England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		26th May 2016

MR. JUSTICE NEWTON:

1. I am concerned with B and C, born respectively in 2008 and 2009. The court has already given two judgments, the first on 18^th June 2015, the second on 8^th October 2015. The effect of the second order was to place B in the care of the local authority by way of transition care ultimately to the care of her mother.
2. I especially wish to commend the enormous efforts made by two local authorities to assist the children and the court. It has enabled B to rebuild a relationship now with her mother in her care. Today, the situation is settled; supporting and vindicating the decisions of the court. There have been recent events which additionally reinforce those decisions.
3. Contact with the father after B was removed from the father's home commenced on 13^th February 2016. It was supervised in a contact centre. The first contact visit was understandably difficult, and C, in particular, was distant towards her father. But, over the course of those visits which have followed, the children's relationship has continued to settle and they clearly enjoy the time that they spend with their father, and he with them.
4. The issues for the court are, firstly, with whom the children should live, secondly, if I concluded the children should remain living with their mother, on what basis they should do so, whether it should be some shared care or some other arrangement, and thirdly, if I concluded that the children should live with their mother, what contact they should have (a) with their father and (b) with their extended family.
5. The father argues strongly that this should be the court's final hearing, that the court, in effect, should not micromanage the parties' lives. He understandably wishes there to be an end to the proceedings. He submits that he has maintained a good relationship with his daughters and that, in short, the court should let the parties deal with future arrangements.
6. The mother argues that, whilst she would very much wish for the proceedings to end, the children and the parties are not yet in a position where that could occur, that the court should proceed with caution, especially to establish whether the father really can be trusted by the mother and by the court. It is argued that the court should make protective orders, continuing the wardship and the all ports warnings, at least for the time being. Work should be carried out by the guardian during supervised contact, despite the mother's anxieties (which are significant and real) by some limited unsupervised contact, but for some significant period of time; it is suggested perhaps as much as six months. The mother submits that it is too early to contemplate contact with the paternal family.
7. B and C's guardian, Miss Jolly, represented through the children's solicitor, Ms. Jaffar, now submits that, in fact, the proceedings should continue; she agrees that she should do some limited work with the children, at least so that they have some narrative or script as to what has happened to them, and so that contact could move forward in a very controlled way to unsupervised contact, but for an extended period. It would, the guardian argues, have significant advantages to the father, in particular, who it is said is fragile and has difficulty in separating from the influences of his family to show that he can, in fact, stand on his own two feet and, in fact, truly meet the best interests of his children.

