“If the Defendants The current form (where paragraph 3 is now paragraph 14) reads “respondent” in place of “Defendants”. or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she The current form reads “they” in place of “he or she”. must each:- (a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and (b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child.”
“The Defendant The current form (where paragraph 4 is now paragraph 16) reads “respondent” in place of “Defendants”. … must … hand over to the Tipstaff (for safe-keeping until the court makes a further order) as many of the following documents as are in his or her possession or control … (b) every passport relating to the Defendants The current form reads “respondent” in place of “Defendants”. and every identity card, ticket, travel warrant or other document which would enable the Defendants The current form reads “respondent” in place of “Defendants”. to leave England and Wales.”
“This order or a faxed The current form (where paragraph 5 is now paragraph 20) inserts “or scanned” before “copy”. copy of it must be personally served upon the Defendants The current form reads “respondent” in place of “Defendants”. … PROVIDED THAT, The current form reads “but” in place of “PROVIDED THAT”. if the Defendants The current form reads “respondent” in place of “Defendants”. … refuses or evades The current form inserts “or seeks to evade” before “personal”. personal service, the court will consider that he or she has been validly served if the effect of the order has been brought to his or her attention.”
“The obligations under paragraphs 2 and 3 The current form (where paragraph 6 is now paragraph 21) reads “12-14” in place of “2 and 3”. above will continue until the Tipstaff takes charge of The current form reads “locates” in place of “takes charge of”. the child …”
“the court has directed the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with this order and has disobeyed any part of it.”
“Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand? A. Yeah. You are today in a very, very serious position. I should tell you now that, subject to anything that is said by Mr Nuvoloni or by Miss McDonald, what I propose to do is to take evidence from you today. If I am not satisfied with your answers, I will adjourn the matter for a period of time to hold a committal hearing at the Royal Courts of Justice in London. If that comes to pass, I would very strongly advise you to seek legal representation for that hearing. Do you understand? A. Yeah.”
“THE JUDGE: (Long pause) Mr U, I am very sorry to tell you that I do not believe you have been telling me the truth. I do not believe that you have given me all the information that you can. This is what I propose to do. I am going to list this matter at the Royal Courts of Justice in London on Wednesday, 28th October. It will be listed for half a day. It will be listed as a committal hearing, when I will consider whether you are in contempt of court, and if you are in contempt of court, I will then proceed to decide what punishment you should face for that. Do you understand? THE WITNESS: Yeah.”
“THE JUDGE: On the face of the order, it should obviously refer to the fact that Mr U gave evidence under affirmation – MR NUVOLONI: Of course. THE JUDGE: – and I was not satisfied that he had provided either a truthful account or gave all possible information in respect of the whereabouts of L, and accordingly I have adjourned the matter off for a contempt hearing. MR NUVOLONI: My lord, I will include that in the preamble.”
“MR NUVOLONI: My Lord, is Mr U free to go? THE JUDGE: He is free to go.”
“UPON the court noting that Mr Gous Oddin remains subject to an Order of the High Court dated30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Oddin AND UPON the Court being satisfied that Mr Gous Oddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child … IT IS ORDERED THAT: 1. Mr Gous Oddin of … shall attend court at 9:30am on28 October 2015 before Mr Justice Keehan sitting at The Royal Courts of Justice, Strand, London to show cause why he should not be committed to prison for a contempt of Court in not providing the Court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L ...”
