Nicolaou, R (on the application of) v Redbridge Magistrates' Court & Anor [2012] EWHC 1647 (Admin)

Case No CO/12018/2011[2012] EWHC 1647 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/06/2012
Before
LORD JUSTICE RICHARDSMR JUSTICE COLLINS
Between
The Queen (on the application of Nicolaou)ClaimantRedbridge Magistrates’ CourtDefendantThe Crown Prosecution ServiceInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Alper Riza QC (instructed by Clive Sutton, Solicitor) for ClaimantMiss Adina Ezekiel (instructed by the Crown Prosecution Service) for Interested PartyHearing Hearing date: 23 May 2012
JudgmentLord Justice Richards :
[1]This case raises a short point on the construction of section 1 of the Child Abduction Act 1984 (“the 1984 Act”), whereby a person connected with a child under the age of sixteen commits an offence “if he takes or sends the child out of the United Kingdom without the appropriate consent”. Is an offence committed if the appropriate consent is given for the child to be removed from the United Kingdom for a defined period but the child is kept out of the United Kingdom after the period has expired and the appropriate consent no longer exists?

The facts

[2]The claimant is Mr Nicholas Nicolaou. He and his wife have a son who was born in England in January 2000 and is therefore now 12 years of age. The family originally lived together in England but at some point the claimant went to live in Cyprus, where he was periodically visited by his wife and son. At Christmas 2005, the claimant and his wife separated and the wife returned to live in England with the son. The claimant remained in Cyprus.[3]The issues of residence and contact were subsequently resolved by a consent order in the Ilford County Court in October 2006. Upon the claimant providing an undertaking to his wife as to the return of the son from any staying contact out of the jurisdiction, it was ordered that the son was to reside with her but that the claimant was to be granted reasonable access, to include staying contact with him in Cyprus. The order also made provision for the first such staying contact, a period of two weeks in October 2006. The first staying contact took place without problem, as did a second, in April 2007.[4]Provision for a third staying contact was made by an order of the Ilford County Court dated 13 July 2007, as varied by an order dated 24 July 2007. Those orders were further varied by an order dated 10 August 2007 so as to provide that the mother was to make the son available for contact between 10 and 31 August for the purposes of a visit to Cyprus. In accordance with that order, the son travelled to Cyprus to stay with the claimant. He was accompanied on the journey by his paternal grandfather.[5]The problems arise out of the fact that the son was not then returned to the United Kingdom by the end of the period of staying contact permitted by the court order, and indeed has been kept out of the country since that time. The claimant says that the son did not want to return, but it is not relevant to go into the reasons for the failure to return him, which have been examined in some detail already in separate proceedings in Cyprus and this country.[6]In October 2007, in Hague Convention proceedings, the Larnaca Family Court found that the son had been unlawfully retained by the claimant and ordered him to be returned immediately. That order was upheld by the Supreme Court of Cyprus in December 2008. It seems that its enforcement was prevented by the claimant taking the son into Northern Cyprus or going into hiding.[7]In January 2009 the son was made a ward of the English High Court; and in February 2009 Macur J ordered him to be returned forthwith. In July 2009 the claimant sought formal assurances that if he returned with the son to this country, the son would not be separated from him pending a CAFCASS assessment and a first court hearing. That issue was considered by Holman J at a hearing in October 2009. A police officer who attended the hearing indicated that there was a likelihood that if the claimant entered the United Kingdom he would be arrested and charged with an offence under the 1984 Act. The judge adjourned the case so to allow for the possibility of negotiations aimed at securing an indemnity against sanctions if the claimant brought the son back to the United Kingdom.[8]Evidently, however, nothing came of that possibility. On 17 November 2009 the police obtained from Redbridge Magistrates’ Court a warrant for the claimant’s arrest. The claimant has been unable to obtain a copy of the warrant and those representing the CPS were unable to produce one for our inspection. The whole case has proceeded, however, on the basis that the claimant’s arrest was sought in connection with an offence under section 1 of the 1984 Act arising out of the matters summarised at paras [4]-[5] above. On the basis of the domestic warrant, an international arrest warrant was subsequently taken out.[9]The claimant’s contention is that the domestic warrant should not have been issued, on the ground that no offence under section 1 of the 1984 Act is disclosed by the matters summarised above: the son was taken out of the United Kingdom with the appropriate consent, and the section does not bite on the failure to return him thereafter. The matter came before District Judge Woolard, sitting at Redbridge Magistrates’ Court, on 14 September 2011. He treated it as the hearing of an application to withdraw the warrant, noting that the claimant had not had an opportunity to be heard at the time when the warrant was issued. But he declined to withdraw the warrant, being satisfied that the situation was capable of falling within section 1 of the 1984 Act.[10]The claimant now applies for judicial review of that decision. Permission was granted by Irwin J on the papers. We are told that an application was also made to the magistrates’ court, on a precautionary basis, to state a case to this court. Nothing came of that application. But the issue raised on the claimant’s behalf can be dealt with satisfactorily by way of judicial review and there is no procedural objection to the way the matter has come before us.

