B (A Child) [2014] EWCA Civ 843

Case No B4/2014/1217[2014] EWCA Civ 843
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
EXETER DISTRICT REGISTRY
His Honour Judge Tyzack QC (sitting as a Judge of the High Court)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 June 2014
Before
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISIONLADY JUSTICE BLACKLORD JUSTICE UNDERHILL
In the matter of B (A Child)
Hearing Hearing date : 6 May 2014
Mr David Williams QC and Mr Alistair Perkins (instructed by Crosse + Crosse Solicitors LLP) for the Appellant
Mr Paul Storey QC and Mr Anthony Ward (instructed by Cartridges) filed a skeleton argument on behalf of B
Judgment
Sir James Munby, President of the Family Division :
[1]This is an appeal by a child against an order made by His Honour Judge Tyzack QC, sitting as a judge of the High Court in the Exeter District Registry on 28 March 2014. It raises what are properly described as issues of general public importance in respect of two matters: first, the powers of the court to compel third parties without parental responsibility (or any other form of power or control over the child) to take steps to secure the return of an abducted child; and, second, the role of non-subject children in such proceedings, the powers of the court in relation to them, and the basis on which orders can properly be made against them having regard to Article 3.1 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention.

The background

[2]The background facts can be very shortly summarised. Judge Tyzack was concerned with a ward of court, a nine year old girl called B, who had been abducted by her mother and removed from the jurisdiction in order to avoid the consequences of orders previously made by the court. In the course of proceedings begun by B’s father, it became appropriate for Judge Tyzack to enlist the assistance of the mother’s wider family in locating B and her mother and ensuring B’s return to the jurisdiction.[3]On 27 February 2014 Judge Tyzack made an order, endorsed with a penal notice, which, so far as material, ordered the maternal grandparents (Mr and Mrs S) and the mother’s partner to provide certain information and to lodge their passports with the court, and ordered B’s elder half-brother, L, born in May 1997 and therefore not yet 17 years old, to provide certain information, to lodge his passport with the court and to attend court on 28 March 2014.

The hearing before Judge Tyzack

[4]On 28 March 2014, L attended court. He was represented by experienced family solicitors. In the position statement filed on his behalf, his solicitors said:
“The court is reminded of the guidelines issued by the Family Justice Council in 2011 concerning children giving evidence in family proceedings. In deciding whether a child should give evidence, the court’s principal objective should be achieving a fair trial. With that objective in mind the court should carry out a balancing exercise between, on the one part any possible advantages of the child’s evidence and secondly any possible damage to the child’s welfare of giving the evidence itself.”
[5]Despite that, Judge Tyzack required L to give evidence. In the extempore judgment which he gave at the end of the hearing he said of L’s evidence: “I am not satisfied that he was fully and completely candid with the court … I would remind the family that if the court ever finds a serious lack of candour it could amount to a contempt of court, and contempt in this jurisdiction is punishable by a maximum of two years’ imprisonment. That is why the court requires absolute candour from everyone”.[6]Judge Tyzack then made the order under appeal. So far as material, it ordered that the passports of the maternal grandmother, the mother’s partner and L were to remain lodged with the court, that the applications by the maternal grandmother and L for the return of their passports were adjourned until 7 May 2014, that L was to attend court on 7 May 2014, and that L was to:
“produce to the court forthwith all the records of telephone calls to and from his land line telephone and all records of any emails texts or other electronic means of communication [between 1 February 2014 and 7 May 2014].”
The order was endorsed with a penal notice which, in the same terms as that endorsed on the previous order, stated that:
“You have a right to ask the court to change or cancel the order but you must obey it unless the court does change or cancel it. You must obey the instructions contained in this order. If you do not, you will be guilty of contempt and may be sent to prison.”

