Tag Archives: Ms Justice Russell

Bad feng shui and bad judgment

Posted on January 22, 2020 by suesspiciousminds

I was watching Silent Witness last night (don’t @ me), and snorted at how dreadful the depiction of the District Judge was who ignored the obvious signs of domestic violence and tackled the case with all the sensitivity and panache of Jack out of On the Buses, just in pinstripes. How ludicrously exaggerated, I thought, we are so far beyond that in our modern understanding.

And then I read the JH v MF appeal.

[Maybe it was an exceptionally bad day rather than a true representation of the Judge’s usual approach, but this is one of the most withering appeal judgments I have ever read]

http://www.bailii.org/ew/cases/EWHC/Fam/2020/86.html

This was a private law case involving allegations of domestic abuse and violence and the impact that they would have, if proved, on the father’s contact with his child. The mother was represented by counsel, the father was not. The Judge at first instance His Honour Judge Tolson QC, conducted cross-examination of the mother on the father’s behalf so that the father would not be asking her questions directly. This is an issue which legal commentators, and the judiciary have been troubled by for some time, and the judicial approach here with the Judge asking the questions is in line with the guidance provided by the senior Courts.

The mother had asked for screens to be made available so that she could give her evidence without having to look at the father. That’s not at all unusual, and it is usually a request that is granted, albeit that there’s normally a lot of faff in actually producing the screens. Here though, the Judge decided that the mother should give her evidence from the counsel’s bench, rather than the witness box. The Judge then, without any request by the father, decided that father too should give evidence from counsel’s bench. That meant, in reality, that the father’s evidence was given with his McKenzie Friend sitting by his side. [I note also that the Judge accepted in his judgment that he could not hear all of the evidence given by the mother]

The judge then proceeded to order that the Respondent, too, should give evidence from counsel’s row making reference to the “feng shui” of the court room and the screens and saying that it was fair and “created some kind of balance” without any application having been made by the Respondent that he needed to give evidence in the same manner as the Appellant. Concerns raised by counsel were dismissed without reasons being given for this decision by the judge. The Respondent was then able to give evidence sitting next to his McKenzie friend who was, as a consequence, able to assist the Respondent in the answers he gave when the Respondent was being cross-examined. It follows that the Respondent was given an advantage and assistance denied to the Appellant. As was submitted by trial counsel in her skeleton argument and I accept “… it is plain and requires no citation that when a witness is giving evidence, they are ‘under oath’ and are to receive no prompting, assistance or advice during the midst of it.”

Ms Justice Russell DBE, hearing the mother’s appeal, ruled that this failing alone was sufficient to grant the appeal, but

…along with his conduct of this case any broad analysis of his judgment, and approach to the fact-finding is so flawed as to lead to the conclusion that it is unsafe and wrong. Counsel submits that the judge failed to apply the provisions on PD12J of the FPR 2010 and drew this Court’s attentions to the following definitions;

“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

“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:”

It forms part of the Appellant’s case that the judge failed to apply these definitions, or at the very least, keep them in mind. That submission is accepted.

According to trial counsel’s notes the trial concluded at 16:30, and she, as for the Appellant, was unable to make the all the closing submissions she intended to in the time that was allowed to her which commencing at 16:45, not least as her oral submissions were repeatedly interrupted by the judge. The judge did not then call on the Respondent at all. The real risk of the appearance of a partisan approach in the judge’s conduct is self-evident. This was compounded when, after delivering his judgment at 17:55, the judge ordered a s7 report and invited the Cafcass Officer to consider Cafcass contact intervention, yet no evidence in respect of the need for this was given or considered during the trial, and the Appellant was denied any opportunity to address the court about the necessity for, or the imposition of such conditions. The judge then failed to give any reasons for so doing and further compounded his errors when, on 23^rd August 2019, the judge directed Cafcass to investigate any child protection concerns in the Appellant’s care of C. Nothing in respect of this was raised at trial, there was no evidence (indeed the opposite was indicated in the safeguarding correspondence) before the court to support such a direction but the trial judge saw fit to impose such a direction, nonetheless

The judgment is heavily criticised. There’s a startling passage in relation to text messages sent by the father to the mother (some at least during the course of the hearing) – where the Judge describes as ‘sexting’ by the father a message which, well, is clearly not ‘sexting’. [Apologies for the language, but I think it is necessary to see the bald words in order to form your own views]

Secondly, after failing to deal with the text messages, sent by to the Appellant by the Respondent, during the hearing and on being addressed by counsel in respect of this failure on application for permission to appeal, the judge had concluded that graphic, sexually explicit and threatening texts such as “If you don’t shut up I will stick my cock up your ass” were consistent with “sexting” and were not “helpful”. It had not been the Respondent’s case that the texts were “sexting”, nor was this put to the Appellant during her evidence. Not only was the content of the texts likely to have been relevant in connection with any consideration of controlling and coercive behaviour, it may well have had relevance in connection with the complaints of sexual assault. Notwithstanding the relevance of the texts as evidence, it would seem that the judge wholly failed to understand that is the effect on the recipient that is pertinent when considering whether any message or communication is threatening and/or abusive.

The most troubling portions of the judgment relate to the trial Judge’s approach to the allegations by mother that the father had engaged in sexual intercourse with her against her will. The way that Ms Justice Russell analysed those portions (as set out below) is that a very experience Family Court Judge had wholly miscategorised the issue of consent and had instead approached matters as though the mother was required to establish rape by showing that she had attempted to fight the father off and because she had not done so, there was consent.

[There are some High Court decisions over the last few years about experts being given a right of address before career-threatening or damaging findings are made. These comments seem to fall within that ballpark to me. ]

