B e f o r e :
MR JUSTICE PEEL ____________________
____________________
Anita Guha (instructed by Dawson Cornwell) for the Applicant Shaher Bukhari (instructed by Noble Solicitors) for the Respondent Hearing dates: 1-4 November 2021 ____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
Crown Copyright ©
Mr Justice Peel :
Introduction
In Re A [2019] EWCA Civ 74 Moylan LJ said this:
The children with whom I am concerned are girls aged 4 and 2. On the case of the Mother ("M"), she and they were left stranded and abandoned in Pakistan by F in November 2019. On 11 June 2021, M sought wardship orders, and various forms of ancillary relief. This is the final hearing of her application. It is the case of the Father ("F") that M willingly left England to travel to Pakistan with the children, and has voluntarily remained there since. He denies having abandoned them, or any form of coercive, controlling, and abusive behaviour.
At the Pre-Trial Review I directed that this final hearing should be used to determine the following issues:
I also determined that it would not be necessary for me to make findings upon the Scott Schedule which had been prepared, save insofar as relevant to the identified issues.
I am not being asked to determine a forum conveniens dispute. Nor am I asked to make any child arrangements orders.
Both children are British nationals. It follows that even if I were to find against M on habitual residence, it would be open to me to make orders on the basis of nationality alone, exercising the appropriate high degree of care required before doing so; Re M [2020] EWCA Civ 922 . It seems to me that, if I conclude transnational abandonment has taken place as described by M, but the habitual residence criterion for making orders is not fulfilled, this might be just the sort of sufficiently compelling case where the court's inherent, protective jurisdiction would need to be invoked. I note that Deputy High Court Judge Richard Harrison QC reached the same conclusion, on similar facts in Re J, K and L [2020] EWHC 2509 (Fam) , albeit he did not have to reach for the parens patriae route as he found in favour of the applicant mother on habitual residence.
The witnesses
I have reminded myself of the dicta of Mostyn J in Lachaux v Lachaux [2017] EWHC 385 and, in particular, the value of contemporaneous documentation to corroborate the witness evidence.
My impression of the witnesses was as follows:
The background
I propose to incorporate in this narrative my factual findings, so far as relevant to the principal issues before me. In so doing, I take into account everything I have heard and read.
F is a dual Pakistani/British national. M is a Pakistani national. They are respectively 38 and 37 years old. Both were born, and grew up in Pakistan. M obtained a Masters in MSc Accounting from [X] University in a city in Pakistan. In 2007 she secured employment at a bank in Pakistan as a credit analyst, where she worked until January 2018. F obtained a Masters in MSc Finance and Business at a university in England. Thereafter, he set up his own business which he has recently sold.
F and M initially met when they both studied together for one semester at GIFT University, before F moved to Manchester in 2005. F married his first wife in 2010, from whom he was divorced in 2015; they lived together in England.
In 2016, the parties married in in Pakistan. M moved to the paternal family home, living with F's family (his parents, brother, and brother's family) in a city in Pakistan, in accordance with accepted cultural norms. She was able to continue her employment at the bank. F returned to Manchester in September 2016, where he lived and worked, running a business. It seems that he was conducting a certain amount of business in Spain, where market conditions for his operations were more favourable at the time; so much so that he considered relocating there. He had rights of residency in Spain. He returned to Pakistan for visits in November 2016, December 2016, and January 2017.
M says that F's family were very critical of her, denigrated her, treated her like a servant and tried to persuade her to give up her job. F, and his family, say that it was the other way round, and that M herself was abusive towards members of his family. There is very little real particularisation of the allegations on either side. In any event, I do not consider it necessary to resolve this particular area of dispute. Having heard the evidence, my assessment is that over the whole period when M lived with her in-laws, some 5 years, there were increasingly regular contretemps, angry exchanges, and flare- ups between them. It became an unhappy household, which is not altogether surprising. However, it is not directly relevant to the principal question before me, namely whether M was stranded in Pakistan by F. What is significant is that, as was clear from F's evidence, he (who had not been in Pakistan when these events occurred and was not a witness to them) largely took the side of his family, believing their version of events and not believing his wife.
F says that his family, in accordance with custom, provided for M financially, and that he also sent her money. On the evidence it is reasonably clear that, although the precise amounts are in dispute, F provided M with a regular allowance, as did F's father, who in addition paid for all household outgoings. In addition, M, until early 2018, had her own earned income.
Their first child, Z, was born in Pakistan on 12 May 2017.
F, actively looking at moving to Spain, applied for a Spanish spousal visa for M which was granted on 23 July 2017. M says, and I accept, that the parties intended to move permanently to England to settle together as a family, but that did not in fact come to fruition. I do not accept F's contention that they always intended to live permanently in Pakistan, which is belied by the amount of time he actually spent in England away from M and the children. In September 2017, M travelled to Spain on her own for 4-5 days to apply for a residency permit on the strength of her spousal visa. An application was also made for residency for Z. In October 2017, M and F travelled together to Spain to submit papers for Z's residency application. In December 2017, M and Z travelled to Spain where they received Spanish residency cards, which enabled them to travel on to England as EU residents. In England, they stayed at the house of a friend of F. F made an application for a British passport for Z during this stay which was in due course issued. On 30 December 2017, M and Z returned to the paternal family home in Pakistan.
In January 2018, M left her bank job, saying she was pressured to do so by F and his family who wanted her to look after Z and F's parents; in particular, F told her that if she resigned, she would be able to move to England to live with him. That is denied by F who says she did not want to combine work with bringing up their child, and it was entirely her choice. I am quite sure that M's case on this is correct. During 2018, F returned to Pakistan twice to visit, and M and Z continued to live with his parents, brother, and brother's family.
In December 2018, M and Z left the paternal family home for a short period and moved to M's parents' house after what M says was an assault on her by her sister-in-law (denied by F and his family, and an issue which I do not find it necessary to resolve). M was subsequently persuaded by her father to return to F's family home; her father, so I was told by M, held the view that she should live with F's family.
M became pregnant with X after one of F's trips to Pakistan. According to M, and I accept, she and F agreed that she should move permanently to England with Z and their unborn baby to join him. M herself had no intention of returning thereafter to Pakistan with the children. M told me that "we planned to settle in the UK", that F intended to buy a home and they would live in this country, all of which I accept. According to F, M wanted to come to England to give birth, the medical facilities being better than those in Pakistan, whereupon she would return to Pakistan. On this significant area of dispute, I prefer M's account.
In June 2019, M and Z flew to Spain, where they met F, and all travelled on to England. According to F, she arrived in this country on a Surinder Singh permit for 6 months; that was inconsistent with a copy of the entry in her passport which specifically states "No Time Limit" from the December 2017 stamp. That is the best evidence before me. There is no evidence that M's entry was limited in time as F says, and he has had ample time to obtain evidence thereof. Further, I reject F's claim (raised in his counsel's position statement, but not in his many witness statements) that M was, or should have been, barred from leaving Pakistan because of an ongoing case concerning her former employer which has now been resolved; she explained to me that she was not directly involved, had no arrest warrants against her, and was permitted to leave Pakistan. I was not quite sure what point F was seeking to make, but I unhesitatingly accept M's evidence on this matter.
They lived in rented accommodation, first in Openshaw, Manchester, then in Longside. They were clearly a family unit at this time, all living together for an extended period for the first time since their marriage. For a period in summer 2019, F's parents visited.
Prior to the birth of X, and indeed afterwards, I conclude that F did not forcibly prevent her from leaving the house. But it was made clear to M that F opposed her going out, or seeing people. These matters are indicative of F's control of M in the marital relationship. True, M went to London on one occasion to visit her brother in London, but otherwise tended not to go out; when she saw neighbours, they would come to her house rather than her going to their houses. This was not imprisonment, but it was indicative of F's controlling attitude towards M in the marital relationship.
X was born on 23 September 2019.
According to M, F was angry when she told him beforehand that their unborn child was a girl. That is denied by F who produced statements from witnesses about F taking sweets (as his customary in his culture) to friends and neighbours to celebrate the birth, and messages between him and family members/friends about the birth. It seems to me that F was indeed disappointed that the second child was also a girl. He said different things to friends and family from what he said to M; I am quite satisfied that he would have preferred a boy, and his attitude to M changed after the birth of another girl. As she told me, his attitude was as if she had let him down, saying to her "You couldn't give me a son".
