[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v M & Ors [2022] EWHC 81 (Fam) (11 March 2022) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2022/81.html Cite as: [2022] EWHC 81 (Fam)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/03/2022

The Hon Mrs Justice Judd :

1. This is a fact-finding hearing in a complex dispute which involves not only the parents of the relevant children, but also the local authority and one of the adult children, K. The minor children are all represented by their Children's Guardian. There are numerous applications before the court, and this judgment follows a fact-finding hearing which has taken place before me.

Background

2. The parents are both in their forties, the mother a few years younger than the father. They have been married for over twenty-five years and have had five children. The oldest two are adults, the next two are teenagers, and the youngest is under 10.
3. The family are all asylum seekers, fleeing a religious Sect.. The religion practiced within the sect is extreme. If they leave or try to leave and are discovered, the punishment for them is death. This is no fanciful threat, for the parties know of individuals who have been murdered in this way. In setting out these matters I make it clear I am relying not only upon the evidence of the parties themselves but also upon an expert report prepared by an organisation with knowledge of the sect.
4. Individuals in the sect are controlled by elders, and have little freedom. Men and women have no choice as to who they will marry, and girls are married very young. Girls are forced to undergo genital mutilation (female genital mutilation type 4) under the age of 10. Women are completely subjugated to men and, according to the mother, they are beaten when they do not meet the expectations of their husband or family.
5. The sect itself includes many influential and wealthy people, and men are encouraged to obtain good qualifications and jobs.
6. The mother and father had a forced marriage. In 2018, the family spent some time living away from the sect whilst the father worked. Whilst they were there, they were informed that the elders had decided that their 12 year old daughter should become the second wife of a man in his late twenties. They each say that they objected to this, as well as the impending genital mutilation (female genital mutilation) of their youngest daughter, then only 3 years old. In the circumstances, they decided that they should flee the sect. This they did in the early part of 2019, catching a flight to Gatwick where they claimed asylum on arrival.
7. The family were originally placed in hotel accommodation and then moved. In the summer of that year, the mother and children left the father to go to a secret location, after the mother and second son alleged he had been violent and abusive to them. The father has not had any contact, direct or indirect, with the children since that day. He applied for a child arrangements order (CAO).
8. In June 2020 the local authority in the area in which the mother and children were living applied for forced marriage protection orders (FMPOs) for the four youngest children. They also applied for a female genital mutilation protection Order (FGMPO) in respect of the youngest child. The mother made an application for a non-molestation order (NMO), and the second son made a similar application a short while later.
9. All the applications have been consolidated. Given the allegations, the case was first listed for a fact finding hearing.

Allegations

10. There are 27 allegations set out in the schedule. In the first 8, the local authority alleges that the children are at risk of forced marriage, and the youngest child is at risk of FGM because of the practices of the sect. The parents and K agree that this is the case. The local authority further alleges at 9 that the father is still under the influence of the sect and is not able to protect the children from the risks of forced marriage and female genital mutilation, an allegation with which the mother agrees but the father denies.
11. There are further allegations that the father adheres to the tenets of the sect, and that he has been violent and abusive to the mother and K. The mother says that she was regularly beaten by the father and his family, and that K was also regularly beaten and verbally abused by him, in order to humiliate and punish him. She says that he refused to seek treatment for his enuresis and also refused to let her stay in hospital with the girls when they were admitted.
12. The mother also alleges that the father raped her numerous times. She says that she was expected to do housework even when she was unwell or had suffered a miscarriage and that she and the girls would be punished if they did not come up to scratch.
13. The mother makes a number of specific allegations of violence by the father after the arrival of the family in the UK. She says that the father hit her when she intervened in an argument between father and one of the girls about her washing her hands. The mother says she was kicked in the stomach, partly strangled and that the father hit her head on the side of the bath, bruising her nose. She also said she sustained a large bruise on her hip. On another occasion she said that the father hit her in the face after an argument about breakfast.
14. On a further occasion the mother alleges that the father punched K in the face, causing reddening to the eye, when K intervened to protect her from the father. The mother alleges the father was verbally abusive and that he controlled the finances.
15. K himself makes allegations against the father, including the allegation above. Additionally he says that the father hit him on an additional occasion in the UK, slapping him across the face. He says that the father remains under the influence of the sect and that K is therefore at risk of being made to marry against his will.
16. The father accepts that K and the girls are at risk of forced marriage and the girls are at risk of female genital mutilation due to the beliefs of the sect, but not from him. He accepts that the sect is very patriarchal, and that the parties' marriage was a forced one. He accepts that the older girls have been subjected to female genital mutilation and that sect members hold positions of power, and that the family is at risk of so called honour based violence.
17. In response to the schedule of allegations, he firmly denies being under the influence of the sect, or remaining in contact with them still. He states that he continues to reject it and there is now a death sentence against him accordingly. He denies being violent to the mother or K. He accepts that he may have shouted, and that he may have pushed the mother on rare occasions. He denies raping her or telling her that he would bury her alive. He does not accept that members of the paternal family were violent to the mother.
18. The father states that he physically chastised K when he was badly behaved but denies beating or humiliating him. He said that he had taken K for medical treatment alone because only a man was permitted to do this within the rules of the sect. He says that the mother remained in hospital with one of the girls when she was admitted for appendicitis.
19. The father also denies allegations of ill treatment of the mother by making her do housework when recovering from miscarriages, or of the daughters by making them do the same amount of housework as a grown woman. He denies verbal abuse.

The law

20. In a fact-finding case the burden of proof lies upon the party making the allegations. The standard of proof is the balance of probabilities; Re B (Children)(Sexual Abuse: Standard of Proof) [2008] UKHL 35. Findings of fact must be based on evidence and not speculation; Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12:

"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."

21. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence; Re T [2004] EWCA Civ 558, [2004] 2 FLR 838.
22. The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them; Re W and another (Non-accidental injury) [2003] FCR 346, although it is also important to guard against an over-reliance upon demeanour in the witness box and in court.
23. These are private law proceedings, and there are risks to which the court must be alive because of the potential of a parent seeking to gain advantage in a battle against the other parent. This does not mean they are false, but it does increase the risk of misinterpretation, exaggeration, or downright fabrication; Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12.
24. It is common for witnesses to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything; R v Lucas [1981] QB 720. In Re H-C (Children) [2016] EWCA Civ 136 at paragraph [100], McFarlane LJ elaborated on the principle set out in R v Lucas (which required four conditions to be met before a lie could amount to corroboration) above–

"100. One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt".

25. In Lancashire County Council v C, M and F (Children; Fact Finding Hearing) [2014] EWFC 3, Peter Jackson J, said

" To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies.  They may arise for a number of reasons.  One possibility is of course that they are lies designed to hide culpability.  Another is that they are lies told for other reasons.  Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account.  The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others.  As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith".  These words echo the words of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 as to the fallibility of human recollection, and the limitations of human memory.

26. In Re H-N and Others (Children)(Domestic Abuse: Finding of Fact Hearings) [2021] EWCA 448 Civ the Court of Appeal set out guidance for the assessment and management of cases where domestic abuse is alleged, including patterns of coercive and controlling behaviour and the application of PD12J. Paragraph 3 of PD12J sets out the definition of these types of behaviour, and the court warned of the dangers of looking at allegations in an isolated way or in a vacuum. The harm that can be caused to children is set out in paragraph 31 of the judgment;

"The circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see 'Scott Schedules' at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:

i) Is directed against, or witnessed by, the child;

ii) Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;

iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;

iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men"

27. Controlling and coercive behaviour is a criminal offence; s76 Serious Crime Act 2015, but, as was emphasized in Re H-N , it is wrong for the family court to be drawn into analysis of factual evidence in children's proceedings which is based on criminal law principles and concepts. The court should consider how the parties behaved and what they did, and be aware of the potential psychological impact serious sexual assault may have on a party, and on their evidence. Behaviour which does not meet the test of rape may still be abusive.
28. I have also been referred to a number of cases relating to Forced Marriage Protection Orders and Female Genital Mutilation Protection Orders including Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 where Moylan LJ set out, amongst other things, a route map to judgment within an application for a FMPO which was in four stages. Stage one is for the court to establish the underlying facts based upon admissible evidence and by applying the civil standard of proof. The burden of proof is upon the applicant. Stage two, based on the facts that have been found, the court should determine whether or not the purpose identified in FLA 1996, s 63A(1) is established, namely that there is a need to protect a person from being forced into a marriage, or that person has been forced into a marriage. At stage three, based upon the facts found, the court must assess both the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. This is an important stage, and the court may be assisted by drawing up a balance sheet of the positives and negatives within the circumstances of the particular family in so far as they may relate to the potential for forced marriage. At the conclusion of stage three the court must explicitly consider whether or not the facts as found are sufficient to establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the Article 3 threshold. At stage four if the facts are sufficient to establish a risk that the subject will experience conduct sufficient to satisfy ECHR Article 3, the court must undertake the exercise of achieving an accommodation between the necessity of protecting the subject of the application from risk of harm under Article 3 and the need to respect their private and family life under Article 8, and, within that, respect for their autonomy. In undertaking the last stage, the court should have in mind the high degree of flexibility which is afforded to the court by the open wording of FLA 1996 s64A. The court should be encouraged to establish a bespoke order. The length of the order, breadth of the order and the elements within it should vary from case to case to reflect the particular factual context.

The evidence

29. This has been a very unusual case. In June 2021 I made rulings that some evidence should be withheld from the father and appointed a special advocate to represent his interests within a closed material procedure (CMP). That decision has been the subject of earlier closed and open judgments.
30. In the circumstances I have been provided with two sets of bundles, one closed and one which is open. The closed material is limited but I nonetheless concluded that the CMP should continue once all the open evidence had been received.
31. I have read all the documents in the bundle. I also heard evidence from the mother both in hearings which were open and closed to the father. The witnesses I heard were the social worker, the mother, K, and the father.

The expert report

32. The expert report was completed by a human rights group with a particular expertise in the region the family are from.. The author of the report isthe Executive Director, who prepared it from her own knowledge and from consultations with others.
33. The report states that the sect, is extremely closed, and that it is therefore difficult to obtain reliable information about it. Nonetheless, there are reliable indications that FGM is still carried out on young girls and even at times on older women. Forced marriage is practiced in the community and is imposed on both boys and girls. Marriage outside the sect is generally forbidden although exceptions for men are now becoming more common due to an increased frequency of babies being born with genetic abnormalities.
34. So far as domestic abuse within the sect is concerned, experts believe that women and children do not have any rights and that control over them is total. Psychological manipulation and coercion against women and children is common, as is physical abuse such as beating, slapping and whipping with belts. Physical violence is a common punishment for disobedience and depending on the circumstance could even extend to killing. There was no specific data on the prevalence of rape or sexual crimes. There is a 'mafia like' culture where men protect the reputation of other men and honour above all else.
35. It was reported that leaving the sect was punishable by death, and confirmed there was evidence of recent assassinations of men who wanted or tried to leave, including being shot in broad daylight. Obedience and loyalty to the sect is accomplished by forcing men to engage in illegal activities such as bribery, assault, extortion and even murder. Each member has their own "dossier" which will be released if he defects, which is another way in which the lives of those who leave will be destroyed. There was a unanimous view amongst experts in the area that a defector will have to be very careful for the rest of his (or her) life. Leaving the sect was thought to be much harder for women due to their lack of agency, and would be very difficult to accomplish without the help of their husbands. One expert considered a woman who left could be the subject of 'blood revenge' if she left with a child who was 'not properly looked after'.

