FJ v MH (no 1) (private law – fact finding) [2025] EWFC 282

IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.The draft judgment was circulated by email to the parties on 26 February 2025. The approved judgment was handed down to the parties at 10.00 a.m. on Monday 10 March 2025FJ v MH (no 1) (private law – fact finding)[2025] EWFC 282
IN THE FAMILY COURT SITTING AT OXFORD
Date 10 March 2025
IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1996 PART IV AND IN THE MATTER OF PART 1 OF SCHEDULE 2 OF THE FEMALE GENITAL MUTILATION ACT 2003
AND IN THE MATTER OF E, F and G
Before : HHJ Vincent sitting as a s9 Deputy High Court Judge
FJApplicant fatherMHRespondent motherThe applicant father represented himself, with assistance from a Qualified Legal Representative (QLR) Ms Tariq
Between
FJApplicantApplicant fatherApplicantMHRespondentRespondent motherRespondentThe applicant father represented himself, with assistance from a Qualified Legal Representative (QLR) Ms TariqRespondentMs Lucy Logan Green for respondent mother, instructed by Lyons Davidson solicitorsDates of hearing: 10, 11, 12 February 2025APPROVED JUDGMENTThis case is linked to FJ v MH (no 2) (private law – welfare following fact finding)[2025] EWFC 283

Introduction

[1]The parties are parents to three daughters, aged twelve, eleven and nine, referred in this judgment as E, F and G.[2]The children’s father is fifty-nine. He was born in [Country A] but has lived in England for nearly twenty-five years.[3]The children’s mother is thirty-seven. She was born in [Country B] and lived there until she was twenty-one. She met the father in [Country B] in 2010. Following their marriage in March 2011 she moved to England to live with him. E was born in October 2012, F in December 2013 and G in October 2015.[4]The parties first separated in 2018. The mother moved into a refuge with the children for three months before returning to the father. In November 2020 the parties separated again. The mother travelled to [Country B] with the children (with the father’s permission) intending to stay there for a few months. In December 2020 the father made a report to the police raising concerns of FGM (female genital mutilation) and abduction. The mother and children came back to England. Upon their return they moved into another refuge where they stayed until September 2021, when they again returned to the father. The parties finally separated in the summer of 2022. The mother and children moved to a third refuge in July 2022. They remain living there.[5]These proceedings commenced on 22 July 2022 when the father issued applications for:(i) a child arrangements order for the children to spend time with him over the weekends, and to permit him to take them to activities connected to his religion, culture and heritage. Both mother and father are Muslim and have raised their daughters in their faith;(ii) prohibited steps orders preventing the mother from relocating with the children away from [the county where the family had lived together];(iii) prohibited steps orders preventing the mother from leaving the jurisdiction without father’s permission, alleging that the girls were at risk of FGM and of being permanently removed from the jurisdiction by their mother.[6]At the first hearing on 11 October 2022 the mother was deemed to apply for a child arrangements order providing that the children live with her, and a specific issue order allowing her to travel to [Country B] with the children for a holiday.[7]The mother was directed to set out her allegations of domestic abuse in a schedule. The mother was to make the children available for video contact with their father once a week and he was to write to them once a week.[8]In summary the father alleges that the mother comes from a culture where FGM is common and that if she were allowed to take the children to [Country B] they would be likely to be subjected to the practice.[9]The mother raises allegations of domestic abuse including physical abuse of the children, and coercive and controlling behaviour towards her, both during the marriage and after separation. She alleges that the application for FGM protection orders are an attempt to use the family court litigation as a further means of control. The father denies the allegations. He has made cross-allegations that the mother had been aggressive and abusive to him, and that she had tried to poison him with rat poison. These allegations are denied.[10]On 23 December 2022 the parties agreed that there should be an order providing for the children to live with their mother. The issues for the Court to determine related to the arrangements for the children to spend time with the father including when and if contact should progress to face to face contact, whether contact should be supervised, and the level of contact there should be.[11]On 13 January 2023 the father made a formal application for FGM protection orders in addition to the prohibited steps order already applied for. He asked for the children’s passports to be surrendered to him. He filed a witness statement in support of his application.[12]The proceedings were allocated to HHJ Moradifar sitting as a s9 judge of the High Court. At a hearing on 24 March 2023 he made interim prohibited steps orders and FGM protective orders by agreement of both parties. Directions were made for the father to have supervised contact with the children every fortnight.[13]At a hearing on 21 July 2023 HHJ Tolson KC determined that the allegations of domestic abuse could be dealt with at the same time as all issues in the case at a final hearing, listed to take place on 12 and 13 October 2023. Contact was to continue to be supervised, but it was directed that the children and the father could leave the contact centre and spend time in the community, with the contact continuing to be supervised.[14]The hearing on 12 October 2023 was adjourned because the parties were not called on until the afternoon of the first day. Both parties agreed there was not enough time to conclude the case in the time allocated. HHJ Tolson directed that the fortnightly contact could move from supervised to supported. The father had been legally represented up to this point, but indicated he would be acting in person from then on. Directions were then made for a fact-finding hearing to take place on 7 and 8 March 2024 with the court to consider the necessity of a further hearing thereafter.[15]The hearing on 7 March 2024 was ineffective because, despite it being directed in October, the Court had not been able to appoint a QLR for the father. The hearing was further adjourned to 27 and 28 July 2024.[16]HHJ Tolson directed that in the interim contact could progress to four hours every other week and could be unsupervised.[17]The mother appealed the order in respect of interim contact. The Court of Appeal stayed the order. Following a hearing on 23 July 2024 the appeal was allowed. The fact finding hearing listed for 25 and 26 July 2024 was vacated, and the case remitted.[18]I first met the parties on 2 September 2024. Having heard submissions from the parties, I made directions for a fact-finding hearing in October 2024. Unfortunately, that hearing also had to be adjourned, because once again the Court had been unable to provide a QLR to assist the father.[19]The fact-finding hearing was finally listed before me on 10, 11 and 12 February 2025.

Issues for the Court to determine and the parties’ positions

[20]Throughout these long proceedings, the issues have narrowed to an extent. The father’s case against the mother centres on his allegations that the children are(i) at risk of FGM and(ii) at risk of being abducted to [Country B]. He asks me to make FGM protection orders and prohibited steps orders preventing the mother taking the children to [Country B] for the rest of their childhood. His evidence in support of these allegations is contained in two witness statements filed in December 2022 and January 2023 respectively.[21]The father is no longer seeking orders that the children stay overnight with him, and accepts that the current order which provides they live with their mother should remain in place. The father’s allegations of domestic abuse against the mother, including the allegation of poisoning, are not pursued.[22]The mother’s case is that both she and the children have experienced domestic abuse at the hands of the father, and continue to be at risk of abuse from him. She seeks findings from the Court in this respect, so that an assessment can be carried out in accordance with Practice Direction 12J of the Family Procedure Rules 2010, to evaluate how the children’s relationship with their father can best be supported, while hers and their physical and emotional safety and well-being is maintained.[23]The mother denies that the children are at risk of FGM or being abducted by her or by any member of her family. She alleges that the father’s allegations of abduction and in respect of the risk of FGM are made as part of a pattern of behaviour seeking to control her and to limit hers and the children’s freedom and autonomy.[24]At the conclusion of the evidence, the mother invited the Court to make a non-molestation order of its own motion to protect her and the children. The law Fact-finding

The law

[25]The burden of proving an allegation falls on the person who asserts it to be true. The standard of proof is a balance of probabilities; disputed allegations only become proven facts if is more probable than not that they occurred.[26]Findings of fact must be based on the evidence (including inferences that can properly be drawn from the evidence), and not suspicion or speculation.[27]I must take account of all the evidence and each piece of evidence in the context of all other evidence: ‘Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence and exercise a totality of the evidence to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof.’ (Re T [2003] EWCA Civ 558 at para 33, per Butler-Sloss P.)[28]When considering the evidence of the witnesses, I must take care to identify those parts of their evidence which are part of their direct recollection, and those parts of their evidence where they are reporting what someone else has said, and to assess the relative weight of such evidence accordingly.[29]The evidence of the parties is very important and the Court must be able to form a clear assessment of their credibility and reliability. I further remind myself that credibility alone cannot decide this case and that, if a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything.[30]Any findings of fact are for the Court to make based on the evidence before it. No weight should be given to the opinions of others about the credibility of a particular witness.[31]I remind myself of the direction that, in a criminal case, would be called the ‘Lucas’ direction because it is based on the case of R v Lucas [1981] QB 720. If proved that a person has lied, the Court must analyse the relevance of the lie to the issues in the case. A lie may be in relation to an issue that has no relevance to the real issues before the court. Lies may be told for many reasons. A person may lie out of a sense of shame, misplaced loyalty, humiliation, embarrassment, panic, fear, confusion, emotional pressure, a desire to conceal other misconduct or for many other reasons.[32]The Court should consider how much weight to attach to discrepancies in accounts between witnesses or from one witness at different times. See Re A (A Child) [2020] EWCA Civ 1230 and in Lancashire v R[2013] EWHC 3064 (Fam): per Mostyn J: [8]…(xi) The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited.”

