PR v NY & Ors

On 12 October 2019 the children’s father NY abducted his three children from England to Algeria. The children’s mother, PR started wardship proceedings in respect of them four days later and following hearings before other judges on 2 December 2019 the case came before me for the first time. Between December 2019 and March 2022 this court has been engaged in seeking to ensure the three children’s return from Algeria. For much of that period the parents have also engaged in fierce litigation in Algeria to which country the mother travelled in March 2020 and in which the mother has sought to regain custody of the children and to return with them to England. The father sought to retain the children in his custody. Eventually, in March of this year the mother returned to England with PY who is now 13 and DY who is now 7. Since their return, they have been living in a hostel; the family home, having been repossessed by the local authority during the mother’s absence in Algeria. JY now 14 remains in Algeria, with the father.

In March I had set down a two-day hearing on 16^th and 17^th of June 2022 to consider the father’s application for a stay of the wardship proceedings on the basis of forum non-conveniens, as both of the parties and all of the children were at that time in Algeria and had been there for nearly 2 years. However, when the mother was able to return to England with the two youngest children, and having regard to the father’s position that he also (ideally) wished to return to England with JY I vacated the jurisdictional hearing and directed that it converted to a fact-finding enquiry into the mother’s allegations of domestic abuse which encompassed coercive and controlling behaviour, physical and emotional abuse of the mother and physical and emotional abuse of the children, including both the original abduction and subsequent allegations of re-abduction made by the mother against the father. Although some findings had already been reached in relation to the abduction and it seemed probable, whatever the findings, that PY and DY would remain with the mother in England and JY with the father in Algeria I concluded that the outcome of a fact finding was important both in terms of considering the nature of arrangements for the children in the future (including travel abroad) and in terms of their history and that 3 days was a proportionate and necessary use of court time.

The mother has been represented in the proceedings since their inception. Today she was represented by Mr Hepher who has appeared for her previously. The father has been represented in the proceedings since late summer 2020, when he instructed his current solicitors. He has been represented by Ms Gartland at this hearing; she previously has appeared for him during procedural hearings. I joined the children as parties to the proceedings on 12 October 2020 and they have been represented by their Guardian and by Mr Osborne of Cafcass Legal.

The Composite Scott Schedule [A36] contains a number of components with 26 items. For reasons which I did not have time to explore it was presented in a ‘traditional’ form with discrete allegations of abuse pleaded at its commencement and ‘Coercive Control’ comprising 3 items at its conclusion. However I had directed that a composite statement be filed by the mother and this provided a detailed narrative which supplemented the Schedule. The Schedule identified the following;

She had not been present at the hearing when the FFH was set down and so although her point in relation to ‘outcome’ issues had already been considered and determined, her point in terms of the ability of the court to consider 26 allegations in 2 days of evidence was well made. At the outset of the hearing, I explored with the parties how best the court and the parties might direct their focus to ensure that the core of the allegations were addressed without going into the details of every particular incident. As a result of that process, and bearing in mind the Court of Appeal’s recent guidance in Re H-N and K-v-K on the benefits of focusing on the nature of the relationship between the adults I indicated that focussing on the following was likely to achieve that goal;

In relation to several of the discrete allegations of violence against the children in respect of which JY and PY could potentially have given evidence, and which had not been articulated in the statements until the mother’s full statement filed on 27^th May I concluded it would be difficult to fully explore them given the very limited evidence from the children on them, in particular from JY. The children had been spoken to in October 2019 and had made some comments of relevance and PY had spoken to the Guardian more recently in which she had said both the mother and father had hit her. No party had sought to obtain more detailed statements from the children, no Re W analysis had been requested or undertaken and no party sought to question the Guardian on the children’s accounts of abuse so it seemed appropriate to focus primarily on the mothers allegations of the father’s behaviour to her with the abductions and the father’s behaviour to the children being a secondary focus. I considered this to be appropriate, in part because the father’s emotional abuse of the children was established to a significant degree in any event by his abduction of the children in October 2019 and his repeated failures to return the children to the mother or to England. By the time this hearing commenced the father had been found to be in contempt of court by Morgan J on 7 counts spanning the period October 2019 to December 2020. Sentencing had been adjourned with Morgan J expressing the view that whether the father returned with JY for this hearing and prior to sentencing being likely to be a relevant factor. The father of course has not returned.

Over the course of the 16^th and 17^th of June, I heard oral evidence from the mother and from the father. Neither called any supporting witnesses. No party suggested that any of the children should give evidence. On 16 June, the father was unable to join the CVP or teams to link as there was an Internet issue in Algeria connected with high school exams. I refused Ms Gartland’s application to adjourn the commencement of the hearing until the morning of 17 June. The father’s inability to participate remotely is a by-product of his refusal or failure to return to England; he has been stating he would return since at least October 2020. Most recently, Ms Justice Morgan found him to be in contempt of court in relation to failures to comply with orders to return the children to this jurisdiction, and she adjourned sentencing until after this hearing making reference to the fact that whether or not the father returned with JY would likely bear upon the sentence eventually imposed. The father continues to maintain that he cannot leave Algeria whilst there is litigation on going there because he fears that the mother will take advantage of his absence and create a forensic situation which will place him in difficulties if he were then to return to Algeria. That seems somewhat ironic given that his failures to return to England with the children over the previous two years have created a situation where he faces a sentence of imprisonment of up to 2 years for contempt of court and potential criminal proceedings; all of which probably would have gone away had he returned the children when first required so to do, or on one of the many subsequent occasions when he has been given the opportunity to do so. The mother has always made clear that she would not pursue the contempt proceedings were the children to be returned. Given that I was satisfied that the father could have returned to this jurisdiction had he wished to do so and that his reliance on Algerian forensic difficulties is really no more than a smokescreen to mask his refusal to return I directed that the hearing commence, even if that meant the father missing the mother’s oral evidence. Adjourning would in any event, have resulted in the hearing being vacated until late autumn given my availability. The father joined the hearing on 17 June and gave evidence on CVP, which for the most part worked satisfactorily.