The Hearing

8. The hearing has lasted two days. I have heard evidence from the mother and the father, the grandmother, and most recently from the aunt on a different issue, and from the guardian. The checklist factors in s.1(3) of the Children Act 1989 provide the framework within which to consider the specific welfare issues in this case.
9. The mother in evidence continues to demonstrate what an impressive individual she is. She has struggled in almost every sense of the word, and concentrated on obtaining the reunion of the two children and coming back to this country. She has now obtained indefinite leave to remain. It means that she is entitled to very limited, but nonetheless predictable state benefits, something which has not been provided to her by the father, who has consistently failed to predictably maintain and comply with my financial orders.
10. There are, I am told, committal proceedings which form no part of my consideration. I am not concerned with them. They will be heard by a different judge. It is evident from all the evidence which I have heard in the case over its entirety, and indeed confirmed today, that the family finances are fluid, cooperative, collective and deliberately opaque, and just because money appears in somebody's bank account does not necessarily mean that it is or is not theirs, the family work together to achieve the best advantage as they see it.
11. This is a family who act as one unit, and it is that indivisibility or lack of independence and, in the father's case, that lack of separation which informs and ultimately decides the issues as to contact, in particular, with which I am concerned and which forms one of the principal difficulties of this case.
12. In any event, the mother, despite the very great difficulties, acknowledges the importance of, and supports the idea of contact between B and C and their father. Indeed, it is self-evident that, she not only supports it, but is happy to do so. The children, when they saw their guardian, were able to talk about contact openly and freely. That is independent evidence which demonstrates entirely the mother's approach to the children's relationship with their father. It is, having regard to the appalling events and consequences wrought upon her by the father and his family, a remarkable position to take.
13. The mother says that she is not yet ready for unsupervised contact; nor indeed for contact to the paternal family. It is easy to see why. Intellectually, she is able to understand its value, but it is clear (notwithstanding that the children do from time to time talk about their cousins) nonetheless that she is afraid, as she puts it herself, to take a step forward. She does not ever think that she will be able to do so. Is that so surprising a stance in the context of this case?
14. Her composure in the witness box wavered just once, and only for a second, when it was put to her in cross-examination that her stance was unreasonable, she replied that she and the children had lost four years; that she had been kept away from her daughters; that they were very young; and that the separation had caused them a lot of problems. It seemed to me that that raw and understandable loss is one which the mother is going to nurse for a very long time to come, and with significant justification.
15. The father gave evidence. He is pressing for more time with the children and better contact. In relation to the current regime, he told me that he would like to be able to take the children from the contact centre by taxi into the town centre and be able to do activities with the children. It is a modest and an entirely sensible aspiration. He is keen to make a fresh start to put the past behind him. It is clear that he saw this as an opportunity to demonstrate to the mother that she could, in fact, trust him. It was, therefore, necessary that there should be some real acknowledgment of the terrible things that have been perpetrated upon her and both his daughters by his family. Unfortunately this was not to be.
16. He did apologise, to be fair as he pointed out he had done when I heard him in evidence in Preston, but I do not consider that he had not thought at all about the damage that the separation of three years and more had done to his wife or the children. It was not, he said, his fault. So, when asked that fundamental question (of that vital combination of trust and truth) I was dismayed that his response to that was that, in fact, it was the mother that had to lay the foundation stone and that, in fact, it was she that should start from scratch so that they could move forward. It was unimpressive. It was self-centred (as indeed has been his evidence over many months about the issue of finances).
17. I balance and set that against my very clear view that the father is completely out of his depth. He is naïve. He has little idea or conception of what he is dealing with. He does have good qualities, as I have described before, but those qualities will only develop if he is able to stand on his own two feet and establish his own life away from the influences of the many women around him, who suborn his good instincts.