The statute

[11]The material provisions of the 1984 Act in its current form (as amended in particular by the Children Act 1989 and the Adoption and Children Act 2002) are these: “Offence of abduction of child by parent, etc. 1.(1) Subject to subsections (5) and (8) below, a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent. (2) A person is connected with a child for the purposes of this section if –(a) he is a parent of the child …. (3) In this section ‘the appropriate consent’, in relation to a child, means – (a) the consent of each of the following – (i) the child’s mother; (ii) the child’s father, if he has parental responsibility for him; (iii) any guardian of the child; (iv) any person in whose favour a residence order is in force with respect to the child; (v) any person who has custody of the child; or(b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989 …. (4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if – (a) he is a person in whose favour there is a residence order in force with respect to the child, and he takes of sends him out of the United Kingdom for a period of less than one month; or (b) he is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months. (4A) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989. … Offence of abduction of child by other persons 2.(1) Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below, commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen – (a) so as to remove him from the lawful control of any person having lawful control of the child; or (b) so as to keep him out of the lawful control of any person entitled to lawful control of the child. (2) The persons are – (a) where the father and mother of the child in question were married to each other at the time of his birth, the child’s father and mother …. Construction of reference to taking, sending and detaining 3. For the purposes of this Part of this Act – (a) a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken; (b) a person shall be regarded as sending a child if he causes the child to be sent;(c) a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person ….” (a) he is a parent of the child …. (a) the consent of each of the following – (i) the child’s mother; (ii) the child’s father, if he has parental responsibility for him; (iii) any guardian of the child; (iv) any person in whose favour a residence order is in force with respect to the child; (v) any person who has custody of the child; or (b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989 …. (a) he is a person in whose favour there is a residence order in force with respect to the child, and he takes of sends him out of the United Kingdom for a period of less than one month; or (b) he is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months. Offence of abduction of child by other persons (a) so as to remove him from the lawful control of any person having lawful control of the child; or (b) so as to keep him out of the lawful control of any person entitled to lawful control of the child. (a) where the father and mother of the child in question were married to each other at the time of his birth, the child’s father and mother ….

Offence of abduction of child by other persons

[12]We enquired at the hearing whether there existed any background information that might assist in relation to the legislative policy behind section 1. In response to that enquiry, Miss Ezekiel (who appeared on behalf of the CPS before us, as she did before the district judge) kindly provided us after the hearing with a bundle of materials, including Hansard extracts and a copy of the Law Commission’s Consultation Paper No.200, Simplification of Criminal Law: Kidnapping. Miss Ezekiel did not, however, point to anything specific in those materials, and I have not found anything in them to provide direct assistance on the issue of construction we have to resolve.[13]Miss Ezekiel also provided us with the text of section 56 of the Offences against the Person Act 1861, which was repealed by section 11(5) of the 1984 Act. As explained below, the repealed section may be of some limited assistance on the issue of construction. It provided:
“Whosever shall unlawfully, either by force or fraud, lead or take away, or decoy or entice away or detain, any child under the age of fourteen years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child of the possession of such child, … and whomsoever shall, with any such intent, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained, as in this section before mentioned, shall be guilty of felony …. Provided, that no person who shall have claimed any right to possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child, or taking such child out of possession of any person having lawful charge thereof.”