Judge Tyzack’s judgment

[7]Judge Tyzack explained his reasons for making these orders in the following passages in his judgment, which require to be set out at length:
“[Counsel], understandably, has applied for Mr and Mrs S’s passports to be returned to them. It is said that they are caught in the middle, which I suppose in a sense they are. It is said that to retain their passports in court would be to punish them, which I suppose in a sense it does. They have a cruise booked, I think in May. They would like to go abroad to Ireland and to visit battlefields and cemeteries in France and Belgium. Those things are normal, pleasurable activities which everybody in this country can, if they can afford it, obviously reasonably enjoy. But Mr and Mrs S, I am sorry to say, are caught up in a very unfortunate dispute and the court is not satisfied that they have fully and wholeheartedly co-operated in the court’s endeavour to ensure that B is returned to the jurisdiction of England and Wales. I am going to adjourn the application for Mr and Mrs S’s passports to be returned because I would like to see, the court would like to see the extent to which Mrs S will now apply her mind, and maybe her husband’s, to the essential task of putting persuasion / influence / pressure on [the mother] to return B to the jurisdiction of England and Wales. It is said by [Counsel], in effect, “What is the point of doing that because the mother has made up her mind and it is clear that she has made up her mind to stay where she is in Abu Dhabi or Dubai?”
That may be so. But that, in my judgment, should not prevent the court from seeking to rely upon, as the court is entitled to, to rely upon Mr and Mrs S to put pressure and influence on their daughter to return B to the jurisdiction. So far, that has not been tried, and in my judgment the time has come for it to be attempted. Their passports will remain in court. Similar considerations apply to L. I appreciate that I am dealing with a 16-year-old boy even more tragically caught up in this mess. But I was very disappointed to hear the evidence which he gave … I am not satisfied that the court has so far received absolute candour from the wider family and absolute assistance and co- operation from them to influence their daughter or mother respectively to return. L’s passport must remain in court. I adjourn his application until a later date, again, to see whether any appropriate pressure can be brought to bear upon this mother to act lawfully.”

The appeal

[8]On 15 April 2014, L filed an appellant’s notice. The grounds of appeal, settled by Leading Counsel, were that Judge Tyzack was wrong(1) to order L’s attendance at court on 7 May 2014,(2) to order that L’s passport remain lodged with the court,(3) to order disclosure of L’s communications,(4) to attach a penal notice to the orders made against L, and(5) to conclude that L was not being candid in his evidence.[9]The application for permission to appeal came before Black LJ as a paper application. On 16 April 2014 Black LJ gave L permission to appeal and directed a stay of the orders that he attend court on 7 May 2014 and produce records.[10]The appeal came on before us for hearing on 6 May 2014. L was represented by Mr David Williams QC and Mr Alistair Perkins. B’s rule 16.4 guardian had filed a skeleton argument prepared by Mr Paul Storey QC and Mr Anthony Ward. As their skeleton argument was largely supportive of the appeal, I made a direction at their request on 2 May 2014 dispensing with their attendance at the hearing. The mother was, unsurprisingly, neither present nor represented, nor was the mother’s partner. The maternal grandparents were present but not represented.[11]The father also was neither present nor represented, but had written a letter to the court dated 22 April 2014 saying that he did not take a voice in the legal argument and was going to leave it to the court to decide what to do. He added, “Overall I think that the Judge is doing his best in the interests of returning my daughter … back to this jurisdiction … My interest is for the safe return of my daughter”. I can well understand that the father should have adopted this stance.[12]At the end of the hearing we announced that we were allowing the appeal in relation to ground 2 – the retention of L’s passport – while reserving our decision in relation to the other grounds of appeal.

Some general matters

[13]Before addressing the various points raised by Mr Williams it is important to realise that nothing in this appeal puts in issue, and nothing we say is intended to throw any doubt on, the generality of the well established powers of the court when faced with the problem which confronted Judge Tyzack.[14]In Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, para 36, I said this:
“It has long been recognised that, quite apart from any statutory jurisdiction (for example under s 33 of the Family Law Act 1986 or s 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty’s Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child’s parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.”
I see no reason to alter a word of that.[15]I added (para 38): “in aid of this jurisdiction the court can make a variety of orders directed to the Tipstaff, including, in addition to location, collection and passport orders, an order authorising the Tipstaff to enter private residential property, if need be using force to open doors, with a view to searching for, removing and taking into custody anything (for example, a computer or a mobile phone, blackberry or other similar device) which there is reason to believe may contain information throwing light on the missing child’s whereabouts”.[16]The reference there to passport orders will be noted. There is no doubt that there are circumstances in which the High Court, in exercise of its inherent jurisdiction, can properly make an order (what for shorthand I shall refer to as a passport order) requiring someone to lodge their passport with the court or with some suitable custodian, for example the Tipstaff or a solicitor who has given the court an appropriate undertaking: see, for example, Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148, B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, Young v Young [2012] EWHC 138 (Fam), [2012] 2 FLR 470, and Bhura v Bhura [2012] EWHC 3633 (Fam), [2013] 2 FLR 44. The question is as to the ambit of this power, in particular where, as here, the power is sought to be exercised against a non-party.[17]It is against that background, none of which is in any way controversial, that I turn to consider the issues formulated for our decision by Mr Williams.

