Button v Salama [2013] EWHC 2972 (Fam)

Case No FD12P00013[2013] EWHC 2972 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Date: Friday, 27 th September 2013
Before
MR JUSTICE HOLMANSitting in public
Between
NAOMI ISIS BUTTONApplicantTAMER AFIFI MOHAMED AFIFI SALAMARespondent
Transcribed by BEVERLEY F. NUNNERY & COOfficial Court Reporters and Audio TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
Mr Mark Jarman appeared for applicant/motherMs Gina Allwood appeared for respondent/father
J U D G M E N T
[1]This is an application by a mother to commit the father of their child to prison for contempt of court. I have conducted the whole of the present hearing entirely in public. There is indeed a member of the press or media present as I speak and she has been present for most of this hearing.[2]The application already has a very long history. There has been a series of previous judgments, most recently that of Roderic Wood J. delivered on 2 July 2013. An official transcript of that judgment has been made and was already available to the parties. I regret to say that, so far as I have been able to ascertain today, that judgment, although delivered nearly three months ago, is not yet currently publicly available on the BAILII website. I intend early next week (today being a Friday afternoon) to take steps to ensure that that judgment is placed on BAILII and is there publicly available. In the light of that, it does not seem to me necessary for me to repeat at length the many matters already described in that judgment of Roderic Wood J.[3]Put very shortly, these proceedings concern a child, Elsa, who was born on 2 February 2007 and is now about 6¾. She is the marital child of an English mother and Egyptian father who had married in Egypt before her birth. Not long after her birth, the parties moved to live in England. The father says that that was always intended to be for a limited period whilst he or they underwent higher tertiary education here. Be that as it may, it is quite clear that for several years up to and including December 2011 the mother and father and child were all living in a settled way here in England. It is, frankly, plain as a pikestaff in this case that as at December 2011 the mother and the child, and probably also the father, were all habitually resident here, as that concept is understood in English law. They travelled together to Egypt in the middle of December 2011 for a holiday over the Christmas period. Whilst there, it came about that at a certain stage Elsa moved from the actual care of either of her parents to that of the father’s mother. The mother says, in effect, that the child was kept from her. However that may be, both the mother and the father returned to England in late December 2011, and the mother has been struggling, by proceedings both here and in Egypt, to recover her child ever since. The proceedings began in England in early January 2012.[4]As a result of breaches by him of orders to procure the return of the child to England or even to disclose her whereabouts in Egypt, it is the fact that the father has now been detained in prison continuously since 5 January 2012. That means that by next week he will have been continuously imprisoned for 21 months, which is the equivalent of an aggregate sentence of 42 months or three and a half years imprisonment. That long period of detention has resulted from a continuing failure by him to obey or, frankly, even attempt to obey repeated orders of this court.[5]The last hearing was before Wood J. on 2 July 2013. Mr. Justice Wood clearly found the father to be in breach of provisions of the earlier order of Cobb J., which had been made on 15January 2013. For those breaches, Wood J. imposed further concurrent sentences of six months’ imprisonment. It is those sentences which will have been served by early next week. Mr. Justice Wood also made an order in which he repeated provisions of earlier orders. It is, however, essential to understand that Wood J. was making fresh orders. Accordingly, under fresh orders made by Wood J. on 2 July 2013, the father was put under a range of duties. By paragraph 5 of that order, he was required “forthwith and immediately” to confirm to the mother’s solicitors certain specified information, namely, in summary, the current location of the child, who has the full-time care of the child, a direct contact telephone number with the person caring for the child, and the current school and school details for the child. By paragraph 3 of the order of Wood J., the father was required by 4pm on 20 September 2013 (that is, a week ago today) to serve a statement which detailed a range of information. Again, in summary, that is the current whereabouts of the child, the current care and financial arrangements for the child, and the current schooling information as to the child. By paragraph 4 of the order, the father was required “forthwith and immediately to return or cause the return of the child” to England and Wales.[6]Pausing there, I stress that neither that paragraph of that order nor, as I understand it, any previous order made in these proceedings has ever required the child to be returned to, or given to, the actual care of the mother. The father makes a long list of allegations against the mother who, he says, is an unsuitable person to be entrusted at all with the care of their child. Clearly, if and when this child returns to England, there will have to be a very careful investigation into, and consideration of, the suitability of the mother to care for her. But at this stage the obligation is only to cause the return of the child to England so that that investigation could take place.[7]Paragraph 6 of the order of Wood J. required the father forthwith and immediately to arrange for the mother to be able to speak directly by telephone or Skype to the child. Pausing there, it seems to me that this is a situation in which, to some extent, the greater overshadows the lesser. The principal obligation on the father in this case is to procure the return of the child to England and Wales, and that is the principal objective of the mother. Of course, it is highly desirable that the child should be able in the meantime to communicate with her mother by telephone or Skype, but I am prepared to accept that setting up arrangements of that kind requires a certain amount of negotiation and attention to detail which it might not be easy for the father, while detained in prison, to give.[8]The order of Wood J. expressly fixed, by paragraph 1, a further hearing here today where the court “shall consider the issue of the father’s further contempt of court in the event that Elsa has not been returned to the jurisdiction of England and Wales”. So the father has known ever since that hearing in July that there would indeed be a further hearing here today. It appeared to the mother and her advisors that there had been no compliance at all by the father with any of paragraphs 3, 4, 5 and 6 of the order of 2 July 2013, and so, as provided for in paragraph 7 of that order, they filed a notice to show cause why the father should not be further committed to prison for contempt.