It is clear that the marriage was in some difficulties from 2018 onwards. F told me, and I accept, that by mid to late 2019 the marriage was not going at all well. The time in England had not worked out happily. According to F, this was because of M's abuse directed towards his family. Whether that was indeed the case or not, I am satisfied that during this period F decided to ensure that M and the children would return to Pakistan and stay there, in the care of his parents, leaving him free to carry on an independent life in England relieved of the burden of caring for his family. In his mind, the intended permanency of their time in England changed as the relationship deteriorated.
M's sister was due to marry in Pakistan in November 2019. M told me, and I accept, that she did not want to return for the wedding, mainly because of the recent birth of X who was still very young. It was F who made the travel plans and bought the tickets to travel on 20 November 2019. There is no evidence that M was physically forced to travel against her will, but I find that she was very reluctant to do so. She was assured by F that they would be returning, an assurance that proved to be hollow.
On 19 November 2019 F obtained a British passport for X; thus, by then, both children had British passports a well as Pakistani passports. F had complete charge of these, as well as all other travel documents of the family.
On the morning of 20 November 2019, M took X to see the Health Visitor in Manchester for a regular check up. There was no mention of returning to Pakistan permanently that evening. Moreover, X was booked in for a health immunisation programme, and had an appointment fixed on 20 December 2019.
On 20 November 2019 the whole family travelled to Pakistan for the wedding of M's sister. At that point, M and Z had been in this country continuously for a period of about 5 months, and X for a period of 2 months since her birth. F told M they would return a few weeks later in December 2019 whereas he would return to England on 27 November 2019. F carried all the travel documents. I do not accept F's version that it was M who had the family's travel documents (including those of F) in her bag during the trip. All their belongings, according to M, whose evidence I prefer on this, were left in England. F told me that, on the contrary, they brought 350kg of belongings to Pakistan, but he could not produce any evidence of having paid what must have been a hefty luggage surcharge. The plane tickets were return, rather than one way (albeit for a date in February whereas M expected to return in December). F's explanation is that he bought return tickets because it was the same price for a return as a one way, and a refund could be obtained for the unused bit. That explanation may be correct, but it is consistent with him buying return fares, telling M that they would return, and in fact intending to leave M and the children in Pakistan and reclaim the unused return fare. In short, F in my judgment told M one thing but intended another.
I unhesitatingly accept M's evidence that during the journey, and thereafter in Pakistan, all the travel documents for M and children were retained by F, or members of his family, and have never been handed over to her. The assertion by F that M has had all such papers in her possession all along is implausible, and I reject it.
M and the children went initially to her mother's house from 22-25 November 2019. On 26 November 2019, M and the children moved back to F's family home. Subsequently F assured M that she and the children would return to England 2 weeks later. On 27 November 2019, F returned to England from Pakistan, leaving M and the children abandoned in Pakistan without their passports
On 28 November 2019, M telephoned the health visitor in Manchester. The contemporaneous record reads "Phone Contact Telephone from [M]– she said she has been taken to Pakistan by her husband, said he tricked her and then, as a punishment, he has returned to UK with her passport and the children's passports. They are at the home of her husband in-laws….she then rang back and said she had spoken to her husband and he will bring her back in December so she will withdraw her complaint. I did not tell her that I had already called the police as felt this may put them in danger".
On 18 December 2019, the health visitor reported to the Manchester police that F had taken M's passport and returned to the UK.
On 21 December 2019, M reported to the police that the plan had been to stay for 3 weeks in Pakistan, with F returning after 1 week, that F had the travel documents, and that F had since told her they would return on 25 December 2019.
F was unable in his evidence to explain plausibly why M said these things to the Health Visitor and the police if they were false. I can think of no reason why she would have told untruths to them. In my judgment these log records are corroborative of her case, and to my mind of significant evidential value.
In January 2020, M, her brother, and F's brother had a conversation which M recorded. I read a short, translated transcript of one part of what was a 3-hour conversation. At first sight, it might support a suggestion that F's brother admitted to having held the children's passports, contrary to F's case that M held them. However, having heard the evidence, I do not consider I can attach any weight to this brief transcript. It was one small part of a long conversation, with no context, and it seemed to me that there may genuinely have been confusion as to exactly what documents were being referred to (it is at the very least possible that F's brother was talking about F's passport, not the children's). I heard some evidence about other audio recordings made by the parties, but the picture was unclear, and I decline to make any findings about what recordings were made, the circumstances and the content of the recordings.