I heard oral submissions at the completion of the evidence and it being about 5pm reserved my judgment.

PD12J applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.

The function of the Family Court in resolving disputes of fact is fundamentally different from the criminal court. The Court of Appeal made clear in Re R [2018] EWCA Civ 198:

The ‘General principles’ set out in PD12J include

The main allegations in this case fall within the category of 'domestic abuse' which is defined in §3 of PD12J FPR 2010, namely:

The Court of Appeal's judgment in Re H-N contains much important guidance on various aspects of domestic abuse including that:

In Re JK (A child) [2021] EWHC 1367 (Fam), Mr Justice Poole said the following

In K-v-K [2022] EWCA Civ 468 the Court of Appeal gave further guidance on how to manage domestic abuse allegations in particular focussing on how to case manage them but also emphasising the need to (a) focus on the over-arching issue of coercive and controlling behaviour [#63 & 68 ] and (b) the need for a broad panoramic evaluation of the evidence [#61]

I also note Peter Jackson LJ's comments in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (§61), cited with approval in Re H-N at §32 to the general effect that:

The burden of proof, of course lies on the party making the allegation. The allegation must be proved by them on the balance of probabilities. The mother must prove her allegations. The court is not bound to find the mother’s case proved or the father’s case proved but may determine that allegations have not been proved to the requisite standard; see the Popi M [1985] 1 WLR 948. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred [Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph [15]. The father has to prove nothing in relation to the mother’s allegations.

Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence including bringing into account the credibility of the parties, in order to come to a conclusion.

Self-evidently, the credibility of the parties plays a central role in matters of fact. I bear in mind the principles in relation to Lucas and remind myself that the fact that one party may have lied about one matter does not indicate that they have lied about all matters, still less that they have lied about the allegations made against them. A lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth: Re H-C (Children) [2016] EWCA Civ 136 at paragraphs [97-100].

However the honesty or dishonesty of a party does not sound only in Lucas terms, where it may positively corroborate an allegation but is of course of more general relevance in determining what weight should be given to a parties evidence. A witness who has been found to be unreliable or dishonest is likely to find their evidence is given less weight than that of a witness who has been found to be generally reliable and honest. In cases where the court finds itself largely reliant on evidence emanating from only two individuals – as if often the reality in domestic abuse cases – the outcome may be heavily influenced by the fact that the court finds one party to be generally honest and/or reliable and the other dishonest and/or unreliable. Of course in reaching that conclusion as to credibility the court will be considering a wide canvas including the consistency of the accounts over time, the internal consistency or coherence of the evidence, consistency with other evidence documentary or otherwise, inherent probability as well as demeanour.

I remind myself that in relation to historic matters the memory is a potentially fallible source of evidence. See the Gestmin case. Evidence may be honestly and sincerely given but be false. The passage of time and the repeating of allegations in court and discussion outside court can undoubtedly result in memory creep. Inconsistency in accounts separated in time does not necessarily mean the accounts are not honestly given. Reliance on demeanour also requires some care; some witnesses are confident liars others are hesitant truth tellers. However, demeanour in a broader sense can still be of great assistance to a judge; the evidence of a witness who appears reflective, objective, self-critical, who confines themselves to the facts is likely to be given more weight than that of the witness who is argumentative, subjective, partial, dogmatic. Applying general assumptions as to how a victim of domestic abuse could be expected to present are inappropriate. I also note what Judd J said in her judgment in M (A Child)[2021] EWHC 3225 (Fam)

In R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 the Court of Appeal at paras 24-26 considers when and how the court should rely upon propensity/similar fact evidence:

“24.

This analysis, given in a civil case, applies also to family proceedings.  There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind.  Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable?  If so, it will be admissible.  Secondly, is it in the interests of justice for the evidence to be admitted?  This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O'Brien.

25.

Where the similar fact evidence comprises an alleged pattern of behaviour, the assertion is that the core allegation is more likely to be true because of the character of the person accused, as shown by conduct on other occasions.  To what extent do the facts relating to the other occasions have to be proved for propensity to be established?...

26.

Again, this analysis is applicable to civil and family cases, with appropriate adjustment to the standard of proof.   In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard.   The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.”

Although it has not been presented so much as similar fact evidence I am of course aware of the fact that the father abducted the children in October 2019 and has been found to be in contempt of court on 7 occasions in relation to his failure to comply with orders requiring the return of the children. Those are plainly relevant facts when I come to consider whether the further allegations relating to JY and PY’s return to the father’s custody in July 2021 and February 2022 and to the allegation that the father interfered with the mother’s attempts to leave Algeria in March 2022. Those facts clearly suggest a propensity to commit acts of that nature.