The mother's evidence

The process

36. Given the allegations that have been made, PD12J, Part 3A and PD3AA apply, and I have given careful consideration to the mother's participation in the proceedings and the giving of her evidence. This hearing was initially listed to take place in the summer 2021, and in advance of that I held a ground rules hearing. I made a number of directions, including that the mother should give evidence over a video link, and that the father's legal team should provide a list of topics in advance. The father was to be able to sit in court and hear, but not see, the mother when she gave her evidence.
37. I had to adjourn the hearing in the summer because it was plainly not ready due to problems with disclosure and other matters. It was then relisted in January 2022. In November 2021 the teams for both the mother and the father applied for psychological assessments of each of their clients.
38. In support of the application on behalf of the mother, it was stated that her legal team were concerned about her emotional state and ability to give evidence. They wished the court to consider whether she should be assisted by an intermediary and whether further special measures were needed.
39. I granted the application. The expert, Dr. Jones was asked to provide a report by 31^st December and in advance of her full report to indicate whether the mother was likely to need an intermediary. This was arranged so that there would be time to secure the services of an intermediary if needed.
40. Dr. Jones informed the parties and the court in mid-December that she did consider the mother needed an intermediary. Arrangements were made, and the intermediary has attended and assisted both her and the court.
41. Dr. Jones' report, when it was filed on 31^st December, was far reaching in its recommendations. She stated that the mother was suffering from Complex post-traumatic stress disorder and a depressive disorder. She recommended that the mother should not give live evidence at all, and that she should be asked questions by an intermediary in a pre-recorded interview. She recommended that the mother should be asked questions by female rather than male professionals. Dr. Jones set out her concerns about the mother in great detail and stated in her report that she considered that the risk of suicide was a noteworthy potential outcome of cross examination.
42. As a result of the fact that the hearing was listed to start on 17^th January (and the intervening holiday period), this expert evidence came to the attention of the father's team (and indeed all the parties) only a few days before the hearing. The court and parties were informed that Dr. Jones was away and could not be contacted by any means, nor would she be available to give evidence to explain her conclusions in any way. Unfortunately she had not been informed in the instruction that she might be expected to be asked to give oral evidence, I think because the extent of her opinion and recommendations had not been anticipated.
43. This placed the court in some considerable difficulty. The father, already facing a hearing in which some material has not been disclosed to him, was now facing a hearing where extremely serious allegations were being made against him at the same time as being advised that the mother should not be questioned by his leading counsel, Barbara Connolly QC. The expert advising this was uncontactable and could not be asked any questions about the advice she had been given, or challenged at all.
44. It will be appreciated that the court has a duty of fairness to all the parties in this case. It also must have regard to Article 2 (right to life), Article 3 (not to be subjected to inhuman or degrading treatment) Article 8 (the right to respect for private and family life) and Article 6 (right to a fair trial). The thought that the mother might be placed at risk of suicide as a result of questioning was a terrible one, and weighed heavily. Set alongside this is the possible outcome of the case that the father should have absolutely no contact with his children at all, and that he should not know what they are doing or how they are.
45. In any event, there was no time for the mother's evidence to be pre-recorded and nobody could contemplate the trial being adjourned again. In those circumstances, Ms. Sally Stone QC and Dr. Proudman for the mother applied for the mother to be questioned by me alone, with questions provided by all the parties, including the father.
46. Ultimately I concluded that there was likely to be little difference between the questions being asked by myself and being asked by Ms Connolly QC, especially as I had asked, and Ms Connolly QC had agreed, that a neutral tone be used. I also asked her for a list of all the questions to be provided to me (not the other parties) in advance, albeit Ms Connolly QC was able to adapt questions to the answers that were given and to add new questions if necessary. I decided that it would also be easier for me to monitor the situation if I was to travel to the remote location where the mother gave her evidence, together with the mother and her own counsel, plus Ms Connolly QC so that we were all in the same room. The father and everyone else remained in London, but linked through a remote platform.
47. Those representing the mother also made an application for a female special advocate to be appointed, as junior to Mr. Ahmad QC, to ask questions of the mother in line with the recommendations of Dr. Jones. I concluded that, as this part of the evidence was going to be given with the mother in a remote location and Mr Ahmad in court, that this application should be refused. It would have been very difficult (and expensive) for another special advocate to be involved, and I took the view that if the mother found the questions too difficult, I would then ask them myself. There were not many questions involved.
48. These were not easy decisions to make, especially as Dr. Jones also opined that it would be very difficult for a lay person (including a Judge) to fully understand how the mother might manifest her distress and to manage it. In the absence of Dr. Jones being able to explain this more fully, and with some concern that she seemed to be going as far as to give an expert opinion about the mother's demeanour and how to assess her evidence, I came to my decision. The local authority, which has been extremely helpful throughout, together with the mother's legal team have made efforts to ensure that she has been as fully supported as possible outside the court process.
49. There were times when the mother did become very agitated during the course of her evidence, and on the first day we rose early because she was finding it so difficult. On the second day she managed much better, albeit there were times when she was very agitated again. Nonetheless, I came to the view that she was enabled to give evidence as well as reasonably possible. There were some areas which it was not possible for Ms Connolly to explore, or explore in full, and where that occurred she has been able to make full submissions, by reference to written material and the evidence of others.
50. I wish to make it clear that while I took into account the written evidence of Dr. Jones for the purposes of determining the extent of special measures, it has not played any part in my determination of the facts, or my assessment of the mother's evidence. Dr. Jones' report appeared to be predicated upon the truth of the mother's allegations and she also made some observations as to the reasons behind the mother's presentation or demeanour. Those were matters for me and not an expert, and in any event, for the reasons I have explained there was no opportunity for Dr. Jones' evidence to be challenged.

