This is a post from Sophie Smith-Holland, who tweets as @SSmithHolland.
The question of how the family court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. Campaigners, including survivors and MPs, have described a disconnect between Practice Directions / best practice guidelines and what actually happens in practice at courts around the country. A government led review and ‘call for evidence‘ (limited to ‘private’ law cases) is underway. A ‘progress update‘ in October confirmed that the original 3 month time-frame has been extended to an unspecified date ‘in the coming months’.
A ‘snapshot’ look at some recent published judgments featuring domestic abuse seems useful, looking at decisions made and how they were reached. We link to earlier blogs from the series at the foot of this post.
H (A Child) [2019] EWHC 1509 (Fam) (24 May 2019)
This was a case concerning an application made by the father for the return of his son to the country where the father was living (the “home country”). The application was brought under the Hague Abduction Convention. The child’s mother had wrongfully removed the child from the home country on 17 February 2016 to the UK, where she made a claim for asylum.
The father had made the application to the home country’s authorities in July 2016 but it took more than two years to transmit that request to the UK, during which time the mother had applied for and been granted asylum. This gave the mother and the child refugee status. Her application for asylum was due to a fear of returning to the home country because she was a victim of domestic abuse. Importantly, the tribunal judge said in his judgment:
“3. The basis of the appellant, the mother’s, claim can be briefly summarised as follows. She married a man who immediately after the marriage began to abuse her. She attempted to leave him but by persuasion of her own family, particularly her brothers, and her husband and his family, she returned to him. She reported some incidents of violence to the police but they laughed at her, partly due to culture but also because the appellant’s husband had relatives within the security forces. The final straw came when the appellant found her husband sexually abusing her son.
“18. I found the appellant to be articulate, detailed, specific, consistent and credible in her evidence. I accept her claims that she and her son would be located in DD on return by her husband via his family members and computer records. She gave details of the names of the appellant’s brothers and their positions within the police and prison force. This is far more information than is usual in asylum seekers claiming that they fear persons with influence and the security forces of the country from which they have fled. I accept that her husband has filed a missing persons report and that the immigration authorities would be alerted to this fact on their return at the airport. Assuming they were returned, I find it has been established that there is a real risk both the appellant and her son would face ill treatment at the hands of her husband.
“19. The appellant has been found to be credible in her claims which includes the claim that she cannot safely relocate with her son in DD. She has established that her fears of persecution on return are well founded, the Refugee Convention is engaged, and she has established that she and her son are entitled to international protection.”
The judgment concerns the father’s application for disclosure of the mother’s asylum file and the child’s pending asylum file into the Hague Convention proceedings (the mother having made an application on his behalf after hers had been allowed). At an earlier hearing, the mother (then representing herself) had agreed to file and serve her asylum documentation. However, she subsequently wrote a letter to the court asking for non-disclosure of that documentation on the basis that it contained names, photos and other information relating to people who had given information which would compromise the security of their families and themselves. The papers were returned to the mother and the matter was listed for a hearing to consider if any of the documents should be disclosed and who would get to see them (e.g. the father; the Cafcass Guardian appointed to represent the child). The Secretary of State for the Home Department intervened in the proceedings.
The father’s barrister said that the only way the father could “penetrate the shield of the grant of asylum” raised by the mother is to have the tools to challenge the original determination by the Immigration Tribunal and that his, and the child’s Article 6 ECHR (right to a fair trial) and Article 8 ECHR (right to a private and family life) rights were engaged. In the alternative, it was suggested that the court should consider appointing a special advocate to see the documents.
The mother’s position was that the child should not be returned to the home country as he was factually settled in the UK (which had been the conclusion of the Guardian) and because there was a risk of harm to him. She argued that the grant of asylum was properly made on the basis that the father was a perpetrator of domestic abuse and of sexual abuse on the child, and that neither of them could be protected by return to an undisclosed location. Further, it was said that the grant of asylum was an absolute bar to a return under the Hague Convention and that refugees should not be sent back to the country from whence they fled. She opposed the disclosure of any documents from the asylum application proceedings.
The Secretary of State for the Home Department and the Guardian made similar submissions, directing the court to the balancing exercise to be taken in respect of everyone’s competing rights when deciding whether documents should be disclosed and also remained the court of the importance of sensitivity and confidentiality of the documents in relation to asylum proceedings.
The judge concluded that a refugee cannot be returned to the state of persecution, unless and until that status has been revoked and all appeals have been determined. Further, he had not been referred to any case where a child with refugee status had been returned to the home country, nor any case where the court had granted disclosure of a pending asylum file. He noted that the asylum decision had not been challenged.
The balancing exercise to be carried out was to consider whether disclosure would be compatible with the mother and child’s rights, in particular Article 3 ECHR (prohibition of torture) and Article 8. He also placed particular weight to the wider public interest in protecting the confidentiality of the asylum process, especially when the applicant was the alleged persecutor. This was to be balanced against the father’s Article 6 and 8 rights and the impact on him of not having the disclosure which he sought.
The court’s view, informed by the Secretary of State, was that there was a compelling need for those seeking asylum to have confidence in the system and to have confidence that the application which they made and any resulting material will be kept confidential. He considered that even disclosure through the use of special advocates, undermined the integrity of the asylum process.