An approach which takes account of the content of oral and written evidence, its consistency internally and with other evidence and, in particular, with any contemporary documentary material or other supporting evidence is essential in putting into effect the non-compartmentalised, broad panoramic view which the authorities mandate.

Although the general approach is that any fact which needs to be proved by the evidence of witnesses is generally to be proved by their oral evidence r22.2(1)(a) FPR 2010, facts may also be proved by hearsay evidence. The effect of Children Act 1989 s.96(3), Children (Admissibility of Hearsay Evidence) Order 1993 is to make all evidence given in connection with the welfare of a child admissible notwithstanding its hearsay nature. This would commonly include Local Authority or police records which are very often hearsay, often second- or third-hand hearsay, but also extends to witness statements. The court should give it the weight it considers appropriate: Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703 and where hearsay goes to a central issue, the court may well require the maker of the hearsay statement to attend to give oral evidence.

I have given 2 substantive judgments prior to this at times when the father was not fully engaged in the proceedings and one further judgment in December 2020 when he was. In December 2019 I gave a judgment ordering the return of the children from Algeria; the fact that they had lived all their lives in England, had been in the primary care of their mother prior to their abduction together with identified health issues concerning JY and DY made it abundantly clear that their welfare would best be served by returning to England and to the care of their mother. Indeed, both the father’s brothers who had sought to assist in communications and negotiations with the father in the preceding weeks supported this course. The father was well aware of the proceedings and his brothers in England had been trying to persuade him to engage with the proceedings and to return but were unsuccessful. Subsequent to that judgment the father filed an email and statement in which he set out the essence of his case. However, he still did not participate in the proceedings. Although I was satisfied that he had been validly served and in July 2020 I gave a further judgment in which I concluded that the children had been habitually resident in England at the time the proceedings were commenced; the father’s evidence supported this conclusion as well as the mother’s and the independent evidence from schools and social services. Given the father’s non-engagement and the children’s presence in Algeria it was not possible to ascertain their wishes and feelings but I concluded on the basis of the evidence from social services, from the children’s schools and from the mother that the children had been settled and happy to be in the mother’s care. Given the father’s non-engagement I provided for children to return and to be placed in the care of the mother. Subsequently, the father instructed his solicitors and at a hearing on 16 October 2020 the father agreed to return the children; the quid pro quo being that the order directing that they were to live with the mother was suspended until a further hearing before me following their return. The plan provided for the father and children to return first and for the mother to return on the next available repatriations flight. The children did not return as expected; the father said that he did not board the plane with children because the mother was not on that flight and he feared that she would continue Algerian litigation to his disadvantage. At another hearing, further arrangements were made for the children to return, but by 18 December 2020 the father had still not returned them and no real explanation was offered (see paragraph 4 of my judgment of 18 December). I therefore lifted the suspension on the order providing for the children to live with their mother. Although I had written evidence from the father before me as well as updating evidence from the mother and although I heard submissions on behalf of the parties, prior to this tranche of the hearing I had not heard oral evidence from them.

As a result of the father’s failure to comply with the orders for the return of the children, the mother has long ago issued committal proceedings against the father. Those had been adjourned on several occasions and the mother had indicated that she would not pursue them were the father to return the children to the jurisdiction. However, as it became increasingly apparent that the likelihood of the father returning to the jurisdiction voluntarily was limited the committal proceedings were listed for determination before Mrs Justice Morgan. Over 3 days she heard evidence from the parents and at the conclusion she found the father to be in contempt of court on seven counts. I’ve not seen the transcript or a note of her judgment, but it is self-evident that she did not accept the father’s explanation for not returning the children and was satisfied to the criminal standard that the father had wilfully failed to comply with the orders.

The parties’ evidence is contained within the 1166-page bundle that was lodged. In particular, the mother’s evidence is contained within her first statement and in her ninth statement. The father’s evidence is contained within his email and statement sent to the court on 13 January 2020 and in his statement in response to the applicant’s ninth statement. Parts of their evidence are incorporated within the chronology attached to this judgement which forms an integral part of this judgment in terms of the evidence and my evaluation and findings. The fact that I have not recited a piece of evidence does not mean I have not read it or taken it into account but after hearing the oral evidence of the parties which has been central to my evaluation of the case I do not consider any longer or more complete recitation of the documentary and oral evidence to be of assistance in setting the context for my reasoning and conclusions. I have sought to consider the parties submissions on the evidence in my consideration of the evidence and my evaluation; I do not consider it proportionate to set them out separately.