Domestic abuse

[33]Practice direction 12J of the Family Procedure Rules 2010 incorporates the following definitions from the Domestic Abuse Act 2021: - “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; - “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour; - “harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from being a victim of domestic abuse or from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise.[34]A child is the victim of domestic abuse if they see, hear or experienced the effects of the abuse or they are related to the perpetrator or the victim. Children 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 they are unable to give priority to the needs of their 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. (F v M [2021] EWFC 4, per Hayden J).[35]Not all directive, assertive, stubborn or selfish behaviour will be abuse in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour (Re H-N and others (Children)(Domestic Abuse: finding of Fact Hearings) [2021] EWCA Civ 448.

Travel to non-Hague Convention Countries

[36]The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country remains whether the making of the order would be in the best interests of the child.[37]In cases where there is some risk of abduction and an obvious risk to the child if that risk were to materialise;(a) the court must be positively satisfied that the advantages to the child of visiting that country outweigh the risks to their welfare that the visit would entail;(b) the courts must routinely be involved in investigating what safeguards could be put in place to minimise the risk of retention and to secure the child’s return, if necessary;(c) the court must be satisfied that safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent; and(d) there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent an complete expert evidence which dealt specifically and in detail with that issue. (Re M (a child) (Removal from Jurisdiction: Adjournment) [2010] EWCA Civ 888)

Female Genital Mutilation Protection Orders

[38]I am proceeding on the basis that the father has previously been given permission to make the application. In deciding whether to exercise its powers, and in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.[39]Further, I have considered Re X (Female Genital Mutilation Protection Order No. 2) [2019] EWHC 1990 (Fam) in which Cobb J summarises the law in respect of FGMPOs. In that case his approach to assessing risk was to explore first the contextual considerations (‘macro’ factors) and then the individual considerations (‘micro’ factors) and then evaluating the risk as a whole. I have followed his lead.

The evidence

[40]I have read all the documents in the bundle. I heard evidence from the mother and from the father.[41]The mother has filed five statements in these proceedings, in which she describes events during the marriage and after separation.[42]The mother was cross-examined by Ms Tariq, a qualified legal representative (QLR) appointed by the Court. Despite clear directions to provide her with the bundle in good time, she only received it the Friday before the hearing. It is to her great credit that she worked extremely hard over the weekend to prepare her cross-examination. She met with the father on the morning of the hearing and had the opportunity to take instructions from him, which he supplemented throughout the day.[43]When the mother gave evidence in Court, what she said was consistent with the accounts given in her statements. She gave her evidence clearly and answered questions directly. She was clearly recalling events to mind from her own memories; she did not have to be taken to any parts of her statements to help her recollect. On occasions in the past the mother has spoken to social workers and the police. Their records of what she told them are consistent with the evidence she gave to the Court.[44]The father has set out his responses to the allegations in the schedule, and in his first witness statement dated 5 December 2022. He put forward his case in respect of the allegations he makes of the risk of abduction and FGM in his statement dated 13 January 2023. He has chosen not to file any updated evidence. The father gave full answers to questions put to him in cross-examination over the course of a day. We took a number of breaks to give the father an opportunity for pause, but nonetheless he struggled to contain his emotions and generally spoke very fast, very loudly, and with anger and resentment directed at the mother.[45]Although he has set out his case in response to the allegations in his witness statements, few of the father’s answers to questions recalled the circumstances set out in those statements. A number of his answers appeared to be made up as he was speaking, and amounted to wild, unsubstantiated accusations against the mother. For example, he suggested that when she and the children were staying in a covid isolation hotel in December 2020 that she had been vomiting and this was because while away in [Country B] the previous week, she had become pregnant with another man’s child. The story became more and more elaborate, he said he was reporting to the BBC that the conditions in the covid hotel were inadequate and unhygienic but then it was the hotel staff who told him of his wife’s pregnancy, causing him to be threatened with making false reports to journalists. He said that on another occasion the mother had encouraged him to have sex on the kitchen floor with her, as some kind of cover-up for a different pregnancy (or possibly the one he asserted was discovered by the covid hotel staff, it was not clear). He said that the mother had an abortion. He said that he had seen her wearing short skirts and tops which showed her skin, dressed he said like a prostitute. In court the mother was visibly shocked and distressed by these allegations, none of which the father had set out in his evidence to the court.[46]The allegations are not corroborated by any documentary evidence, by any other witness, had no convincing detail to them and were unbelievable. I find that the father gave this evidence with the intention of embarrassing and humiliating the mother.[47]The father has made admissions in respect of some of the allegations. He accepted that he had asked the mother for a tracker to be installed on her car, because he said, he wished to know where she was. He accepted that the precipitating event for the mother leaving the father in November 2020 was him losing his temper, picking up his laptop and smashing it on the dining table. In evidence he said that he was provoked to do this by the mother who he had suspected of using his password to access his computer.[48]The father also accepts that the precipitating event for the mother and girls to leave him in 2018 was an incident where he threw a phone during an argument in front of their children. The father accepted throwing the phone out of frustration, that it rebounded off the wall she was sitting next to and struck her on the ankle causing bruising. He does not accept that he was aiming directly at the mother.[49]The father accepted that he had at times taken the mother’s car keys so that she could not use the car that he had provided for her use.[50]He accepted that while he did give the mother a bank card with which to buy food, there were times when he had taken that card from her, and that she did not have any other source of income.[51]The father was not able to reflect on the ways in which his behaviours had affected the mother or his three daughters, nor was he able to take responsibility for them. Many times during the evidence the father described himself as acting only in response to provocation from the mother, or else he described himself repeatedly as her victim, saying he had been her ‘target’.[52]With respect to the allegations that the father did not accept, in particular in respect of what professionals had reported the children had said, the father repeatedly said that these were, ‘the mother’s words in the children’s mouths.’[53]Having regard to all the evidence that I have heard and read, I do not find that the mother has coached or otherwise influenced the children to make the reports that they did. They did not use markedly the same language as each other or as the mother. Professionals, including the Cafcass section 7 reporter, and the police officers and social worker who interviewed them at [the airport], have described how they observed the children to show genuine emotions of fear and anxiety as they described what they had experienced and what they had witnessed. The emotions that they displayed were congruent to the experiences that they were describing. I find to the standard of a balance of probabilities that where the children’s accounts are similar to one another or to their mother’s accounts, it is because they have shared similar experiences.

Findings of fact

[54]I turn now to the particular allegations on the schedule. Mother’s allegations Allegations of physical abuse 1.1. On or about 20 May 2018 the Applicant father was shouting at the parties' daughters and when the Respondent mother asked him to stop because he was frightening them, he told the Respondent mother not to interfere and then threw his iPhone towards her leg. The phone initially missed her and hit the wall instead, but it then bounced off the wall and [hit] her leg, leaving a bruise.[55]The father agrees that he threw his phone but denies it was anywhere near the mother. He says in his response to the schedule that the mother was the aggressor in the incident and after the phone incident she slapped one of the children. In his statement he said something different, that the mother slapped F, and this is what led him to throw his phone. This is not something he recalled when giving his oral evidence to me, he said he threw the phone in anger because the mother had gone into his phone and messages and changed his password. He said he then left the house, which would perhaps be a surprising act if he was concerned for his children’s safety in their mother’s care. He accepted that following this incident the mother and children left to go to a refuge. His evidence was not reliable.[56]The mother’s account was clear and vivid, and was consistent with what she said in her statement. She has consistently reported to professionals that the father would throw objects at the mother, including his phone. There are contemporaneous records of this, including the MASH report from March 2018. This is not evidence that it happened, but it shows the mother has consistently reported this pattern of behaviour.[57]I am satisfied to the standard of a balance of probabilities that this incident happened as the mother described. The allegation is proved. 1.2. On or about 22 November 2020, the Respondent Mother confronted the Applicant Father about changing his Facebook relationship status from "Married" to "It’s complicated", as well as telling another woman that he was divorced and looking to remarry in [country A]. The Applicant Father became angry, picking up his laptop and smashing it on the dining table.[58]The father accepted that he had picked up his laptop and smashed it on the table. His explanation for the messages seen on a screenshot showing the change of relationship status (that the mother had hacked his account and changed it) was wholly unconvincing. I find as a fact that he was the one to make the change to his relationship status on his own account.[59]He accepted that he had sent money to women in different countries. He said they worked for charities to which he was donating. This explanation was also unconvincing and I did not believe it. The father alleged that the mother had changed his passwords to his emails and social media, but this was nothing but speculation. He says in his witness evidence that he was trying to log on to his email account but couldn’t do it, he assumed that the mother had interfered with his passwords, and in anger threw the laptop at the table.[60]I find that the father had changed his relationship status, that he had told another woman that he was divorced and looking to remarry in [Country A]. I find that when the mother confronted the father about this he did lose his temper, became angry and smashed his laptop as described. The allegation is proved to the standard of a balance of probabilities. 1.3. In May or June 2022 the parties' daughters were playing with each other when the parties' youngest daughter fell and started to make some noises. The Applicant Father responded by picking up a shoe and slapping the parties' eldest daughter across the face with it. He then pushed her and the Respondent mother to the floor.[61]The mother gave a clear account of this incident in her written and oral evidence. She describes E bursting into tears and screaming, and the father pushing both E and the mother to the floor when the mother tried to intervene to protect her. She told me that she was cooking dinner in the kitchen, the father was on his laptop downstairs, the children were playing in their room and G fell down. He always said E should be responsible for her sister, went upstairs and said what is going on, grabbed a shoe – a trainer – and slapped E across the face.[62]The mother’s evidence is corroborated by the children’s accounts to the section 7 reporter, [RA].[63]In his response the father denies the allegation and says in fact it was ‘the other way round’. However he has not provided any details in his witness statement or response document of how he says the mother came to hit the children, nor did he appear to recall any of this when giving his oral evidence.[64]The mother was taken to a report made by the police and social services in November 2020 which recorded that she said that the father had not hit the children. However, that was eighteen months before the events which form the subject of this allegation, so it does not undermine her allegation.[65]The mother did not immediately report this incident to the police, but she told me in evidence this was because by then, ‘I was under too much control – I took my phone with me upstairs – but I was under too much pressure – it is only just recently that I say no there is something wrong and I deserve to live my life like a normal life – all this trouble started when I started to study, and to improve my language.’[66]Having regard to the evidence I have heard and read, on a balance of probabilities I find that the allegation is proved. 1.4. In or around August 2020 the Applicant Father became angry after the Respondent Mother bought an inflatable pool for their daughters from their neighbour. The Applicant Father picked up the pool and threw it at the neighbour’s door. He then returned to the house and kicked the door.[67]The mother gave evidence that the father took against the mother’s neighbour in a way that was humiliating and embarrassing for her. The father says that the paddling pool was mouldy and dirty. The father said the mother could not accept she had made a mistake by purchasing a faulty pool, her pride took over, and she was aggressive towards the father. In his evidence the father became very angry again at the memory of the paddling pool. I prefer the mother’s evidence that it was in fact given to her fresh in its box and that she paid her neighbour £20 for it.[68]Having regard to all the evidence I have heard and read, I am satisfied to a standard of a balance of probabilities that this allegation is proved. I find that the father did lose his temper, pick up the pool and threw it at the neighbour’s door, then returned to the house and kicked the door. To the extent that it is relevant, I prefer the mother’s evidence that the pool was brand new, but even if it had been mouldy or dirty that would plainly be no justification for the father’s actions. 1.5. In around May or June 2022 the Applicant Father grabbed a pair of scissors and held them to his throat and threatened to kill himself.[69]This was shortly before the parents separated for the final time. The father accepts that he had scissors in his hand, to cut some thread from his top. He says the mother was being extremely aggressive and abusive to him, asking him for additional money, he then ‘asked her to be quiet while I cut the thread otherwise I might cut myself.’[70]The mother gave a clear account in her written and oral evidence. She said that she was trying to talk to the father about divorce, and she was saying ‘this will not work out, let’s break up nicely’, and she was trying to talk to him about how she might stay in the house with the children and take on payment of the rent, but the father got angry and said ‘if you talk again about divorce again I will kill myself’. Her description was detailed and vivid. It is corroborated to an extent by the evidence of the Cafcass reporter. I must treat that evidence with some caution as it is a written report of what she says the children said, not their direct testimony. Further, she did not give evidence to the court so her evidence was not tested by cross-examination. Nevertheless, it is her assessment that the children described vivid memories of this happening, and have been profoundly affected by it. She writes that all three children gave, ‘similarly emotional narratives regarding this incident that appears to indicate that they witnessed something which scared them and thought their father wanted to harm himself’.[71][RA] reported G saying to her, ‘he scared me with the scissors and he banged his head really hard on the wall, [F] couldn’t breathe for a second’ because she was so scared.’[72]There is evidence elsewhere of the father telling the mother or members of her family at times when they were separated that he might do harm to himself if she and the children were not to return to him.[73]Having regard to all the evidence I have heard and read, I find this allegation proved to the standard of a balance of probabilities. Allegations of verbal abuse, intimidating and threatening behaviour 2.1. On or about 5 June 2022 the Applicant Father accused the Respondent Mother of stealing money from his pocket for years and threatened to call the police on her.[74]The father accepts he said this. He says in his response document he did so because the mother did steal money from him on a number of occasions without him knowing. In his witness statement he does not go so far, but says only that they argued about money throughout the marriage, ‘mainly due to the respondent wishing to live a lifestyle out of our means, which we simply could not afford.’[75]In his oral evidence to the Court however, he repeated a number of times that the mother had taken money from him, that he was her victim, her ‘target’.[76]I did not find his evidence to be credible. The father has not put forward any convincing evidence that the respondent mother ever stole money from the father. It appears that he regarded all the money that he earned as his, and any expenditure that went towards the wife or children’s needs to be money taken from him.[77]I accept the mother’s evidence that the father controlled her access to money, which he has accepted to an extent. She has said in her written evidence that the father gave her money to provide for the children, but he demanded to know what she was spending every single penny on, and would be angry if she bought anything at all without his permission. She also gave evidence that the father would give the mother his card to buy for the house but after arguments he would refuse to give her the card. He bought her a car but if they argued, he would take the keys so that she could not drive it.