The passport order (ground 2)

[18]I start with the second ground of appeal.[19]There are two well recognised situations where the court may, and frequently does, make a passport order. One is aptly described in the words of Wilson J, as he then was, in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, 153:
“In the Family Division use is often made of a power to restrain a party from leaving the jurisdiction and to require the surrender of passports. Thus when, for example, a foreign plaintiff complains that the defendant has wrongfully abducted a child to England and Wales and seeks an order for the child’s peremptory return under the Child Abduction and Custody Act 1985, it is normal to order at the outset that until the hearing the defendant do not leave England and Wales and do surrender his or her passport. Such an order is made either under s 5 of the 1985 Act or pursuant to the court’s inherent jurisdiction. Another example is where a foreign parent who might be disposed to misuse a period of contact in England in order to remove a child overseas is ordered in the exercise of the inherent jurisdiction to surrender his passport”
. That was not, of course, what Judge Tyzack was doing here.[20]The other situation is that described by Wilson J in B v B, 154:
“The jurisdiction exists where the other party has established a right to interlocutory relief (such as an Anton Piller order) which would otherwise be rendered nugatory. It exists where a hearing is shortly to take place, the efficacy of which would be frustrated by his absence.”
[21]Examples of such situations are to be found in Bayer AG v Winter [1986] 1 WLR 497, where a defendant was ordered not to leave the jurisdiction until he had complied with Mareva and Anton Piller orders requiring him to disclose information, Thaha v Thaha [1987] 2 FLR 142, where Wood J issued a writ ne exeat regno As Wilson J pointed out in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, 154, the use of the writ ne exeat regno was inapt at that stage in the proceedings, though the order was entirely permissible under section 37(1) of the Supreme Court Act 1981 (now the Senior Courts Act 1981). so as to detain a husband within England for a few days until the hearing of a judgment summons which was to be issued against him for alleged arrears under orders for maintenance, Re J (A Minor) (Wardship) [1988] 1 FLR 65, where a mother was restrained from leaving the jurisdiction until she had undergone a blood test, and Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148, 151, where Thorpe J, as he then was, said that there was power:
“to require a respondent … who is within this jurisdiction but who is not ordinarily resident within this jurisdiction to surrender his passport pending an imminent fixture to determine interim financial provision.”
[22]More recent examples include Young v Young [2012] EWHC 138 (Fam), [2012] 2 FLR 470, where the respondent to financial remedy proceedings was restrained from leaving the jurisdiction pending the final hearing of the wife’s claim in 9 months’ time. As Mostyn J said (para 26), and I agree:
“The power to impound a passport pending the disposal of a financial remedy claim exists in principle in aid of all the court’s procedures leading to the disposal of the proceedings.”
[23]This again, as will be appreciated, was not the basis upon which Judge Tyzack made the passport orders in the present case.[24]Judge Tyzack was commendably clear and frank in explaining why he was making the passport orders. It was to induce the maternal grandmother and L to “apply [their] mind[s] … to the essential task of putting persuasion / influence / pressure on [the mother] to return [B] to the jurisdiction”, to “put pressure and influence on [her]”. Was that a permissible basis upon which to make a passport order? In my judgment it was not. That follows from the decision of this court in Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479.[25]In Re B the father took the children to Algeria without the mother’s consent. He returned to England without the children, who remained with the grandparents in Algiers. Singer J concluded that the father had deliberately sought to keep the children out of the jurisdiction for reasons unconnected with their welfare and doubted that the children would be returned voluntarily to England. It was common ground, however, that the father was not in contempt of court. Singer J ordered that the father be detained by the Tipstaff until the children were taken to the British Embassy in Algiers. On the father’s appeal this court discharged the order and directed the father’s release.[26]It will be appreciated that Singer J’s purpose in Re B was precisely the same as Judge Tyzack’s purpose in the present case, albeit that Singer J had recourse to the more drastic method of incarceration.[27]Explaining why Singer J’s order was impermissible, Butler-Sloss LJ, as she then was, said this (page 483):
“The purpose of a bench warrant is to bring the person detained to court and its purpose is effected as soon as he appears before the judge. At that moment he may or may not be in contempt of a court order. If he is not in contempt then in my view there is no power to detain him further. The direction of the court has been complied with and there is nothing before the court to enable the further power of detention to be invoked. If the person is prima facie guilty of contempt but the proceedings are part heard and are continuing, I can see no reason, in certain circumstances, not to detain him pending the conclusion of the case if the court is satisfied that he will not voluntarily attend on the next hearing day. The purpose is to secure the attendance of the alleged contemnor for the next court hearing. There is no precedent for detaining a party or a witness at the end of the hearing in order to compel another to comply with a court order (emphasis added).”