The issue

[14]The district judge accepted a submission by Miss Ezekiel that “takes out” in section 1 is to be construed as a continuing activity, not limited to the point in time when the child leaves the jurisdiction, so that even if the appropriate consent exists at the time when the child leaves the jurisdiction, the taking out becomes unlawful if the child remains out of the jurisdiction thereafter without the appropriate consent. That was the basis on which he declined to withdraw the warrant.[15]The essential submission for the claimant, stripping away the elaboration of the arguments advanced before us by Mr Alper Riza QC (who did not appear before the district judge), is that “takes out” refers to the act of removal from the jurisdiction, not to a continuing activity, and that an offence is committed only if the appropriate consent does not exist at the point in time when the child leaves the jurisdiction.[16]For the CPS, Miss Ezekiel effectively repeated before us the case that she advanced successfully before the district judge.

Discussion

[17]It seems to me that, as a matter of ordinary language, the expression “takes or sends out of the United Kingdom” relates to the act of removal of the child from the country, not to the position after the child has left the country. What matters is whether the appropriate consent exists at the point when the child leaves the country. It strikes me as artificial and unnatural to treat “takes or sends out” as a continuing activity, such that an initially lawful taking or sending out can become unlawful by reason of the detention of the child outside the country after the period of consent has expired.[18]A modest pointer in the same direction is the provision in section 3(a) that a person shall be regarded as taking a child “if he causes or induces the child to accompany him or any other person”. The concept of “accompanying” places the focus on the process of removal from the country, not on what happens when the child has left the country.[19]More substantial support is to be derived from section 2. The offence of abduction under section 2(1) cannot apply to the claimant, since he is a person mentioned in section 2(2) and is therefore taken out of the scope of section 2(1). But that does not affect the linguistic point, that section 2(1) uses the expression “takes or detains”, thus drawing a distinction between taking and detaining, and goes on to draw a similar distinction between “removal” from lawful control and “keeping out of” lawful control. Had the draftsman intended section 1(1) to apply to a situation where the initial removal was done with consent but the child was subsequently kept out of the country after the period of consent had expired, I would have expected the use of similar language in section 1 as is found in section 2, or at least a clear signal that “take out” was intended in the context of section 1 to have an enlarged scope.[20]The predecessor section 56 of the Offences against the Person Act 1861 also drew a distinction between “unlawfully … lead or take away” (or “unlawfully … decoy or entice away”) and “unlawfully … detain”. Against that background, I would again have expected the draftsman of section 1 of the 1984 Act to have included the language of “detention” or to have given a clear signal that “take out” had an enlarged scope if it had been the intention to cover a situation where the initial removal was done with consent but the child was subsequently kept out of the country after the period of consent had expired.[21]To interpret “takes or sends out of the United Kingdom” as relating to the act of removal of the child from the country, not to what happens thereafter, also produces a result in line with that under the Hague Convention,. I should stress that the position under the Convention is of only limited relevance to the issue before us, for two principal reasons. The first concerns timing: the 1984 Act was enacted in July 1984, whereas the Hague Convention, although adopted in 1980, was not signed by the United Kingdom until November 1984 and was not ratified until May 1986, after provision had been made for it in domestic law by the Child Abduction and Custody Act 1985. The second concerns subject-matter: the 1984 Act is a domestic criminal statute, whereas the Hague Convention is an international treaty providing for international co-operation by way of civil and administrative procedures to secure inter alia the prompt return of children wrongfully removed to or retained in a contracting state. Nevertheless it is to be noted that in In re H (Abduction: Custody Rights) [1991] 2 AC 476 the House of Lords held that “removal” and “retention” under the Convention referred in each case to an event occurring on a specific occasion, rather than to a continuing state of affairs (the point was in fact conceded in respect of “removal”, and the argument was whether the same applied to “retention”), and that they were mutually exclusive concepts. This has a particular bearing on a point considered below in relation to section 1(4) of the 1984 Act.[22]Miss Ezekiel put heavy weight on section 1(4) as supporting the CPS’s construction of section 1(1). It provides that a person does not commit an offence under section 1 if he is a person in whose favour there is a residence order in force with respect to the child and “he takes or sends the child out of the United Kingdom for a period of less than one month”, or if he is a special guardian and “he takes or sends the child out of the United Kingdom for a period of less than three months”. Miss Ezekiel submitted that it is difficult to see how that provision can operate unless “taking” is a continuous activity. In the case of a person meeting the relevant condition, there can be no offence unless the permitted period of one month or three months, as the case may be, is exceeded. If the permitted period is exceeded, then the offence is committed on the first day after the permitted period. It follows that the prohibited “taking” extends to that point, which can only be on the basis that it is a continuing activity.