[78]This is the subject of allegation 5, which I consider relevant to deal with here:[5]The Applicant Father would give the Respondent mother his card to buy food for the house, but after any arguments he would refuse to give her the card, and he bought her a car which he would then stop her from using when they had argued.[79]In his response document the father says this allegation is partially accepted, but that he took back the card or the car due to the respondent sending money to [Country B] or threatening to sell the car and send the proceeds to [Country B]. He repeated this in his oral evidence, saying, ‘she was going out for shopping using my card, my money.’ The mother gave credible evidence that the father did not want her to go out to work and earn her own money, but wished her to stay home and take care of the children. In his own evidence he gave some indication that this was indeed the case, by saying that he thought he had married ‘a country girl’. He said if the mother had truly thought he was controlling towards her she would not have kept leaving him and coming back.[80]The car was in the father’s name, the mother could not have sold it even had she wished to. She could not have sent money to [Country B] without the father’s knowledge or permission, because he regarded all the money as his, and controlled her spending very tightly.[81]The weight of evidence supports the findings being made. I find that both allegations 2.1 and allegation 5 are proved to the standard of a balance of probabilities. 2.2. The Applicant Father would regularly tell the parties' eldest daughter that she was ‘stupid like her mother’[82]The father denies that he said this. The mother recounts in her witness statements that the father would often belittle her and call her stupid, or a bad mother or ‘haram’, literally meaning ‘forbidden’ or ‘impermissible’, but in this context meaning something going against the teachings of Islam, so signifying that she is a bad Muslim.[83]The police disclosure contains a record dated 11 December 2020 entered upon referral from the NSPCC who had received a report from a third party about the father. The caller is reported as saying that the father is verbally abusive to the mother ‘all the time’, and that verbal abuse is also directed towards the children, with the father shouting, ‘you are a bitch’, ‘you are ugly’, ‘you stupid.’[84]In her oral evidence the mother said that when the father came home from work he wanted the children to be quiet and well-behaved and he would get angry and shout at them. G is autistic and would sometimes be crying and have no control to stop crying. The mother said that sometimes G might get annoyed or angry at a small thing, E would try to settle her but if that wasn’t happening, then the father would get angry and call E stupid.[85]On a balance of probabilities, this allegation is proved. 2.3. on or about 8pm on 7 June 2022 after the Applicant father had moved out of the former family home, he turned up unannounced whilst the Respondent mother was working, and a babysitter was looking after their daughters, and started banging on the door and shouting. The babysitter asked the Respondent Mother to return home immediately as she was frightened. The landlord also told the Respondent mother that the Applicant father was banging on the door and would not calm down.[86]The father accepts there was an altercation but says it was the landlord who was banging on the door.[87]Having regard to all the evidence I have heard and read, I prefer the mother’s account to the father’s and find this allegation proved to the standard of a balance of probabilities. Allegations of sexual abuse 3.1. Throughout the parties' relationship the Applicant Father wished to have sex with the Respondent Mother when she did not wish to have sex with him, but she would agree to have it in order to avoid him becoming angry and aggressive. She felt pressurised and intimidated into agreeing with his sexual demands because she feared for her safety if she refused.[88]The mother found it extremely difficult to speak of sexual relations in Court, but nonetheless gave a clear description of her experience of this during the marriage. She was clear that she was not forced to have sex with the father, but that she felt she had to agree to stop arguments. She would say that the children were sleeping but he would get angry and lose control, so she had to agree. She said that this was consistent with her experience of the father in all aspects of her life, ‘he was putting me under pressure in every single thing.’ What she said was consistent with her written statement:
‘Throughout our relationship there were several occasions when the applicant wanted to have sex when I did not. The applicant would kick and slam doors and take his frustration out on other things, so to avoid him becoming angry and aggressive, I would agree to have sex. I felt pressurised and intimidated and felt that I did not have a choice. I often feared for my safety and felt that it was better to agree to his demands than refuse. When we were having sexual intercourse, I felt numb and just wanted it to finish. It happened several times from 2015 onwards because I no longer wanted to have sexual relations with him after then. I do not believe that the children witnessed any incidents when the applicant pressured me into having sex with him as they would have been in their bedrooms at the time. The applicant would accuse me of having another partner because I did not wish to have sex with him.’
[89]It was a recurring theme of the father’s evidence that the mother had other partners during the relationship. The allegations he made were denied by the mother in the strongest terms. The father has no rational basis for suspecting his wife of being unfaithful to him and put forward no evidence to support his claims, which ultimately amounted to no more than speculation and accusation.[90]The mother’s allegations that she was not comfortable having sex with the father, but did not feel she had a choice is corroborated to an extent by a report she made to the police at the end of the relationship. She said that between 2015 and 2021 there had been numerous occasions when she had said to the father during sex that she felt uncomfortable but the father had continued to have sex with her. She reported that she did not physically try to push him away and she did not get upset visibly. ‘She stated that even if she had cried or showed emotion when this had happened, [the father] would not have changed as he did not show any other emotion other than anger.’[91]The father’s oral evidence contained flights of fancy that appeared to be made up there and then. None of the accusations he made of infidelity or of promiscuous behaviour appeared in his written evidence, and no such accusations were put to the mother in cross-examination. They are baseless accusations, and I find they were designed to embarrass and humiliate the mother in court.[92]Having regard to all the evidence I have heard and read, I find that the mother did feel pressured and intimidated by the father to have sex with him. I find that she did so in order to appease him and to not make him angry. The allegation is proved to the standard of a balance of probabilities. Allegations of controlling and coercive behaviour 4.1. In 2012, during the Respondent Mother’s pregnancy with their first child, the Applicant Father expected the Respondent Mother to continue doing all of the cooking and house chores, despite the Respondent Mother saying she was struggling and unable to cope[93]During the course of the evidence it became apparent that the mother and father had different expectations of the marriage. At the time she met the father, the mother had just graduated from university with a degree in law. The father was over twenty years older than her, had been married and fathered four children. He is now estranged from his first wife and children from his first marriage. He said in his evidence that he had thought he was marrying a ‘country girl’. When the difference in age in the marriage was raised with him, he said it was of no matter, and even now should he choose to marry an eighteen or nineteen year old girl, there would be nothing wrong with that.[94]The mother says that in the first years of the marriage things were not so bad, but that it had been her expectation to come to England to continue her training as a lawyer and to have a career. That is what she had hoped and understood her husband would be supporting her to do. In fact she says after the birth of her second daughter when she raised the subject of continuing her studies or working, the father was not at all supportive and made her feel that she would be a bad mother and ‘haram’, a bad Muslim, were she to leave the home. She gave evidence that when she did eventually get a job the father insisted that it was overnight work, so that it would not interfere with her responsibilities to him and the children within the home. This made her exhausted, and ultimately she could not sustain working in this way.[95]Having regard to all the evidence I have heard and read I find that the husband did have an expectation that the mother would remain in the home, taking on the burden of childcare, cooking, cleaning and all other housework. This allegation is proved. 4.2. Between 2013 and 2015 the Applicant Father would make it difficult for the Respondent mother to take oral birth control by moving it and distracting her when she had to take it.[96]The mother described to me in her evidence that often the father would be angry and shouting, but that a lot of the pressure came in more subtle ways.[97]She said that after E’s birth she had wanted to wait before having another child. She had a contraceptive implant but had some difficulties with it. She said there was supposed to a period of abstinence on it, but the father disregarded it, so she took the pill. She said she would put it by her bed but then would find the tablets were not there, and she would find them somewhere else and move them back, but once again they would be moved.[98]The mother’s evidence was clear and specific. I am satisfied that this allegation is proved on a balance of probabilities. 4.3. The Applicant Father would try to control all aspects of the Respondent Mother’s life, including her hair, choice of clothing, not allowing her to use her phone in the bedroom after 8pm.[99]The mother said that the father would pressure, persuade, repeat things to her, so that she felt she had to do what he wanted, and she was always trying to prevent him from losing his temper. She said he would be constantly saying to her she was a bad mother, or ‘haram’ if she did certain things.[100]She gave an example about not having her phone in her room. It was not that he forbid her, but, she said, he would start by saying words to the effect, ‘do you think you might sleep better if you don’t have a phone in your room’, or ‘it’s not good to have it by your bed, maybe leave it downstairs in the evenings’, and he would repeat such phrases a lot. She would agree as she did not want to make him angry.