She added:
“The heart-rending emotions of a child abduction case do not take it outside the proper exercise of the court’s powers.”
[28]Hobhouse LJ, as he then was, gave judgment to the same effect (page 485):
“… the purpose of detaining the father was to bring pressure to bear upon and influence the conduct of the grandparents in Algeria. They were being told, in effect, your son is being held in prison in London and he will not be released until you return the grandchildren. It was thus an exercise in coercion whereby an individual was being deprived of his liberty so as to coerce others into doing what the court wishes. In my judgment, however laudable the motives or worthy the objective, this is not a power which is part of the law of England; nor should it form part of any civilised system of law.”
[29]The only point of difference between that case and this is that whereas in Re B the coercive method applied by the judge was incarceration, in this case it was a passport order. Now there are, of course, in certain respects very great differences between the two forms of order. In the one case the hapless witness is confined to a prison cell; in the other he is confined to the United Kingdom – islands, as Mostyn J pointed out in Young v Young [2012] EWHC 138 (Fam), [2012] 2 FLR 470, para 6, very much larger than the island to which the Mafioso in Guzzardi v Italy (Application No 7367/76) (1981) 3 EHRR 333 had been confined. Moreover, in the one case he is deprived of his liberty, thus engaging Article 5 of the Convention; in the other what is involved is no more than an interference with his liberty of movement and freedom to leave the country, engaging Article 2 of Protocol 4 (which, it may be noted, is not binding on the United Kingdom).[30]In B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, 154, Wilson J, referring to a submission put to him by counsel in that case, Mr Nicholas Mostyn, said:
“Mr Mostyn suggests that a restraint upon leaving England and Wales is wholly unlike imprisonment. I disagree.”
[31]In Young v Young [2012] EWHC 138 (Fam), [2012] 2 FLR 470, para 6, Mostyn J, as by then he had become, commented in relation to Wilson J’s observation that “that was decided before the advent of the Human Rights Act 1998 and without consideration of the Strasbourg jurisprudence.” That no doubt is so, and was highly material in the context of the point Mostyn J was considering, namely the applicability of Article 5 in the case before him.[32]But Wilson J’s words surely suggest, what a reading of his judgment as a whole indicates, that his observation was not directed to the Strasbourg distinction between a deprivation of liberty and an interference with liberty of movement, but rather to a different and for present purposes much more significant point; namely, that either form of coercive sanction is equally outside the proper ambit of the court’s powers as a matter of domestic law. For immediately after the words I have just quoted, Wilson J cited these words of Hobhouse LJ in Re B, page 488:
“The use of ancillary powers which have the practical effect of restricting the liberty, or freedom of movement of an individual is recognised in the granting of injunctions, now under s 37 of the Supreme Court Act 1981 … There is an obvious difference in kind between an injunction and the arrest or physical detention of an individual, but such orders are analogous and illustrate the proper use of an ancillary power although it prima facie infringes the personal rights of the individual involved. Where a power of arrest or detention has been recognised other than as part of a punitive jurisdiction, it is ancillary to the exercise of another power of the court and is legitimate because it is necessary to the implementation of the order of the court.”
[33]In my judgment it is clear that, for this purpose, neither Hobhouse LJ nor Wilson J saw any material difference between a coercive order where the coercive method used is incarceration and a coercive order where the coercive method used is a passport order. Each is equally outside the proper ambit of the court’s powers. Mr Williams referred in this context to sippenhaft. The point was well made: cf Re MCA; HM Customs and Excise Commissioners and Long v A and A; A v A (Long Intervening) [2002] EWHC 611 (Admin/Fam), [2002] 2 FLR 274, para 190.[34]It follows that Mr Williams succeeds on this ground of appeal.[35]It will be appreciated that none of this has anything to do with the fact that, in law, L is a child. Judge Tyzack was wrong to make a passport order in relation to L. He was equally wrong, and for precisely the same reasons, to make passport orders in relation to the maternal grandparents. The only difference between the two cases is that L has appealed, whereas the maternal grandparents have not. Their remedy, in the first instance, is a renewed application to Judge Tyzack. It was for this reason that, on this point, we announced our decision at the conclusion of the hearing so that Judge Tyzack would be aware of the outcome when the matter came back before him the following day.