The phrase “out-dated” is a euphemistic one on full consideration of the judge’s approach to the Appellant’s consenting to sexual intercourse in a physical position and manner which she, even on the judge’s assessment, found repugnant and was “sexual intercourse which was not, at the time, towards the [Appellant’s] taste or inclination.” …Paragraph 22)
The relevant passages in his judgment which make most concerning reading are to be found in paragraphs 23, 24, 25, 26, 27 and 28. I have not set them out in full detail nor should it be necessary to do so as it is clear that the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct.
The judge, having started by accepting that the Appellant “had difficulties in taking physical enjoyment from sex…” because of events in her past and had often told the Respondent to stop during intercourse in the past then went on to accept that on the first of the two incidents of penetrative sexual assault the Appellant had been reluctant to have sex, that during intercourse she asked him to stop and he did not and carried on; this appears to have been accepted by the Respondent to some extent as he said both that he stopped and later that the Appellant had not asked him to stop. Paragraph 23 reads “…the first occasion it is the mother’s own case that sexual intercourse began with her consent, and consent was only removed during intercourse when the mother told the father to stop — but he failed to do so. The difficulties do not end there because this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex. She would, she tells me, often tell the father to stop during the times when intercourse between them was more frequent than it was in 2016. The difficulties arose, apparently, because of events in her past…” The judge then went on to comment both that the Appellant had not physically resisted and that she was upset afterwards but dismissed her distress in this way; “If the [Appellant] was upset afterwards, which the [Respondent] recognises, this was nothing unusual because of the difficulties I have mentioned.”
At paragraph 24 of his judgment the judge dealt with the Appellant telling the Respondent to stop penetrating her in this way “…the sex in question took place with the mother kneeling on the bed and the father standing behind her. During intercourse she told him to stop, but he did not, and carried on at least for “a couple of minutes”, which is a description given, I think, to the police. It is part of the mother’s case that she took no physical step to encourage the father to desist. The father’s contention is that the sex between them on this occasion, which he recognises because it was one of very few occasions when the parties had sex during the year in question, was entirely consensual from beginning to end, and he was not told to stop. If the mother was upset afterwards, which the father recognises, this was nothing unusual because of the difficulties which I have mentioned.”
Further in dealing with her consent the judge continued (at paragraph 25); “My concern about this occasion centres on the idea that the mother did nothing physically to stop the father. In particular, given the position in which intercourse was occurring, because the mother was not in any sense pinned down on this occasion, but could easily, physically, have made life harder for the father. She did not do so. I do not find that the father was in any way on this occasion so physically forcing her as to cause her not to be able to take preventative measures, nor, in fact, is that case alleged. Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else. Her description, of course, does not indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.”
This judgment is flawed. This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent. This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim. Whilst the burden of proving her case was with the Appellant in any counter allegation the burden lay with the Respondent. Indeed it was the Respondent who had brought the case as the applicant in the Family Court, thus the burden of proof did not lie solely with the Appellant. Moreover the judge should have been fully aware that the issue of consent is one which has developed jurisprudentially, particularly within the criminal jurisdiction, over the past 15 years (of which more below).
The judge’s view in respect of consent is underscored by his comment at paragraph 25 (as quoted above) when he said, “My concern about this occasion centres on the idea that the [Appellant] did nothing physically to stop the [Respondent].” The judge then went on to say that because the Appellant was on all fours on the bed, at the Respondent’s insistence this would have, according to this judge, made it easier for her to resist and “made life harder for the [Respondent]…” and that the Respondent had not, the judge found (again the evidence on which he reached this conclusion is absent from the judgment), been “so physically forcing her as to cause her not to be able to take preventative measures [sic]..”. The judge then comments that the Appellant did not take immediate action to call the police or anyone else and that her description, in the view of this judge, did not “indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.” In keeping with his approach thus far the judge had apparently concluded that it is necessary for victims of sexual assault to report the assault or make a contemporaneous report. Yet it is now explicitly accepted that many victims will not do so, out of fear or embarrassment which are based on their cultural, social or religious background and the concomitant pressures, mores or beliefs.
The judge then considered the second incident when the Appellant says sexual intercourse took place without her consent at paragraph 26 of his judgment. “The second occasion, occurring some two months later, began with the parties watching television whilst in bed. The father suggested the television should be turned off. As I understand it, it is common ground that it was, and then the father, again, requested sex of the mother. This time the mother’s case is that she refused, and when intercourse began it was not with her consent. She says that she was wearing pyjamas. The father took the pyjamas off and had intercourse with her, again from behind. This was at no point, the mother says, with her consent. The father maintains to the contrary — that intercourse was initiated by both of the parties and was entirely consensual throughout. Again, he recalls the occasion of which the mother speaks. Here, my difficulty with the mother’s account centres on the removal of her pyjama bottoms. I should emphasise that father’s account is that in fact she was wearing a nightie. I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of the pyjama bottoms. There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive on this occasion. Insistent in his requests, yes, but physically coercive, no.”
The Respondent was once again penetrated by the Respondent from behind. The Respondent said she consented. The Appellant said she did not at any point consent to sexual intercourse taking place. At paragraph 26 (quoted above) the judge said, “…my difficulty with the [Appellant’s] account centres on the removal of her pyjama bottoms…I do not see why the [Appellant] could not, should not, have made life difficult for the [Respondent] in the circumstances by preventing the removal of the pyjama bottoms.” Again the judge’s conclusion on whether sex was consensual or not is wrongly predicated on the presumption that to establish non-consensual penetration the complainant should have physically resisted. Similarly, the judge said “There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive (my emphasis) on this occasion” as can be seen below physical coercion or violence or the threat of violence is not considered a necessary element when considering consent or the lack of consent, thus the judge was wrong in his approach.
This time (as the judge noted in paragraph 27 of his judgment) the Appellant did report a serious sexual assault to the Police. Paragraph 27 reads “The [Appellant] “was to report these events to the police at the end of August. But there may be some significance in the circumstances in which she did so because one of her friends, [P], in her written statement, appears to imply that the purpose of the visit to the police station at the end of August was to report father’s threats made to her [P}, and that it was almost incidental that the question of the mother being forced to have sex (the expression used in [P’s] police statement) came to be revealed. Moreover, the terms of [P’s] statement, again, can hardly be said to be heavily supportive of mother’s case as to the terms in which the mother was reporting what happened to her. [P’s] account contains the following sentence: ‘I asked her what had then happened and she told me that she had let the father have sex with her as it was easier than to keep saying no.’ That can hardly be said to support a coherent account of rape.”
Thus the circumstances in which the complaint was made was impliedly, and to some extent explicitly, criticised by the judge because the Appellant had originally accompanied a friend to the police station to complain about the Respondent’s aggressive behaviour to that friend, and it was the friend who had raised the incident of sexual assault on the Appellant with the Police. The friend told the Police, as the judge quoted in his judgment (above), ‘“I asked her what had happened and she said that she had let the [Respondent] have sex with her as it was easier than saying no.”‘ This, the judge found, could hardly be said to support a coherent account of rape. This conclusion is obtuse, any decision of consent must include a coherent account (to borrow the judge’s own phrase) and consideration of the extent to which the complainant or victim was free to choose and to consent, or to paraphrase the relevant criminal statute (s74 Sexual Offences Act (SOA) 2003), that person has had the freedom and capacity to make that choice. It is arguable, at the very least, that the evidence before the judge was that the Appellant’s freedom and capacity to choose had been extinguished or at least gravely compromised.
At paragraph 28 of his judgment, which reads “My findings on this occasion, as to both these occasions, is that the sex between the parties carried the consent of both. This was not rape. It may have been that at a point during both occasions of intercourse the mother became both upset and averse to the idea of the intercourse continuing. But if she did so, I emphasise this was something which was usual for her, the product of events in her past and her psychological state in not being able to take physical pleasure from sex. It was not a consequence of any action on the part of the father. Moreover, at no point during these occasions do I find that the mother withdrew consent or conveyed to the father any discomfiture that she was feeling about the intercourse continuing. I cannot even, on this evidence, find that the father was somehow insensitive to the mother’s position. I can accept that he would have asked for sex perhaps on a number of occasions before sex commenced, but that is as far as it goes. Given the nature of these allegations I have felt it necessary to set out these detailed findings in respect of it.”
Thus, the judge had accepted that “at a point during both occasions of intercourse the [Appellant] became both upset and averse to the idea of intercourse continuing. [My emphasis]” but he continued to reach the conclusion that had the Appellant done so it was not as a consequence of any action on the part of the Respondent because it was “something that was usual for her, the product of her past and her psychological state in not being able to take physical pleasure from sex.” The judge went to say that “at no point do I find that the [Appellant] withdrew consent or conveyed to the [Respondent] any discomfiture that she was felling about intercourse continuing.” The judge failed to explain the reasons for his findings; as to why, if it was evident to the judge that the Appellant had become averse to sexual intercourse continuing it was not evident to the Respondent; and, secondly, why it was acceptable for the Respondent to insist on sexual intercourse knowing that it was distressing and unwelcome to the Appellant. The evidence that the judge had rehearsed thus far did would not support such a finding nor did he give any or adequate reasons for preferring the evidence of the Respondent, other than the bald comment in paragraph 13 that he had found him to be “the more convincing witness, giving his evidence in a straight-forward, forthright manner…” The fact is that this judge had largely relied on his view that the Appellant had not vigorously physically fought off the Respondent.
Moreover, the judge did not consider or explain in his judgment why, as it was an accepted fact that the Appellant was unable to take physical pleasure from sex, there was no onus on the Respondent to establish that the Appellant was able to and was freely exercising her right to choose whether or not to participate in sexual intercourse. The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.

The Appeal Judge went on to give guidance to the Family Courts in general

While a trial in the Family Court cannot, and must not, set out to replicate a trial or to apply, or seek to apply, Criminal Law or statute it cannot be lawful or jurisprudentially apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or in other form were non-consensual. Non-consensual sexual intercourse was considered lawful within a marriage until as late as 1992 (Cf. R [1992] 1 AC 599 ) it has not been lawful in any other sphere for generations. There is no principle that lack of consent must be demonstrated by physical resistance, this approach is wrong, family judges should not approach the issue of consent in respect of serious sexual assault in a manner so wholly at odds with that taken in the criminal jurisdiction (specifically the changes in place since SOA 2003 and subsequent amendments). Serious sexual assault, including penetrative assault, should be minimised as an example of coercive and controlling behaviour (itself a criminal offence) although such behaviour may form part of the subordination of a potential victim’s will (see the guidance set out at paragraphs 19 and 20 above).
To consider the relevant approach to be taken reference should be made to the statutory provisions in respect of consent; s 74 of the Sexual Offences Act (SOA) 2003 provides that “‘Consent’ (for the purposes of this Part – my parenthesis) a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” There are circumstances in criminal law where there can be evidential or conclusive presumptions that the complainant did not consent set out in ss75 & 76 which, respectively, concern the use or threat of violence by the perpetrator and the use of deception; neither of which preclude reliance on s74 (Cf. Blackstone’s B3.46 2020 ed.)
To quote from Blackstone’s Criminal Practice [2020 at B3.28] where the absence of consent is considered it is said “the definition in s74 with its emphasis on free agreement, is designed to focus upon the complainant’s autonomy. It highlights the fact that a complainant who simply freezes with no protest or resistance may nevertheless not be consenting. Violence or the threat of violence is not a necessary ingredient. To have the freedom to make a choice a person must be free from physical pressure, but it remains a matter of fact for a jury as to what degree of coercion has to be exercised upon a person’s mind before he or she is not agreeing by choice with the freedom to make that choice. Context is all-important.” There can be no reason why this approach should not be followed in the Family Court, whilst applying a different standard of proof. The deleterious and long-term effects on children of living within a home domestic abuse and violence, including serious sexual assault, has been accepted for some years, as is the effects on children’s welfare, and their ability to form safe and healthy relationships as adults, if their parents or carers are themselves subjected to assault and harm.
In respect of consent in the criminal jurisdiction, which should inform the approach in the Family Court, the authors of Blackstone’s set out at B3.29 “Consent covers a range of behaviour from whole-hearted enthusiastic agreement to reluctant acquiescence. Context is critical. Where the prosecution allegation of absence of consent is based on lack of agreement without evidence of violence or threats of violence, there will be circumstances, particularly where there has been a consensual sexual relationship between the parties, where a jury will require assistance with distinguishing lack of consent from reluctant but free exercise of choice.” The Court of Appeal Criminal Division considered that a direction along the lines of the direction of Pill J approved in Zafar (Cf. the Crown Court Compendium (July 2019), chapter 20.4, para. 4) may well be appropriate. It should be advisable for Family Court judges to remind themselves of this approach and direct themselves appropriately based on the relevant approach contained in Chapter 20.
With further reference to B3.29 (Ibid) and the approach to take in making the distinction lack of consent from reluctant but free exercise of choice; “submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence” (Cf. Watson [2015] EWCA Crim 559 ); or where a complainant’s free choice was overborne so that they did not have a free choice; an example of which was when a complainant gave into a perpetrator’s demands because she was scared that if she did not he would have sex with her by force.
As a further example of the approach to be taken in respect of consent in civil proceedings in Archbold Criminal Pleading and Evidence 2020, Chapter 20, Part II, at A [20-23] reference is made to the case of Assange v Swedish Prosecution Authority [2011] EWHC 2849 as “relied on in R. (F.) v DPP [2013] EWHC 945 (Admin); [2013] 2 Cr App R 21, DC, for the proposition that ‘choice’ is crucial to the issue of ‘consent’; and the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common sense way; where, therefore, a woman consents to penetration on the clear understanding that the man will not ejaculate within her vagina, if, before penetration begins, the man has made up his mind that he will ejaculate before withdrawal, or even, because ‘penetration is a continuing act from entry to withdrawal’ (s.79(2) (§ 20-42)), decides, after penetration has commenced, that he will not withdraw before ejaculation, just because he deems the woman subservient to his control, she will have been deprived of choice relating to the crucial feature on which her original consent was based, and her consent will accordingly be negated.”
A further and instructive distinction between consent and submission and the approach to be followed was drawn in R v Kirk (Peter & Terence) [2008] EWCA Crim 434 : [2008] 3 WLUK 36, by Pill J at [92] where the expression “willing submission” had been used in directing the jury, it was said that the use of the expression was “not an easy one in this context. Willingness is usually associated with consent. However, we are satisfied that the jury would not, in the context of this very full direction, have been misled by the use of the word “willing”. This was not a case where it was alleged that submission had been achieved by physical force. It was willing in the sense that there was no attempt at physical resistance by the complainant and the judge used it in that sense. That leaves open the possibility that the circumstances were such that the complainant submitted to sexual intercourse rather than consented to it. That was the overall effect of the direction. We are satisfied that, having regard to the full direction given, the jury would not have been misled or distracted, by the use of the expression “willing submission”, from the question they were told they had to answer. It is not, however, an expression we would commend for use on other occasions.”
The judge in the instant case should have considered the likelihood that the Appellant had submitted to sexual intercourse; he singularly and comprehensively failed to do so instead employing obsolescent concepts concerning the issue of consent.