The evidence itself

51. For the most part the mother's oral evidence followed closely what she had said in her statements, namely that she had been the victim of emotional and physical abuse by her own father, as well as her husband and his family. At the very beginning of her evidence she became extremely agitated when speaking of being made to stand in the corner as a child, with her arms up in the air, for hours at a time as a punishment.
52. The mother's case of violence and ill treatment by the father was made in the context of the attitude of the sect into which they had both been born, where this type of treatment by men towards women (and sometimes children) appeared to be normalised. So too was forced marriage. Women were expected to be physically submissive to their husbands, whether they wished to have sex with them or not.
53. She gave a specific account of an occasion where she said the father had slapped her when she refused to get undressed – and said that thereafter she had never said no to him again. This evidence had not been given by the mother in any of her statements to the court. I was unclear why not. I have no difficulty in understanding that in a long relationship with many episodes some will remain forgotten for extensive periods of time, and sometimes remembered much later. This, however, was at an early stage of the marriage, and appeared to lead her to think thereafter that there was no point in saying no, for her wishes did not matter. I would have thought this would be a memorable event.
54. What the mother said time and again was that the father was never kind or loving, and that he humiliated them (meaning herself and the children). He beat the boys, verbally abused the girls and beat and slapped her. The mother hoped that once they had come to this country it would be different, but she said it was not. In fact the behaviour worsened.
55. The mother's evidence was that she repeatedly tried to appease the father and to calm the situation down when he lost his temper, for to do otherwise would be to risk further physical punishment. She said that they were both stressed when they arrived in the UK.
56. When asked about the father's motives for leaving the sect, and placing himself as well as the family in so much danger, she said that he found it particularly difficult that he had no say in the person that M was supposed to marry, and hence who became part of his own family. The mother considered that this, more than a general objection to forced marriage, motivated the father.
57. When cross examined about the specific incidents where she said that the father had been violent in England, on the occasion when K had gone to the police and also when there had been an argument about M's prayers, I considered that the mother's evidence was broadly consistent with her written evidence, her asylum statement and also with the social work records from conversations closer to the time. There were some differences, and some events mentioned in oral evidence which had not been mentioned elsewhere, but when recounting so many events over such an extended period of time I do not find this surprising.
58. She also gave compelling evidence as to how she felt the father had changed after he was taken to the police station, and that she was scared. She felt that he was still wedded to the ways of the sect because he followed many of the rules, for example not eating meat which had not been cut by a sect member, or the rule that women were not permitted to wear trousers or revealing clothes.
59. REDACTED
60. REDACTED
61. REDACTED
62. REDACTED
63. The mother's third statement included a number of WhatsApp messages that she said had been sent to her by the father in July 2019. They included the following ( these are not in chronological order);

"Did your sister advise you to send me to jail?"

"????"

"Answer!!"

"Do you hear me or not?"

"stop ignoring me!"

"You do everything to make me angry!! If this happens, you will suffer first"

"If I cannot write to you then you don't need a phone at all. If I see her it will be in the toilet!!!…."

"Did they guess that I had a knife?"

"You know, I already don't give a damn about anything"

" I will get this yes through your ass!"

"Can't you set the table and put all the children at the table? Is it needed to be like in a hostel or a prison???"

…

"When was the last time they ate a normal meal?

Other than scrambled eggs and potatoes?"

"you have no brain"

"….forced to cry on the stairs??? But it's because you INTENTIONALLY TURN THEM AGAINST ME!!"

"blocked again. Where did you come from, you such a scum".

64. The mother's emotional affect when giving evidence was quite unusual. She became extremely agitated at various points, especially on the first day of her evidence. This occurred when she gave details of ill treatment by the father, her own father, and others. She seemed to seek to give these details even when she had not been asked – in fact at a time when Ms Connolly QC had only asked the most general of questions. At times when she was most agitated her manner appeared detached so that she appeared almost trance-like.
65. On the second and third days the mother's evidence became somewhat calmer. The intermediary intervened on a few occasions to ensure that the questions were not overly complex, and the interpreter was familiar to the case.

K

66. K gave evidence over the video link from home, through an interpreter who was also working from a remote location. His evidence was seen by all in the courtroom save for the father who was asked to sit on the side of the court so he could hear but not see his son. There were breaks every hour or so. No further special measures had been sought.
67. K remained calm throughout his evidence, answering questions in a moderate way. He used terms that were similar to those used by his mother – for example he referred to his father humiliating him regularly as he grew up, and physically abusing him, sometimes in public. He said that the father had been more aggressive to him than his older brother. In answer to a question from me he said that he had also seen other children be hit in public by their parents. His account of the altercation which had led him to leave the home and go to the police was detailed and, I thought, consistent with accounts given elsewhere in the written statements and other documents. Such inconsistencies as there were (for example the contemporaneous note where he was said to have told the police his mother had told him to go to them) were minor and explicable either as a result of obvious language problems, trauma, or simple passage of time and the effect that would have had on the memory. They did not undermine the overall account.
68. K's evidence as to how he had wandered around the streets after he left and before going to the police station was, I thought, particularly compelling. He said that he was really frightened, especially when told by one of his sisters that his father had got a knife and was threatening to kill him and to send his body back. So too was what he said about not wishing to support a prosecution of his father, because he and his mother thought that it would only make their situation worse; he said "he was cruel to us all the time, and if he goes to prison, there might be repercussions when he gets out". He also gave this reason for telling the social worker at the time (when the father was in the next room) that he was happy at home and that the father had hit him by accident.
69. He, like the mother, considered that the father continued to adhere to the norms of the sect. He said that he thought that one of the father's reasons for leaving was that he did not want M to undergo forced marriage. He also believed that the father wanted to have more control over his wife and children.