The penal notice (ground 4)

[36]I can deal with this point very shortly. At the relevant time L was not yet 17 years old. He could therefore not be imprisoned or detained for contempt. In these circumstances it was simply wrong as a matter of principle to attach to the order a penal notice in the form used by Judge Tyzack: see Wookey v Wookey, In re S (A Minor) [1991] Fam 121, and The London Borough of Harrow v G [2004] EWHC 17 (QB). On this short ground the appeal on this point must be allowed.

The order to attend court (ground 1)

[37]Mr Williams placed the main weight of his argument, and in my judgment rightly so, on the decision of the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485. He bolstered his argument with reference to what the Supreme Court has more recently said in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, about Article 3.1 of the United Nations Convention on the Rights of the Child. While I can quite understand why he did so, I think we can properly proceed on a narrower front, for compliance with the learning in Re W will, in my judgment, meet whatever obligations arise under Article 3.1.[38]Mr Williams submits that Judge Tyzack never embarked upon the evaluation, required by Re W, of where the balance properly lay between, on the one hand, the need to take evidence from L and, on the other hand, L’s welfare interests. He submits that Judge Tyzack never evaluated, as he should, the impact on L’s Article 8 rights of being compelled to give evidence: both his Article 8 right to family life (his relationship with his mother, likely to be imperilled if he was compelled to ‘grass’ on her) and his right to private life (his telephone and email communications). He submits that if satisfied that the balance fell in favour of requiring L to provide information, Judge Tyzack should have gone on to consider how that ought to be achieved, whether for example a direction for the filing of a written statement or for a video interview would have sufficed.[39]Mr Williams submits that Judge Tyzack failed to undertake this exercise adequately, if at all. He says that a proper application of the Re W approach required careful attention to the emotional impact on L of being forced to give evidence which was likely to place him in conflict with his mother and sister and of being cross-examined on behalf of a man who he said had behaved abusively to his mother, to him and to his sister.[40]In my judgment, Mr Williams succeeds on this ground of appeal. There is nothing in either the transcript of the proceedings or the judgment to suggest that Judge Tyzack ever really applied his mind to the matters which Re W required to be considered. It is true, and in justice to Judge Tyzack I make clear, that he did not have the benefit of the much fuller argument which Mr Williams has addressed to us. But the point had been flagged up in the position statement filed on L’s behalf and the fact is that the judge simply did not engage with it in any meaningful way. What the outcome would have been if he had undertaken an appropriate Re W analysis it is impossible to say. For all I know, Judge Tyzack might have concluded that the balance came down on the side of requiring L to give evidence. That, however, is speculation, and speculation is not a proper basis for deciding an appeal. L is entitled to have this part of the order set aside.

The order for disclosure (ground 3)

[41]Much the same arguments apply here as in relation to the previous ground of appeal. Judge Tyzack should have evaluated whether requiring L to disclose this material was proportionate. He did not. Quite apart from that, the order is manifestly too wide in the circumstances of this case. It covers “all” records of the types specified, whereas on any footing there was no justification here (I say nothing about any other case) for making an order extending beyond those records which were relevant to locating the whereabouts of B and her mother. That suffices in my judgment to dispose of the appeal in L’s favour. Mr Williams submits that in any event, to the extent that the order is in the nature of a mandatory injunction it should not have been made against a child: The London Borough of Harrow v G [2004] EWHC 17 (QB). That is probably correct, but we do not need to decide the point and I prefer not to.

The finding in relation to L’s evidence (ground 5)

[42]Mr Williams submits, for the same reasons as he deploys in relation to ground 1, that the earlier order dated 27 February 2014 which led to L attending court on 28 March 2014, and moreover attending under an impermissible threat of imprisonment if he did not (see ground 4), was wrong and should not have been made. This, he says, was a serious procedural irregularity. He submits that Judge Tyzack’s finding against L that he had not been candid cannot stand. The procedural irregularity made the finding unjust. Moreover, he submits, Judge Tyzack failed to make any allowance for the circumstances in arriving at his adverse finding against L.[43]I confess that on this point my mind has wavered, both during the hearing of the appeal and since. I have on balance concluded that Mr Williams is right. I would therefore allow the appeal on this ground as well.

Lady Justice Black :

[44]I agree.

Lord Justice Underhill :

[45]I agree.

Cited in 19 later judgments

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