[101]Her belief is that his concern was not to encourage better sleeping habits but to limit her use of the phone, and in particular to prevent her from using it to improve her English, preventing her from pursuing her studies and a career.[102]She told me that she had downloaded a programme onto her phone to help her learn English words, she would connect the phone to a screen and then use a pen and paper to learn the words. She says the father came home and saw this, became angry and picked up the phone and threw it. She says her experience was that the father would become angry if he saw her doing things to further her education, with a view to working outside the home, pursuing a career, or having other aspirations to have a life for herself outside the home or family.[103]The father said that he did not control the mother’s life and he did not tell her what to do. He says he did not control what she wore, in fact she was the one who told him what clothes to buy her and he followed her instructions. This evidence was not in his witness statement, nor in his response to the schedule of allegations, but appeared to come to him during his oral evidence and was then repeated a number of times.[104]Having regard to all the evidence I have heard and read, I prefer the mother’s account that the father was controlling of the mother’s choices in the ways described, thus limiting her freedom. 4.4. At the end of November 2020 the Respondent Mother took the parties' daughters to [Country B] for a holiday and the Applicant Father had copies of their e-flight tickets and drove them to the airport, but he nonetheless informed the police that he did not know their whereabouts and alleged that the Respondent Mother had abducted their daughters for the purpose of FGM[105]I accept the mother’s evidence that she and the children travelled to [Country B] with the father’s knowledge and agreement, that he knew the times and dates of their flights and where they were intending to stay. Once she was in [Country B], the mother sent a message to the father asking for a divorce. After he received this, the father reported the mother to the police. He told the police that he did not know where they were going and asserted that they were at risk of FGM. As a consequence of the father’s allegations the mother and children had to return from their holiday earlier than planned. When the plane landed at the airport their names were called over a tannoy and they were escorted from the plane in front of all the other passengers, to be taken to speak with the police and a social worker.[106]Based on the mother’s and the children’s presentation and their descriptions of their experiences of the father, the police and social services became concerned for the mother and children’s safety, and arranged for them to be taken directly to a refuge in [place name redacted].[107]The local authority carried out a section 47 enquiry which concluded that the girls had not been subjected to FGM, noting the mother was ‘adamant the children will never have it’. The assessment concluded that the mother had been a victim of long running and ongoing domestic abuse.[108]This allegation is proved. I return to the issue of FGM later in the judgment. 4.5. In September 2021 the Applicant Father manipulated and pressurised the Respondent Mother into leaving the women's refuge in [place name redacted] to return to the family home to resume a relationship with him. He would cry and speak to various family members as a way of putting pressure on her.[109]Before the parties reunited, the father agreed to the mother taking the children to [Country B] in August 2021. At that time, with a reconciliation in sight, the father apparently had no concerns about FGM or abduction.[110]The father says that it was the mother who contacted him and wanted to resume their marriage. He says that she called him to meet at a friend’s house in [place name redacted] and that they met and had sexual relations in various hotels. This evidence came fresh to the father as he was being cross-examined, did not appear in any witness statement, and was not put to the mother. I do not believe the father was speaking the truth and again find that he was seeking to embarrass the mother in saying this.[111]I prefer the mother’s evidence, again her oral evidence being consistent with what she has set out in her witness statements. I accept her evidence that she did not initiate contact with the father. She said that the father would call her family and make recordings of him crying, saying he is alone, getting old and needed his children with him, and saying that whatever she says he had done he is sorry for it, and he will not do it again. The mother said her social worker advised her against returning, but she felt pressured by her family who had listened to what the father said to them and advised her to return to him.[112]I have seen screenshots showing messages from the father in which he says that he is a bad person and is sorry for what he has done. I find that this was consistent with the messages that the mother was receiving from her own family, and would have added to the reasons that she decided to return to the marriage.[113]Relationship breakdown is complex, and in this case the mother was subject to societal, religious and cultural pressure from her family, as well as from her husband, who was reassuring her that he loved her and that he wanted to be a good father to their children and a good husband to her.[114]Having regard to all the circumstances, I find that the mother did feel under significant pressure as a result of the father’s behaviour, to leave the refuge and return to her marriage. This episode is evidence of the dynamics of the relationship at that time.[115]I do not know that this could be described as coercive. The father wished the marriage to continue. He used what leverage he had to persuade the mother to return, including speaking to her family, and crying.[116]After she and the children returned to the father in around October 2021 the mother said that things improved, which suggests that the father had a genuine intention to make changes to his behaviour. However, by December 2021 the mother says things were back to how they had been before they left. 4.6. On 1 and 2 July 2022 the Applicant Father sent the mother controlling messages and turned up at her house the next morning unannounced, banging and kicking on the door and shouting, ‘Where were you last night?’. He then took her car keys, leaving her without a car for four days.[117]The parties separated in around May or June 2022. The mother moved to her uncle’s house, but the father continually followed her and harassed her.[118]She reported to the police that he was sending her hundreds of messages a day.[119]The father accepts that he took the mother’s car, but he denies kicking on the door or shouting. He says it was the mother who was displaying aggressive behaviour. However, his own description of events is one in which he is frustrated and annoyed with the mother. He says the children were due to stay with him, but the mother had failed to send their pyjamas and toothbrushes. He says she would not tell him where she was, and when he went to drop the children off the next morning, he did ask her why she wasn’t honest with him about where she had been. He says out of frustration he took the car keys from the house and took the car away. He admits that he should not have done this.[120]I find that it was the father who became angry and frustrated, that he did bombard the mother with messages about where she was, and who she was with.[121]Having regard to the evidence I have seen and heard I am satisfied that this allegation is proved on a balance of probabilities.[122]As a result of the father’s behaviour, the mother and the children once again moved to a refuge in July 2022. 4.7. in or about July 2022 The Applicant Father would tell F to write letters/notes to him which said, ‘I love you Daddy’, ‘I miss you Daddy’ ‘I hate my Mum’, ‘I don’t want to live with her’.[123]The father told me a number of times during his oral evidence that one or the other of his children has whispered to him during contact that they love him and miss him, that they are not happy in their mother’s care and would prefer to live with him.[124]The father has exhibited two pages of a diary in evidence. He says they are written by his daughter F, that she wrote them when she was staying with him and left them in the house. He says he then gave them to his solicitor. On the first page it says, ‘A few days ago my mum called my dad a Fucking – Bitch! And through him out the house so I decided that I would move to him to give him comfort and love. Bye the middle child F.’[125]On the second page it says, ‘Yesterday my mum pulled me towards the storige room and told me that my dad was a gold digger and a total jerk and also said he will betray me in a second. But my mum is a drama queen and a liar! I feel so sorry for my dear daddy! My dad is perfect, lovely and All ways try to give me a [extract ends here.][126]I have not been shown examples of F’s handwriting. I am not in a position to conclude whether or not these extracts were in fact written by F.[127]The children have spoken with [RA] the Cafcass section 7 reporter and at other times to social workers and the police. They have been consistent in the expression of their wishes and feelings which are that they love their father but their experience of him is overwhelmingly that he gets angry, that he shouts at them and their mother, and that at times he has hit them. There is no evidence of them ever saying that they do not like their mother let alone that they hate her, nor that they do not want to live with her. To the contrary, they have consistently said they wish to stay living with her.[128]I have had regard to all the evidence, including notes from professionals, to solicitors’ correspondence following contact sessions, notes of the contact records, to each of the parents’ evidence and the guardian’s report.[129]A continuing concern of the mother throughout these proceedings has been that the father has sought to have private conversations with one or other of the children during contact. The father implicitly accepted this when he gave evidence that described times when one of the children has come close to him and whispered something in his ear. He suggested that they had told him that their mother was a bad Muslim, or a bad mother, and they did not want to live with her anymore. The mother gave evidence that the children have come home from contact and been distressed at things the father said to one or the other privately.