For the reasons set out above the judgment was so flawed as to require a retrial; his decision was unjust because of serious procedural irregularity and multiple errors of law. The case is to be remitted for retrial by a High Court Judge or Deputy High Court Judge at the Royal Courts of Justice.

Recommendation

Judges in the family courts are regularly required to make decisions and find facts in cases where there is domestic abuse; this will include cases where serious sexual assault is alleged to have taken place. Currently there is comprehensive training on the procedural aspects of such trials and the implementation of PD12J in particular. Judges who sit in the family courts are not, however, required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised. Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction. I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges. This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach

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Posted in case law and tagged domestic violence, finding of fact in private law, flawed judicial approach to consent, Ms Justice Russell, rape and family court, re jh and f 2020. Bookmark the permalink.

High Court admonishes Guardian, psychiatrist and (to a lesser and interesting extent) Child’s Solicitor

Posted on December 28, 2017 by suesspiciousminds

Re F v H and Another 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/3358.html

This was a knotty and horrendous private law case in which parents separated and mother made a series of grave and utterly unfounded allegations that the father had sexually abused the child. She persuaded a series of doctors to undertake intimate examinations of the child and later left the country with the child when the Court hearings were going against her. The Family Court then placed the child with the father and directed that there should be a psychiatric evaluation of the mother to see if there was any prospect of contact taking place.

The judge said that “the court cannot envisage a situation whereby it could be considering looking at direct contact again other than where she has received extensive psychological therapeutic help.” The decision of the judge in respect of the need for the 1st Respondent to receive treatment prior to contact taking place or to any reintroduction of her mother was based on the welfare of B and the evidence of the 1st Respondent’s behaviour. It was wholly justified.

During the period where mother was awaiting criminal trial for the child abduction, she continued to make a series of allegations about father to professional agencies, all unfounded. Mother received a four month sentence for the child abduction offence, suspended for six months.

When the psychiatric report finally emerged, it wasn’t terribly useful, since the psychiatrist had decided to do the report without reading the judgment from the family Court about her behaviour that had led to the need for the report… And he believed everything that the mother said and recommended strongly that the FATHER was the one who needed a psychiatric assessment.

Safe to say that Ms Justice Russell was unimpressed by that approach.

28.There was no psychiatric assessment of the 1st Respondent so that on the 20th March 2017 when there is a further hearing before the judge this issue remained outstanding as the reports ordered by the court on 29th February 2016 and 25th May 2016 have not been produced. In March 2017, the Court again “made it clear” that this is 1st Respondent’s last opportunity to cooperate with a psychiatric assessment and she did not attend the next appointment arranged for her, her application would be dismissed and a s91(14) (CA) order would be made for a period of two years.

29.Finally, on 25th May 2017 the 1st Respondent was seen by a psychiatrist, Dr Oyebode, who filed a report on 5th June 2017. For reason that are far from clear to this court and to the court below Dr Oyebode conducted his assessment of the 1st Respondent without reading the court documents provided to him, including the judgments; instead he read and relied on the documents given to him by the 1st Respondent and the report of Dr Beider (who had not seen the documents or had access to them at all). Thus, his assessment was partisan, based on the 1st Respondents version of the history of events and on psychiatric evidence obtained outside the family court proceedings and without the permission of the judge.

30.Moreover, not only had Dr Oyebode had not challenged the 1st Respondent on the basis of the court documents or judgement (because he had failed to read them) he also accepted her assertion that the 1st Respondent had made no further allegations since 2014; this was patently untrue as she had made allegations in 2016 and sought to defend the criminal case on the basis of duress and necessity. He neither referred to or considered the 1st Respondent’s behaviour which led the court to make non-molestation injunctions against her. In direct contradiction of the judgment of the court he reached the conclusion that the 1st Respondent was a capable mother who had genuine concerns for her daughter’s welfare. He suggested that the Appellant undergo psychiatric treatment, having accepted the 1st Respondent’s version of events. Quite rightly the judge, at the hearing on the 9th August 2017, described Dr Oyebode’s report as offering the court no assistance and as being “completely flawed”.

That psychiatric assessment being worthless, the case then took a significantly wrong turn.

31.At a further hearing before the judge on 21st June 2017 B was joined as a party to the proceedings and on 5th July 2017 Catherine Callaghan (a Cafcass officer) was appointed as her guardian. Ms Callaghan was provided with some limited papers, consisting of parents’ last statements and Dr Oyebode’s report on 7th July 2017. She met the Appellant and B briefly on 19th July 2017. The guardian spent some two hours with the 1st Respondent on 26th July 2017. She did not receive the court papers, which include the judgments, until 28th July 2017. She could not have been, and was not in, a position to challenge the 1st Respondent’s version of events when she met her; and her views at the time would have be based on what she knew then, which included the flawed and inadequate report of Dr Oyebode. The Guardian did not see the parties or the child again. Although she had had sight of the case papers before preparation of her position statement this was not until after she had seen the parties and her meetings with them to place in ignorance of the circumstances of this case.

32.At six o’clock in the evening of 8th August 2017 the guardian’s solicitor sent her position statement to parties which included the recommendation that there should be direct supervised contact for the 1st Respondent with B. I shall return to her position below; but she had not prepared any analysis or report for the court, which considered the welfare of the child with reference to the statutory provisions contained in s1 of the CA 1989; nor did she explain to the court what form the contact would take; any details of the explanation of what was to happen, and by whom, would be given to the child. She did not proffer any advice to the court as to what would happen if, on the receipt of competent psychiatric assessment of the 1st Respondent, it was found that the risks to B of further harm was considered to be high, without some prior professional intervention. The judge did not hear any oral evidence.

33.The next day on 9th August 2017 the judge, in what she described as a finely balanced decision, which from her judgment, was a decision based largely on the oral submissions made on behalf of the guardian, acceded to the application made on the instructions of Ms Callaghan and made an order which provides for direct contact between B and the 1st Respondent supervised by the guardian herself. The judge stayed the order for direct contact until 30th August to allow for the application for permission to appeal to go before the High Court. In her short judgement, the judge set out her reasons for reaching the decision that some supervised contact should go ahead which, as previously observed were based largely, if not wholly, on the guardian’s recommendations.

34.The precondition for any reintroduction of contact, which the judge had repeatedly reiterated, was not only that the 1st Respondent’s mental health had to be assessed, but also that there should be some treatment with her commenced to avoid repetition of her previous harmful behaviour towards B. Following the oral submission of the guardian (who is not qualified to assess the 1st Respondent’s likely psychiatric or psychological response to any reintroduction to B) the judge reversed the decisions she had made previously. The decisions she had previously made were properly based on the evidence before the court that there should be prior assessment and treatment (as set out above) there was no evidence before the court which supported a reversal of that decision. Moreover, as a result of the inadequacies of the psychiatric report, on 10th August 2017 an agreed letter of instruction was sent to Dr Datta to carry out a further assessment of the 1st Respondent. This letter, agreed by the parties, contained the instruction that the “Mother continues to be of the view that [B] is not safe in her father’s care.”

Ms Justice Russell sets out in detail why the Judge was wrong to have resiled from her earlier position that contact could not be countenanced until there had been a proper psychiatric evaluation of the mother, and largely blames the Guardian for persuading the Judge to do so, and moreover, to have fallen into much the same trap as the psychiatrist – in conducting investigations and reaching conclusions without having properly engaged with the source material.

The father, obviously, appealed and that is how the case came before Ms Justice Russell.

37.The history of this case has been set out at some length as it forms the background to the decision the judge made on 9th August 2017. When viewed as a whole the harm caused to this child by her mother was significant. Not only was she found to have repeatedly subjected to intimate examinations, solely at the behest of her mother, she was prevented from having uninhibited relationship with her father as an infant. On any view, the repeated invasive intimate examination, as found by the judge and set out in her judgment, were in themselves abusive and any long-term effects on B, along with any emotional trauma that may have been at the time, has never been investigated or assessed.

38.The guardian has seen this child on one occasion for a brief period yet she has seen fit to reach conclusions as to the child’s resilience and current psychological and emotional status and ability to deal not only with the re-introduction of her mother but also with the possible, if not probable, cessation of contact should that prove to be necessary. There is no analysis of how she reaches these conclusions, no details of her qualifications to do so and no application of the welfare checklist in reaching her conclusions. Consequently, the judge was wrong to rely on them and to effectively reverse her previous decisions on what amounts to flimsy evidence.

39.The emphasis and assumptions of the guardian are apparently based on the need to reintroduce contact with the child’s mother. If so this is a misinterpretation of the law; although that the amendments to section 8 of the CA and section 1(2A), introduced by the Children and Families Act 2014 emphasised the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare, this presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. This case includes findings of abusive behaviour towards B by her mother, which, if repeated would compromise the child’s safety and reintroduce the possibility of further harm, both physical and emotional.

40.B is a young and vulnerable child whose first few years of life were blighted by her mother’s irrational, abusive and harmful behaviour culminating in an B’s unlawful abduction. The courts can and should consider ordering no contact when the child’s welfare and safety demand it

(illuminating to compare and contrast with the Court of Appeal stance on the transgender father v ultra-Orthodox jewish community case earlier this month…)

Get ready for the pain

Conclusions
47.While it is understandable that the judge acceded to the guardian’s application, it is the decision of this court that she was wrong to do so. The guardian was quite simply not qualified or equipped to reach the conclusions that she did in respect of this child’s psychological and emotional resilience. She was even less qualified to assess the 1st Respondent’s mental state and her ability to conduct herself appropriately when B spent time with her. She had carried out anything other than a cursory consideration of the history, evidence and court documents before she briefly met the child with her father; little wonder failed adequately to explain the basis of her conclusions.

48.In a case such as this with a protracted, complex and convoluted history it is incumbent on the professionals who are called on to proffer advice and recommendations to the court, be they Cafcass officers or others concerned with child welfare, to fully inform themselves about the case and, at the very least, read through the judgments before they commence their investigations. Nor should they consider experimenting or trying out with contact for the child or children concerned against a background of previous harmful behaviour and abduction; in this case the guardian even accepted that contact may prove to be unsuccessful and be terminated or suspended again. Any contact that took place would have provided little or no useful evidence for the court as the guardian is unqualified properly to assess this mother’s ability to deal with and contain her behaviour. For that reason, and for those set out above this appeal will be allowed.

That’s a serious burn. Is it fair and justified? Well, I will leave that to the reader to decide.

The bit that interested me was this, however.

In relation to the position statement filed on behalf of the Child’s Solicitor (bear in mind that the child in question is 4 1/2, so absolutely no prospect of the child being competent to give instructions or even to give their views to the solicitor independently) the Court said :-

There was and are no submissions on behalf of the guardian as to why and on what basis she purported to have reached this conclusion on behalf of this child. A child who as, on any view, be subjected to repeated intimate physical intrusion, flight to Israel and had been fed misinformation about her father throughout her infancy. The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement.

I’ll give you the last bit again

The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement

I suspect there are many solicitors for children saying to themselves, well of course the solicitor acted solely on the instructions of the guardian. The child was 4 1/2.

Is it the place of the solicitor for the child to disagree with the instructions of her professional client (where the lay client is not in a position to give instructions?) – is it the place of the solicitor for the child to lay out in a position statement a case wholly in the alternative to that the Guardian is instructing should be pursued?

That seems a stretch to me. I think it is acceptable that the solicitor for the child ask the Guardian to address some of the consequences of the course recommended and provide analysis as to why, despite any adverse consequences it is the preferred option. But if the Guardian sticks by her course, I don’t think the solicitor for the child can advance in a position statement an argument contrary to her instructions.

(Of course, if the Guardian is making a mistake in law, or there is authority contrary to the position being advanced the solicitor for the child has to draw this to the Court’s attention, but I’m not sure that’s the case here. That possibility is raised earlier, so I may be misreading. It seems to me though that this is an issue not as to law and principle but a welfare and risk analysis by the Guardian. If the child’s solicitor and the Guardian disagree about welfare and risk analysis then they should thrash it out in discussions, sure, but ultimately it is the view of the Guardian that goes into the position statement and is advanced at Court, not the view of the child’s solicitor. )

I shall keep an eye out as to whether this theme recurs.

9 Comments

Posted in case law, judicial spanking, private law and tagged 2017 EWHC 3358, criticism of children's solicitor, criticism of guardian, criticism of psychiatrist, EWHC 3358, F v H and anor 2017, Ms Justice Russell. Bookmark the permalink.

Back off War child. Seriously

Posted on July 28, 2016 by suesspiciousminds

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention

Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/40.html

There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.

Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation

On the 13^th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
Following the June incident on 14^th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14^th October 2016. On 15^th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
F’s criminal trial took place at Bristol Crown Court on 26^th February 2015 and 2^nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9^th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

In case you want to know what the ‘various other items’ were:-

On 13^th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

Brrr.

In the criminal trial, father denied everything

F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12^th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9^th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5^th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

The radicalisation evidence begins here

M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

There was also evidence presented to the Court about father’s controlling behaviour towards mother

It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23^rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6^th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14^th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
It is M’s case that the action taken by F on 13^th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23^rd October 2013.

The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her. You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.

F has filed two statements in these proceedings, dated 23^rd February and 23^rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

The Judge made some powerful findings of fact

Findings of Fact

I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.

The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.

In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8^th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.

There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

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Posted in case law, international, private law and tagged 2016 EWFC 40, allegations of radicalisation, change of child's surname, domestic violence, Ms Justice Russell, order for no contact, private law, radicalisation, Re A and B (Children: Restrictions on parental responsibility: Extremism and radicalisation in private law) 2016. Bookmark the permalink.

Jihadi Toddler

Posted on July 27, 2016 by suesspiciousminds

Of course the toddler himself didn’t have any Jihadist inclinations, but this is the judgment from the care proceedings where a mother actually took her toddler to Syria, into the war zone and photos were taken and used by Daesh for propaganda of both her and her toddler. She then came back to England and was arrested and convicted in a criminal Court.

This case contains really valuable information about what really went on in Syria and what awaits these Jihadi brides – it makes a very useful companion piece to the recent Hayden J decision about a teenaged girl who had been sucked into this radicalisation and recruitment.

Re Y (A child : Care Proceedings :Fact finding) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/30.html

This is a judgement deciding issues of fact and welfare concerning a little boy who was born on 22^nd August 2013 and is now two and three quarter years. He was removed by the police from his mother’s care when she arrived back in the UK from Syria in early 2015 and she was arrested by officers of the Counter Terrorism Unit. He was the subject of protective measures for 18^th February 2015 when taken from his mother by the police. He has been the subject of an interim care order since 20^th February 2015. At first he was placed with foster carers then moved and placed with another foster family in June 2015 and there was some delay in the local authority carrying out assessments.
Y’s mother (T) is in prison serving a six-year sentence following her convictions for intentionally encouraging acts of terrorism and being a member of a terrorist organisation (Daesh).

The mother’s case, broadly, was that she accepted the facts that she had travelled to Syria and lived there with her little boy, and then came back to England. She had little choice about that, given the conviction, but she disputed that these events had caused significant harm to the boy – with a view to fighting for his return to her care on her release from prison (which will probably be in about 2-3 years time)

Conviction for terrorism offences

T was convicted on 1^st February 2016 at Birmingham Crown Court. The jury found the prosecution case proved that T had been in touch with a known terrorist and was a supporter of ISIS; developing a following on Twitter. T was found to have published statements that encouraged terrorism; images that supported Daesh/ISIS and were intended to encourage people to commit, prepare or instigate acts of terrorism.
T was found to have travelled to Syria via Turkey, in order to travel without arousing suspicion. She had had the assistance of a named member of Daesh and as a result was transported to Raqqa in Syria which is a Daesh/ISIS stronghold; Daesh had declared a caliphate in Raqqa. She had left letters for her family saying that she did not intend to return. In the sentencing remarks of the Recorder of Birmingham, His Honour Judge Melbourne Inman QC, said “Exactly what occurred in Raqqa is far from clear. You told lie after lie to the Police and to the Court between February and November 2015 including that you were kidnapped, were not responsible for any tweets and any incriminating photographs were staged against your will. You pleaded not guilty and told more lies to the jury which they have understandably rejected.”
The judge continued, “What is clear from the evidence is that you had researched and were well aware of what assistance women could provide for ISIS. Your role would not be to fight; it would be to be a wife and mother – to produce the next generation of fighters“. The expert evidence before the Crown Court was to the effect that women, single women in particular, were subject to very strict rules and allowed virtually no personal autonomy and were subject to savage penalties, including death, for disobedience. This was accepted by T in her evidence before this court.
As could be seen from the pictures posted by T she was, as the judge said, “…trusted to have access to firearms and indeed you stated that you had fired one accidentally. You boasted to your family that you had an AK47 and a pistol. The photographs recovered from your phone show you posing with a pistol and at least one form of rifle or automatic weapon”. Unusually for a woman under Daesh control T was allowed to travel alone to Raqqa, it is not clear from the evidence before this court or the Crown Court why this was allowed but T has said that she was married to a fighter.
In the sentencing remarks the judge spoke of the fact that T had taken Y with her; “Most alarmingly however is the fact that you took your son and how he was used. In your own evidence you described Raqqa as the most dangerous place on earth. That is one aspect of the aggravating feature of exposing your son to life with terrorists. The most abhorrent photographs however were those taken of your son wearing a balaclava with an ISIS logo and specifically the photograph of your son, no more than a toddler, standing next to an AK47 under a title which translated from the Arabic means ‘Father of the British Jihad’. Someone else took that photograph and sent it to you but it can only have been done with your agreement. You have no control over that image or reproduction.”
As the judge observed T was “well aware that the future to which you had subjected your son was very likely to be indoctrination and thereafter life as a terrorist fighter”: this was said after a lengthy criminal trial throughout which he had been able to observe her demeanour. The judge continued in his summing up to say “Having seen you give evidence I saw no evidence of remorse about what you had done or done to your son”.
T was found to have intended to encourage terrorism; she had 75 followers on Twitter, the statements she posted were considered to have been focussed, published over a period of two months and concerned with the conflict in Syria and the encouragement of terrorism. The promotion of terrorism via the internet is considered a matter of national concern by the criminal courts. T was found guilty of serious offences. She was convicted of a “course of conduct” in travelling to Syria, via Turkey, to join Daesh. The judge considered that particular factors were of great significance in considering culpability and harm and that taking Y with her was a major aggravating feature. In supporting Daesh/ISIS she had been “willing shamelessly to allow your son to be photographed in terms [or poses] that could only be taken as a fighter of the future.”
In mitigation it was accepted that T had returned to the UK; that she may have been more vulnerable to recruitment as her marriage had ended after considerable unhappiness; and, that there was the possibility that she had had a change of heart; there was some reduction in her overall sentence as a result. Nonetheless T was convicted of terrorism offences and the sentence of six years reflects their seriousness. She is now subject to an order under the Counter Terrorism Act 2008 (s 47) which places a requirement on her to notify the police of personal details, including her address for 15 years.
T will be eligible for release on licence in 2018. She agreed to Y being cared for by his paternal grandmother while she is in prison but it would seem likely that she will seek to have him returned to her care on her release.

