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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (Children) [2019] EWCA Civ 74 (01 February 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/74.html Cite as: [2019] EWCA Civ 74, [2019] 2 FCR 153, [2019] 1 FLR 1175 |
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ON APPEAL FROM
Mr Justice Keehan
High Court of Justice
Family Division
FD16P00282
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE COULSON
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A (Children) |
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Ms C Papazian (instructed by Direct Access) for the Respondent
Mr M Gration ( instructed by CAFCASS) for the Children/Guardian
Hearing dates: 21st and 22nd November 2018
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Crown Copyright ©
Lord Justice Moylan:
Introduction:
Background
Proceedings
(a) she had been the victim of domestic abuse by the father;
(b) she had been stranded by the father in Pakistan;
(c) the mother had been evicted for significant periods from the paternal home in Pakistan, separating her from the children, and the father had then removed the children from Pakistan in February 2016 leaving the mother stranded there; and
(d) the father had alienated the children against her.
The Judgment
"106. In what may be described as the 'classic' stranded wife case, the mother is living, or forced to live with the paternal family with little or no contact with her maternal family or with government agencies or, as in this case, the British High Commission. In this case, for much of her time, the mother was, as I find, living with her family, she was able, without the knowledge or assistance of the father to obtain a replacement passport and was in contact with and travelled to the British High Commission to seek an indefinite leave to remain visa. She having been able to do all of this without the assistance of the father, I have not been given any explanation why:
i) she could not have applied for a passport and thus returned to the UK before her original visa expired in April or May 2014; or
ii) why the father is at fault for it taking until October 2017 for the mother to obtain a further indefinite leave to remain visa.
107. In these circumstances I decline to find that the father 'stranded' the mother in Pakistan."
Submissions
Law
The expression "transnational marriage abandonment" appears in Practice Direction 12J of the Family Proceedings Rules 2010 which deals with "Domestic Abuse and Harm". It states:
"3. For the purposes of this Practice Direction -
"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. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.
"abandonment" refers to the practice whereby a husband, in England and Wales, deliberately abandons or "strands" his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother".
It is clear from the Practice Direction that the words abandonment and stranding are not terms of art and that they are not intended to be applied in a formulaic manner. This is because there are a number of ways in which a spouse might be said to have been abandoned or stranded abroad or in which the other spouse might have sought to achieve this. I would agree with Mr Gration when he submitted that cases can include many differing elements which militates against their being placed in distinct categories.
Determination
Lord Justice Coulson:
Lord Justice McCombe: