on the wall this time. And then he said 'Get out' and slammed the door."
50. The father's evidence is that he did not assault the mother as suggested. He believes A is "getting confused" in what he said to the police although he is not saying his son is lying. The father said A's English is not that exactly correct although he had to concede it is better than his own.
51. Ms Chaudhry draws attention to A's failure to mention that the mother's head scarf was involved in the squeezing by the father of her neck and also that A demonstrated a hand around his own neck. Those matters do not, to my mind, detract to any significant extent from the strength of A's corroborative account of his mother's core allegation. Moreover, in the way that A described his worry for his mother and his desire to see what happened – "I wanted to see what would happen" – it becomes straightforward to conclude that he gave the police an eye witness and essentially reliable version of events or, as Ms Sultan described it, one consistent with his lived experience.
52. Again, I entertain no doubt as to the realities of events on 17 October. There was a horribly aggressive and violent assault upon the mother that evening, sparked so it seems by nothing more than her late return to the home with A. The father did attempt some kind of strangulation and then violently pushed the mother. As a result she was extremely distressed and A was worried, even terrified, about her and what might happen.

Was violence a feature of this marriage?

53. I turn then from the two most notable incidents of violence where there was police involvement to consider the mother's more general claim as to periodic assaults. Her assertions in evidence as they supplemented her written case are set out above in paragraph 24. The father's response is comprised within paragraphs 25 – 26.
54. The other important evidence came from Ms K who came to know the mother as a client and later a confidante. Ms K described how she had seen the mother with bruises "lots of times." She had asked the mother what had happened, but in the beginning the mother had not told her anything because she was scared. Ms K had asked her about them, "so many times" but she could not say when it was the mother had realised it was safe to tell her. Ms K said she was not mistaken in relation to what she had observed, denying that any of the marks could have been caused by hot wax. Ms K had been so concerned for the mother that she had researched Domestic Violence organisations on the internet and arranged for the mother to meet individuals from one such unit at her own home. They had spoken to the mother privately.
55. In addition, and of significance, in the mother's medical records, there is mention of a complaint made against her husband on 8 February 2013 – that he had "bitten (sic) her up and kick her out from the house, crying constantly, he has taken her child from her as well cought (sic) him with another woman and he's always bitting her up and uses abusive language."
56. The father's response in evidence to the suggestion he had been violent to the mother was unequivocal. In chief, he was asked if he was ever violent. He said no. He confirmed in cross examination that he had never been physically abusive and was telling the truth as to that. Then he was confronted with his statement of Tuesday this week where he conceded that he had slapped the mother on the face when he discovered she had – as he believed – been having an affair. As on so many other occasions, his evidence was simply unbelievable.
57. I am quite certain that from early on in the marriage, as the mother claims, there was real unhappiness caused by the father's actual violence.

The Whats App messages

58. On 31 August and on various dates in September 2014 the father sent a series of extremely abusive and sexually explicit messages to the mother using the What's App messaging service. A mixture of Hindi, Gujarati and English is used. The police have provided both translation and transcription. Between 01.11 and 04.49 on 31 August he sent no fewer than 14 messages in which the most vile language is used and grotesquely sexually abusive suggestions are made involving not only the mother but also members of the maternal family including her mother and father. The father expresses "regret now for not having killed (the mother)." On three occasions through the night, the mother responds saying, "Please leave me alone;" "Be afraid of God;" and "R I will file a complaint against you to the police." She did not retaliate in kind to the father's sexually explicit messages.
59. On 18 / 19 September there is another series of messages, more than 20, between 22.04 and 00.08 in which the father again uses the most offensive and sexually explicit language towards the mother.
60. There can be no question it seems to me, as to the father's intentions when he sent these and other messages. He did it to hurt, undermine and intimidate the mother. He left her in no doubt that he viewed her with utter contempt. The father threatened he would tell A that the mother was a wicked or low character woman.
61. All in all, the text and other messages reveal a man with absolutely no respect for the mother of his child. He thought nothing of making the vilest and most degrading remarks about her and her family. Throughout the course of a fairly extensive cross examination relating to the messages – because at that time there was no translation into English – I detected nothing from anything the father said or inferred from which he could be said to have expressed genuine remorse for what he had done. Rather he was intent upon emphasising that his messages were a reaction to aggressive calls from the mother; and he was clearly embarrassed, realising how it would look within the court room, as the interpreter provided translations for the Hindi and Gujarati messages.