It may seem to the casual reader that it would be hard to dispute that taking your two your old to a war zone which was being bombed and associating with terrorists would pose a risk to him, but as the criminal court had not convicted her of child cruelty (no doubt having bigger fish to fry) it was open to her to at least argue it. And she was entitled to a fair hearing, so she had very able lawyers to put her case the best way that anyone could.

The local authority asserted that Y would have been likely to have been frightened by the bombing which took place in Raqqa (which T sent WhatsApp messages about at the time) which would have caused Y to suffer significant emotional harm. T denied that Y had suffered significant emotional harm.

Let us look at a bit of the detailed evidence about the bombing – remember that her son would have been around two years old

It is a matter of common sense that Y was likely to have suffered significant emotional and psychological harm during the three months when he was in Raqqa and that it would have been as a consequence of living in conditions where, not only was his mother in fear and crying during the night, but the house they lived in was in an area that was constantly being attacked and bombed. Before I go on to consider the evidence of the frequency of the bombing, the lack of any real concern displayed or voiced by T that Y might have been affected by his experience is, in itself, worrying. If she remains unable or unwilling to think about the effects of her actions in the future, the risk of future harm to Y will remain.
The evidence before this court was that the level of bombing was very frequent indeed, this is based on T’s oral evidence and on what she put in her messages on WhatsApp, where it (the bombing) was a constant topic of discussion and a regular occurrence. I set out some examples here:

• On the 1^st December 2014 on WhatsApp “no bombs today” and images of buildings on fire.

• On the 13^th December 2014 in conversation with her brother on “They do bomb a lot but we will stay in another place when you visit…”

• On the 17^th December messages with a friend “Do they bomb close to your house?” T answers; “Yes very close to the house – the house shakes” and “they just bomb from the sky“.

• On the 25^th December 2014 at 10.58 from T “they bomb my house every day – – my house shakes…“

• On 25^th December 2014 conversation with her friend who asks “why won’t I like it” – “because too much bombs and not like England – war here never going to end???”

• On the 27^th December from T “they bombed once today – gave number to friend if we die she will WhatsApp u“

• On the 30^th December 2015 a message from M referred to “30 bombs” falling in one day

• When she was interviewed by the police on 19^th February 2015 T is recorded as saying “it’s no place for a child…. when they would bomb we would have to go into the basement – you could see the smoke – close smoke …”

In her oral evidence, however, T tried to minimize the frequency, impact and close proximity of the bombing giving a different picture from the one that had emerged from the messages she had sent in December, including of the house shaking and of bombing being every day (so much so that it was remarked on when there was no bombing on 1^st December 2014). The images on her phone and the messages she sent are of frequent bombing close to the house, and as she said to the police, of close, smoking buildings.
In her oral evidence T said that on the first occasion, when they were in Raqqa, that bombing took place “everyone was ordered to go to another place in the house…we went to the basement and waited…” T said she was “panicked” felt “frightened and scared” and was worried she would be killed. Y was with her while all this was going on; it is inconceivable that her fear and panic was not transmitted to him. She said “All the women had gone to this place and we stood together and there were looks of fear, some were crying. Everyone walked to a basement and waited in fear”
T then tried to minimise the event she had been describing by saying that there had been no immediate panic and that there was a lot of women who were quite content to die as they would have been seen as martyrs. In a further attempt to diminish the dangerousness of their situation she said, when questioned about an image on her phone of a building with a large column of smoke coming from it taken on 1^st January 2015, that the building was not on fire it was just smoke and that the building “looked closer than it was.” To try to reduce the evidence of frequent bombings she said that on occasion they would hear a bang in the distance. As she also said that “on one occasion there was 30 bombs” dropped, this was a further contradiction in her evidence which raised questions as to her credibility. It was her evidence that while she and Y were in Raqqa there were about 15 occasions altogether when bombs were dropped, this contradicts the messages she was sending at the time. Nonetheless she did concede that; “It’s not a place for anybody …I would never want my family there.”
When she was asked during her oral evidence about the effects of the bombing on the children T said that Y would not have been aware of the bombing or upset because “we just distracted them [the children]“. She had and gave no further explanation of how they had distracted the children or why she felt sure or understood Y to have been unaffected by the bombs going off, the noise, the building shaking and the panic and fear surrounding him.
I find it very unlikely that Y, or any of the children, could have been unaware of the bombing. I find it unlikely that he was not upset by it; it is simply not credible. In reality T’s oral evidence amounted to further evidence of a chronic lack of insight, empathy and understanding of what her child must have gone through. T said of Y that “he never cries, on one occasion it startled him but [he] never cried. It made him jump once”. This was in stark contrast to her evidence about the effects on her; when 30 bombs fell she said that the missiles “sounded like when a firework goes off…its very scary…the most scared I have been in my life.” Moreover, I find that it is most unlikely that Y did not wake up and that he stayed asleep as bombs fell all night and the house shook around them as T suggested in her evidence to me.

Even ignoring the risk to her son’s life and limbs in being in a warzone where bombs were being dropped that frequently, the loud noises and panic must have been very frightening for him. One might argue – I don’t think anyone tried here – that surely not all of the children who lived through the Blitz in World War II also suffered significant harm though of course none of them had mothers who deliberately chose to put themselves and their children at such risk. I suspect we really won’t know the impact on this little boy until much later in life. I hope with loving care from his grandmother and the right sort of support he will have very limited memories of the experience.

The mother did describe the impact that it had on her

When she returned to the UK from Syria T said that she had continued to be affected by her experiences “when I first came back a loud bang would make me think what is that!” She went on to agree, when it was put to her, that the bombing did make Y jump and that he was “probably scared“. I find that it is more likely than not that Y was frightened by the bombing in Raqqa. When taken as a whole it is T’s own evidence that she, and therefore Y too, had lived in situation of heightened anxiety and fear, which was also experienced by the other families and children around them. This must have had an emotional impact on Y that was harmful, exposed as he was to frequent bombing, noise, anxiety and the panicked reaction of the other children and their mothers; and, most significantly, given his tender years, the fear and anxiety of his own mother. He was present when, as she told me, she was fearful for her own life. I have little doubt that he suffered emotional harm as a result.
The emotional harm would have been compounded by the fact that his mother had taken him away from all that was safe and familiar to him, and from the rest of his family. T severed those relationships and placed him in what was, on her own account, a harsh, restrictive and punitive atmosphere where he was kept imprisoned in a house full of total strangers. It would be quite remarkable if he was unaffected psychologically. T has never given any evidence, description or detail of how she manged to ameliorate this situation to the extent that Y remained unaffected; at the very least he would have suffered harm as a result of being taken away from home, family and safe and familiar surroundings; when one adds the bombing, fear, panic, restriction and threatening atmosphere along with the effects of fear on his mother it is not credible to suggest that he did not suffer significant emotional harm.
I find on the evidence before me that there was frequent, if not daily, bombing close to the house; so that on occasions the house shook and that the bombing resulted in damage to other buildings that were close enough to be photographed on a phone. The bombing meant that the other people in the house, adults and children alike, were repeatedly panicked, scared and anxious, that Y, too, would have been frightened at the time of the bombing and that afterwards he would have been anxious about it all happening again. He would have been worried, anxious, distressed and frightened by his mother’s fear and panic. I find that Y was emotionally and psychologically harmed as a direct result of his experiences in Syria.
The flight from Syria as described by T must have been a frightening experience for Y, she certainly found it to be so. Later in the detention centre in Turkey, surrounded by yet more strangers, he became ill and was hospitalised. The court was given no details of his illness and treatment by his mother, in what can only be a further attempt to minimise or deflect attention from the effects of her actions on her very young son.

The Court also considered the emotional harm to the child of being drawn into the propaganda and manipulation of Daesh for their own ends.