The father

70. One thing that was very apparent from the evidence given by the father is how little he had been told about his family following the departure of the mother and children on 31^st July 2019. The grave concerns held by all the professionals meant that he was not informed that they were safe and well, or even that they had remained in this country. The father was never spoken to by any social worker assessing the family, or by the Children's Guardian. It meant that the father had no advice or support from anyone in this country apart from his language teacher, those he met at the Mosque and later, his own legal team.
71. During his evidence the father accepted that the rules of the sect were that women had to obey men and that beating, slapping and whipping with belts was common, albeit he did not seek to justify it. He denied beating K with metal sticks and wires as alleged by M but he did say that he had beaten him with a metal shoe horn when he had misbehaved, particularly he was said to have mistreated one of his younger siblings. Of this he said "I would not consider it as a beating It was done to calm the other children down. He would also have fun about it and laugh if I did it". He denied being abusive to the girls.
72. As to being violent to the mother he said that he had slapped her a few times on her face, not because he wanted to do so but because he did not have a choice. This was because, as a man, he was expected to keep his wife under control otherwise the elders would become involved. The mother, he said, had fallen out with his mother. He also agreed that he had pushed the mother on occasion.
73. He did not accept that he had ever raped the mother.
74. He denied the allegations of violence to the mother or K in England, saying that K had come and stood face to face with him in the course of an argument between the parents, and that he had pushed him. He said that he had been very disappointed because the mother had thrown some money at him £35 – saying 'this is your money', and that he had been disappointed because they had never argued about money before. The father said that K was a victim of the situation – not just in relation to the argument, but also by being drawn into these proceedings. He completely denied issuing any threat about killing K then or at any time.
75. The father did say that he found the mother's behaviour in contradicting him in front of M in relation to the occasion when he queried whether she had washed before praying to be humiliating, and that he was concerned about the fact that she had stopped praying and fasting, and wondered whether she was being influenced by her sister.
76. The father completely denied being in touch with the sect at all, or spreading any rumours about the family. He said that he had had a conversation with his brother in law in England, but shared information about the mother leaving him only because his brother in law was in exactly the same position. He said on more than one occasion that if he was to go back to the sect, or the sect was to find him, what awaited him would be a shameful death. He agreed that the fact that his wife had left him was a matter for personal shame for him, and pointed out that this fact was something he would not be keen to share with anyone anyway. He said on more than one occasion that he did not matter to the sect at all; what matters to them is honour, as he described it "which is with blood".
77. He was asked a number of questions by Ms Weston QC on behalf of the local authority and by Dr. Jackson for the children as to how he had been able to fund the litigation before he obtained legal aid, and also as to how it came about that he had said the mother had changed her name.
78. There were a number of inconsistencies in the father's evidence, particularly relating to what he said about hitting K, and also the mother. In his response to the schedule he denied he had used violence against the mother (save for pushing), and it was not until the most recent statement that he had admitted slapping her. In his first statement he denied using violence against the children. In the third he admitted to one occasion of hitting K for being badly behaved. In his oral evidence, however, he mentioned hitting K with the metal shoe horn for the first time. On the first day he gave evidence he said he himself had been hit with a belt, but on the second day he denied it.
79. The father completely denied sending the WhatsApp messages as attached to the mother's statement, saying that he had not even seen them until just before the hearing.
80. The father came across as an extremely sad, if not broken, man during the course of his evidence. I do not find it particularly surprising that a man in his situation might forget some aspects of his evidence, and find concentration on the material in the proceedings difficult especially as it is so painful. I do think, however, that his evidence about violence to the family, particularly the mother and K, was very confused, and that this was because he was trying (in varying degrees and in various ways) to minimise and deny what had happened.

Discussion

81. At the very heart of this case is the background of this family within the sect. Everything that is said by the parents, and corroborated by the expert report demonstrates the cruelty and violence of the society in which both of these parents grew up. The family did spend some time away from their home base, and the schools the children attended appeared to have some non-sect pupils, but apart from this, they appear to have had very little exposure before coming to this country to the life outside. This meant, to both the mother and father, and then the children, that they grew up in a world where violence to women and children was frequent and entirely normal. The victims of this were usually women and children, but it is obvious to me that such an environment is very harmful to men as well. They are expected to keep their wives and families under control, or to suffer the consequences. The mother experienced this in her own childhood, and so it seems did the father. The mother said in her written evidence that cruelty was normalised within the sect.
82. The way in which men and women were expected to behave affected all their relationships. It is in this context that the allegations of violence and abuse against the father are made, although I make it clear that in coming to my conclusions I have relied upon the evidence from and about these parties and this family.
83. When analysing this evidence I must at the very beginning acknowledge the difficulties faced by Ms Connolly QC and Ms Guha on behalf of the father in challenging the mother's evidence. A number of documents were only disclosed into the proceedings at a late stage. Although Ms Connolly QC was able to ask questions, the manner in which she had to do so was significantly circumscribed. At my request she provided her intended questions in advance. Although she was able to expand on some of these, she was not able to mount the sort of challenge that would be expected in a forensic exercise of this sort. At various points when she was answering questions the mother became extremely agitated, even though Ms Connolly QC adopted a neutral tone and was careful in the way she approached matters in accordance with my rulings. There were significant parts of the case involving allegations of rape and violence that she was not able to put to the witness at all because she became so agitated and anxious. I have taken all this into account in coming to my conclusions.
84. Fortunately, K was able to give evidence about the events within his knowledge and to be challenged about them which has assisted me in my deliberations. I have also been able to look at the accounts of various incidents given at different times and compare them alongside what the father has said.

