In Your Defence

by Sarah Langford

  For a time, things seemed to settle. There was no contact from Asif and, although her aunt and uncle’s house was crowded, Saba began to feel as though it were her home. But then her aunt and uncle told her they had spoken to the community elders. Asif wanted a reconciliation. He wanted to see his daughter and he wanted his wife back, and they had agreed that she must try to work things out. Nazia’s first birthday was coming up; Asif must see her then. After all, they reasoned, Asif had not been violent to Nazia, and he and Saba were still married. She was still his wife.

  A few weeks later Saba found herself in her uncle and aunt’s car, staring at newly budded trees silhouetted against a pewter March sky. Nazia slept in the car seat beside her. All Saba’s senses warned her that she was heading towards danger, but her fear was masked by her sense of shame at her failure to make her marriage work. She reasoned that Asif was not a drunkard like some other husbands. He had a job and could provide for her. She felt the weight of the pressure to return to him and could barely breathe beneath it.

  Saba stood on the doorstep behind her uncle and aunt, a sleeping Nazia in her arms. Asif opened the door, filling its frame, and, without acknowledging Saba, he went to take the child from her. Nazia woke and began to cry. She clung to Saba’s neck, but Asif pulled her off, uncurling her small fingers one by one. Saba watched Nazia’s terrified face disappear inside the house and wanted to go after her, but Mrs Choudhury stepped forward from the shadows of the hallway, talking loudly over Nazia’s screams and blocking Saba’s path. When Asif reappeared with the child Saba saw that she had snot smeared over one cheek and that her eyes were wide with fear.

  Afterwards, when she described it to the police, Saba could not recall the order of events. She remembered moving forward, trying to take Nazia, but that Asif had pulled back. There was an argument between her uncle and aunt, Asif and his mother, the row flowing back and forth between the four of them. Asif flung out slurs – that he had a hundred women waiting to marry him, that Saba was a shameful wife and mother, that it would be better if he took the child and returned to Bangladesh to find a new wife to raise her properly. Then, somehow, he was walking towards his car. Saba ran after him, but the latch of the gate had caught when Asif slammed it. She saw him put Nazia in her seat before getting in to the car himself. Had he planned this? she wondered. Had he got Nazia’s passport? Had he got his own? Was this the last time she would ever see her daughter? The latch on the gate finally gave way and Saba flew across the road, her aunt and uncle behind her. She reached the car and banged on the glass of the window with her open hand, over and over. Nazia, seeing her, reached out her arms. When the car began to move, Saba ran alongside it, her hand still on the window, but then it accelerated off and out of her reach, turned the corner and was gone.

  The police found Asif two hours later, parked a few streets away. Saba never found out why. Maybe he had planned to go somewhere with Nazia but something had gone wrong – he never explained. Saba realized then that it would always be like this. She and Nazia were Asif’s belongings, his chattels, to do with as he wished, and he had seen her this way since the day they married. The police decided to take no further action; it was a domestic matter and he had not broken the law, they said, but she should apply to the court for an order. Without it they could not guarantee that next time she would get her child back so quickly.

  Saba’s uncle and aunt stopped pressurizing her to return to Asif. His mother refused to give back her passport, so Saba and Nazia settled back into their home, for she had no other form of identification with which to apply for benefits or housing. Then one day a large manila envelope came through the door, filled with papers. Saba’s uncle looked grave as he told Saba what it said. It was from Asif: he had made his own application to the court, asking it to take Nazia from Saba and place their daughter in his care.

  Asif made his application in his local court, despite the fact that Saba and Nazia were living many miles away. It was months before the application came before a judge, who confirmed it had been made in the wrong place. Applications should be heard by the child’s home court, he said, and sent the case south. And that was how Saba found herself in the corridor of Reading Magistrates’ Court waiting for me and about to do the bravest thing she had ever done.

  The fact I could not cover Saba’s first hearing turned out not to matter. No interpreter had been booked for her and Asif failed to turn up at all. The directions hearing was adjourned for a further six weeks and, by the time I found myself walking over mulched leaves on the way to court, autumn had slipped into winter. Reading Magistrates’ Court is an ugly, red-brick building, part of which is given over to the family court in which magistrates hear a variety of cases.2 I climbed up the handful of steps into the waiting room of the family court, which was empty except for Saba and a man whom the usher said was our interpreter. They were sitting apart from one another and it seemed they had not spoken. After introducing myself to Saba and showing her to a conference room, I went back to speak to him. He stood, gracefully. His hair was streaked with bolts of silver and his full moustache, combed and oiled and set upon a kind face, was greying. Later, in the conference room, I discovered he had the gift of quietness, of taking up no room. When he spoke his words seemed an extension of Saba’s and the flow between them became so natural that, by the end of our conference, neither Saba nor I looked at him while we waited for his translation of her words.