The mother gave evidence first. The father was not in attendance during her evidence, and so participation directions which may have been necessary were not in practice needed when she gave her evidence. She was softly spoken, measured and calm in her evidence. She appeared to have a good memory for dates and when recalling details of events appeared to do so spontaneously and consistent with the narrative being a lived experience rather than a script. In cross-examination she was not asked in much detail about the various allegations of assault, in part because of the approach I had outlined but I think also in part because the father’s overall position was one of complete denial of her allegations. As it turned out this was perhaps to the father’s advantage because when the mother did descend into detail in relation to allegations the detail appeared to have a ring of truth about it, to be consistent with earlier accounts and to be delivered with an emotional connection as when she described the first significant occasion of violence in 2005. It did highlight one of the disadvantages of evidence in chief being limited to confirming the contents of a witness statement in particular where the response is general denial and cross-examination does not engage with the detail of an allegation because it is denied in its entirety. On the few occasions where she did describe alleged assaults in more detail as a result of cross-examination the descriptions were more compelling in their detail, the spontaneity of the narrative delivered and the apparent reliving of emotions than any written statement could convey. However of course the converse is also sometimes true where in the testing of the detail the allegation is shown to be exaggerated or fabricated. Her description of how JY accused her of sexual impropriety in February 2021 and her response to this was I thought compelling. In the main, the mother remained composed but there were times when she was either on the edge of tears or in tears, in particular when talking about her relationship with the children and how it had suffered during their separation. She was also tearful when she explained how guilty she had felt when she was unable to stand up to the father when he was disciplining the children and she went upstairs when he told her to. Throughout her evidence she was focused on the children and ensuring what was best for them. Rarely talking about herself she largely confined herself to providing facts rather than her opinions and was measured in the way she delivered her facts.

The mother was reflective and able to acknowledge aspects in which her own behavior might have fallen short. She accepted that she did tap PY and JY as a form of punishment and I wondered whether she was minimising this although it also seems probable that the mother has not influenced PY given what PY said. If she wanted PY to come onside – PY’s account might have been expected to be far more supportive of the mother than it was. The mother in general talked about trying to shield the children from the acrimony in the house and I think it likely she has shielded them on a day to day basis from her feelings about the father’s behaviour. This is in contrast to the father who has very clearly spoken to the children (although he denies it now) as he recounts in his statements how he quizzed them about the mother’s activities; this must have occurred in Algeria after the abduction and is the alternative explanation for the extent to which the children became hostile to and distant from their mother. It endures with JY – he only speaking of his mother as “IT”. However, she also accepted that she had assaulted the father in front of the children when he was supposed to be handing the children over to her in January 2021, 2022 and did not. She was appropriately contrite about this and frankly accepted that she had lost her temper in the face of what she clearly perceived as the father having obstructed the handover such that she left only with DY, despite the fact that she had got an order from the Algerian courts requiring the father to hand over all three children to her. Notwithstanding her description of what the father had done to her she appeared able to also hold in her mind the possibility that there had been good in the father and good times in the marriage, and she was still able to accept the possible benefits to the children of having a relationship of some sort with their father. In the immediate aftermath of the separation, she had promoted contact and accepted that they missed him and loved him.

Her description of her married life seemed genuine and rather sad. She described feeling lonely in the marriage and her life clearly revolved around caring for the children and the house. As it happened when the father went into the witness box her account seemed, if anything to be an understatement given the dreadful picture painted by the father of his attitude towards her, his endless criticisms, and belittling of her efforts. Her description of how she felt obliged to stay, both because of her vulnerability in immigration terms (she being a joint applicant with the father on his asylum application), and as the mother of young children without recourse to public funds in England and the cultural or religious ties which bound her to the husband all left her in a difficult position. In another, what I considered to be heartfelt comment, she said that despite the nature of the marriage and them leading largely separate lives with her being fearful that if she complained she would receive the Talaq, might be returned to Algeria and be separated from her children she did not want separate housing except towards the very end, because she thought she should stay with him for the children and that maybe he would change

The principal issue identified by the father in terms of the mother’s credibility was of course in relation to the relationship with Alan and the very late disclosure of the fact that the mother had undergone a religious ceremony of marriage with him in January of this year. She had not referred to it in her statements, or in conversations with the Guardian and it emerged only in her evidence in chief. However, although she had not disclosed it, nor had she denied it. It therefore amounts to a suppression of potentially relevant information; it might potentially have been relevant to the circumstances of the separation (although until his most recent statement the father had not said he was aware of anything prior to 11/12^th October) and certainly in terms of understanding for instance, the children’s attitude. Clearly the commencement of a new relationship might have some relevance to their attitude to the mother and the father. In the context of the father’s case that PY voluntarily left the mother’s care in February 2022 the fact that the mother may have undergone a religious ceremony of marriage shortly prior to that could be relevant. In her closing submissions Ms Gartland laid considerable weight on the issue of the impact of the marriage on the mother’s credibility suggesting it went to the heart of her credibility and to the case itself. She rightly identified the coincidence of the father believing that the mother was engaged in an adulterous affair with a named individual but her not at the time being in such a relationship with the mother belatedly accepting that she had now married that same named individual. That is a coincidence, which strains probability. It would potentially be of considerably more significance, had the father identified the relationship as having some involvement in the separation, but neither he nor the mother said it was an issue for either of them at that time. The father’s late change of evidence in relation to the timing of his alleged discovery made it potentially far more relevant although (for reasons set out elsewhere) I reject his evidence that it was a feature of his thinking at any time before he abducted the children to Algeria. In any event, if the mother’s non-disclosure of this information can be said to amount to dishonesty, is it of significance either in Lucas terms or more generally in relation to the reliability of her evidence. It does not appear to me to satisfy the criteria for corroboration of any material fact. It might potentially be relevant to the father’s theory that the mother fabricated the evidence of his violence to her and the children in order to exclude him from the home and her life as part of a plan to pursue her relationship with Alan, but I am satisfied that the reason why it was not disclosed was not because she was seeking to cover up this plan, but rather because of the potential repercussions from the father and her family and the children of her confirming that in fact a relationship with Alan did exist; particularly given the precarious position the mother was in in Algeria at the time. Given that I accept the truth of her evidence in relation to how that relationship developed after she travelled to Algeria and following Alan’s support over a very difficult period of her life and that the marriage has not been consummated the reality is very different from the father’s suspicion. Although the non-disclosure of that marriage can be relied upon by Miss Gartland to question the mother’s true credibility, given my conclusions as to the reasons for its nondisclosure and my more general conclusions as to the mother’s overall credibility it is of relatively limited impact overall.

Thus, the mother emerges from the process of evaluating the reliability, honesty and sincerity of her evidence in a broadly positive way. She appears to be reliable in terms of the consistency of her recollection and how it matches other evidence; I considered that she was broadly doing her best to give an honest account of events over the course of the marriage and after the separation, and she was sincere and child-centered in her thinking and her actions.

The father's character came across fairly clearly in his evidence. He is very animated and very assertive in his demeanour. As Ms Gartland noted in support of her submissions as to his credibility he was polite to me and (since October 2020) had engaged with the court process. In the main he was polite to counsel although he had a tendency to speak over counsel and occasionally me. This I think was not rudeness but rather is a product of the strength of his feelings and his assertiveness and his need both to be heard but also listened to. He finds it difficult to rein himself in as his nature is excitable and spontaneous; the words spill out and he can become over-bearing and relentless finding it very difficult to maintain his composure or any degree of moderation. At times he seemed to be unable to restrain his words and the vehemence of his delivery. I have little difficulty imagining him at home compared to the relatively passive and moderate mother, being over-bearing and being capable of becoming angry when defied; the possibility of that continuing to develop into a loss of temper when stressed or frustrated is not hard to imagine.

Listening to his evidence was at times exhausting as he proceeded at such pace and intensity. I'm left in no doubt that if he is capable of expressing himself in that way within the environs of a court hearing with a judge and counsel who he at least notionally respects he would be much more intense, assertive, and animated in a domestic environment. The difference in the domestic environment, and in particular in his interactions with the mother is that he clearly has no respect for the mother at all, and he regards himself as having all the authority in their relationship. With those very significant contextual differences, I'm left in no doubt that his way of expressing himself to the mother in the context of the home on an issue where he considered he had authority would convert to domineering, overbearing and potentially abusive attitudes. There were several occasions during the father's evidence where it felt as if he was very close to losing control he became so animated and in the confines of his home and in exchanges with the mother, one could well see how they could tip over into him losing his temper and potentially becoming verbally or physically abusive.

Although Ms Gartland can place some weight on the submission that the court should give some credit to him for his engagement with the court and his respect to the court in giving his evidence that is significantly undermined by other matters relevant to his attitudes to the court. Although he maintained in his typically emphatic terms that he had complete respect for the court the unfortunate reality is that he has stoutly refused over a very prolonged period to comply with court orders, has made agreements on several occasions in the face of the court, which he has subsequently backed out of and had consistently held out to the court a position of wishing and intending to return to England which he has never fulfilled. The inevitable inference which leads on from this is that in fact the father has no respect at all for the English court; he is both in contempt legally, but I think he also holds this court in contempt. One of his constant refrains was that the English court or system places no weight on the mother’s infidelity – (although, as I have concluded she has not committed adultery and is now divorced from the father he has no objective ground for complaint), and he gave the clear impression that not only is he in contempt of court, but he holds the court and the system in contempt because they are not aligned with his attitudes. That being so, his apparent engagement with the court and his politeness in court could be seen more as an attempt to manipulate the court rather than being respectful to it. Given that the father is clearly an intelligent man it seems to me far more likely that the father’s position is one adopted deliberately and after some thought, rather than the product of distorted thinking, although that remains a possibility

His credibility generally is undermined by a host of issues. His being in contempt of court is perhaps the most obvious. If he is prepared to defy Court orders and to give evidence on oath, which is rejected by a contempt of court to the criminal standard, what else is he prepared to do to achieve his ends? His abduction of the children is of course potentially a criminal offence, but more importantly, a profoundly harmful act in terms of the children’s welfare; dislocating them from their familiar lives and separating them from their primary carer. All done to feed the father’s needs and to satisfy his need to be in charge regardless of the cost to his children or the mother or indeed his family and to some extent his own objective interests in being able to remain in England. That objectively his actions have been so contrary to his own interests illustrates how subjective his thinking has become, all focussed on satisfying his need to justify his actions and to maintain his position of authority with the children. That of course has implications for the reliability, honesty and sincerity of his evidence.

His evidence was frequently presented in absolute terms, 100%, absolutely – there is no room for nuance or grey areas. The father is absolutely convinced of the rightfulness of the positions he adopts. He expresses himself in absolute terms, his statements are absolutely 100% correct. Even if they directly contradict each other. He absolutely 100% wouldn't hit his children, hasn't hit his wife and they are absolutely 100% lies. I don't think this is just a figure of speech. It actually reflects the intensity with which the father believes his positions. The father is right and the mother is wrong. There is little that the father will not say to achieve his ends; in his oral evidence he asserted that Alan would sexually abuse PY; “100%”.