[23]I am not persuaded by that submission, for several reasons. First, the 1984 Act as originally enacted did not contain section 1(4) or anything equivalent to it: the substance of section 1(4)(a) was included within amendments introduced by the Children Act 1989 (schedule 12, paragraph 37), whilst section 1(4)(b) was added by the Adoption and Children Act 2002 (schedule 3, paragraph 42(4)). Section 1(1) has to be construed by reference to the terms of the statute as originally enacted; its meaning cannot have been altered by the subsequent introduction of section 1(4). To treat section 1(4) as a guide to the meaning of section 1(1) is to put things completely the wrong way round.[24]Secondly, section 1(4) can be read consistently with what I consider to be the natural construction of section 1(1) : by removing the child from the United Kingdom without the appropriate consent the person commits a prima facie offence, but no offence is to be taken to have been committed if he is a person in whose favour there is a residence order in force with respect to the child and the child is out of the United Kingdom for a period of less than one month, or if he is a special guardian and the child is out of the United Kingdom for a period of less than three months. That may not be an obvious construction of section 1(4) taken in isolation, but it is a perfectly tenable construction.[25]Thirdly, that construction of section 1(4) is given independent support by a provision of the Children Act 1989 enacted in parallel with the introduction of section 1(4)(a) into the 1984 Act. Part II of the 1989 Act makes provision for orders with respect to children in family proceedings and includes provision restraining removal of a child from the jurisdiction. Thus, section 13(1)(b) of the 1989 Act provides that where a residence order is in force with respect to a child, no person may “remove” him from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the court. Section 13(2) contains an exception in these terms:
“Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.”
[26]It seems to me that “removal” must refer there to a specific event rather than to a continuing activity: it would be very surprising if in such a context it had a meaning materially different from that in the Hague Convention. The provision must therefore be read in a similar way to the way in which I would read section 1(4)(a) of the 1984 Act, namely that by removing the child from the United Kingdom without the relevant consent the person commits a prima facie breach of the section 13 prohibition, but no breach is to be taken to have been committed if he is a person in whose favour there is a residence order in force with respect to the child and the child is out of the United Kingdom for a period of less than one month. The relationship between the two provisions is underlined by the fact that section 1(4A) of the 1984 Act (again as inserted by the 1989 Act) provides that section 1(4) does not apply if the person taking or sending the child out of the United Kingdom “does so in breach of an order under Part II of the Children Act 1989”.[27]Miss Ezekiel argued that my preferred construction of section 1(1) would seriously undermine the effectiveness of the policy underlying the 1984 Act, in that it would be possible to circumvent the operation of section 1 by removing a child from the United Kingdom with consent and then taking steps to ensure that the child was not returned. She referred in that connection to what was said by the Court of Appeal (Criminal Division) in R v CS [2012] EWCA Crim 389, at paras [12]-[12], when holding that the statutory scheme allows no place for the defence of necessity where a child is removed without consent from the jurisdiction. I do not think that the observations of the court in that case, directed towards a very different issue, provide any real assistance. The fundamental problem about Miss Ezekiel’s policy argument is that there is nothing to show that the policy of the legislation was to criminalise the failure to return a child who had been removed from the United Kingdom with consent; and my preferred construction would not impair the effectiveness of section 1 in relation to the removal of a child without consent, which I would expect to have been the real focus of concern. In any event, in the absence of background material casting useful light on the relevant legislative policy, one has to discern that policy from the text of the statute itself. Accordingly, recourse to arguments of policy does not materially advance the CPS’s case.[28]Mr Riza sought to reinforce his case by reference to the presumption that United Kingdom legislation applies only within the territory of the United Kingdom and by reliance on authorities concerning the territoriality principle and the subject of cross-frontier offences. In my view that line of argument is of no assistance as a free-standing point, but it is also unnecessary.

Conclusion

[29]For the reasons given above, I would allow the application for judicial review. The appropriate relief may be to quash the district judge’s refusal to withdraw the domestic arrest warrant and to remit the case to the magistrates’ court with a direction that the warrant be withdrawn. But counsel will have an opportunity, before judgment is handed down, to agree the form of the order and to file written submissions on any points on which they are unable to agree. Mr

Justice Collins :

[30]I agree.

Cited in 1 later judgment