  Saba, possibly relieved at last to have found a way of speaking, told me everything. She talked about her marriage, arranged by both families, and her descent into invisibility in a country she did not know and was unable to understand. She told me how afraid she was of Asif’s mother, who, as a widow, was entirely dependent on her only son. His sisters were married and had moved in with their husbands’ families, so the burden of maintaining the family was Asif’s alone.

  When she had finished, I began to set out the court process for her. I watched her horror as she realized she must tell her story all over again in court. The words would be written down into a statement, I explained, and – because all family proceedings were in a civil court rather than a criminal one – the magistrates would treat this statement as her evidence. But then she would have to stand up, take her oath and be questioned on its contents in court. Tested, challenged, asked to give details and specifics, told that she was wrong, told that she was lying. And she would have to do all that with Asif in the room, watching her. She had not told her uncle and aunt everything that had happened, she said, nor her parents. They would say that these were private matters, to be dealt with in the community, not for the ears of strangers. She was terrified of the consequences of disgracing her husband in public and the impact of this dishonour. I understood, I said – thinking, how could I? – but the Children and Family Court Advisory and Support Service (CAFCASS) officer had written a letter to the court saying that Saba had left her husband because of his violence.3 The officer, I told her, had made it clear that before the court could decide where Nazia should live it must determine whether or not this violence had taken place. This was the system, and there was no escaping it.

  The CAFCASS officer was concerned about Asif’s abduction of Nazia and had recommended that her passport be held by the court until the final decision was made, in light of the fact that Bangladesh was a non-Hague Convention country. What this meant, I explained as gently as I could, was that if Asif did take Nazia to Bangladesh, it could be very hard to get her back. I looked at Saba sitting opposite me in silence and thought how frail she seemed, like a trapped bird. We would go into court, I said, and I would tell the magistrates that Saba contested Asif’s application and wanted Nazia to live with her. I would confirm that there had been no contact between father and daughter, as Saba was too frightened that Asif would try to take Nazia again. And I would tell them yes, Saba had made allegations of domestic violence, and yes, she wished to pursue them.

  ‘If he disputes the allegations, the magistrates will or
der a finding of fact hearing,’ I said carefully, sliding my file towards me.4 ‘This is a hearing where we need to prove that what you allege is more likely to have happened than not. Then, after the contested hearing, the magistrate will order a full CAFCASS report to decide what impact the findings have on Asif’s application.’ I stood up, watching her. ‘I know it’s very, very difficult, but I promise I will try to make it as easy as I can. Lots of breaks and things.’

  Lots of breaks, I thought, as I went to find Asif’s barrister. What use was that? If this were a criminal case, any allegations of domestic abuse would have been given in a private room to a police officer carefully trained to deal with them. Saba’s evidence would have been recorded and, during any ensuing trial, she would need never to be in the same room as Asif. The witness room is usually kept far away from the courtroom to ensure a complainant’s and a defendant’s paths cannot accidentally cross. Her cross-examination would take place via a video link or, if she wanted – as some complainants do – to see the jury and for the jury to see her, so that she can look them in the eye and say Please believe me: I am telling the truth – then a screen could be placed around the witness box, shielding her from Asif’s view. This means that, unlike in a family case, when she gives evidence about the violence to which she says he subjected her, she does not have to see him glare, unblinking, at her, or silently run a finger across his throat.

  So too, were this a criminal case involving a defendant accused of domestic abuse who was representing himself, all questions put to Saba in the courtroom would come through the mouth of a lawyer.5 Such a defendant is, by law, prohibited from asking the questions of his alleged victim himself. Instead a barrister is instructed by the court to cross-examine on his behalf.6 I know – because I have done it – that to be summoned to court by a judge to cross-examine a witness with questions that are not your own is an odd experience. But it is nothing next to the horror of watching, as I have also done, women in the family court forced to withstand questions that challenge their allegations of violence – physical, mental and sexual – asked by the very person they say has perpetrated it. Restrictions on legal aid have meant regularly arriving at the family court to find my opponent is a litigant in person – representing himself – and I then have to return to my conference room to warn my client gently that, if she wishes to pursue her allegations of domestic violence to a contested hearing, she must understand this will involve the unthinkable prospect of being cross-examined by the person she fears most in the world.7

  There is little practical difference between a fact-finding hearing in a family case and a criminal trial, except one. My family clients are not witnesses in their case; they are parties to it. They are parties even if they did not make the application or want to come to court.8 They are able and entitled to have a momentary shield for the purposes of giving evidence, but how can this help them when, in the time it takes to get to that point, they will have been forced to wait in the same queue into court, sit in the same waiting room, eat in the same canteen and sit in the same courtroom, along the same bench, from the person they accuse of abusing them? It may be that the only solace in this experience comes when the court believes their version over their abuser’s. But when the judge or magistrates find my client’s allegations proved and she folds herself into my arms like a child after a nightmare, or when I stand as a human shield as my opponent knocks over chairs, or throws jugs of water, or rages at the unfairness of it all, it can feel a hollow victory. It is all too easy for the law and lawyers to loop around and over a litigant in person, even when trying not to. Advocacy is not an art form; it can be learned, but too often in these cases I watch my opponent stumble through papers, emotion and frustration fogging their mind. Then they sit down, defeated and confused, knowing they will later remember all the questions they wished they’d asked. After it has finished I am left with the overwhelming sense that, even if I believe my client’s evidence to be true, the hearing was not a just or equal one – and that, as far as I am concerned, means that everyone has lost.