Y would have been confused and probably caused some anxiety and distress as a result of being photographed in a number of poses which are potentially abusive as they were taken with the intent of promoting violence and terrorism. His image was posted under the title “Abu Jihad Al Britani” next to an AK47 which had been arranged with a caption; it can only have been taken with the purpose of reproducing his image to use as propaganda. There are five images of Y wearing a Daesh logo balaclava and a further three images of Y wearing a Daesh balaclava in the court bundle. There are also images of Y and his mother under a Daesh flag; on the 27^th December 2014 T sent a message to a friend asking that they “send me the pictures of me and Zaeem by the flag at Umm Salama maqar.”
While the fact that Y was only two years old means that he will not have fully appreciated the potentially exploitative and abusive nature of the photographs it does not alter the fact that his mother manipulated him or allowed others to do so. I accept the local authority’s case that there remains risk of emotional harm when the child becomes aware of these images in the future and of his mother’s role in their production.
I find that T was well aware of the use that such images could be put and was aware of the use of children as part of Daesh propaganda as she had stored an image on her own phone of a very young child reading with Daesh flag. T’s explanations in her evidence for the photographs were confused and evasive. T had told me that she had something of a celebrity status in the house in Raqqa because of the activity she had been party to online before leaving the UK and because of the notoriety her case had attracted in the media when members of her family had spoken about her after she left. She attempted to deny knowledge of the pictures such as the “Abu Jihad” photo she said to me “I have no knowledge of this picture…. I didn’t know this photo existed…” She tried to suggest that the picture was a fake by saying, “If there was an expert to tell me this is a real picture…” When she was asked what use the photo may be put to she said “it was never used” thus contradicting her assertion that she did not know of its existence. When it was pointed out to her that she said Y was always in her care and so no-one could have taken pictures of Y without her knowledge the best explanation she could come up with was, “I could have been in the shower…”
T’s evidence about the other pictures was equally unconvincing; she said that those in which Y was wearing the ISIS balaclava had happened because it “it belonged to the man of the house….at the time my son liked to wear hats and things on his head at that time. It was not about what it had written on it”. Once again she betrayed in her evidence an absence of any concern or consideration about the potential harm to her son. T claimed, somewhat bizarrely, that the picture taken under the flag was “to show where I was from.” T claimed that she did not think the person who had it would use it for propaganda. As T had both notoriety and “celebrity” status that it was a wholly disingenuous suggestion.
From the pictures taken in the house in Raqqa and from T’s evidence Y had been living in an environment where there were a range of guns and where those weapons were used and brandished by his mother and others. Self-evidently the risk of physical harm or even death is high in such a situation. The court had before it numerous images of T and others with guns, including images of T next to a firearm, images of T and other women posing with guns on the balcony. In one such picture there is an image of a child in the foreground which is more likely than not to be Y. There were numerous images of T and other women posing with guns. On the 1^st December 2014 she sent a message to M “I have a gun” followed by 11 images of a gun in which a female hand is seen holding the gun and that person is wearing a garment in which T was frequently photographed. On 17^th December T sent a WhatsApp message to M “– Wallah I have the same gun as you – AK 47”. Despite telling M in the WhatsApp conversation she had a gun she then claimed in her oral evidence never to have owned a gun; she then said all people involved in Daesh have a gun and said that the “man of the house” and his wife had a gun but could not explain how she came to be holding it in a photograph.
T told me in respect of a picture of her with an AK 47 “I’m not holding it in this picture…I am taking a selfie and the person next to me is trying to get me to hold the gun”. To say that T’s evidence in respect of this and other pictures lacked credibility would be to understate the case, her oral evidence is directly contradicted by the images in the court bundles which were also seen by the jury in the Crown Court. In one instance T claimed that she had taken a picture of a woman holding a gun rather than accept that she was the woman in the image herself. She had frequently said that Y was not present while insisting in her evidence that Y was always with her and then, finally, said, “not sure if Y would know what a gun is”. The evidence of the social worker is that Y is all too aware of what a gun is and becomes over-excited by the suggestion of guns and shooting, and runs around mimicking shooting and makes noises of gunfire.
T’s evidence regarding the pictures, their use and the role of Daesh “logo” is a brazen attempt to deny something that she is well aware of; when she gave evidence to this court she had not long been convicted of being a member of Daesh/ISIS and of encouraging terrorism (as set out above). The impact of being in the environment of the Daesh household on Y would have been emotionally harmful, and her evidence to the contrary is wholly unconvincing.

What a world we live in, when a mother could even contemplate this being a suitable life for a toddler. I despair.

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Posted in case law, international and tagged 2016 EWFC 30, daesh, isis, mother taking child to syria, Ms Justice Russell, radicalisation, radicalisation and care proceedings, re y a child care proceedings fact finding 2016, syria. Bookmark the permalink.

Surrogacy and exploitation and Facebook

Posted on July 1, 2016 by suesspiciousminds

This is a grubby and desperately sad case, which indicates that there urgently needs to be some proper system of regulation over commercial surrogacy (which ought not to exist at all in this country but is doing so under the guise of ‘reasonable expenses’) This case highlights how easily someone very vulnerable, whose financial circumstances were so stretched that she couldn’t afford phone top-ups might be persuaded by what in that context is a huge amount of money. (Here £9,000. If you are on benefits, £9,000 is a LOT of money)

Z (Surrogacy agreements : Child Arrangement Orders) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/34.html

Here a baby boy Z, was born as a result of a surrogacy arrangement in 2015. Z’s mother X, agreed to be a surrogate for a same-sex couple A and B. The child was the biological child of A, but the eggs were provided through an anonymous egg donor. So X was the vessel for carrying the baby, but was not a biological or genetic mother to the baby.

The surrogacy arrangement was set up through a Facebook Group.

The applicants, who are a same sex couple, were introduced to X through a Facebook surrogacy site, which was run or administered by W and others, to provide a forum for the introduction of potential surrogates and commissioning parents. Although it is the applicants’ evidence was they were not members of the forum it was through that social media site that they were introduced to X. There is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum. This court has heard, in this case and in others, that the surrogates were paid sums of money for their expenses at what was considered to be the “going rate”; which apparently varied from about £8,000 to £15,000. This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes.

A and B had had Parental Orders granted in relation to twins, born in another surrogacy arrangement through a woman V. Within 48 hours of the orders, they began making arrangements for another child through surrogacy.

Here are some of the things that the Judge said about V and the way that A and B had behaved towards her

The applicants are a same sex couple who are in a civil partnership; they are both professionals, A an academic and B works for a charity as an advisor. Socially and economically they are in a much more secure position than X and much more affluent, although by no means wealthy. They are the parents of twin boys born in June 2013 by virtue of parental orders made in January 2014 by the Family Court. Within 48 hours of those orders being granted B started to make contact online to find another surrogate.
The twins are the biological children of A and a known egg donor. They were conceived as a result of IVF treatment in the same clinic in Cyprus later used for the conception of Z. The twins were carried by V, a gestational surrogate. This first surrogacy agreement and the circumstances surrounding it are relevant as the applicants’ conduct was repeated in their agreement with X. Of particular note was their attitude towards the surrogate V which was mirrored later in their attitude towards X. The applicants ‘met’ V online or on Facebook in late September 2011, they knew very little about V relying instead on the views of L who was also involved in the surrogacy forum; what they did know was that V was in the process of what they called “matching” with another couple of commissioning parents but that that agreement was breaking down. There is no evidence before me that the reason for the breakdown was explored or that the applicants were concerned about it.
Once introduced the applicants and V had become further acquainted online and arranged to meet in person. As was clear from the oral evidence of the applicants to this court the purpose and focus of that, their first meeting, was to sign the surrogacy agreement. A told the court in his oral evidence that the three had met in a services area in a “restaurant off the motorway in the West Midlands” and, that at the meeting which lasted 3-4 hours, they had discussed “the agreement and who we were”. They had signed an agreement at that meeting and that had constituted “matching”.
It was abundantly clear from their evidence that A and B knew very little at all about V, her circumstances or her motivation for acting as their surrogate when they signed the agreement with her. L, who gave evidence before me, knew that V was in some financial difficulty because her phone had been cut off prior to the meeting or “match”. Money and payments were an issue between the applicants and V during the pregnancy and after it; as could be seen from electronic messages exchanged between them. L said, in her written statement, that V had “money trouble” throughout the pregnancy. It was known that V had separated from her partner at the time of the “match” so it would be fair to assume that she was, at the very least, more emotionally vulnerable than she otherwise might have been but neither of the applicants appear to have given this any thought and were firmly focussed on what she would be doing for them.
In his oral evidence B, who told me that he had found V’s behaviour to be too demanding just after the twins’ birth, dismissed her need for his support at the time unsympathetically describing it as being “because of her hormones”. B was unable to demonstrate any understanding or empathy for a woman who had just given birth to twins, was in hospital alone and unsupported there or at home until he was pressed to do so. L was similarly dismissive and also gave a harsh unsympathetic description of V; who was described in a similar vein by all three witnesses; L, A and B.
V was characterised by all three of them as “volatile” without any thought being given as to why she might be in an emotional, still less in a vulnerable, state. When considering their evidence about V in its totality I found the applicants to be dismissive of the considerable positive contribution to their lives she had made, at considerable physical risk to herself. She was unwell for the last three months of the pregnancy and required someone to live in at the end of the pregnancy to look after her own children. In their descriptions of V as a person they were largely negative and appeared almost wholly uninterested in her, rather, it seems, they saw her primarily as a service provider to whom they had paid £12,500.
The applicants complained about V demanding too much attention from them after the twins were born and handed over to them. B said that she kept texting him when she and the twins were still in hospital after the birth, and that she kept wanting him to spend time with her. Both he and A saw this as unreasonable as they wanted to be with the twins who had to remain in hospital for some time for treatment. The applicants remained on speaking terms until after the parental orders were granted and it was part of the evidence before the court when the parental orders were made that they had an agreement with V that she would remain involved for the twins’ sake. By the time of this hearing they had “fallen out with her entirely“. The terminating event was, they claim, because she had failed properly to acknowledge the children’s first birthday. I find this evidence inherently contradictory as they also claimed they had found it necessary to limit V’s involvement as they found her to be both intrusive and demanding.

When the baby was born, X did not want to hand the child over to A and B (and you might get a sense of why later on) and that then led to private law proceedings to determine where the child should live.

The case was decided by Ms Justice Russell, who is very experienced with surrogacy and HFEA cases.

Firstly, and significantly, X was cognitively assessed and was found to have difficulties in understanding things and had to be helped during the hearing.

X has been assessed by Dr Willemsen as having learning difficulties, which appeared to him to be congenital. Until she was seen by him and his report prepared, it would seem that neither her family nor her partner were aware of her difficulties although she had been perceived as different from her siblings and her peers at school, and her partner told me that while he was aware she was vulnerable he did not know just how vulnerable. X is aware of what she sees as her own short-comings and, as described by Dr Willemsen, will want to please people to hide her shame and embarrassment. X has difficulty in speaking up as observed by the guardian and confirmed by Dr Willemsen. Dr Willemsen told the court in his report that on growing up she has become more aware of her difficulties and this has been accompanied by self-doubt and insecurity; to deal with this she has sought isolation and did so from her partner during the pregnancy. Dr Willemsen, who gave oral evidence, reported that X “is a vulnerable young woman who is susceptible to influence and pressure from others. She gave a few examples where she felt she had not been able to speak out loud about her thoughts and feelings to the couple who asked her to be a surrogate.”
Dr Willemsen emphasised that despite her difficulties she had been able to concentrate during their meetings (with half hour breaks) and that what was not affected was her “ability to be emotionally available. She was able to relay her frustrations, as well has her love for [her son with P] and [Z]. She was able to speak as openly as she could about her life and the course of events she had found herself in.”