Allegations of physical and verbal violence

85. Taking into account all the evidence, I have come to the conclusion that in the years before they came to the UK, the mother was regularly verbally abused, slapped and sometimes beaten by the father. In the sect, he was expected to treat his wife as his property and keep her under control. There is an overall consistency to the mother's allegations, and they are corroborated by K. In the records, the younger children have given accounts which are supportive of that evidence as well. Whilst I acknowledge the limitations of evidence from social services records which is untested and that it is possible for a false narrative to have developed within the family, it would not be easy for this to be sustained over a number of visits and discussions with different professionals. Added to this, the father's evidence about this has been inconsistent. He has at some points denied using any physical violence and at other times accepted that he had. In his oral evidence he attributed this to his psychological state which made it difficult for him to think properly. Whilst I am sure that he has been under severe stress as a result of everything that has been going on, I do not accept this was the reason for the inconsistencies, or failure to mention some things until a late stage (for example slapping the mother until January of this year, or hitting K with an implement until this hearing). He has had time to think about these things, and has had the benefit of solicitors for some time now.
86. I also accept K's evidence that he was regularly beaten by his father and also verbally abused by him. The father's evidence about this has also been very inconsistent. At some points he has denied violence, only to admit it later. For example in his oral evidence he admitted hitting K with a metal shoe horn for the first time, albeit saying that K used to laugh when it happened. The father clearly had some problems with K, and found his behaviour frustrating. He acknowledged this to an extent in his oral evidence when he said that K would not behave well towards his younger siblings and also, on occasion, with other children at school. He said that this was why he had hit him but he denied the allegations against him otherwise. I consider that he was minimising his behaviour towards K and accept that in addition to hitting him would call him names such as 'invalid', 'dumb' and stupid' when he became angry and frustrated. It seems from the evidence overall that the father's treatment of K was different to that of the other children. I accept that he became angry, shouted at them and occasionally hit them, but the relationships with them were better.
87. I also accept the evidence of the mother and K about the events that took place after their arrival in this country. K's evidence in particular as to the events of 13^th June when he was attacked by the father after intervening in an argument between his parents is particularly vivid. He described how he left the home in fear and wandered the streets for a while before going to the police station. For a young man to go and report his father to the police in a still unfamiliar country is a striking thing to do. I have concluded he did that because he was so frightened about what had happened, and particularly so when he was told by his sister that the father was threatening to kill him. Ms Connolly QC is right to point out that there are inconsistencies surrounding the account of the father having a knife, and indeed that no knife was ever found, but the evidence of the father's behaviour including threats to kill is compelling. There are also some discrepancies in what K was recorded as saying to the police, but it is clear that there was no interpreter present at the police station, and he was doing his best to make himself understood. These events not only terrified the mother and K but the younger children too. The social worker was able to see how frightened the mother was, and it is not difficult to understand why both she and K were concerned at the consequences of speaking openly and pressing a criminal complaint. The social work records recount that the father, when spoken to alone, said that he understood the seriousness of his action and would like a psychology report to help him deal with his anger and help him to change. In his evidence in these proceedings the father said that his words had been misunderstood and that all he had meant to convey was that if they were so worried about him, they should have him assessed, but I do not accept this was so. The comment by the father to the social worker was very telling and fits to an extent with the father's presentation in court, where, despite denying and minimising the allegations of violence, I thought he also showed some signs of remorse.

88. Having accepted the evidence of the mother and K about the events of 13^th June, I turn to consider the incident where the father raised concerns as to whether M had washed properly before praying, which took place at an earlier date. The father's evidence about this demonstrated how humiliating he found it for his wife to challenge him in front of his daughter; "I wanted to talk to her about not humiliating me in front of the children…this is something I never do. I never exposed her in that light in front of the children". In the Sect t was unthinkable for a wife to challenge her husband's authority, especially in front of the children. The father in denying any physical violence on that occasion stated that "I definitely did not beat her up, if I did, I would remember" and "I don't think I even hit her because it would be possible to check". He stated on several occasions it would be possible to check the mother's account that she used make up to hide the bruising on her face by looking at what items they had brought into the country with them or checking the hotel's CCTV. In their written submissions, Ms Connolly QC and Ms Guha point out that the family were staying in a hotel at that point in time, and so third parties might be expected to see the bruising.

88. The mother's evidence about this incident in her asylum statement and statements for these proceedings, was detailed. In his evidence, K did not say that he witnessed the father beating the mother on this occasion, but he did say he saw the bruising and that the mother had a swollen nose. I accept the mother's evidence that she was able to cover it up so that other guests in the hotel did not notice it. I also note that M gave an account to the social worker about that even a few months later, in October 2019. She has not been formally interviewed about this, and I acknowledge that what she said could have been very much influenced by hearing others speak of it, including her mother and K. I have not heard from that social worker at all and so must be careful about the weight given to such statements but there is significance in the fact that M is said to have cried when spoken to and said that she was very scared of her father.
89. I have come to the conclusion that on this occasion that the father, no doubt as a result of feeling humiliated and under stress, became enraged and physically attacked the mother, causing her to sustain injuries to her face and hip. K described his father as having mood swings, and this was a frightening example.
90. There is another occasion when the father is alleged to have become irrationally enraged and abusive when he perceived that the mother was excluding him by taking the family down to breakfast. This is further example of a sudden outburst of temper and I accept that this happened as well, even if the mother did not mention it immediately when questioned.
91. The tone of the WhatsApp messages demonstrate the father's underlying frustration and anger. He denied having ever sent them, or even seeing them before the start of the trial. They were filed and served by the mother many months ago, without any response or comment from the father's team, who would have been in a position to seek further evidence about them had they wished to do so. There is no identifying information from the messages themselves, but there are only two explanations for them, either that the father sent them, or they have been fabricated. If it was the latter, it is very unlikely they would have included references to mundane matters such what the children had had to eat. I do not think that fabrication is likely. The messages are a clear illustration of the way the father communicated with the mother at such times.