[130]On a balance of probabilities I find that the father has sought to continue to influence and manipulate the children in contact sessions, by speaking negatively about their mother. I find that the father has at times in contact isolated one or other of the children in order to have private or even whispered conversations, and that during those conversations he has suggested things to them or tried to influence their thinking and feelings against their mother and to be more aligned with his views in a way that goes beyond normal parental instruction and guidance, and amounts to him exerting unwarranted pressure on his children.[131]I am not able to find that the extract from the diary was written by F. I have not come to any conclusions about how the diary entry came to be written. I have not concluded that it was written by or at the instigation of the father.[132]If the extract was written by F I would not regard it as reliable evidence of her wishes and feelings. This is because I do not know when or how it came to be written. Further, it is not consistent with the weight of the evidence from her about the father, in particular the evidence contained within the section 7 report. 4.8. On 15 July 2022 the Applicant Father tried tracing the Respondent Mother’s location by logging in to her Apple account.[133]The father accepts this allegation, but says that he was concerned about the children’s safety. He said to me he did this because he did not know where the children were, and the mother was not returning his calls. He says that his concern was that she would take them to [Country B] to carry out FGM on them.[134]I find the allegation proved. I find that this is another example of the father seeking to control the mother and cause her stress and anxiety by trying to track her movements post separation.[135]Reports that the mother made to the police at the time corroborate her evidence that the father’s behaviour towards her around this time was intensifying and very hard to manage. The contemporaneous police record states that one of the children opened the door to their father, he then forcefully entered, stating he had brought food round for the mother and children. She told the police she had not asked him to bring the food, did not want him in the house and her feeling at the time was that he was using this as an excuse to come into the house and see if she had a visitor. She reported to the police that the father was calling her up to one hundred times a day and had been following her. She told the police that he seemed to be everywhere she turned. She reported that he had been sending her numerous messages saying, ‘where are you, who are you with, what are you doing’, and when she had replied that he did not need to know this, he had called her a terrible mother and alleged that she was being unfaithful.[136]She reported to police that the children had been in his car when the father had been following the mother, and had been asking them where she was going.[137]These reports corroborate what the mother now describes, and are consistent with the weight of the evidence about the father’s behaviour to the mother. I find that they are likely to be reliable accounts of what was happening at the time. 4.9. The Applicant Father's religious beliefs are conservative and overbearing, including stopping the children from playing and pressurising them into spending more time praying and learning about Islam.[138]The father may hold whatever religious beliefs he chooses. Holding conservative religious beliefs is not a form of abuse. However, I am satisfied to the standard of a balance of probabilities that the father has at times used religious and cultural practices as a means of exerting pressure and control, of both the mother and of the children.[139]I accept the mother’s written and oral evidence in which the mother described how the father would use his religion and culture to control her and the children on a daily basis, saying words to the effect, ‘if you don’t listen to me you will go to hell’ …. ‘if you don’t wear the hijab … if you are not a good wife or mother …’, ‘you will be ‘haram’’. There are a number of contemporaneous documents which show the mother reporting similar behaviour to social services or the police, for example, she told the police that the father was constantly telling her she was a bad muslim because she did not cover her hair, and because she was working, she was unable to go to the mosque every day which is something he wanted her to do.[140]The mother told the police that the father was constantly telling F that the mother was a ‘terrible muslim’ and that she should not be like that when she is older. This had led to F not wanting to cuddle her mum and being distant with her. F then later began crying hysterically and saying that she was sorry to her mum.[141]F told the Cafcass officer that once on a video call her father had forced her to change as she was in her pyjamas with shorts and a dress, and he felt it was indecent. F had said she did not understand why as they were in the house. She told the Cafcass officer that her father had tried to take her away from her mother, and that ‘he tried to buy me and say bad things about mum and tried to make me say bad things about mum. I asked her to clarify and she told me that ‘dad tried to do good things with her [F] to get her to pick him but mum was regularly with me so I want to stay with her’.[142]The mother gave evidence about a time in July 2022 when she was collecting F from school and F said to her mother that she did not want to go home with her mother because ‘I was not a good a Muslim’, because she worked at night and ‘good Muslim girls’ do not do that.[143]When asked about this in his evidence, the father said that the mother had come to school ‘in a short skirt and her top body was half naked and F had a look on her face like “who is this what is this”’. He continued, ‘I said “who is this”, she said, “oh it is mother”, she whispered in my ear “is this a good Muslim” and I said “good Muslims do not wear clothes like this.”[144]In these ways I find that the father has sought to manipulate the children to forming a negative view of their mother, in particular by suggesting to them that she is not a good Muslim.[145]This last piece of evidence seemed to come to the father as he spoke it, it is not something that is contained in any of the written evidence he has put before the Court. It was calculated to cause distress, and the mother was again visibly upset by what she was hearing. The father’s description of the conversation is consistent with the mother’s and the children’s descriptions of the way that he has spoken to the children about their mother.[146]The father then warmed to his theme and said in Court that he had seen her ‘many times in [place name redacted] wearing short skirts, most of the time I see her hanging around.’ Again, this caused the mother to be visibly distressed and upset in Court. 4.10. The Applicant Father has said to the Respondent Mother that his nephews will marry their eldest two daughters.[147]The father denies saying this. The mother has said in a statement that she is fearful the father might force the girls into a marriage with his nephews. I find that the father may at some point during the marriage have said that he hoped his daughters might marry his nephews in [Country A] but I am not satisfied to the standard of a balance of probabilities that the father intends to subject his daughters to a forced marriage. I would delete this allegation from the schedule, as it cannot be included as part of a pattern of controlling or coercive behaviour. 4.11. The Applicant Father has posted abusive comments on social media which infer/state that [the mother] has been unfaithful and become pregnant with other men and that she is a sinner and prostitute.[148]In his response the father denies the allegation and says that he has never publicly posted anything negative about the respondent on any social media platform, ‘using her name as alleged’.[149]However, the father accepted that he did post comments on social media linking to a video on infidelity called ‘Punishment for adultery (Zina) in Islam’ with a heading, ‘must watch this before you commit Zina (adultery)’. The translation of the message he posted is as follows:
‘this video to the mother from [Country B] who committed adultery with her ex boyfriend and she got pregnant from him and she lied on her husband she did abortion in [place name redacted] she will go to hell what she teach her kids God will not forgive her only if she apologise and promise she will not do it again.’
[150]The father does not name the mother, but he puts in information that is clearly designed to enable those reading the post to identify the mother as the person he is talking about, describing the place where she comes from in [Country B], and the town where she lives in England.[151]The father accepted in evidence that he had called the mother a sinner and a prostitute on social media.[152]The father has pictures of his children on social media with a message in which he said, ‘my children, I feel so sorry for you. Allah knows who is destroying your life.’ It is clear from the messages that the father is referring to the children’s mother.[153]The mother explained in her written evidence and again in her oral evidence the impact of these posts upon her. She said that it was extremely distressing, she had not done any of those things, the husband knew it was against her culture and religion, and that if she lost the trust of her family, they could do something extremely bad to her.[154]There is no evidence to support the father’s allegations against the mother. They are unfounded.[155]I find that the father’s actions have caused the mother to feel fearful, to feel shame, and to put her at risk of being shamed by her own family and consequently, as she asserts, at risk of emotional and physical harm. This has caused and continues to cause her significant distress.[156]I find this allegation proved to the standard of a balance of probabilities.[157]The range of findings in respect of coercive and controlling behaviour includes behaviour that is directive, assertive, stubborn or selfish, as well as behaviour that the mother experienced as attempts to humiliate and intimidate her into doing what the father wanted her to do, so coercive. Some of the behaviours can also be described as controlling, depriving the mother of the means she needed for independence, and seeking to regulate her everyday behaviour. Overall I am satisfied that the father did subject the mother to both controlling and coercive behaviour during the marriage and post-separation.[158]It will be for the court to consider in due course, with reference to the checklists in practice direction 12J, and the welfare checklist at section 1(3) Children Act 1989 more generally, the impact upon the mother and children of these behaviours, any continuing risks of harm, and the ways in which the risks may be safely managed.