If surrogacy were properly regulated, it is hard to believe that a person such as X could have been approved as someone who really knew what she was getting into or the emotional turmoil it might cause her. It was not that her problems were so subtle that only an expert assessment could reveal them :-

It is striking how the applicants did not seem able to see how vulnerable X was even at this stage. The guardian was almost immediately struck by it and on her behalf her counsel pointed out how many other people have commented on her vulnerability, over and above Dr Willemsen and the intermediary. The guardian said even on their first phone call she sensed that X was lacking in confidence and that by the time she had met X and spoken to her she believed she had learning difficulties. Everyone that the guardian had spoken to in August and September when she visited the area where X lives, to assess X’s support network, all commented on her vulnerability: they included the mid-wife; P’s mother who described the X as ‘naïve and gullible‘; P, himself, spoke about “how vulnerable [X] is”; X’s step-father described her as “gullible”; her own sister described X as “very naïve”; a family friend described X as lacking confidence.

Do we as a society, want someone who is vulnerable, naïve and gullible, being paid money to have a baby on behalf of someone she barely knows? Let’s look at the circumstances in which the surrogacy agreement was signed

Although X had agreed to act as a gestational or “host” surrogate for the applicants, the circumstances in which agreement was reached and signed by X is a matter of some concern and one that I shall return to. The agreement was one found on-line and based on overseas commercial surrogacy agreements from the USA. The provisions and regulation of commercial surrogacy in the USA do not, in any real sense or detail, mirror the supposedly altruistic and non-commercial surrogacy in the United Kingdom. It was signed by X at a fast-food outlet at or near a railway station after a brief face to face meeting lasting less than two hours. X was accompanied by her young son and a young relative, no more than eighteen years old. X’s partner did not support the surrogacy although he did not object to it; as he later told me, he did not believe that it was for him to tell X what to do with her body.

By the time of the hearing, in considering whether a Parental Order could be made, the Judge had to look at whether X WAS consenting (she was not) and whether if she was consenting that she was doing so on an informed basis (she was not)

Legal framework

The HFEA s56 (6) provides that a parental order can be made if the court is satisfied that the woman who carried the child (X) has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. I have to say that, in this case, even if X had given her consent I would not be satisfied that she had done so with a full understanding of what was involved. X does not consent freely or unconditionally so neither limb of s54 (6) has been met and there is no question of a parental order ever being made.

Looking at the pregnancy, it seemed that initially, there was a wave of enthusiasm from both sides about the arrangements

From the first few days the messages on Facebook, as described by Dr Willemsen, provide an illustration of the faux-intimacy that developed between the applicants and X. As he said “fairly soon an amicable, almost euphoric, atmosphere develops between people who hardly know each other. There is a shared excitement based, probably, on two very different realities. It is easy to read a great deal into Facebook (and email) messages.” It was his view, and one I share, that X was unable to put forward her opinions, just to say that she was “totally fine” when the applicants message that they are now “matched” and “totally fine” with an agreement that she had signed, although it is clear that she could not read or understand the contract she had signed. So little were they concerned about any protection for X’s position, moreover, that the applicants never even bothered to send her a signed copy. The applicants’ sole focus was on signing an agreement. There was little, if any, evidence in their messages of interest in X herself, just as there had been little interest in V.

But then look at how things soured – and squirm as you read the attitude of A and B towards the woman who was carrying a child for them and her financial circumstances.

The level of compensation or expenses which the applicants were willing to offer was, at £9,000, at the low end of the scale that is prevalent on the online websites and forums. From evidence I heard, and from the emails and electronic messages provided to the court, it would seem that this was the figure suggested to the applicants by W before it was suggested to X. In his oral evidence B (who was responsible for most of the communication) said that he assumed X was on benefits but admitted he was not sure, did not appear interested either way and certainly took no steps to find out. This presumption would seem to indicate that he expected financially vulnerable or impoverished women to be more likely to be putting themselves forward for surrogacy.
In her messages X often referred to having problems using the phone and/or the internet because she had no credit, which should have revealed something of her straitened financial circumstances and economic vulnerability but this was not a matter ever taken up by the applicants. Nor is there any evidence that they considered, at any stage, whether a need for money might affect her ability to enter freely into any agreement. As commissioning parents entering into an agreement which can and does compromise the health of the surrogate they owed her a basic duty of care and did not carry out that duty or signal that they considered they had a responsibility for her well-being other than as a healthy surrogate for their off-spring.
The applicants did not consider with X, or discuss with her, what she knew or understood about her rights or legal status in respect of any child or their legal rights and status. In his oral evidence B said he assumed she would know about such things from the Facebook forum. There is no evidence before this court that they had touched on the legal and ethical considerations that arise in surrogacy at all. They had not informed themselves of what professional support may be available to assist in successful surrogacy arrangements such as implications counselling; indeed when giving his oral evidence A did not know what it was. The sums offered, by way of compensation, for “contingencies,” such as £1,000 for a hysterectomy, were wholly inadequate and can only be taken as evidence of the low value that they placed on the physical and emotional well-being of the woman who acted as their surrogate. The language used by the applicants was unequivocally the language of the market-place; “the absolute maximum we could offer for each potentially happening would be £1000″. Their approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it

Neither applicant, in his evidence, was able to give more than a perfunctory account of their meeting with X in March 2014 or to recall anything of what she was like as a person. The meeting in the fast-fast-food outlet, near to the railway station they had all travelled to, was very brief. There were three children present, the twins and X’s little boy and a young man not much more than a child himself, who was X’s 18 year old nephew, and who acted as a witness. From their own evidence it was clear that the applicants discussed only those aspects of the agreement about which they were concerned. X did not, could not, read or properly understand the agreement and such was their self-absorption that neither applicant noticed, and in any case they did not see fit to go through the agreement with her to reassure X, or even themselves, that she understood it. Despite promising to send her a signed copy they only emailed the “agreement” to her several months later leaving her to try to read it on her phone – she does not have a computer. It is inexplicable how the applicants could have ever considered this meeting as an acceptable way to “get to know” the woman who would carry their children and consider that they had, even in the loosest sense, “matched”.

Remember the twins commissioned from V ? And V being cut out of the twins life afterwards? Well, as V and X had both been members of the same facebook group, they were in communication with each other.

In planning the trip to Cyprus the applicants were concerned with their own convenience, such as A going instead of B, who had had the bulk of the contact with X. B accepted in his oral evidence that they did not discuss between themselves or consider at all how X might experience the trip or how to make it comfortable for her. In his evidence A came across as seeming to believe that X should have been grateful for the trip, which, after all, they were financing. Their behaviour towards her was crass; they did not know that she had never been abroad before because they didn’t ask. They took no steps to ensure that she was comfortable or to find out from her what they could do to make her feel supported, and, above all appreciated.
The trip was a very unpleasant one for X. In his evidence A spoke only of the symbolism for him of being present during transfer of the embryos and was either unwilling or unable to recognize how lonely or frightening the trip was for X. He came across as emotionally unavailable and entirely self-regarding.
X was effectively excluded from discussions at the clinic; certainly she did not, on anyone’s account, actively participate in any conversation with the consultant in the clinic. It is understandable that X felt intimidated by A and his suggestion that he had helped her by holding her hand while the embryos were put inside her body is an example of the crass behaviour to which I have already referred. X, naturally, felt nervous throughout the trip and was not at ease with A. The food was strange and unpalatable to her and she felt even more isolated because she did not have credit on her phone. Why A did not see to it that she was able to contact her family and top up her phone is incomprehensible. To repeat what Dr Willemsen said, as fantasy met medical reality she felt used and deeply uncomfortable about the arrangement but she could not find a way of expressing her feelings because she was concerned that she might upset and displease the couple. She found herself caught in a conflict; in the words of Dr Willemsen “between maintaining the fantasy and facing up to reality. She must have felt very alone at times.”
The procedure in Cyprus had a huge impact on X. She had never wanted to carry two embryos and later told W that she did not say anything to the applicants as she did not want to let them down. She was both scared and anxious about it but believed the applicants when they told her that “probably only one would work.” X’s relationship with the applicants deteriorated as the reality of the uncomfortable and intrusive IVF procedure and the pregnancy took hold and she began, increasingly, to see herself as being used. Her reaction at the time has been graphically described by Dr Willemsen; as her emotional state and responses are essentially subjective I accept his evidence, and, furthermore I consider that the way that X responded to her treatment by A and B was entirely predictable. The fact that her own difficulties made her more vulnerable to suggestion and pressure being put on her does not in any way detract from her reaction, but it made it more difficult for her to stand up to the applicants and tell them that she no longer wanted to proceed. She told Dr Willemsen that she had had doubts before the trip but her experience while she was there intensified her feelings of doubt and uncertainty and she felt used.
It was from then that she had started to look for a way out of the agreement. It is clear from the messages that she sent in late October 2014 that she felt worried about having twins “how scairy twins lol xx” and … “my partners like its gunna damage your body blah blah…” to which L, who she was in touch with online, replied “no it wont [sic]”; a response, which while might have been meant as reassuring, was patently untrue. The applicants had not arranged life insurance as agreed despite the agreement stipulating it would be arranged before pregnancy and X became so worried, that this issue was revisited 4 days later, when, in early November 2014, W emailed the applicants about arranging a scan for X and X messaged A “I would like to get insurance starting today please, as it should have been done befor we [sic]got pregnant xx”.
Then in mid-November V was told by L that X was the next surrogate for the applicants. When A became aware of this two days later he sent a message to W about V saying “she can turn really nasty” A sent a message to X telling her “to try not to get stressed and ignore nasty msgs we had such good news today with the heartbeats lets focus on the future”. He clearly had not thought about the effect that V might have on X when she would come to realise that they had deliberately withheld information from her about the poor relationship that had developed between V and the applicants during their “journey”. His messages are further evidence that the applicants had sought to ensure that V did not find out about the second pregnancy to stop her from putting any surrogate off entering into a surrogacy agreement with them, not, as they said in their evidence, to avoid confrontation with V.
Over the next week in November X received several messages from V in which she complained that the applicants had not paid her fairly; that she had been ill during and after pregnancy with the twins; and that they had treated her badly. Unsurprisingly this increased the fears X already had about her agreement with the applicants. The standard response from the applicants and from L was to minimize the concerns by repeatedly blaming V and saying, amongst other similar epithets, that she was “bonkers”. A then sent X a message saying ‘its sad but I’m reconciled now to having no relationship’ with V which, far from reassuring her must have sent the unspoken message to X that she, too, could be cut out of any child’s life in the future.
In their oral evidence both applicants showed limited if any real understanding of the various factors which had undermined X’s confidence in the agreement and led her to consider a termination. Instead I was left with the clear impression that they seemed to expect her to be grateful for acting as their surrogate rather than the other way around. From the messages filed in the court bundle it is clear that there were emotionally intense exchanges from V, W and others on the forum to X. Later in November 2014 B travelled to be there during a scan and saw X for the first time since March 2014 (when they met at the fast food outlet to sign the agreement). They do not appear to have discussed V or what had happened between them. X’s anxiety had increased and in late November she asked V to speak to or text her sister. It was around this time that she decided to seek a termination and turned to W for support.