In his first statement he had said he discovered the mother’s alleged adultery with Alan and her online sexual activities the day before he took the children to Algeria ; between the 11th and 12th of October. In his most recent statement, he said that it was in early September when he became aware of the mother’s infidelities. Given that he had said in respect of each of those statements that they were 100% true, and yet they were flatly contradictory of each other, relating to an absolutely critical period of time clearly at least one of them was at best a mistake or at worst a lie. As he opted to prefer the early September date the issue then arose of whether he had confronted the mother at any stage with this or not, and given his obvious strength of feeling on the issue it was difficult to envisage how he could not have raised it with the mother, if he had been aware of it. His character is excitable, passionate, spontaneous, and he is very sensitive about his position, his pride, his rights and them being respected. His initial response when asked whether he had raised it with the mother at any stage was to say that he had been investigating and seeking to establish what the position was. Given his investigations appeared to be no more than looking at the Facebook account, which he says was the source of the information and speaking to the children, which he initially says occurred between the 11th and 12th of October it was hard to understand what investigating he had been doing. When pressed further, he alleged that he had spoken to the mother about it on the telephone after he had removed the children. The clear impression that I got of his evidence in this regard was that he was improvising on the hoof when he realised that his evidence was that he had never mentioned the adultery to the mother before he left and that the separation according to both his account and the mothers had taken placed after he said he had discovered the adultery and yet it was on neither his account or the mothers a feature of the separation. He was clearly not simply mistaken in his recollection but was being dishonest about the circumstances in which ‘adultery’ became a feature of the case. Of course the significance of the issue of adultery goes to the justification the father offered to the Algerian courts (and later to this court) for the abduction. I suspect that the adultery is also the justification the father has used in his own mind to persuade himself of the rightness of his actions. His capacity for unreliable evidence was frequently illustrated; another example was his confident assertion that he had not returned to England in November 2020 because the mother had not been on the flight as arranged. But the court order specifically provided for him to return first; specifically arranged to avoid the mother returning and the father then remaining in Algeria. His evidence about why JY had now allegedly gone to XXX was littered with inconsistencies and changes of tack. On occasion he said he did most of the care for the children, but he also said he was only with them 3 hours a day and in any event if he was doing most of it why was the house so poorly kept, the children so poorly cared for? These inconsistencies were lost on the father. The father said he refused to give the Talaq when the mother asked because “she gave no reason”, having moments before said the marriage was intolerable. It was clear he was to be the one who decided when the Talaq was to be delivered not the mother. On the one hand he said PY came into his care in XXX, a moment later he went to XXX and collected her from a bus-stop.

Another obvious example of a lie is to be found in the father's application to the Algerian courts. He gave in effect two reasons for having brought the children to Algeria. Firstly, was removing the children from exposure to the consequences of the mother's infidelity and secondly, the family had long been planning on relocating permanently to Algeria and the mother had belatedly refused to go ahead with. In his evidence, he said that at the last minute she refused to go ahead with it. However, in none of his recent evidence, whether written or oral, did he make any reference to this alleged plan to relocate and it was only when at the conclusion of his evidence I raised the topic that he said anything at all about it. When pressed, (relatively gently) he said that there had been no discussion with the children, no plans made with the schools, his employers, housing or in any other way, leaving it as an oral agreement between he and the mother which had not been subject to any degree of implementation. This of course was not the impression given in the documents filed with the Algerian court, or indeed his first statement with this court. Given how long he and the mother had fought to remain in England, remaining here as illegal over stayers for a period of time and given that they had obtained work, housing, healthcare and the children were settled in school the suggestion that they were agreed that they would relocate to Algeria seemed an extraordinary one. In any event, there was not a scintilla of evidence to support the father's assertion. The mother did not accept it. There was nothing from the children at any stage which remotely suggested that they had understood that the family was to relocate to Algeria. The father’s brothers in late 2019 were plainly unaware of any such suggestion they both having been in the process of helping the father to secure a 1 year tenancy on another property and pressing for the children’s return. I am satisfied that there is no foundation at all to the father's assertion that he and the mother had planned to relocate the family permanently to Algeria, which the mother had backed out of at the last minute. The most likely explanation for this story is that it was an after the event fabrication used to provide justification for the father having brought the children to Algeria. If there was a plan which the mother had frustrated the father was after all only implementing what had previously been agreed. That was the position he put to the Algerian court and, to some degree to me following the filing of the father's evidence in early 2020. I reject that evidence. The fact is that this was a frank lie to the Algerian Court and to this court, put forward by the father to justify his abduction of the children. It seems not only to have a significant impact on his credibility generally but also to further undermine his evidence of the other limb that the father relied on in the Algerian courts to justify his abduction of the children.

Other than the examples of dishonesty the father’s evidence was inconsistent and contradictory in many areas. His reasons for removing the children tended to vary as his evidence went along. At one time he would say it was to protect the children from their mother’s infidelities and sexualised behaviours. On another occasion he would say it was because he was surrounded by solicitors by the council and that he had no choice but to leave as he lost his job, his house and his children in one day - all of which of course were untrue. However, they were all relevant to his feeling he was, not in control of the situation, which is something he plainly was accustomed to be.