18. It should not be thought for a moment that I am unsympathetic to the father. He is very much the product of his background. He is totally dominated by his mother, in particular, and by his sisters. I especially noticed his demeanour whilst his mother was giving evidence. He was extremely affected, she has spent a lifetime manipulating and dominating her only son. So, as I have said before, the father is essentially a decent man, but he always will lose the unequal struggle between the history and influences of his family and the powerful and overwhelming influences that they have upon him, and the love and affection he has for his children. He is essentially vulnerable and weak. I still hope, not just for his, but particularly for his daughters' sake, that he will be able to move to independent living. There has been some talk of him moving to an area closer to where the children live. If he did, it would be very much to their advantage.
19. The grandmother was reluctant to give evidence, but did so. The tenor of her evidence was exactly as it had been before. She did not accept or acknowledge the court's findings. In particular, there was a total failure to take any responsibility for the truly dreadful situation which I found, in which she had placed both her daughter-in-law and her granddaughter, C.
20. Comprehensively contradicting the very clear evidence that she had given on a previous hearing (involving B in the proceedings, e.g. at paragraph 44 of the judgment of 18/6/2015), she said when answering questions about that that it was, in fact, counsel's responsibility, and it was counsel ("Ruth", as she described her) who was twisting the questions. When I went to look at my note of the evidence that she gave before (and which I in any event recalled) nothing could have been further from the truth. It was, in essence, an unsophisticated attempt to deflect the question.
21. It was put to her that it was her idea to abandon the mother in Pakistan. Her initial reply appeared to be clear that it was "his" decision. Indeed, she did appear to reinforce that by her body language and gesture to be placing all the blame on her son. That was then clarified by the interpreters. As I understand it, the translation could have meant either "his" or "her" decision. The grandmother then corrected herself when she said "his" decision she meant "her", the mother's decision, not his. I do not consider there was any misunderstanding either by the grandmother, or the interpretor. The grandmother knew exactly what she was saying, and simply took advantage of the uncertainty in translation. However, I do not rely on this passage of evidence. When the grandmother was giving evidence, it was clearly to the father that she referred physically. If there was some doubt about the interpretation, I leave that where it lies. It makes no difference to my evaluation overall of the evidence or of my conclusions.
22. What was clear however was that the grandmother refused to take any responsibility for what I found almost entirely lay at her door, indeed she made a number of spirited attempts to deflect further questioning. She was, for example, asked about the passage in her recent position statement that her attitude towards the mother had changed. Leaving aside the fact that it was self-evident that it had not, and indeed she made clear that it had not, she did her level best to avoid the question. She kept saying "I am not understanding anything", whereas, not only did she and does she, but the evidence demonstrated very clearly that she understood the question, and understood the question in English. I am entirely confident that the grandmother remains at the centre of this web. She is the loadstone around which her children are powerless; the father, I find, in particular.
23. The guardian's evidence confirmed the very basic struggle that the father has as even to basic concepts of parenting. He does find it difficult to see matters from the children's perspective or the effect of what it is that he has done and, in particular, what he might himself be able to do. She gave evidence that the father should receive some assistance on parenting, a matter which had already occurred to me as he was giving evidence yesterday and which he would benefit from. It seems to me that he needs some very basic help in how he should approach the children and how he could deal with his former wife.
24. The guardian was concerned about the "narrative" (the script that the children would be told as to why it is that the mother was deliberately dumped in Pakistan, why they were separated and why it was that B, for example, spent time in care before being reunited with her mother). The father (and I do not blame him for this), unable to confront the truth, was at a loss as to how that could be explained. The guardian advised that she would be best placed (a) to discuss it; and (b) to record something that the girls could refer to in the future. Whether that takes one or two occasions, I will leave entirely to her, and whether it involves the father to some extent, I will leave to her. Whilst I am aware that this involves, not least because of the geography, a considerable imposition on the guardian, I believe that it would be of great assistance if the father was able to be part of at least one meeting between the guardian and the children.
25. The guardian was very clear that the children need to feel secure, they need to know that their father respects their home with their mother. The guardian spoke warmly and encouragingly about the home that the mother has provided for the children in what on any view have been very difficult physical and emotional circumstances. In relation to the contact with the paternal family, the guardian did not consider, having reflected on the evidence, that it could re-commence. She did not think that there had been sufficient movement; indeed, possibly any.

