The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now alleged herself to be responsible for threats and violence. After a fire, the children were taken into care on a without notice application. The mother later pleaded guilty to arson with intent to endanger life. The father was not implicated, but was thought to have been making attempts to find the children in breach of a court order. The children were now with a white non-muslim family, but the authority thought the children to be at serious risk if returned. Final care orders were made.
Held: Leave was refused. As to the judge’s decision: ‘The question is whether or not he exercised his judicial discretion in a manner which was properly open to him. If he did, that is the end of the matter. This court simply cannot intervene, and will not do so.’
All the complaints were about the exercise of a discretion by the judge. Though the father had not been directly involved, he had not satisfactorily explained his admitted involvement, and evidence showed that he would continue under great social pressure which might again threaten the children’s safety if they were returned to him. They would be at risk of shame from apostasy.
Wall LJ said: ‘the time has surely come to re-think the phrase ‘honour killings’. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff in I Henry IV Act V, Scene i. It is quite another matter to distort the word ‘honour’ to describe what is, in reality, sordid criminal behaviour. I put on one side the murder of a baby in this case, since brother 1’s motivation for the murder is not known. However, the remorseless pursuit of the baby’s mother who, the judge found, was a woman fleeing from domestic violence; the fact that the mother of the subject children in this case sprayed the night clothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather appears to believe that the death of the baby was an accident and the will of God – these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of simply sordid, criminal behaviour and a refusal to acknowledge them as such. We should, accordingly, identify them as criminal acts and as nothing else.
The Muslim scholar in his evidence did not suggest that such activities can be encompassed within Islam. The most he said was that they formed part of the older generation Pathan culture. The message from this case, which must be sent out lou$d and clear, is that this court applies a tolerant and human rights based rule of law: one which, under the Act of 1989 regards parents as equals and the welfare of the child as paramount.
That is the law of England, and that is the law which applies in this case. Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such.
In this case, the family may wish to reflect on the fact that it has lost five of its children: one by death, one by the legitimate flight from gender based violence inflicted on his mother, and three to the care system. None of this, in my judgment, has anything to do with any concept of ‘honour’ and all of it is manifestly contrary to the best interests of children.’
Laws LJ, Wall LJ, Lawrence Collins LJ
[2009] EWCA Civ 205, [2009] Fam Law 475, [2009] 2 FCR 505, [2009] 2 FLR 20
Bailii
Children Act 1989 31(2)
England and Wales
Citing:
Cited – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Cited – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Re A (Family Proceedings: Expert Witnesses) FD 6-Feb-2001
. .
Cited by:
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 02 November 2021; Ref: scu.320866