Although the father says he accepts that removing the children was wrong he swiftly minimised his responsibility by saying what he did was less harmful than the mother’s adultery and that he had to remove them from that harmful situation. In reality, he demonstrated no real acceptance of the impact of his actions on the children or any real acceptance that what he had done was wrong. I was left with the impression that he considered it within his rights as their father and as the mother’s husband to have done this because he considered it was the right thing to do because his position as head of the household had been disrespected by the mother in her asking him to leave and saying that she wanted a divorce. There is no genuine acceptance of him doing anything wrong; I doubt from listening to the father over the course of several hours whether he is capable of genuine reflection on any matter we are concerned with. His pride and arrogance and his contempt for the mother combine to enable him to satisfy himself that all he did was right and proper in pursuit of his rights and status and that all blame for what has occurred falls squarely on the mother’s shoulders. When asked how the mother might have felt about something his answer focused on how he felt and to blame her. The father said he is pursuing a criminal complaint in Algeria because “she broke and destroyed the family” The irony of this assertion was absolutely lost on the father; his arrogance and self-righteousness know absolutely no objective bounds.

However, they do explain his attitude to the mother as a wife and mother which was shocking to listen to. Whilst I’m prepared to accept that his views have developed in the years since the separation and as his hostility to the mother has grown as she has fought back against the abduction of the children, his lack of respect for her as the mother of his children and his criticism of her was hard to listen to. His criticism of her was essentially unbounded and permeated all she did. He demonstrated no empathy or compassion for her even when she might have been struggling with young children in difficult conditions. Rather he considered what did she have to complain about? He identified no redeeming features or qualities in the mother. She was effectively useless and it was his role as her husband and father of the children to pull her up for her deficiencies, to advise her on how to do better and to admonish or discipline her to encourage her to perform better. The mother says that the father was verbally abusive to her, calling her a dog and a bitch and being critical of her family. Curiously one of the father’s frequent complaints was that the mother was slovenly in her housekeeping and so the reference to a dog or a bitch in that context could be a natural extension of this criticism. The father denies ever using abusive language in any context. However, his all-pervasive criticism of every aspect of the mother's care for the house, for the children and for him was not something that he seemed to recognise as amounting to abuse in any way at all. He regarded it as his right and duty as a husband to criticise the mother’s domestic skills and to correct her where she fell below the standards he set for her if she did not mend her ways. It was certainly not in his contemplation, despite being at home with the mother and children prior to 2015, that he should contribute to the care of the children or the house even if the mother was struggling. He regarded it as entirely appropriate to respond by giving her the silent treatment or on two occasions to announce the Talaq in order to get her to pull her socks up. Whilst his evidence may have been given in concentrated form in the court arena and this may have sounded more offensive than it might have had it been given in more diluted form separated over hours, days, months and years the inescapable fact is that the father had little, if any, respect for the mother at the time and by his own account. Her status was, not one of a respected equal in a partnership raising their children, but was more akin to a domestic servant, there to care for the children, care for the house and to meet the father's needs. In that context, it is easier to understand the father's lack of remorse in terms of the impact of the abduction on the mother; if a person is not worthy of respect why would one regret doing something which upsets them? It is of course not a giant leap of attitude from contempt for a person to other behaviours which are more overtly abusive; name-calling, shouted insults, throwing of items to pushing to hitting to strangling. A continuum of abuse on which, by the father’s own evidence, he places himself well along.

Regrettably the father emerges from the process of evaluating him as a witness as wholly unreliable, frequently and seriously dishonest, subjective in the extreme, contemptuous of others and capable of a high degree of manipulation of individuals and courts. The weight to be attributed to his evidence is limited in any comparison with the mother’s and save where there are rare aspects of evidence which corroborate his account I prefer the mother’s evidence.

Given that this is a case where the evidence to a large extent is limited to the accounts of the mother and the father, the outcome to a considerable degree depends upon my evaluation of their evidence and of them as witnesses. However their evidence is not all the pieces of the jigsaw. Not only is there other evidence from the documents and the children but there is inherent probability or improbability and inferences that one can draw from other facts.

Included within the Chronology are aspects of my reasoning and findings and that should be read together with this. Ultimately the court is not undertaking a compartmentalised assessment of individual facts but the court is standing back and undertaking a broad panoramic survey of the totality of the landscape before it. Some of that landscape may be in shadow, some may be clearly and abundantly lit, some may be obscured by the mist of forensic uncertainty but can the court discern a clear picture on the balance of probabilities of the relationship between the parties informing and informed by individual incidents? In this case the answer is unhesitatingly yes.

My evaluation of their evidence and of them as witnesses of course, brings into account the content of their evidence and how that marries up with other aspects of the evidence that is available to the court. There is some limited evidence from the schools, the police and social services generated in or before 2019. The father submits that the absence of any reference in any of the material prior to 24 September 2019 to domestic abuse undermines the mother’s case. Why, he asks rhetorically, if the marriage was so bad and he was so violent did the mother not report it? Was it only reported later in pursuit of the mother’s plan to replace the father with Alan? It is true that the limited contemporaneous documents from health visitors do not record anything negative about the father. However, it is well established that many victims of domestic abuse feel unable to disclose such abuse for a considerable period of time if they are ever able to. The more vulnerable the alleged victim, the harder it may be for them to approach the authorities. In this case, the mother was from a traditional Muslim background, for a long period of time her immigration status was that of an over stayer, she was financially dependent on the father. She is plainly in a category of alleged victim that would find it difficult to report abuse.

It is very clear, both from the mother’s evidence but also from the father’s that this relationship was one characterised by abusive behaviour by the father to the mother. Although there may also have been happier times and although the concentration in the forensic process on the negatives tends to magnify those aspects and to minimise the more positive aspects I’m satisfied on the balance of probabilities, that this was properly characterised as a domestically abusive relationship in which the father was both controlling of the mother in his criticism and discipline, and that he acted coercively to punish and frighten the mother, in particular by pronouncing the Talaq but also by his other behaviours.