Conclusions

26. Most of the substantive orders are not in dispute. It is not now disputed by the father that B and C should live with their mother. As I have made clear already, the mother's devotion to the children, her focus on not just returning to this country on getting the two sisters reunited, and her really quite exceptionally high qualities as a mother are remarkably impressive. She is an exceptional individual, a woman who I find can be entirely trusted, not just with the care of these children, but her evidence demonstrated moderate and controlled thought, reinforcing its obvious truth.
27. Her understandable anxiety as to the way forward, after she was forcibly stranded in Pakistan and separated for so many years, was moderated by her emotional intelligence and natural diffidence, and a strong sense of what is right. Intellectually, she could understand it. Emotionally, she found it difficult. She strongly supported contact, as the evidence, as I have already recorded, demonstrates. But she was not able at this moment to take it forward. I am entirely sure that she is positive about contact to the father. Having regard to everything which has passed, it is nothing short of remarkable.
28. If the court is to consider enlarging contact, as the mother acknowledges the court may wish to, she asks for protective orders of restraint, which I unhesitatingly grant. She asks that the all ports warning, which is still in place, should not yet be lifted. She is anxious about the release of the passports to the father and the grandmother, but with protective orders in place I think I can do so.
29. In relation to contact, it has gone well. It requires time to develop and mature, as the guardian's evidence demonstrates. In my judgment, it is necessary for there to be an explanation "script" for the children. That will take a little time to achieve. Therefore the sessions that occur in July should continue to be supervised, not least because I think it is entirely likely that the father may require assistance in dealing with the questions which the girls are likely to ask.
30. Once the summer holiday commences in August an attempt should be made to have unsupervised contact. I see no reason why the current contact, fortnightly, should not enlarge for a period of approximately two hours, the handovers to take place at the contact centre. I shall require the father, and made an order, a condition upon him, that he will not speak ill of the mother or in any way undermine their care or the life that the children have with their mother.
31. Secondly, I will make it a condition of contact that there shall be no contact with any other member of his family. There is no reason for that to occur. The contact centre is miles from where everybody lives, there is no difficulty of enforcing that part of my order. I make it clear that, if that part of the order is breached, contact will be suspended.
32. Whilst it is not for the court to micromanage the domestic arrangements of this family, this is a particularly difficult case. Having regard to the history, and the struggle over such a long period, I take the view that the court is not yet in a position of being able to leave the parties to sort out the future arrangements for these two girls.
33. The mother has done a remarkable job, but the relationship that B has with her is still fragile and, in my view, she is still unsure of her position. She is, I am told, clinging to the mother and quite affectionate. There is no reason why she should not be affectionate, but it seems to me that that represents an anxiety and insecurity. I think there is a lot of sense in the suggestion, as the guardian recommends, of finally adjourning this matter for a further six months. It will enable the contact to further establish and to be assessed. It will enable the father still yet, although it has been going on now for a long time, to consider further the possibility of establishing himself in independent accommodation.
34. The father would benefit from some assistance with parenting. Whether that could be provided by either one of the two local authorities who are involved or by CAFCASS and how it is funded, I will leave the parties to consider. It may be a case which CAFCASS themselves might consider funding. A short piece of concentrated work would be very much in the father's and, particularly obviously, the children's interests. It would improve his capacity. It would improve his capability. It would enhance the prospect of durable change and of the father having an enduring relationship with his children. Having regard to everything that I have said in my previous two judgments and in this judgment, it would be very much to the children's advantage. I am prepared to make a family assistance order, as requested, but I am not entirely sure to whom since I do not know yet whether the relevant local authority has, in fact, been asked.
35. So far as contact to the wider family is concerned, the mother understands intellectually the importance as far as the children are concerned of that contact, but she is emotionally unable to agree or even acquiesce, and her evidence and indeed the evidence generally from the family demonstrates, in any event, that this is clearly not the right time to do so.
36. In December, when I review the case, it might be that that could be another opportunity to consider whether or not there can be some limited contact to some members of the paternal family, but I will require cogent evidence as to why that should be so. I will require evidence from those members of the family that there has, in fact, been some change of perception and perspective, so far patently lacking. Until that time, I do not think it appropriate that the children should have contact with any other member of their paternal family, other than obviously their father. So those are the orders that I make.

Costs

37. Miss Kirby, on behalf of the mother, makes an application for costs. It has been raised at several previous hearings, as is clear in the October judgment, but has been adjourned so the father and grandmother could prepare their case in this respect. It could not be said that the paternal family have not had notice of this application. A schedule filed in December 2015 assessed the costs then at £74,000. It is now significantly more, approaching six figures.
38. I have previously found that the grandmother, who is a party to the proceedings, and the father were entirely responsible for the disgraceful and cynical conduct of deliberately stranding, dumping the mother in Pakistan for years. This case is not unique. The grandmother was the instigator the powerful force within this family. I am entirely sure that it was her idea, and that she carried it through with the good offices of her brother, from whom I heard evidence in June 2015. The father, in my view, is weak and vulnerable. He is entirely unable to withstand the pressures of his mother. Indeed, as was evident from the dynamic of evidence before me during the course of this, and the previous, hearings.
39. Section 51 of the Senior Courts Act 1981 provides that, subject to the rules of court, costs shall be at the discretion of the court. In family cases, the relevant rule governing awards of costs is r.28.1 of the Family Procedure Rules 2010, which provides that the court may at any time make such order as to costs as it thinks just. Rule 28.2 of the FPR 2010 imports aspects of the 1998 CPR as to costs in family proceedings, including r.44, though disapplying rule 44.3(2), which provides that the unsuccessful party will be ordered to pay the costs of the successful party, and r.48.2, which deals with the court's approach to making costs orders against non-parties under s.51 of the Senior Courts Act 1981.
40. The rules which are relevant to these proceedings are as follows:

"(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including -

(a) the conduct of all the parties".