On 10 February 2020, F, according to M and I accept, telephoned M and said that he would be moving house and getting rid of M's belongings.
On 26 February 2020 F bought a property in Manchester for £281,000, subject to mortgage. The evidence (including tenancy agreements) suggests that the property is tenanted while F himself lives elsewhere in rented accommodation.
During 2020, M's case is that she was distracted by lockdown and the death of her father in July 2020. In March 2021, she started making some enquiries of the British High Commission. She was not aware of her ability to make applications in England, still hoped that F would return and take them to England, and believed she would be able to obtain a visa to travel to the UK.
During this period (2020 to early 2021), the ongoing simmering tensions between M and F's family erupted from time to time. Again, I do not consider it necessary to make specific findings on precise incidents as between M and F's family, nor are they set out in any real detail in the statements. I am confident that, at one level, F's family did not prevent M leaving their home. She told me that approximately once per month she and the children would go and spend a week with her own family who live in the same area. But in practice, she had no real options. F, and F's family, provided for her and the children; she was financially dependent upon them. Her own father, when she had previously attempted to leave, had encouraged her to return, and clearly opposed her separating herself from her in-laws. F had told her, as I accept, that if she attempted to leave his family permanently, he would remove the children from her care. He also told her that if she left, he would stop sending her money. And without travel documents she was unable to depart from Pakistan. She was, in practice, trapped, even if not forcibly confined. There was an obvious imbalance of power.
On 10 June 2020 and 25 August 2020, F told the Manchester health visitor by telephone that the family would be returning to the UK, but were prevented from doing so by lockdown. The health service log sets these conversations out. F was unable to explain these conversations satisfactorily; plainly, they are inconsistent with his case that M was in Pakistan with the children voluntarily and permanently.
In March 2021, M obtained a new Pakistan passport. She applied for a British visa under the family permit scheme which was refused in May 2021. She does not have passports for the children, but understands that they would be entitled to travel with her if she had permission to enter the United Kingdom. M applied in July 2021 for a EU settlement visa, which is awaiting determination.
It seems that the marriage definitively broke down by March 2021. M and the children moved to live with her family, where they have been ever since. F stopped his financial payments to M.
On 29 June 2021, F's parents applied in Pakistan for a "guardianship" order in respect of the children. F has repeatedly said to the court throughout the English proceedings that it is an application for contact, not an application for the children to live with them, not least because, so he says, his parents are too old and frail to care for the children. The translated Pakistani documents make it absolutely clear that the grandparents have in fact applied for (i) an order for the children to live with them, and (ii) an order preventing the children being moved out of the country, or to another area within Pakistan. Very serious allegations about M's care of the children are made, asserting that M is an unfit mother. The clear inference is that they (with no resistance from F) aim to separate M from the children. I find it scarcely credible that, as F suggested, the application was made by his parents without either his knowledge or agreement, and he first knew about it when informed by his lawyers in this country. I did not believe him. They are bound to have consulted him beforehand about something as significant as this. Nor did I believe him when he told me that he did not see copies of the Pakistani court documents until M obtained them, and produced them in the proceedings before me, and that he did not even ask his parents for copies of the court documents. This was all very implausible. I am quite sure that F was aware of, and complicit in, the instigation of proceedings in Pakistan.
The initial application by F's parents on 29 June 2021 was rejected, apparently because X had been born in England and there was accordingly no jurisdiction to make orders on the basis of the application as framed. The grandparents submitted an amended application dated 10 July 2021. Notably, paragraph 4 of the amended application states at the end in brackets " Copies of the passports attached" . That did not appear in the original application and was presumably added in the amended application to meet any jurisdiction issues, for the aim was to demonstrate that both children were Pakistani nationals. The copies attached to the application were of the Pakistani passports of both children and M, all bearing an entry stamp to Pakistan dated 21 November 2019. To which the obvious question was; how did the grandparents obtain copies of the passports, which must have been taken after 21 November 2019 when, according to F, they were in the possession of M at all times and there is no suggestion by him that either he, or his parents, or any other family members, had custody of them at any time? F said he thought (but it was clearly a guess) it was because the birth of X had been registered at the municipal office by his father shortly after arrival in Pakistan. He surmised, and it was never more than a surmise, that X's passport may have been copied for the purpose of registration, lay on municipal files, and was later extracted by F's parents for the purpose of the guardianship application. Quite apart from the fact that this was pure guesswork on his behalf, none of this was in his written evidence and it did not explain how Z's passport, and M's passport, came to be copied as well as X's. Nor could F explain how his parents could obtain copies of the children's passports from the municipal office, given that they are not these children's parents, let alone a copy of M's passport.