In the event, she didn’t have a termination, but she did tell A and B that there had been a miscarriage. The woman running the Facebook group, W, doesn’t come out of this judgment terribly well.

Miscarriage, birth and the role of W

Although there is no evidence before the court to establish that W is an agent or runs an agency it is clear that she has had a very strong interest in linking surrogates to commissioning parents and being involved in surrogacy. Precisely what her motivation for taking on this role is not something that this court is in a position to decide. As can be seen from the messages that passed between them W offered to “link” or introduce the applicants to X and repeatedly told them she had many other contacts and options for them should the “match” not work out. W’s influence over X can be seen in her successful attempt to persuade X not to have a termination and W accepted, in her evidence, that she was instrumental in that decision.
Although W has tried to insist that she did not want to get involved in things which did not concern her, she actively and deliberately placed herself at the centre of the crisis that X was experiencing and which unfolded on the Facebook site over V in November 2014, and which, in turn, lead to X deceiving the applicants. When W gave oral evidence before me she was by turn defiant and defensive; she was unsympathetic to X and sided with the applicants who she referred to as “the boys“. W accepted that she had encouraged X to tell the applicants she had miscarried and gave as her own motivation for doing so her determination to ensure that there was no termination. She told me she was aware that the applicants’ relationship with V had ended badly and said that when X complained to her, for example about the life insurance not being in place, she had begun to believe that V might have been right about the applicants as there were now two surrogates with complaints about them.
It remains unclear from W’s written statement or from her oral evidence why she later changed her mind, took against X and decided to inform the applicants that she and X had deceived them about the miscarriage. I accept the submission made on behalf of X that W seemed personally to invest in continuing the pregnancy and then disclosing that X was still pregnant to A and B; she had no reason to involve herself to this extent apart from her own personal gratification in a sense of power or exercise of a controlling influence over the lives of others with whom she was so singularly unconcerned. At first, as can be seen from the messages exchanged between them, W urged X to carry the child rather than terminate a pregnancy; she explained to X that she was the legal parent, as X had thought she would go to prison if she did not hand over the baby at birth (another example of how little X had understood her legal position and the effects of the agreement). There can be no doubt that W can be characterised as manipulative, just as there is no doubting that X was easily led. W’s messages were directive and it was she who suggested to X how she should lie to the applicants, going as far as to say “make sure you get paid first”.
That W was duplicitous is obvious from her conduct; on the one hand she encouraged X to deceive the applicants, and some of the comments she made about A and B were vicious and unkind; and on the other having convinced X to keep the baby she then told the applicants about the pregnancy while pretending to X that she was supporting her. In what Ms Fottrell described as a particularly cruel exchange about X’s inability to afford a lawyer in any court proceedings she messaged A “lets hope she xant afford a solicitor if she cannot even afford credit on her phone! Xxx”. A’s response of “isn’t she a joke, [W]!” exposed the contempt in which he held the woman who had gone through a very difficult pregnancy at his behest, whether or not she had ended up trying to deceive him. This is in contrast to X, who has continued to seek to please the applicants, as evidenced in her readiness to agree to extended contact whenever it has been suggested to her and to ensure that Z has had an opportunity to develop a relationship with his biological father.

[The Judge doesn’t say that these messages were vile, but my personal view is that she would have been entitled to do so. You can all form your own personal views, I’m sure]

While W’s manipulation of X was calculated and had a direct impact on her, the continued inability of A and B, in their evidence before this court, even to consider that their conduct may have had something to do with the manner in which X had reacted to them is noteworthy, and in keeping with the air of victimhood on the one hand and sense of entitlement on the other trailed throughout their written evidence. It was palpably evident that A seemed to feel he had ownership of Z and that X was merely a gestational surrogate, a mere vessel, with no rights over the child she was carrying and none over the child when he was born. Throughout these proceedings as can be seen from their reaction to the guardian’s recommendations about contact and other matters concerning Z’s care both the applicants struggled to accept X as Z’s mother; the woman who carried and gave birth to him. It was not until they gave oral evidence that there was, reluctantly, an emerging acceptance of the importance of that role in Z’s life.

Like me, you might well be very relieved that the view of the Court was that X, with help from her partner and support, should keep Z and that Z should not be moved to A and B. Z will have contact with A and B one weekend every two months.

There are some massive lessons to be learned from this case – treating people with kindness and respect is much more likely to result in a workable surrogacy arrangement than treating them as merely a ‘vessel’ and the arrangement as a commercial transaction or purchase; that if surrogacy agreements go wrong they can take a great deal of time, heartache and money to unpick and put right, and that surely we need some proper form of protection so that someone like X who was naïve, gullible, easily led, vulnerable and sufficiently poor that she had difficulty in even keeping credit on her phone is not exploited or manipulated by others who don’t have those vulnerabilities.

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Posted in case law and tagged 2016 EWFC 34, commercial surrogacy, HFEA, Ms Justice Russell, payment for surrogates, re z surrogacy agreeements child arrangements 2016, surrogacy, Z surrogacy arrangements 2016. Bookmark the permalink.

Bit of a c( ) ck up on the old anger management front

Posted on March 29, 2016 by suesspiciousminds

This case, decided by Ms Justice Russell, involved a 15 year old, an 11 year old and a 4 year old, all who had become involved in a private law contact dispute between their parents.

FY v MY 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/16.html

Readers may recall that Reggie Perrin had a brother-in-law, called Jimmy. Like all characters in Reggie Perrin, Jimmy had a catch-phrase and his was “There’s been a bit of a c( ) ck-up on the old catering front” – meaning that he needed to borrow a bit of money from Reggie to tide him over. [I’ve written the letter “o” here as brackets, to stop it being devoured by over-eager spam filters]

Jimmy also had plans to build his own (fairly) secret army, which was to be opposed to just about everything, including long haired weirdos, short haired weirdos, keg bitter, namby pamby probation officers and glue sniffers – I think Jimmy might do rather well in modern politics, as it goes. I think he might acquire a significant number of followers.

“Do you think so? I thought recruitment might be difficult”

In this case, here are the reasons that the father might have needed anger management

On the 1^st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.
The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).
When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4^th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.
The day after, on 2^nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20^th March 2014. He chose not to attend court on the 13^th March 2014; a hearing which was to listed to review the contact agreed in December 2013.
The boys have continued to be affected by the events of the 1^st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15^th February when L spoke to him briefly but K refused to speak to him. On 19^th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.
On the 23^rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

It must therefore have been momentarily pleasing to the Judge to learn that father was engaging in anger-management work. Momentarily pleasing.

On the 26^th September 2014 FY applied for interim contact. The case was listed before me on the 3^rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.
I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

I don’t think that Dr A-M was quite a brother in law to FY, but certainly related to him by marriage, which is what put Jimmy in my mind. Well, that, and the fact that the father also brought sit-coms into the mix, by peculiarly comparing his son to Del-boy from Only fools and horses (?) (I know…) Of course, whilst Del-Boy’s catch phrase was “this time next year, we’ll be millionaires”, it is suggested elsewhere in the judgment that this might be a step-down in fortunes for FY rather than a pipe-dream.

FY told AFC [Anna Freud Centre – the experts instructed] that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him“. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologise…I tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

I suppose if you absolutely had to, on pain of death, describe one of your children as a character from Only Fools and Horses, that it would probably be better to go for the Del-Boy comparison than using Trigger, but that’s a small crumb of comfort. In all other circumstances though, don’t compare your children to Only Fools and Horses characters.

After various attempts to get contact back up and running, the case came back to Court

When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8^th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.
MY’ evidence was that it was sometime around the 16^th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5^th November 2015.

The father after the children met with Mr McGavin, the CAFCASS officer, tried to induce his son L to send him a text message that the father could produce in Court. The Judge was singularly unimpressed.

It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.
After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”
In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.
Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

The Judge was invited by mother to make orders that father have no face to face contact with the children (there would be telephone contact and Skype contact). The Judge analysed the father’s case and presentation in this way:-

FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.
I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.
In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.
Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court.

It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18^th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.
I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.
The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does.

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Posted in case law, international, private law and tagged 2016 EWFC 16, anger management, contact, contact dispute, FY v MY 2016, Ms Justice Russell, Russell J. Bookmark the permalink.

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