Then:

"(5) The conduct of the parties includes -

(a) the conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim".

41. The overarching principle under which the litigation is conducted is contained in r.1.2 of the 2010 FPR, which requires the court to give effect to the overriding objective that is to be found in r.1.1, including dealing with a case in ways which are proportionate to the nature, importance and complexity of the issues, and saving expense.
42. The principles under which the court exercises discretion on costs in cases of this kind are found in many authorities, but notably the London Borough of Sutton v. Davis [1994] 2 FLR 569, and Re T [2012] UKSC 36. From those authorities, I extract the following principles.

1) That I have a wide discretion in relation to the award of costs.

2) That costs do not ordinarily follow the event in family proceedings as they do in other civil proceedings.

3) Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that, in their outcome, the child is the winner, and the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. The court does not wish to reduce the chance of their cooperation around the future life of the child by casting one, as it were, as a successful party entitled to his costs and the other as the unsuccessful. It is, after all, important for the parties to be able to work together in the interests of the children both during and after the proceedings, both during their minorities and conceivably beyond. Children's lives do not stand still and stigmatising one party as the loser and adding to that the burden of having to pay the other's costs is likely to jeopardise that future cooperative relationship.

4) It can be generally assumed that all parties to the case are motivated by concern for the child's welfare.

5) An award of costs in family proceedings may be justified if it is demonstrated that the conduct of the party before, as well as during, the proceedings and/or in the manner in which the case has been pursued or defended has been reprehensible or unreasonable. Unreasonableness is a consideration in awarding costs which can be traced back at least to R v. R in 1997, and indeed cases long before it.

6) Orders for costs between the parties may diminish the funds available to meet the needs of the family. Not making an order for costs may have the same effect. In this case, it makes little difference, except to say that the father's circumstances, in particular, are very modest and he has so far signally failed to provide any proper support for his children or his wife.