The judge considered that the father had a great deal of information about the mother’s asylum application already – including detailed refusal letters, the full un-redacted ruling by the independent tribunal describing the mother’s consistent account and the mother’s statements and exhibits.
Further, the judge considered whether the documents sought were relevant at all to the argument as to whether the child had “settled” in the UK. The judge did not accept that the asylum documentation would impact on the question of settlement and so they were not helpful in the Hague Convention proceedings.
Comment
When reading through the judgment, with my family lawyer hat on, the first thing I thought was how unfair it is that in the Hague Convention proceedings, the father was going to be treated as though he had perpetrated abuse against the mother and the child, because of findings made in the immigration tribunal that the mother’s unchallenged account of such abuse was “credible”. I struggled with the submission made on behalf of the mother that “the grant of asylum was properly made on the basis that the father was a perpetrator of domestic abuse and of sexual abuse on the child, and that neither of them could be protected by return to an undisclosed location.” How can this be right or fair when what would be seen as due process as we know it in the Family Court had not been followed? The Immigration Tribunal judge does not seem to have gone as far as saying that the father did the things that the mother was alleging, but rather that it had been established “that there is a real risk both the appellant and her son would face ill treatment at the hands of her husband” and so, arguably, this finding would not hinder the father in putting forward a case in subsequent proceedings that the mother’s allegations were not true. The principle of issue estoppel (as considered in the earlier blog post on A Local Authority v C [2019] EWHC 1782 (Fam) ) would not appear to bind the court in future any further than it having to adopt the finding that there was a “real risk” to the appellant and her son, unless the contrary was proven by the father (which of course it may be if he establishes that the mother’s allegations were untrue).
However, due to the particular circumstances of this case and judgment, i.e. the time it took for the father’s application to be progressed (and the child having seemingly become settled in the UK), the mother and the child having already been granted refugee status, the child having a pending asylum application and the hearing being limited to the question of whether or not there should be disclosure of documents from the mother’s immigration file, these points were not explored and the decision to grant asylum was, of course, not under review.
That said, I suspect that there would not be an opportunity for the father to prove the contrary at all in the Hague Convention proceedings – as was set out by the mother’s counsel: she would be arguing at the substantive hearing that the focus of the court should be firstly the issue of whether or not the child has factually settled pursuant to Article 12 of the Convention and in the alternative, she would be relying on Article 13b – the harm/intolerability defence and the child’s objections. It was submitted that she would be likely arguing that the Article 13b defence should only be determined if the mother and child’s asylum status was revoked or, alternatively, that the trial judge should only consider those defences if the defence of settlement fails.
I cannot see any reason why the mother’s allegations would be relevant to the question of whether or not the child was factually settled in the UK and so, if the trial judge was to accept the mother’s argument about the order in which to consider things, then there would be no opportunity for the father to argue against the allegations. You might think that if the trial judge considered the Article 13b defence then the father would be able to challenge the allegations and findings then, because how can the court determine either 1) whether there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation and/or 2) if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views without doing so? But, because of the summary nature of Hague Convention proceedings, the allegations/findings will not be looked into in any depth at all – as quoted from the case of Re E [2012] 1 AC 144:
“32. First, it is clear that the burden of proof lies with the ‘person, institution or other body’ which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.”
“36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner [then leading counsel in the case] submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”
Therefore, in the Hague Convention proceedings at least, the father will be “stuck” with the mother’s lingering, undetermined allegations and the findings made in the immigration tribunal.
I then considered things from the mother’s perspective (and really from the perspective of others who may make an application for asylum). It was stressed by the Secretary of State for the Home Department that the court needs to pay particular attention to the question of confidentiality and assurances that are given to applicants for asylum and also the public confidence in the asylum process. The father already had a considerable number of documents from the asylum proceedings such that he was able to prepare his case. The mother’s concern was that the father would become aware of the identity and whereabouts in the home country of the individuals who assisted her in her asylum application and that they would then be placed at risk. It is my clear view that the two points raised by the Secretary of State for the Home Department would have been seriously undermined had the further disclosure been directed and, that there was the possibility of the mother’s acquaintances, and also possibly the mother and the child in some form, being at risk from the father as a result, the latter of which was, of course, what the grant of asylum was protecting against in the first place.
As a final point, the father’s application took two years to make it to the UK – a reminder for professionals that even Hague Convention proceedings – the aim of which are to secure the speedy return of children wrongfully removed from their home country to another country which is a signatory to the convention – are clearly not always a “quick fix”.
Earlier posts in this series :
Part 1 – A Lancastrian Council v M [2019] EWFC B6 (07 March 2019)
Part 2 – A (A Child) [2019] EWFC B16 (12 March 2019)
Part 3 – O and Y (Children: Care Order) [2019] EWFC B22 (24 May 2019)
Part 4 – A Child (Threshold: Inflicted Injury and Domestic Abuse) [2019] EWHC 1511 (Fam) (21 May 2019)
Part 5 – SD v AFH (Appeal: Coercive and controlling behaviour: Inference or speculation) [2019] EWHC 1513 (Fam) (13 June 2019)
Part 6 – A Local Authority v C [2019] EWHC 1782 (Fam) (12 April 2019)
Part 7 – AB v XY [2019] EWHC 1468 (Fam) (07 June 2019)
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