Allegations of rape

92. The evidence about these allegations was general rather than specific. In the mother's third statement she said that she was not allowed to practice safe sex and that she was not allowed to say no is she did not want to have sex. In her asylum application she said "Closeness was an unbearable part of life for me, but all the years of living together with my husband, I did not dare to tell him that for me intimacy is torment because I understood that this would aggravate further my life which was already so difficult".
93. In her oral evidence in chief, the mother for the first time gave an account of an occasion where she said she had refused to allow the father to undress her and that he had slapped her. After this she said she had never said no to him again. She said that he always knew she did not enjoy sex.
94. I do not know why the mother never mentioned this anywhere in any of her statements. I appreciate that some incidents do not come to mind easily when there is a long history of trauma, but the way she recounted it suggests it was shortly after the marriage and it might therefore have stood out. It is the only specific example she has given of the father becoming angry with her when she did not want sex, and it appears he did not force himself upon her at that point. It was an area of the evidence that it was impossible for Ms Connolly QC to explore given the mother's level of anxiety and agitation.
95. Having considered the evidence as a whole, and in the light of the difficulties in relation the evidence surrounding this particular aspect of the case, I am not satisfied on the balance of probabilities that the father raped the mother. I bear in mind that a judge should be careful of being drawn into criminal law principles concepts within a family case. I do, however, find the following:-

(a) It was an expectation of the sect that women were expected to submit to having sex with their husbands;

(b) Both parties were brought up within this sect;

(c) As a result of the way she had been brought up the mother did not believe she could refuse to have sex with the father;

(d) There were occasions when the mother did object to having sex but did not tell the father because she did not wish to make her life more difficult.

Other allegations

96. There are a number of allegations which are said to be examples of what is said to be the cruel way in which this mother and the children were treated generally by the father, in accordance with what was expected by the norms of the sect . These included the father not permitting the mother to stay in hospital with M or M when they were 18 months and 11 years respectively, that she was made to do housework even when she had suffered miscarriages and had not recovered, that she and the older girls were expected to do housework to an exemplary standard on pain of being punished and humiliated. The mother was treated in the same way by her own father, as well as her in-laws, particularly her mother in law.
97. The evidence as to whether or not the mother was permitted to stay in hospital with the children is somewhat muddled from both the mother and the father, and I find myself unclear as to what really happened. What I accept is that decisions about such things were made by men not women and so the mother did not have the freedom to make her own choice about this and stay with her children as and when she wanted.
98. I do accept that the mother was forced to do housework when she was unfit and unwell, and that the older girls were expected to do housework to an exemplary standard even when young. This treatment was not solely at the hands of the father but is an example of the abusive treatment of women and children by the members of the sect. In his evidence the father referred 'a good bride', getting up before everyone else, cleaning, cooking, welcoming guests, and acknowledged that these were examples of women in general being ill-treated in the home, albeit he did not acknowledge doing this himself.

The influence of the sect

99. Both the mother and K have alleged that the father is still under the influence of the sect.
100. REDACTED
101. The mother and K have also given evidence in open that the father adheres to the values of the sect by not permitting them to eat meat which was not cut by a member of the sect, and by requiring them to pray five times a day, being very concerned about what the girls were wearing, and by accusing the mother of wearing jewellery.
102. REDACTED
103. REDACTED
104. REDACTED
105. The evidence from the mother and K about the father's adherence to rules around the eating of meat, dress and prayer demonstrates his continuing adherence to a strict or conservative version of the Islamic faith, but there are many individuals in this country who do this. A wish to leave the sect does not of itself mean a wish to jettison every belief. Indeed it does not surprise me that the father would continue to hold some conservative views. Given the life he had come from I consider he did find it difficult that his wife and son would not obey him as they had been expected to do, that they might wish or expect to be independent, or that his daughters might wish to wear more western clothing. Likewise he was suspicious of the provenance of the meat which was available to the family. I consider that the father's behaviour demonstrates that, like a number of other people in this country, he still followed (and follows) a conservative version of Islam and expected his family to do so, but not that this meant he was still involved with the sect. I am puzzled by the reliance upon the father being in contact with A's ex-husband when the mother was also in touch with A, something that caused anxiety and conflict. That the father, left by his family and apparently alone in the world should communicate some of what happened to a man who he believed had left the sect and also been left by his wife is not particularly surprising, even if there had been rumours in the past of the man's links with the police
106. The father was cross examined in some detail as to how he had obtained money to be represented in the proceedings before he obtained public funding. He explained that he had been given financial assistance by his teacher and as a result of working at the Mosque and added that he had also had to represent himself. I do not consider that his ability to be represented for two hearings and to issue an application is evidence that he was being supported in some way by the sect. Indeed the evidence is that the sect and family members are very wealthy, and if that was so I do not understand why he represented himself at all. He also gave a plausible explanation as to why he said the mother had changed her surname, as he had seen a different surname on one of the court documents. Given the background of danger from the sect, a change of name would not be surprising anyway.
107. Looking at the case as a whole, there is little in the way of evidence as to why the father would gravitate back to or get in touch with members of the sect. In leaving it, he and the mother took an extremely serious risk that they would be murdered if traced and found, as has happened to others. Neither the mother or father is aware of anyone who has left the sect and returned alive, or even gave evidence of anyone who was rumoured to have done so. On the evidence before me, the father would put himself at grave risk of being murdered if he resumed contact. [REDACTED SENTENCE]. It would be possible to construct a scenario whereby he was being blackmailed, or where he would be prepared to enter into a bargain to save his own life for that of his wife and/or his sons, or that he wishes to restore his honour in some way but all this is highly speculative. In a case such as this nothing can be ruled out, but I do not consider it likely. On more than one occasion the father said that all that awaits him if he returned was a shameful death. Although I have found that he has a violent and dangerous temper, when giving his evidence the father came across as a desperately sad, if not broken, man albeit I am alive to the risks of placing too much reliance upon demeanour. There is evidence that he sought to try and find out where his family had disappeared in the weeks after they left, but this was not beyond anything that would be expected in such a situation. There is no evidence of any recent attempt to locate them.
108. On the balance of probabilities, therefore, I am not satisfied that the father remains in touch with the sect. Nonetheless, given the ruthlessness of the sect as described in the report, and the consequences of being found, I am sure that the mother and father are both very frightened about this and fear betrayal from any source including each other. This fear is likely to have a significant impact upon them.