Father’s allegations

[159]At previous case management hearings it has been determined that the only allegation relevant to the outcome of proceedings is the father’s allegation that the children have been at risk to being subjected to FGM by the respondent and her family. Associated to that is the father’s assertion, in support of his application for prohibited steps orders, that the children are at risk from abduction by the mother to [Country B] and being kept there permanently.[160]The mother says that these allegations have been made by the father as a means of enjoining the Court process as a means of limiting hers and the girls’ freedom, of extending his control over them, and preventing them from nurturing and sustaining their relationships with members of the maternal family, and from their [Country B] heritage.[161]The burden of proof lies with the father to prove that the children are at risk from the mother.

Risk of FGM

[162]What is the evidence that the children are at risk of FGM? In support of his assertion that the mother has an intention that her daughters be subjected to FGM the father relies upon the fact that the mother underwent an FGM procedure herself aged nine.[163]The mother gave evidence that she had a procedure under general anaesthetic when she was nine years old, at the wish of her paternal grandmother, who has since died. The practice of FGM died with her. The mother does not have contact with the paternal side of her family.[164]The mother gave evidence that FGM was ‘not an option’ for her daughters nor for anyone in her family, who are all educated professionals. Her father was a judge, her mother was in management. She and her sisters have been raised in a family with a modern outlook. They were encouraged to have an education and a career; she herself is educated to degree level in international law. The mother said that neither of her sisters had undergone the procedure, nor had any of their daughters. One of her sisters gave evidence to the court to confirm this.[165]The mother said that when her oldest daughter was born, a health visitor had asked her if she had undergone FGM and she said yes. She said that the health visitor then asked if she had an intention to carry the procedure out on her own daughters. The mother said, no she had no such intention. She was asked to sign a written document confirming this, which she did readily. She told the father about the conversation later that day, and that did not spark any further conversation or discussion. It was an unremarkable event. I accept this evidence.[166]The father has not put forward any other evidence that supports his claim that the mother intends to subject the children to FGM. The mother has travelled to [Country B] a number of times in the past without there being any concern at all about FGM. The evidence the father gives about family parties to arrange FGM in his witness statement was not repeated by him in his oral evidence, nor put to the mother in her evidence. I did not find this evidence to be credible.[167]The Court has the benefit of two expert reports. Professor Tamsin Bradley gives a detailed summary of attitudes towards FGM in [Country B], and then considers the risk for these particular children. FGM has been illegal in [Country B] since 2008. However, there have been no successful prosecutions for FGM in [Country B] and it is understood to remain a widespread practice, particularly in rural areas of the country. Against that context I must weigh up the evidence relating to this particular family.[168]Professor Bradley was confident that the mother held strong views against FGM. This is consistent with the evidence from the police, local authority and school, all of whom have reached the same conclusion about the mother. It is consistent with the mother’s own clear evidence to me. Professor Bradley concludes that while ‘contextual factors pose a high risk of FGM these need to be weighed against the family history and their likely abandonment of the practice. Taken together I assess the overall risk to the girls as low but do set out a number of recommendations as all risk cannot be discounted.’[169]Professor Bradley’s recommendations included fact-checking with the family in [Country B]. This has happened; the mother’s sister has been approached, prepared a statement and has given evidence to the court corroborating the mother’s evidence that FGM is not practised in the family, and is not in any way supported by them. Secondly, Professor Bradley recommends the girls undergo FGM awareness training at school.[170]The second report is from Mr Ian Edge. His evidence does not go to the risk of FGM, but he gives evidence on [Country B] law, and in particular the safeguards which might be put in place to provide reassurance to the father and to the Court in the event that the Court considers there is a risk of FGM. Mr Edge suggested the parties could obtain a consent order from the [Country B] court providing that the children should be returned to the jurisdiction of England and Wales after a visit to [Country B].[171]In his report, Mr Edge described another case of his in which oaths were made and signed on the Qur’an by every family member in [Country B] with whom the child was to stay, making it a matter of conscience for each of them to ensure the child was returned to England in accordance with any order made in this jurisdiction.[172]Having considered the evidence, I am not satisfied that the father has established that the children are at risk of FGM.[173]Nonetheless, the father has repeatedly raised concerns about this. I accept the submissions of Ms Logan Green on behalf of the mother, that there are reasons to consider the father’s allegations of FGM have been made in furtherance of a wish to restrict hers and the children’s ability to travel to [Country B], and not because he has a genuine concern about FGM.[174]Firstly, the evidence suggests that the father has not been consistently worried about FGM, but has been prompted to make reports to the police of FGM only at times when his relationship with the mother was under threat.[175]It is of note that the mother travelled to [Country B] with the children seven times between 2012 and 2021 and only on one occasion, in November/December 2020, did the father report his concerns about FGM.[176]I accept the mother’s evidence that the father raised these concerns in December 2020 only after the mother had sent him a message to tell him she wished to divorce, and then again in the summer of 2022 when the parties were in the process of separating for the final time.[177]In August 2021 the mother took the children to [Country B] with the father’s agreement. The father did not raise any concerns with the police or anyone else about the risk of FGM or a risk that the children may not return to the jurisdiction. The mother and children returned to live with the father shortly thereafter.[178]The father made further reports of FGM at the time the parents finally separated, in summer 2022.[179]Secondly, the father’s position about the mother’s ability to care for the children raises questions about his motivation in making the applications.[180]At the outset of proceedings, and in his evidence to the court, the father has alleged that the mother was not capable of caring for the children, that she is a bad mother and a bad Muslim and that she sets a bad example to her children.[181]However, there is a disconnect between this evidence and the father’s acceptance that the children should continue to live with their mother, and that the Court should make orders to that effect. The father has not put forward any evidence to suggest that the mother is unfit to parent their children.[182]Further, he has made clear to the court that he does not consider it to be appropriate for the children to spend time with him overnight. He said to me in oral evidence that in March 2024 he had changed his mind about his initial application for the girls to spend time with him at the weekends. He said the girls were growing up and it was not appropriate for them to stay with him, ‘women look after children men don’t, the girls are growing up they need a woman around them’.[183]If the father were genuinely concerned about the welfare of the children in their mother’s care, and if he truly believed they were at risk of being mutilated at her instigation, one might think he would take a different position about the appropriateness of them remaining in her care.[184]Thirdly, the father has a history of making allegations about the mother which are untrue.[185]In August 2022, the father alleged that the mother had cancer, was undergoing chemotherapy treatment and was incapable of caring for her children. He offered his services to support her and to take care of the children in her place. The mother did not have cancer. The father’s evidence about how he came to understand this appeared again to be made up as he was speaking. He has not produced any evidence to explain what the source of information was. The mother made clear to him that she did not have cancer, yet the father repeated this lie in his C1A application to the Court.[186]In November 2020 when the mother had travelled to [Country B] with the children (with his knowledge and permission) the father contacted the police alleging that the mother had stolen £20,000 from him, his phone, credit cards, gold rings and taken the children to [Country B]. There is reference in the police record to the father’s ‘odd behaviour during the debrief’ and it is remarked that the father ‘has little concerns about the children and his wife leaving’. Upon the mother confirming that she and the children would be returning in a few days, the father told the police that the mother had taken her own money and possessions with her. The police logs recorded that the father had confirmed to them that had been no theft.[187]However, within another couple of weeks, on 11 December 2020 the father contacted the police again, told them the mother was autistic, with a low level of understanding, and repeated an allegation that she had taken the children to [Country B] without his permission and had stolen money from him. None of these statements were true.[188]I have referred elsewhere in the judgment to other allegations the father has made about the mother which I find he has made up.[189]Fourthly, there is evidence that the father’s allegations of FGM in the past have been more connected to a desire to try and track down the mother’s location than a genuine concern for his children’s welfare.[190]The father has a history of trying to find out where the mother is. There is evidence that he has followed her, sent her messages asking her where she is, and tried to put a tracker on her phone. When the father reported to the police in December 2020 that he was concerned about FGM, she was required to return home with the children earlier than planned.[191]Against that background, it is of note that both social services and the police reached a conclusion that the allegations were being made by the father as part of a course of conduct designed to locate the mother and to control her.[192]Investigations by the police and social services in December 2020 and again in July 2022 concluded that the father had repeatedly raised unfounded allegations of FGM. The July 2022 MASH report reads as follows:
‘I am worried that your father continues to share concerns of FGM, though this has been explored by social services in 2017 and also recently by the police, and no concerns have been raised. I am worried that this may be your father trying to continue to control your mother. It is worrying that you children are getting caught up between your parents’ acrimonious relationship.’
[193]On 18 July 2022 the father called the police and reported that the mother had taken the children out of the country to perform FGM. In fact the mother and children were to be found at her uncle’s house. Again the police concluded that it appeared that the father was reporting this to try and control his wife.[194]The father made a further allegation to the police of FGM on 14 August 2022.[195]He chased it up on 15 August 2022 but the police declined to investigate further at that time.[196]On 16 August 2022 the father called 101 and 999 to report his concerns about FGM. He alleged that he had found fake birth certificates and suggested that the mother was using those birth certificates to get fake passports and take the children out of the country.[197]I have seen the allegedly ‘fake’ birth certificates. Having heard evidence from both the mother and father I prefer the mother’s evidence that these birth certificates are genuine, that the inclusion of the name [redacted] with reference to the father is a clear reference to his own father’s name, and that the birth certificates were obtained with the father’s knowledge in order to enable the children to get [Country B] passports. This meant they did not need to pay for visas every time they visited [Country B]. I reject the father’s assertion that these documents in any way suggest the mother had an intention to use these documents in furtherance of a plan that her children undergo FGM.[198]The father repeated his allegations to the police on 21 and 22 August 2022. The police were concerned that the father was making malicious reports in an attempt to find out the location of his wife, who was in a refuge with the children at the time.[199]The father had no basis for believing that the children were abroad. Police checks carried out on 5 September 2022 confirmed the mother had not left the country since August 2021.[200]The father made further contact with the police on 17 September 2022. The police log records that the father, ‘appears to be going to great lengths to try and locate her, reporting her as removing the children from the country repeatedly, concerns around FGM, and now claiming she has cancer and is offering to help with her treatment – none of which are true.’[201]Again on 7 October 2022 the father is recorded as being in touch with the police, and again the police log records:
‘since they have separated the father has rung police numerous times to report the mother for taking the children out of the country for FGM. This has been attended by the police numerous times and there is no evidence this is the case and it appears it is simply the father trying to locate where the mother and children have gone. ….. [there is] no reason to believe the mother has any intention of leaving the country to have FGM performed on the children.’
[202]Fifthly, the father told me in evidence that he had no objection to the children travelling anywhere at all in the world, it was just [Country B], the mother’s home country that concerns him. If he genuinely had a concern about FGM, I query why he is limiting his concerns to [Country B], as FGM could in theory be carried out in a number of other countries.[203]The father wishes the children to be prevented from travelling to [Country B] until they are eighteen. The evidence is that if a risk of FGM exists, it is for a much younger age group. Again, this suggests to me that the father’s priority is more about preventing the children from travelling to [Country B] during their childhood, than it is about him genuinely having concerns about the risk of FGM.[204]For all these reasons, there are significant questions about the father’s motivation for making the application for FGM protection orders.

Conclusions on application for FGM protection orders

[205]I must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girls to be protected. I have considered the general context of concerns in relation to [Country B], and then the particular circumstances of these children, their mother and the maternal family.[206]The children and their mother have been prevented from travelling to [Country B] by the father since August 2021. It is the mother’s home and is where her family and source of support live.[207]I find that the father’s primary motivation in making the application is to restrict and control the mother’s freedom to travel to [Country B] with the children. I find that the father’s allegations are borne out of a concern that is not founded on any reliable evidence.[208]For reasons given, I do not regard the risk to the children of being subjected to FGM by the mother or any member of her family in [Country B] or anywhere else as a serious concern. The only real basis for identifying a risk is the evidence in general terms of the prevalence of FGM in [Country B]. That is a gateway to consideration of orders, but it cannot be the case that every girl of [Country B] heritage is to be subject to a FGM protection order. I must look at the particular circumstances of the case.[209]The children’s mother has throughout their lives cared for her children to a high standard, meeting their needs consistently, with understanding, insight, love and affection. She has been their source of stability throughout their life, and she has continued to meet their needs and provide them with love and security despite the challenges of being displaced and living in three separate refuges. There is good reason to consider that she will continue to parent them in the same way in the future, to protect them from harm and not expose them to harm in the future.[210]The mother is willing to give undertakings to the court as follows:a. Not to wrongfully retain the children in [Country B].b. To return the children to England after any holidays.c. Not to arrange for FGM to be performed on the children in [Country B].d. Not to issue any applications or start/support any proceedings concerning the children in [Country B].e. To provide the father with copies of return flight tickets and details of where she will be staying with the children in advance of any holidays to [Country B].f. To make the children available for telephone contact with the father for 15 minutes three times a week whilst on holidays in [Country B].[211]I have considered the additional safeguards suggested by Mr Edge. They are designed to add a layer of obligation onto the mother and members of the maternal family to protect the girls from FGM. However, there is no evidence that the mother will not comply with undertakings given. When the father made his report to the police in November/December 2020, the mother returned to England upon request. There is no credible evidence that any member of the maternal family has an agenda for the girls to be subjected to FGM, nor that they would seek to pressure the mother or otherwise take steps to facilitate it.[212]Obtaining mirror orders in [Country B] will take time and cost money that these parties do not have, and will present as an additional obstacle to the mother and children to visiting family members. I am not persuaded that these measures are necessary or proportionate.[213]In her section 7 report [RA] suggests that before the mother is permitted to take the children to [Country B] the work suggested by Professor Bradley should be carried out.[214]The mother has already made sure that the children will receive appropriate education about FGM at school. So far as a civil society advocate being engaged to visit the maternal family in [Country B] is concerned, I accept that might provide an extra layer of reassurance to the father and to the Court. However, having regard to all the evidence I have heard and read I am not persuaded that it is necessary as a pre-requisite to the children being permitted to travel with their mother to [Country B]. I have had the benefit of hearing evidence from both the mother and her sister, and I am satisfied that the mother and wider maternal family have no intention of carrying out FGM on any of the girls, and that they would be well able to protect the girls from any such risk.[215]For all these reasons, I do not consider that FGM protection orders are warranted. The children are not at risk of FGM. To provide reassurance the mother has offered to give undertakings which I find will afford sufficient protection to the girls in all the circumstances of this case.