“UPON restating the following two recitals in the Order of the Honourable Mr Justice Keehan dated8 October 2015 , namely that: the Court notes that Mr Gous Uddin remains subject to an Order of the High Court dated30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Uddin; and the Court was satisfied on8 October 2015 that, following his giving oral evidence, Mr Gous Uddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child L … AND UPON the Local Authority having indicated … that it will endeavour to issue a committal application as soon as possible with Mr Gous Uddin as the Respondent/Defendant to that application; … IT IS ORDERED THAT: 1. The hearing listed for28 October 2015 before Mr Justice Keehan sitting at the Royal Courts of Justice is vacated. The matter is re-listed before Mr Justice Keehan on9 November 2015 at 10:30am with a time estimate of half a day, sitting at the Royal Courts of Justice, Strand, London … 2. The application made by the Local Authority to commit Mr Gous Uddin to prison for contempt of court referred to in the recitals above is to reserved to [sic] the Honourable Mr Justice Keehan and to be heard at the same time as the hearing listed at Paragraph 1 (above). … 5. The requirement for the committal hearing to take place not less than 14 days after service by the Local Authority on Mr Gous Uddin of the committal application referred to in the recitals above is dispensed with, pursuant to Paragraph 12.2 ofPD 37A FPR 2010 . 6. The requirement for the application referred to at Paragraph 2 (above) to be served personally upon Mr Gous Uddin is dispensed with, pursuant to r.37.10 FPR 2010. The application may be served upon Mr Gous Uddin through service, by post or by e-mail, on his solicitors … 7. The requirement that this Order be served personally on Mr Gous Uddin is dispensed with. The application may be served upon Mr Gous Uddin through service, by post or by email, on his solicitors …”
“2 I accept that I am still subject to the order of the High Court dated30 December 2004 but I have mislaid the original order. I said then and I say now that I do not know the whereabouts of L or [her parents]. … 4 I state that I am not and never have been part of a conspiracy to abduct L and would not pervert the course of justice by lying to this Honourable Court or any of its officesr. Indeed, the Tipstaff not only made the consequences of breaking the Court’s order abundantly clear but has held my passport, now expired, since service of the order. I have not had a holiday for 18 years.”
“Gous Uddin of … shall attend court before the Honourable Mr Justice Keehan, sitting at Birmingham, to show cause why he should not be committed to prison for contempt of court in not providing the court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L.”
“I have been advised by my solicitors that there is an Order dated31 December 2004 which requires me to inform Tipstaff if I have any information as to the whereabouts of L or information which would assist in locating her. I wish to co-operate with the Court but emphasise that I do not know the whereabouts of L. I have not seen my brother … or my sister-in-law … or L since 2004. My passport and that of my wife … and my parents have now been held for the last 11 years. We cannot travel abroad. My family and I are being punished for the actions of my brother when we did not take part or assist in any way in the abduction of L. We are being made to suffer for my brother’s actions. I would respectfully ask that after the length of time which has elapsed our passports are returned to us.”
“I have not had sight of the Tipstaff order made in 2004. I cannot remember after this length of time whether it was served upon me or my parents. I do recall that the police came to my parent’s home. My parents, my wife and I were required to hand our passports to the Court. About a year later we asked for their return but this was refused. After that we made no further requests. Eleven years hare now elapsed and my father, my wife and I believe that we should be able to obtain current passports enabling at least my wife and I to travel abroad. My father is in no fit state to travel. It is an infringement of my human rights that my mobility is restricted and I have no freedom to travel.”
“[14] This brings me to the second source of error. That was the decision of the judge to hear both the application for contact and the committal proceedings at the same time … But the decision to hear both applications at the same time led to inescapable errors in procedure. Once the judge had decided to hear both the applications together, he was faced with an insoluble conflict. It was for Mr Hammerton to make good his claim for contact … [15] But at the same time as Mr Hammerton was seeking to establish his claim for contact, it was incumbent upon Mrs Hammerton, in seeking committal, to prove breaches of his undertakings and of the court order to the high standard of proof necessary in committal cases. Moreover, as Butler-Sloss P pointed out in [Re G (Contempt: Committal)[2003] EWCA Civ 489 ,[2003] 1 WLR 2051 ] (para [22]) Mr Hammerton was not obliged to given evidence at all in his own defence. The court was obliged to warn him that he did not need to give evidence. No such warning was given. But the evidence he gave about the alleged breaches of the undertakings and of the order was clearly relevant to the issue as to whether any form of contact was appropriate in the interests of the children. Accordingly, if Mr Hammerton exercised his right not to give evidence in the committal proceedings, he would almost inevitably fail in his claim for some form of contact. [16] Thus, the decision of the judge to hear both applications at the same time placed Mr Hammerton in an impossible position. There was no means of reconciling the need for him to establish his case for contact, in the course of which he would have to deal with the alleged breaches of undertakings and of the order, and defending himself, at the same time, in the committal proceedings. There is no hint at any stage of the transcript of anyone advising Mr Hammerton of his rights in respect of the committal proceedings …”
“Mr Oddin tells me that he has never been served with the 2004 order”, adding, “This matter of service has not been raised before but I am bound to raise it now.”