43. What do I draw from those broad legal principles? In this case, the father, who has been in person, has incurred minimal costs, but the mother has had the significant and effective assistance of solicitors and counsel. It has cost the taxpayer a sum approaching now six figures. The costs figure, as I say in December, was some £74,000.
44. Do I find that this case came about by unreasonable or reprehensible conduct of the parties? The short answer is overwhelmingly yes. It is clear that the conduct of the father, in my judgment at the instigation of the grandmother, who was the prime mover, has led so far to many days in court; 12 days of contested hearing (8 and 4) and a number of directions hearings.
45. Why should the taxpayer bear that burden? The grandmother and the father have failed to submit any evidence as to their financial circumstances despite a direction at the last hearing that they should do so. They are both in receipt of state benefits. The father has no current income of any substance and no capital. He has some modest debts.
46. When the grandmother last gave evidence before me in October last year, she was extremely clear about the ownership of her own property, and indeed how it had been acquired and funded. She told me about her house, and indeed how it had come about; a woman of modest means on income support, as she repeated again today. She was vague about the contributions to the house (having regard to all the evidence now, I am sure deliberately), but was clear that the house was hers, as the father and his sister confirmed. She told me that she purchased the house many years ago, that she lived there, and had reared her children there. She made it clear that together with the rearing of her family single handed it was an achievement. It will be necessary for a transcript of the grandmother's evidence to be obtained.
47. Today, for the first time, she told me in evidence that the property had been transferred into the sole name of a daughter. Initially she made clear to me that the transfer had occurred some years ago. It contradicted what she had told me in October last year. I was concerned about what she had told me and, therefore, required that both she and her daughter should give evidence. Meanwhile a Land Registry extract was then obtained by the mother's solicitors. The property was, in fact, transferred into the daughter's name in January of this year (2016). That is a matter to which I shall return in a moment. The grandmother's evidence was unsatisfactory. She was bluntly "blustering" in the witness box. It was perfectly clear that she had been "caught out". The daughter (a sister of the lady to whom the property was transferred) was hostile and unrepentant.
48. I am entirely satisfied that any transfer of the property was entirely as a result of this litigation. I am very mindful that any orders should not jeopardise the future relationship between the father and the children. I have already commented on the unbalanced and unequal dynamic of the relationship between the grandmother and her son. In allowing the parties time to prepare their arguments on costs since October last year, that was not to allow the grandmother to try to move assets from the Court's reach. The grandmother's conduct is as crass and unsophisticated as it is cynical and dishonest.
49. I am entirely clear that the grandmother, in particular, has not only just behaved unreasonably before these proceedings (in deliberately stranding, disposing of the mother) but during these proceedings she has also behaved reprehensibly. Her conduct in relation to her daughter-in-law and her granddaughter was cruel, and has not changed. It was sustained with a determined will. The family made sustained efforts to ensure that the mother would remain in Pakistan and never return. The family, once the mother came back to this country, have made every sustained effort to control and crush the mother.
50. I have experience from other cases where the family have had time and have, to a degree, moderated their approach, they have had time to reflect. That has not been so in this case. In my view, whilst the father has tried really quite hard to cooperate, I do not underestimate the enormous climb ahead of him, especially in the light of his mother's iron determination.
51. I am completely satisfied on the increasing body of evidence that the grandmother has been the prime mover. I am satisfied that this case has been entirely led by her trenchant behaviours and perspective. I am satisfied that it was her conduct that led to this disgraceful, extraordinary, mediaeval conduct. Her approach today in evidence was as obviously and self-evidently evasive and untruthful as it has been on previous occasions. As is clear, her evidence in the witness box today significantly contradicted what she said on important matters on previous occasions.
52. Is it fair and proportionate that I should consider making any order for costs? I see absolutely no reason why the taxpayer should, in fact, bear the burden of these costs when the grandmother's conduct has been so reprehensible, so unreasonable, so inimical to the welfare of these children. Indeed, the message needs to go out to all such families that, in circumstances such as this, disposing of a wife, stranding her in Pakistan will not be tolerated. The High Court of England and Wales will insist that the mothers and/or their children are returned to this jurisdiction, but the price may be a heavy one, for the family, condemned in costs. I see no reason why the family should not pay for the circumstances which their conduct has caused. Why on earth should the public pay for it?
53. Having regard to the father's circumstances and having regard to the way in which the father has endeavoured, it seems to me, to maintain an independent relationship, though so far failing to do so, I think, on balance, I should make no order for costs as against him. I am not sure that I am taking the right course, but it seems to me, having regard to everything that he has said and his undoubted confusion even when he was giving evidence yesterday (he being torn between his mother and his children), that, not without some hesitation, I take the view that, even now, any independence of thought which he has, is so far entirely suborned by his mother.
54. In respect of the grandmother, however, she bears the primary responsibility. I see no reason why she should not bear the burden of this case which she has caused and consistently orchestrated. In my judgement it is entirely reasonable that she should make some contribution towards the mother's publicly funded costs.
55. During the last few hours this afternoon, a new issue arose about the ownership of the grandmother's house (she having transferred ownership on the flimsiest of pretexts). Any order that I make is a matter which requires investigation. I take the view that the evidence that I have had before me demonstrates clearly active, recent and pressing activity to avoid the court's decision. It is a matter that the Legal Aid Agency will have to pursue, self-evidently, there will be further litigation; and it is entirely likely that that transaction will have to be set aside. I see no reason why the dishonesty, as it appears to be, of the grandmother is such that she or the family should benefit in these circumstances.
56. In addition, I propose to order a transcript of the proceedings, insofar as they relate to the grandmother, both previously and today. I shall require copies of my judgments and of the transcripts of the evidence to be sent to the Crown Prosecution Service for them to consider whether or not the grandmother should be investigated in relation to at least perjury.
57. In relation to the issue of costs, having considered the matter, I see no reason why the burden of costs should not be borne by the grandmother. In assessing the matter, acknowledging that the figure now will be significantly in excess of the bill submitted in December of last year, I make an order and assess it summarily at £70,000. That matter will be pursued by the Legal Aid Agency to determine in what circumstances, and how, the money will be obtained.
58. I shall list the matter for further directions before me in December at a date convenient to the parties. I shall make an order against the grandmother, whilst she is still a party, that she has no contact with her two grandchildren with whom I am concerned, and I discharge her as a party to these proceedings.
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