Forced marriage and Female Genital Mutilation

109. I have found on the balance of probabilities that the father is not in touch with the sect, but the question as to whether he still supports the forced marriage of any of his children or female genital mutilation for his youngest daughter still remains. The mother's case was that he did not object to forced marriage per se, but to the particular marriage arranged for M. This was disputed by the father.
110. When K was asked about his father forcing him into marriage he answered 'it is not my father actually it is the sect who is doing that'. He said his father could not do anything against the sect, and only when pressed agreed that his father would punish him if he did not follow sect rules. He said that his father had told him that they were escaping the sect to prevent M's forced marriage and female genital mutilation for his youngest sister, and then added 'we ran for that reason but it wasn't just one, but more reasons. He wanted to have more control over his children and wife'.
111. In my judgment, K's evidence was correct, in that there were several reasons for the father to want to leave the sect, of which avoiding female genital mutilation and forced marriage were a part. I accept that having more control over his own life and that of his family were another part. There is no reliable evidence that the father has been involved in seeking husbands or wives for his children, or that he personally believes in female genital mutilation. In her asylum statement the mother described the father as being a neutral person, who adhered to all the laws and regulations of the sect but was not a fanatical follower. She said that she had persuaded him that they should leave and he agreed with her. She said that they had both agreed they should leave before June 2019 because that was the date set for K's circumcision.
112. The mother's own evidence shows that the father was not a fanatical follower of the rules of the sect. Whilst his arrival in this country did not transform his attitudes to his family and religion wholesale, and he became angry and aggressive when he felt that certain observances were not being followed, I do not find that this extends to forcing any of the children into marriage or allowing K to undergo female genital mutilation whilst they are living in this country, nor to trying to remove them from the jurisdiction to do so. If the family remained living within the sect or were forced to return, then I accept he would not be able to prevent it.

Conclusions

113. Both the parents agree and I accept that the allegations 1 to 8 of the schedule are made out and I so find.
114. As to the further allegations I find as follows:-

10 – the father has used violence against the mother and K.

11 - this is not pleaded as a proper finding; I do not find the father is in contact with members of the sect

12 – I make this finding

13 – I make this finding without making the findings as to the father's motives.

14 – I make the general finding that the rules of the sect did not enable the mother to seek medical assistance, and that the father called K abusive names on occasion

15 As above

16 – I make the findings as set out in the body of the judgment, but not that the father raped the mother

17 I make this finding

18 I make the finding about the girls and that the father would be angry if they did not do the work to a sufficiently high standard

19 I make this finding

20 I make this finding save to say that the mother suffered from bruising and a swollen nose

21 I make this finding

22 I do not make this finding.

23 I make this finding

24 I make this finding although it is not strictly separate from 23

25 I do not make this finding

26 I make this finding

27 I make this finding.

115. I should make it clear at this point I have made no findings adverse to the father based on the closed evidence.
116. The findings above demonstrate that the father engaged in a pattern of violent and abusive behaviour which caused the mother and the children harm, and led them to be frightened of him, and of disobeying him.
117. This is an utterly tragic case. The mother is left with severe trauma as a result of her experiences, following long term abuse and ill treatment not only from the father but from her own family. The father is a victim of violent treatment too when young. He has known nothing but a life where men are admired for being brutal and violent. He was not able to change his ways when he arrived in the UK or to adapt to the enormous difference in the society around him. I do think he loves his children and has had some good times with the girls in particular. I believed him when he said he still has feelings for his wife. He has, however, been unable to treat the mother or children properly and has demonstrated a violent and uncontrollable temper when his authority was challenged or he felt slighted and ignored. Even after they arrived in this country he hurt the mother and K and terrified the whole family. As a consequence he has lost all that he had after leaving the sect.

Orders

FMP and FGMP orders

118. I am asked to make orders protecting the children and K and naming the father as the respondent. Given my conclusions as set out above, plus the fact that the father has no contact with his family and does not even know where they are, I do not find that he is the current source of the risk of forced marriage or female genital mutilation. Such risk is from members of the sect, who might wish to try and trace the family and force them back to the Sect. Forcing marriage on any of the children or female genital mutilation upon K would nonetheless amount to degrading treatment within the meaning of Article 3 ECHR and so I would welcome further submissions from the parties as to whether and if so, how, protective orders can be made if it is not possible to name specific respondents.

Non-molestation orders

119. Although the father does not know where either the mother or K are living, given my findings as to his abuse and violence towards them, I consider that I should make non-molestation orders as sought as I believe it will provide some reassurance to them both, and thereby assist in securing their health, safety and wellbeing. I will hear further submissions as to their duration.

Child Arrangement Orders

120. Having made these findings, the question arises as to the next stage so far as this application is concerned. Once the parties have been able to consider the judgment there should be a further hearing to consider the way forward.
121. I wish to extend my gratitude to all leading and junior counsel who assisted me greatly in this difficult case. They have each provided me with written and oral submissions of the highest order from the respective positions of each of their clients, including Mr. Ahmad QC who acted as special advocate.