Our new partner, Jeremy Ford, brings to Cambridge Family Law Practice his experience in international family law. Earlier this year, Jeremy, at short notice, represented the children in a fact finding hearing in the High Court which tested the jurisdictional capacity of English law and which considered the best interests of four siblings who had been brought up in different jurisdictions. This case was reported as M v F & Ors  EWHC 1720 (Fam) (16 February 2018) and is a good example of how the court addressed the issue of a litigant in person, who was an alleged perpetrator, from cross examining his wife, who was the alleged victim.
On 24th October 2017, the mother applied without notice for wardship orders in respect of her four children. The mother alleged that she has been stranded by the father in Pakistan in August 2017.
By way of background, on August 4th 2017 the mother and the father flew to Pakistan. For the father the main reason for visiting was that his own father was very seriously ill. The mother travelled with him. Their three children remained in England, whilst the youngest and fourth child (N) was being looked after in Pakistan by the maternal family. The father returned to England on 19th August 2017. The mother did not. Her case was that the father deliberately left her behind with her family and N, returning to the UK with her passport and visa and thus stranded her in Pakistan and separated her from the three children in England. As a result, she issued an application to be re-united with her 3 children in England. The revised Family Procedure Rules Practice Direction 12J, which came into force on 2 October 2017, includes within the definition of ‘domestic abuse’, the issue of transnational marriage abandonment.
At the first hearing the father was represented and he drew the courts attention to the fact that a DNA test had shown that he was not N’s father. This called into question the court’s jurisdiction over N as she was not present in England, she was not a British citizen nor was she entitled to British citizenship and, having never been present in England, there was an issue over whether she could be habitually resident in the UK.
The father denied that he had stranded the mother in Pakistan; alleging that she had returned to see N and whilst in Pakistan had said she wanted to divorce him and stay and marry N’s father. He said the mother had retained her passport and visa. The mother in turn said the DNA test was wrong and asserted that the father was indeed N’s father and that the court had jurisdiction over her under the ‘parens patriae‘ jurisdiction because if she was the father’s daughter she would be entitled to British citizenship and thus the court could make an order for her return to the UK. Thus, in accordance with FPR PD 12J § 16 and 17 a fact-finding hearing was listed.
In December 2017, the children were joined as parties to the application itself. The Guardian was invited to consider being represented throughout the fact-finding hearing because the children had disclosed information to the guardian which needed to be forensically tested in court and secondly because the father’s application for legal aid was rejected on ‘means’ and thus he became a Litigant in Person. As a result, it would have required the father to cross-examine the mother in respect of allegations she had made both of being stranded but also of coercive and controlling behaviour and physical and verbal abuse.
In Sir James Munby’s ‘View from the President’s Chambers (2016): Children and Vulnerable Witnesses: where are we?’, he highlighted the Women’s Aid Publication, ‘Nineteen Child Homicides’, which states: “Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.”
The revised FPR PD12J at § 10 and 28 requires the court to consider in such circumstances how an alleged victim may best be allowed to participate and recognises that the court may be required to put matters or to question an alleged victim or alleged perpetrator. In this case, the Guardian conducted the testing of the factual evidence through legal representation as, when the father became a Litigant in Person some 3 days before the fact-finding hearing commenced, Jeremy Ford was instructed to cross examine both the mother and the father and therefore the need for the father to cross-examine extensively or for the court to do so was largely avoided. This approach was endorsed by Mr Justice Hayden in PS v BP  EWHC 1987 (Fam) 27 July 2018 where His Lordship set out useful observations to assist Judges and the profession when this unsatisfactory position arises.
Following Jeremy’s questioning, the court found that the father had stranded the mother in Pakistan. The Judge, Mr Justice Williams, concluded that the father wanted her to forget about N and to concentrate on their three children and to try to build a life in England and put N behind them. Having N in their lives would have been too great an emotional strain for him to bear – a constant reminder of her infidelity and his shame. The mother, however – not surprisingly could not put N aside. The father therefore left her in Pakistan, removed her passport and wrote to the Home office to hinder her ability to return. He had decided to separate her from the 3 children in England. It was also established that after the mother was abandoned in Pakistan, the father refused to let her have contact with the children and had falsely led the mother to believe that an application to bring N to England would be made.
The Court, having seen the DNA evidence was clear that the Father was not biologically related to N.
The Court drew conclusions about both parents. It recognised that the father, in particular, had acted in ways which had serious consequences for the children – separating them from their mother, distancing them from her and their half-sister both physically and emotionally. The Court found that he put his needs before the needs of the children. The atmosphere in the father’s household and wider circle was one which was either very hostile to the mother or where she was viewed as a non-person. The children were aware of this and had adopted this approach to her.
The court went on to find that both of the parents had been seriously dishonest in the accounts they offered to the court, both orally and in writing. The mother’s suppression of the truth in her first statement was a very serious instance of dishonesty, in seeking to hide DNA evidence which she was aware would be relevant to the court’s decision-making. The father’s denial of the events of August 2017, and construction of an alternative and false account, was also seriously dishonest.
The Court found that it had no jurisdiction over the fourth child, resident in Pakistan, and therefore the wardship order had to be discharged. The court also found that the father had deliberately stranded the mother in Pakistan, thus separating her from her three children who were in England.
If you have any questions about international family law or any other family law matter, you can call 01223 443333 and ask to make an appointment to speak with Tricia, Adam, Sue, Simon, Gail or Jeremy.