The allegations made by A of physical assault

62. One of the last matters for discussions arises from A's physical assault allegations comprised principally within his ABE interview. In the context of a question from the officer about what he did on 17 October – and seemingly out of the blue – A said, "I did my homework … With his belt, he kind of hits me." A little later, A is asked, "OK and how does he hit you?" A who was by then looking directly at the officer, said, "With a belt … A long belt." He described being hit on his back and leg and said it was "kind of fast, to hit me." Asked how he felt, A said "Sad … But I'm little brave … I'm not scared of him… But normally I'm sad." In response to questions as to whether it hurt, did it leave marks and whether they 'went quite quickly', A did not reply verbally but nodded his head to all three inquiries." Towards the very end of the interview, A responded affirmatively when asked if he missed his father.
63. The father wholly denies ever striking A with a belt or otherwise. He described with evident emotion that if he could not see A he does not "want to live." He can "only say (he) never hit A with a belt" and he is "dying to see A." The father also described what he meant by a "slap or a tap" the words used when he was interviewed by the police in connection with A's allegations. He said this was not to slap A "badly but to keep him disciplined."
64. I bear in mind the positive assessment of A undertaken by the relevant local authority in June 2013 in response to a police referral arising out of the 24 March incident. A was seen alone and stated he was happy at home where he was being looked after by his father, uncle and aunty. He mentioned he would be going to India to see his mother and that he speaks to her everyday on Skype. A was observed to be a happy and contented child as well as very comfortable with his father.
65. There are other later assessments to be considered particularly that undertaken by another local authority in November 2014. Again A was seen alone. When asked about the time when he lived with his father, according to the social worker, A's body language changed. He appeared to retreat into himself and said that when he'd lived with his father 'it was not nice' and 'did (the social worker) know that his father used to hit him for no reason?'
66. At the end of my determination on this issue I make the following observations. I did believe the mother when she told me she had not said anything bad about the father although it had been for her "really horrible being separated from her son." The mother also said that during the time they were together, she had seen the father slap A twice and there had been occasions when he had been pushed and shouted at. She had not told her Solicitor because there had been "so many things."
67. I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.
68. For the future, I would only observe that the potential for making any kind of progress towards, perhaps, rebuilding a relationship between father and son, will depend crucially upon Mr D's ability to acknowledge his failings so as to be able to work towards a wholly different interaction with the mother.

The mother's departure for India in April 2013

69. The very last matter for determination relates to the mother's departure for India and whether as she maintains, but the father denies, she was tricked into going. There is, I observe a large quantity of material bearing on the issue – an Affidavit of the mother which either did or did have sufficient official stamps to satisfy the Indian authorities; material from an organisation with which the father was in contact in 2013 in his attempt to secure an assisted return; the information supplied to the immigration authorities when the mother returned here in 2014 and to those who assessed her in Scotland at that time.
70. In addition, I bear in mind of course what A himself has contributed to the dispute. He was describing what had happened during the incident in March 2013 adding, "After, then Dad just told Mum to go to India and he said, 'You go' and he'll back with A (sic). Then, and he just lied, my Dad, that he didn't bring me to my Mum, so he was lying. So that's it."
71. In evidence the mother said, in an obvious reference to the Skype calls, that A had "asked (her) 'When are you coming?' She had replied, "Your father separate me or sent me. I make … something to make him happy."
72. If the principal allegation had been that this mother was essentially a stranded spouse as sometimes arises in cases of this kind, it would have been necessary to delve a great deal deeper than I have done. As it is, I observe that for reasons that are far from readily understood, A was physically separated from his loving mother for about a year and a half, albeit that they spoke most days.
73. I simply do not accept that the mother was content with that situation. She did believe, as she said, that the father would be bringing A to India after 15 days. There may have been insuperable difficulties in securing a passport for A; I simply do not have a sufficiently good evidential basis for deciding either way.
74. Of more importance in the current context is the impact upon A of being away from his mother for a very long time at an important stage of his development. The repercussions of events in mid October 2014 have gone a long way to enabling A to properly restore his relationship with his mother.
75. The anxious next question is as to whether it will be in A's best interests to seek to rebuild some kind of relationship with his father. So much will depend upon the father's reaction to this judgment.