“Q. Good. I would just like to ask you some questions about the fact you do not believe that you personally were served with ---” at which point the judge interjected, asking Mr Oddin to confirm his name and address. The Transcript continues with the following questions by Miss Norman: “You have raised the issue about not being served with the 2004 order? – A. Yes I don’t remember being served with that order. When my barrister told me that my Mum --- Q. Just speak up a little bit more clearly – A. When my barrister told me that my mother had one of the orders, so then I agreed she must have had an order. Q. Which barrister are you talking about? – A. Mr – the previous one. Q. Do you mean the barrister previously involved in these committal proceedings? – A. Yes Q. And so at some time during these committal proceedings, that barrister told you your mother had had an order? – A. Yes. Q. Did you see an order? – A. He showed me an order. Q. Who showed you an order? – A. The barrister. Q. And that is during these committal proceedings? – A. During the committal proceedings, yes. Q. When you saw it, had you seen it before? – A. I don’t remember seeing it before, no. Q. Okay. You talk in your statements about the tipstaff making it clear how important it is to keep the order and not to disobey it. What did you mean by that? How did you know what the tipstaff thought? – A. I don’t remember the tipstaff telling me anything like that. Q. Sorry …? – A. I don’t’ remember that bit.”
“MR JUSTICE KEEHAN: I am afraid, no, it will not because the tipstaff was not present in court. – A. I’ve never seen the tipstaff. MISS NORMAN: You have never seen the tipstaff? – A. No, I don’t know who they are so I never seen – Q. These words are in your statement. – A. Yes. Q. Obviously you did not literally write it yourself? – A. No. Q. But you have read it, have you not. – A. Yes. Q. When or how did the tipstaff make the consequences of breaking the court clear? In writing, in person or do you not know. – A. I probably read it on the order. Q. On the order that you were shown by the barrister? – A. Yes, the barrister probably. Q. Before these committal proceedings started – the run up to them started last October – were you aware of the terms of the order? – A. Before the committal hearing, no. Q. Now we know that you handed in your passport and you have been deprived of your passport since you had first handed it in? – A. Yes. Q. How did you come to hand it in? What happened? – A. The solicitors rang me up and told me I have to give them my passport. Q. Whose solicitors was this? – A. It’s my Mum’s solicitor. Q. Your mother’s solicitors? – A. Yes. Q. Your mother had been part of the proceedings? – A. That’s right, yes. Q. And so what did you do with your passport? – A. I went and handed it into the solicitors.”
“MISS NORMAN: My Lord, I expressly asked the question were we dealing with the 2004 order or were we dealing with contempt in the face of the court, and I understood your Lordship to say we were dealing with the 2004 order. MR JUSTICE KEEHAN: The two are related, though, because if I find that I do not accept the evidence that Mr Oddin gave me on 8th October, or if I do not accept the evidence he has given me today and I find that he is lying to the court, I am then entitled, or may well then be entitled on that basis to be satisfied that he is not telling the truth, that he knows more than he is telling and is therefore in breach of the 2004 order. MISS NORMAN: My difficulty is this, as I have suggested to your Lordship earlier on, that your Lordship found him to be at fault in a much wider area than the 2004 order. The 2004 order was matters which might reasonably assist in locating the child and that was it, nothing about welfare or parents or anything else. And so if we focus on that issue …”
“This matter is listed today before me for committal proceedings against one of the father’s brothers, Mr Gous Oddin. The issue is, do I find that he is in breach of the order made consequent upon that abduction on30 December 2004 .”