  I found Asif’s barrister in the advocates’ room, on her phone. She waved me over.

  ‘Sorry, sorry, just on the phone to my sols. Client’s not coming, I’m afraid.’

  I weighed it up. This would be the second unsuccessful hearing in a row and the magistrates would not like it, but I also knew that any delay would work in Saba’s favour. The longer the period since the last contact between Nazia and Asif, the more careful the court would be about reintroducing it. They were unlikely to find another hearing slot for many weeks and the time would enable Saba to regroup: to find her strength, to continue learning how to live alone. This would serve her well if, in many months’ time, she were forced to convince a court that she could raise Nazia by herself.

  ‘Any reason why not?’ I asked, as she finished the call.

  She looked embarrassed. ‘He’s buggered off to Bangladesh. A holiday, apparently. Obviously I read the solicitors the riot act for not telling him he couldn’t go. They gave me his number, so I’ve spoken to him and have instructions. I’ve told him the court’s not going to allow contact to start without a fact finding, given that he disputes everything your lady is saying. So – we might as well just go ahead and order statements and get it listed, agreed?’

  I arched an eyebrow but said I did, then returned to the conference room to tell Saba that Asif was not coming and watched her shoulders drop in relief.

  As the printer poured out hot pages, I fanned them out on the table. Saba and Asif had both filed witness statements, his in reply to hers, and behind each one lay another, translated into Bengali, its lyrical script jarring against the brutality of its subject. There was also a Scott Schedule: a table of columns listing Saba’s allegations and Asif’s response – a catalogue of suffering, boxed into black and white. The schedule ran over two pages and I scanned through it, realizing with irritation that Saba’s unwieldy statement seemed to have been replicated verbatim within the schedule by the solicitors. There is no limit to the number of allegations a party can make against the other, but often solicitors will pick the most serious, taking the view that the court has limited time. That decision, however, is hard to explain to the person for whom all violations have felt far from minor. There is a temptation to put everything in and let the barrister in court field the temper of a furious judge who says they cannot possibly get through all the allegations in the time allocated – that they must be halved, there and then, much to the despair of a client who has prepared herself to face the lot.

  I read through Asif’s column in reverse order: denied, denied, denied. Then I got to the top, to the very first allegation. It was the smallest of them all: Tore up the respondent mother’s book. Asif’s response: agreed. In his witness statement he had given no explanation or account except that he did not like the fact that his wife had a note from another man. There was no repentance or regret: it seemed he had thought little of it. And in that moment I knew he could be caught. In that one casual admission Asif had betrayed what he thought about Saba. Her belongings, her past, her present and her future were his to do with as he wished – to control through violence and fear and, if he felt like it, to destroy. He knew he should not have beaten her, so he denied it, knowing it was her word against his. But for him the destruction of his wife’s favourite thing was reasonable, given that it now belonged to him, because she did too and he saw no issue with admitting it. As I looked at the page I was furiously glad that the solicitors had not edited this allegation out as they so easily might have done, for Asif’s admission would – I hoped – be the one that undid him.

  Saba sat in the witness box, her eyes fixed somewhere beyond me in the corner of the room. The radiators clanked, trying to pump out heat, but the courtroom still felt cold. In the witness box Saba seemed even slighter than usual. I glanced to my right and looked at Asif sitting next to his barrister. His eyes were fixed on Saba. The interpreter stood silently beside the witness
box, wearing his usual pressed tweed suit. I wondered if I should ask him to put the question to her again. You have alleged that your husband raped you – when did this first start? Then Saba looked straight at me, fixed me with large eyes, and began to cry. I glanced at the magistrates, wondering if I should urge a break, but was interrupted by the interpreter. His voice was strained.

  ‘Your Worships, I must say this. I am finding it hard to exactly translate her answers.’ He paused and drew from his breast pocket a handkerchief, which he passed quickly over his face. He looked towards the magistrates and I noticed his expression had changed. He seemed to be struggling for the right words. ‘In truth, Your Worships, it is not in our culture for a woman to speak to a man of these things, to speak of these things to a stranger. I think she is finding it hard to tell me everything, to give the details she is being asked for.’

  For the briefest moment he glanced at Asif and then away again, expressionless. I wondered what he thought. Did he condemn Asif for the way he was accused of treating his wife, or did he disapprove of Saba talking about such private things in public? He spoke again, breaking the silence. ‘And there are also, you see, many things she has said which I cannot properly interpret. She has told us of being pulled from her prayer mat by her hair. But the word she has used to describe how she felt has no direct translation: she was ashamed, but also he broke her prayers and so she felt she had offended her god. The way he did it, by her hair, means more in our culture than yours.’