The mother’s description of the violence used by the father is, I’m satisfied broadly accurate, and that on a significant number of occasions the father’s displeasure at the mother’s perceived failings progressed to anger, verbal abuse, and physical assaults. The father’s inability to contain himself and his strength of feeling over issues supports that conclusion and his lack of insight into the impact of his behaviours on anybody save himself support the conclusion that these incidents of violence would have occurred regardless of whether the mother was heavily pregnant and regardless of whether the children were in sight. I therefore accept the core of the mother’s case, both of coercive and controlling behaviour and of physical and emotional abuse. Controlling and coercive behaviour do not necessarily mean that every aspect of a victim’s life is controlled by the abuser and in this case it is clear that the mother did have some degree of financial control in that she received child benefit and had some access to the father’s finances. The father paying the mother a significant sum of money supports her case that it was some sort of recompense for the second Talaq, but it also illustrates that she did have access to finances, which were not entirely within the father’s control. Having said that, it is equally clear that the mother would have been cautious as to how she deployed funds at as she must have been in so many other ways around the father given that she knew that many aspects of her conduct would be the target of the father’s irritation, anger, criticism or punishment.

As I have said earlier in this judgement I do not propose to make findings in relation to all of the allegations but I am satisfied that:

Ms Gartland on behalf of the father urged me in the strongest terms to accept that the father loved his children and would never hurt them. She said this was evident from his evidence and is supported by what the children have said about him before their abduction and subsequently. I’m prepared to accept that the father loves his children in his own way. I’m also prepared to accept that the children love him. The mother’s own evidence of them missing him, wanting to see him prior to their abduction and what they said to social services and what they have said to the Guardian support them loving him.

However love has many facets; it is not one-dimensional. Love does not act to exclude negative feelings or actions. One can both love in some respects, but also dislike or hate. People who love others are very often those who cause them the greatest harm. The father has caused his children significant harm by abducting them; yet he loves them. The children were reluctant to talk to social workers in 2019; this may have been a result of loyalty to their father-I have little doubt that the father made clear he expected their obedience and support. However, the clear message which emerges from what the children did say to social services was that their father hits them. Yes, the mother may have hit them as well. The extent to which JY has become alienated from his mother (and I use the expression advisedly) demonstrates beyond any real doubt the extent to which the father imposes his views on his children. Prior to their abduction all of the children appear to have had a warm and positive relationship with their mother. With JY it has been fractured, if not completely destroyed. Who knows whether beneath the veneer of contempt that he now holds his mother in lies a deeper and more nuanced set of feelings for her. Buried deep they may be, but I think it likely, given his age that they still exist. At present, however, they must be kept very firmly locked away. The father cannot hold any positive thought about the mother in his mind, and I have little doubt that any expression of anything positive about the mother would meet with dismissal, if not more.

Given we have not heard from JY or from PY I do not consider it appropriate to embark on a detailed evaluation of the mother’s allegations and nor is it necessary to do so to dispose of this application and to settle the history for these children, the parents and any future litigation. Given that I am satisfied that the mother is in general terms a reliable historian and given that the father’s own evidence supports the conclusion that he has treated the mother in a most abusive way during their relationship, that he has abducted the children giving no thought to the consequences for them in terms of harm but only thinking about his own pride and desire to punish the mother, it is not a difficult conclusion to reach on the balance of probabilities that he behaved abusively to his children both in terms of the indirect impact on them of his abuse of the mother but also more directly in the form of excessive chastisement whether by physical assaults or by harsh punishments such as the use of chilli.

Thus overall the mother has established all of the important limbs of her allegations as set out in the Schedule

I therefore accept that the father has (in summary form) on the balance of probabilities:

The father’s record of abducting the children, manufacturing an explanation which blamed the mother and justified his actions, his relentless pursuit of the retention of the children in Algeria and his manipulation of the mother, children and courts show that his underlying personality is one which poses very significant risks to the mother and the children. I very much doubt he has reconciled himself to PY and DY remaining with the mother and I consider he represents a very considerable ongoing abduction risk. No form of contact with him will be safe save professionally supervised whether direct or indirect.

It will be almost impossible for JY to accept this judgment whilst he remains in the father’s care. If he could be extracted from the father’s care and returned to the mother’s and reunited with his siblings it is probable that would be the best for him; harmful in the short term for sure but beneficial in the medium to long term. That seems improbable practically speaking now.

Given the abuse the mother and children have suffered and the father’s trenchant criticism of the mother and rejection of the reality of his own behaviour it is hard to see how any sort of relationship between the children is to be re-established without exposing the mother and PY and DY to further harm as I have little doubt that the father will use JY as an instrument to continue his campaign against the mother. Further thought will have to be given to that. JY is an innocent in this as much as PY, DY and the mother. The father bears sole responsibility for the destruction wrought on this family over the last 3 years and indeed long before that. It is hard to know the extent to which cultural, religious, psychological and environmental factors have shaped the father down the years and some of his behaviours may be a product of deep lying issues but their ultimate expression has been abusive of the mother and the children; those he ought to have held dearest and protected the most are those he has harmed the most. There is no change in the forecast and that is the sad but inevitable reality for thus family,

That is my judgment