As I have indicated, the evidence of the paternal grandfather on this was equally unpersuasive. These elaborate explanations made no sense. The true explanation, as I find it, is that the grandparents were able to take copies because the passports, and other travel documents, were in the possession of F, or them, or F's brother. They were undoubtedly held within the paternal family, and M did not hold them.
On 22 September 2021, F pronounced the first talaq.
During the course of these proceedings F has said that it is his intention to relocate from England to Pakistan, although the precise timeline is not clear. F was ordered by me at the Pre-Trial Review to state his proposals as to child arrangements. He has said that if they come to the England, he will seek contact, but that "I would be seeking that the children remain in Pakistan and for me to go over and see them". He told me he does not want the children to live in England. He has described M as "cruel" which to my mind suggests that, contrary to his assertions to me, he would prefer the children to live with his parents rather than M. His father told me that he considers M is not a good mother. His brother said categorically that M should not look after the children; he thought that the grandparents should do so. All of this is reflective of F's family sharing a similar view of M and, in my judgment, aligning against her.
F says this application is brought by M because her visa application was turned down. He says it is nakedly designed to assist in her immigration application. I do not accept that submission. I am quite satisfied that this application is brought because of M's assertion that she was stranded in Pakistan in November 2019. It is completely understandable that M would, at the same time, seek to ensure that she can re-enter the United Kingdom; there is no inconsistency between that, and her primary case. After all, had she not been stranded in Pakistan, she would (i) still be living in England, having returned there at the end of 2019, and (ii) be in possession of a passport with no time limit on her entitlement to stay. Instead, her passport has been removed by F, and she has thereby lost the entry clearance previously secured by her. True, if M had somehow been able to secure the ability to re-enter the UK with the children, she might well not have instituted wardship proceedings; but that is not what has happened.
Conclusion on the core factual issue
On the critical issue of abandonment, which in turn depends largely on my findings as to what became of the travel documents of M and the children, I conclude as follows:
Habitual residence
The law on habitual residence was summarised in by Hayden J in In re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam) , which has been referred to with approval by higher courts in In the Matter of L (Children) [2017] EWCA Civ 441 and In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2017] EWCA Civ 980 , [2018] UKSC
It is convenient to note that in Re M [2020] EWCA Civ 1105 at paragraph 63 Moylan LJ cited Hayden J's summary, commenting that he considered subparagraph (viii) (set out above) should be omitted as it "might distract the court from the essential task of analysing "the situation of the child" at the date relevant for the purposes of establishing jurisdiction".
In my judgment, the children were habitually resident in England and Wales at the date of the application to the English court for the following reasons:
Parens patriae
If I am wrong about habitual residence, I conclude that in any event this would be an appropriate case to exercise the powers available to me by virtue of the parents patriae jurisdiction, founded on the nationality of the children.
In Re M (supra), after a survey of the law relating to parens patriae, Moylan LJ summarised the position as follows:
In my judgment, if the children were not (contrary to my findings above) habitually resident in England and Wales at the relevant time, and had in fact become habitually resident in Pakistan, that is as a direct result of being trapped in Pakistan by reason of F's controlling conduct. Neither they nor M were free to leave Pakistan and return to England. If they lost English and Welsh habitual residence because of their powerlessness in the face of abandonment by F who had removed their passports and means of travel, it would, in my view, be unjust to deny them the parens patriae jurisdictional basis of exercising the court's powers. This is exactly the sort of case where that power, to be exercised only when the facts are sufficiently compelling to warrant it, would be legitimately invoked for the protection of British subjects.
Orders and conclusions
I will declare and order as follows:
Immigration
Nothing in this judgment is in any way designed to influence the Home Office, or any other agency considering applications by M for visa and/or permits enabling her and the children to enter this country.