“The question was raised by Ms Norman, on behalf of Mr Oddin, at the start of this hearing as to precisely on what grounds Mr Oddin was being considered for committal and contempt proceedings. I made plain that that related solely to the order of30 December 2004 . But very plainly when considering whether there has been a breach of that order, I am entitled and I must consider the totality of the evidence before me and, in particular, whether I find that Mr Oddin is telling the truth or not. If I find that he is not telling the truth, I then have to consider the reason or possible reasons for him lying to the Court.”
“I remain of the view that the evidence given by Mr Oddin on 8 October was evasive and untruthful. He was being asked very simple questions about what information he had received about L and from whom. The transcript demonstrates that he evaded answering those questions for a considerable period of time. He then eventually said that his wife passed on messages that she had received to him and then also implicated his brother, FM and his wife, Mrs DB. He did not during the course of his evidence on the 8 October mention an individual now known and called Mr J.”
“No mention was made by Mr Oddin of the involvement of Mr J in any of his statements or in his evidence of 8 October. When he was pressed as to why it was that he had not mentioned Mr J he was, once again, evasive. He did not know why he had not mentioned his name. When he was pressed that he must have known why he did not mention him, he eventually conceded that he may not have mentioned him because he did not want to get him involved because he was not a family member. It is quite clear to me, and I am quite satisfied beyond all reasonable doubt, that Mr Oddin either made a deliberate choice not to mention Mr J to me or that the reference to Mr J is a complete fabrication. I am inclined to believe it is a fabrication; either way it is a deliberate lie to this court.”
“17 … What I am quite satisfied of, so that I am sure, is that Mr Oddin, both in his evidence of 8 October and today, has told serial lies. I also find that what he told the guardian was accurately recorded by her. Moreover, in giving that information he, at that time in May 2015, was using the present tense to describe the circumstances, the health and the welfare of L. He now denies those matters. I am satisfied, so that I am sure, that the reason why he denies saying those matters to the guardian is because he knows full well what the position is of L, whether that is by direct communication with his brother or his sister-in-law or indirectly I know not, but I am quite satisfied that he has told all of these lies to me to cover up what he knows to be the truth. He has covered up and I find, so that I am sure, that he has information which would reasonably enable the tipstaff to locate the whereabouts of L and that he has quite deliberately chosen to conceal that information by the lies that he has told this Court. I am quite satisfied, so that I am sure, that there is no other reasonable explanation for the lies that I have found that he has told me. I find no other reasonable explanation as to why he now denies what is said by the guardian of their conversation on 28 May. 18 Accordingly I am entirely satisfied, so that I am sure, that Mr Oddin is in breach of the order made on the30 December 2004 , paragraph 3 and I find him to be in contempt of Court.”
“By reason of my findings I am quite satisfied, so that I am sure, that you have information which you have not disclosed to this Court nor to the Tipstaff which might reasonably assist in locating her wherever she may be. I consider that that is a deliberate course of conduct on your part and I therefore consider it to be an extremely serious contempt of Court, particularly where a child who was made the subject of a care order and a freeing order as long ago as 2004 has still not been located. I have considered all that has been said on our behalf. I accept and take fully into account that you are a man of good character and that you have on past occasions in this unhappy matter [we were told that this was a reference to events in 2003-2004 before the collection order was made] assisted the Local Authority with the securing of the return of L. But I am quite satisfied that you have chosen not to do on this occasion. I have considered the range of options. I am quite satisfied that given the seriousness and the severity of the contempt that I find you to be in a custodial sentence, an immediate custodial sentence is inevitable. Accordingly, the minimum sentence I pass is one of six months immediate imprisonment.”
“the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”