Risk of abduction

[216]The children have lived all their lives in this country. The mother gave clear and cogent evidence that her own identity is that she is first and foremost [a citizen of Country B], but that is not the same for her children. They speak English as their first language, go to school in England and see their lives here. She is fully supportive of them remaining here for the remainder of their childhoods. I found her to be a credible witness.[217]There are obvious benefits to the girls in being able to return to [Country B], a place they have visited six or seven times, and where they can renew their relationships with members of the wider maternal family. They will be able to revive their memories of [Country B]’s language, customs and culture, and thus develop a sense of belonging, strengthening their identity and sense of self. They will see their mother relaxed, happy, revived and cared for, and derive reassurance from that. They will explore and have adventures and experiences that inspire, teach and give them joy.[218]If they are not permitted to go, they will be deprived of exploring an essential part of their identity, will miss out on life-enriching experiences, and will miss the opportunity to know and spend time with members of their wider maternal family.[219]Against those considerations, I must consider the risks to the children of their being permitted to go, the magnitude of the risk of breach of the order if permission were to be given, and the magnitude of the consequences of the breach if it occurs. Finally, I must consider the level of security that may be achieved by building into the arrangements the various safeguards set out.[220]Having regard to all the evidence, I do not find there is a real risk that this mother would retain the children in [Country B] after a visit to her family, and not return them to this jurisdiction.[221]The mother has taken the children to [Country B] on six or seven previous occasions and there has never been any indication that she has stayed longer than agreed. She has never given any indication of an intention to relocate to [Country B] or to change plans or stay longer than originally intended. The father has not put forward any evidence to suggest that the mother has ever formulated a plan to retain the children abroad in the past or plans to do so in the future. In the past when the father made allegations of FGM the mother was able to be contacted and she complied immediately with a request to return early to the jurisdiction.[222]Granted, should the children be subjected to FGM then the consequences for them would be that they would have suffered significant harm. FGM is an extreme form of abuse with lifelong consequences.[223]If they were to be retained in [Country B] by the mother, then the father may experience difficulties in getting them home. However, it is not necessarily an impossible task. [Country B] is a non-Hague convention country, but that does not prevent an application being made. The children have family in [Country B] whose names and addresses can be the starting point of any investigation as to their whereabouts.[224]The undertakings referred to above would provide an element of protection. Again there is no evidence to suggest the mother would be likely to breach the undertakings.[225]I am not persuaded that providing a sum of money to be held in an account for father to use in the event that the children are abducted, is realistic, proportionate or necessary. To the contrary, given the father’s past history of making repeated reports against the mother, I consider there is a significant risk that such a fund could be misused by the father against the interests of the children and their mother. For the reasons given above, I do not consider that mirror orders or other measures in [Country B] are necessary or proportionate.[226]For the reasons given above, I have significant concerns about the father’s motivation in bringing this application. His proposal that the mother should not be permitted to take the children to [Country B] for the duration of their childhoods is in my judgment wholly out of proportion to any risk.[227]If they are not permitted to travel to [Country B], there is a significant risk that the children and their mother will feel that they continue to be subject to the father’s influence and control.

Conclusions on father’s allegations and applications

[228]For the reasons given, the father’s allegations that the children are either at risk of FGM or being abducted to [Country B] are not made out.[229]Having regard to all the circumstances, including the need to secure the health, safety and well-being of the children, I am satisfied that there is no requirement for the FGM protective orders to remain in place.[230]It is overwhelmingly in the children’s best interests to be allowed to travel with their mother to [Country B].[231]The father has not proved that the children are at risk of abduction by their mother, nor by any member of the maternal family. The fact of their mother being [a citizen of Country B] in itself is not a reason to conclude that the children are therefore at risk of being abducted there.[232]In the circumstances, there is technically no need to consider the risks to the children if they were to be abducted to [Country B]. But for completeness, I am positively satisfied that the advantages to the children of visiting the country outweigh any risks to their welfare that the visit would entail.[233]I have considered the safeguards that could be put in place to minimise the risk of retention and to secure their return, and I am satisfied that in all the circumstances of this particular case, the offering of undertakings is sufficient and proportionate protection, and should provide the father with some reassurance against any perceived risk.[234]There will be a recital that the undertakings have been given without any adverse findings having been made against the mother.[235]The evidence does not justify the continuation of the prohibited steps order nor of the FGM protection orders, and they should now be discharged. To continue with the orders would represent an unjust and unnecessary interference with the mother’s and children’s lives, and a continuation of the father’s attempts to exert control over them.[236]The standard provisions in child arrangements order will apply, that the mother may take the children abroad for up to a month without needing to seek the permission of the Court or the father.

Remaining issues

[237]The remaining issue concerns the amount of time that the father spends with the children and whether that time should be supervised, supported or unsupervised.[238]The Court has made findings of domestic abuse. In accordance with PD12J the Court will need to carry out a risk assessment before reaching a final conclusion on the father’s application for the children to spend time with him.[239][RA] will be directed to file a short addendum report.[240]The parties will be directed to file statements setting out their responses to this judgment, and their proposals for the orders they invite the Court to make at the conclusion of proceedings.

Interim contact

[241]I have regard to all the circumstances with particular reference to the factors set out at section 1(3) of the Children Act 1989. I must also have regard to Practice Direction 12J of the Family Procedure Rules 2010 and in particular the likely effect on the children, and on the care given to the children by the mother, of any contact and any risk of physical, emotional or psychological, which the children and the parent are likely to suffer as a consequence of making or not making an order.[242]The court has made a range of significant findings against the father of physical and emotional abuse perpetrated against the mother and the children over many years, both during the relationship and post-separation.[243]The children have shown some ambivalence about contact. There have been notes of positive interactions, and of the father being warm and affectionate to the girls. However, the girls have also described on a number of different occasions their experiences of seeing the father have difficulties in managing his anger. In early 2023 the father agreed that he would do the ‘managing strong emotions course’ but has not done so. He said that he has been too busy. In his evidence he did not accept that he does experience any difficulties in managing his emotions, nor that this had impacted upon his ability to parent his daughters.[244]There have been some issues with the father not reliably telling the contact centre when he was going to come to contact. On 22 December 2024 the father cancelled contact as he was going to be out of the country. On 5 January 2025 the father did not pay for the session, which was subsequently cancelled as the contact centre could not contact him. On 2 February 2025 the father did not attend for contact.[245]I have found that the father has tried to use contact as an opportunity to influence the children and to find out information about the mother. On 18 January 2025 the mother says the children came back from contact telling her that the father had been asking them to tell him about the mother, their house, who was visiting them, and that he had told the children their mother was dirty and a bad mother. The girls were very upset. The contact centre supervisor said that they had not heard conversations of this nature, but said that they were not always in earshot of the father and children during contact.[246]It is of significant concern that during the course of the fact-finding hearing the father gave evidence that he had seen the mother out and about in [place name redacted] lots of times. There is a significant risk that the father may try and use contact as a means to try and track the mother or children down.[247]For this reason, and due to the range of findings made, I accede to the mother’s request that I make a non-molestation order to the father, to protect the mother and the children and to prevent him from harassing her or following her or the children.[248][RA] recorded the girls’ wishes and feelings around contact in her section 7 report and addendum. All three girls have said they feel their father is trying to bribe them to spend more time with him as he chooses to take them to a shopping centre every time he sees them and busy gifts for them, but will also say, ‘I’ll get it if you come to spend time with me’. E and F report that the father still makes comments about religion and dress code. It is reported that F said the father told her the devil would urinate in her mouth if she yawned. The girls wanted the video calls to reduce or stop altogether.[249]In all the circumstances, my view is that until the final hearing, the father’s contact with his daughters must be supervised. Providing the contact centre feels able to provide the required level of supervision, I consider that contact could take place within the community. Included in the cost of contact and supervision (to be paid by the father) will be the provision of notes recording interactions between father and children.[250]At the final hearing, the court will consider the updated report from [RA] and the recommendations she makes, review the father’s response to the findings, and weigh up the benefits to the children of continuing to spend time with their father, the risks involved, and ways in which those risks could safely be managed. HHJ Joanna Vincent Family Court, Reading Draft sent out by email: 26 February 2025 Approved judgment handed down: 10 March 2025