[9]I should, at this point, frankly acknowledge a procedural defect. The order of Wood J. fixed the hearing for today, Friday, 27 September. Paragraph 7 provided that the notice to show cause had to be filed not later than 12 noon only last Wednesday, 25 September. It was indeed on Wednesday, 25 September 2013 that the notice to show cause was filed, but, deeply regrettably, it has not been served upon the father himself until his appearance here today. Part of the reason for that, probably, is that so short a period of time was provided in that order of 2 July between the cut-off date for filing and serving the notice to show cause and the hearing date today. It is, of course, fundamental that the respondent to an application to commit for contempt should have adequate and very clear notice of the alleged breaches for which his committal is sought. In almost any other situation I would have regarded it as a fatal defect to proceeding today that the father had not, prior to his attendance at court today, been personally served with the notice to show cause. However, I do accept the point made by Mr. Mark Jarman on behalf of the mother that there is a special context in the present case. The fact is that today’s hearing was, as the father well knew, already fixed and identified from the outset by the order of 2 July 2013. The order expressly provided that at this hearing the court “shall consider the issue of the respondent’s further contempt”. So he has known perfectly well ever since the beginning of July what he had to do, namely, comply with paragraphs 3, 4, 5 and 6, and he has known perfectly well that if he failed to comply with those paragraphs then at this hearing today the issue of his “further contempt” would again be considered by the court.[10]On behalf of the father, his counsel, Ms. Gina Allwood, has, frankly and on his instructions, expressly admitted that the father has not complied at all with any part of any of paragraphs 3, 4, 5 or indeed 6 of the order of 2 July 2013. He did not “forthwith and immediately” or at all give any information whatsoever to the mother’s solicitors in even attempted or purported compliance with paragraph 5. He did not file and serve any statement at all by 20 September, or indeed right up to today, in attempted or purported compliance with any part of paragraph 3. He has not caused the return of the child nor indeed has any telephone or Skype contact been arranged. The father knows and has known perfectly well that he has not done any of those things and he knows perfectly well that his failure to do so does involve breaches of the order of Wood J. So, in the particular circumstances of this case, whilst not in any way condoning the fact that there was not actual personal service of the notice to show cause upon the father earlier than today, it does seem to me that I am able on this occasion to overlook it and to proceed in its absence. The real issue is as to why the father has not complied with any part of paragraphs 3, 4, 5 or 6. I remind myself, as Wood J. was careful to state, that this committal application must be proved to the criminal standard, that is, I must be sure of the breaches. It is admitted that he is in breach, but I must also be sure that he could have complied with the various paragraphs of which he is said to be in breach. The burden of proof is entirely on the mother. The standard of proof is the criminal standard.[11]The mother has made a detailed written statement, but, in the end, she is able to say little more than that there has been a total failure to supply any of the required information in relation to her child or to cause the return of the child. It is not even faintly suggested that this child is in the care of anyone other than a member or members of the father’s own family, probably his mother, the paternal grandmother. The starting point has to be that this is the child of these parents and not of anyone else. The starting point has to be that this father, being the father, could require whoever it is that is caring for the child to deliver the child up in obedience to his instructions as the father. The father says to me, as he said to Wood J., that he is no longer able to procure that outcome. He says that he is not in contact with any member of his family other than one brother called Amr Salama. He says that there is no communication at all between himself and any other family member. He says that although he speaks on the telephone for 5 minutes once a month to his brother Amr, there is no communication between Amr and the member or members of his family who are caring for Elsa because they have deliberately erected a barrier between themselves and the father. So the father says that he is simply unable to cause the return of the child or even to give any of the required information, including the most basic information of all, namely, who is caring for the child or where she is living.[12]At paragraph 14 of his judgment Wood J. said:
“Father was, in my judgment, and I am sorry to have to record it, shifty, evasive and plainly dishonest … At times I thought that he was almost trying to negotiate with this court as to the terms on which he would divulge that information.”
At paragraph 16 Wood J. said:
“I have no doubt that he could cause the return of Elsa and/or provide the information required … should he so wish. He refuses to do so. I disbelieve his evidence in relation to the family closing ranks against him.”
[13]I also have heard oral evidence from the father today. I am sorry to have to say that I, like Wood J., found his evidence, by the end, to be clearly shifty, evasive and plainly dishonest. It is quite clear that he has very bitter feelings indeed with regard both to his wife and also the English legal system. Again and again, he said that he has no communication with any member of his family other than his brother Amr, and that he simply is unable to comply or even attempt to comply with any of paragraphs 3 to 6 of the order. But his mask fell down, for at one stage during cross-examination by Mr. Jarman he was to say that if he and the mother reached an agreement then the child would return to England. I said to the father, “Well, if she could return to England if there was an agreement between you and the mother, why can she not return to England if you, as the father, ask for her to be returned?”. His answer was “The family’s view is she is an Egyptian child born in Egypt and they are not taking orders from a foreign court”. I pointed out to the father that it would not be a question of taking orders from a foreign court but, rather, of complying with the instruction and request of himself as father of the child. His answer shortly afterwards was that he did not trust the mother and “I will not go against my family”. If, as the father says, he is unable, and has since January 2012 been unable, to communicate at all with any member of his family other than his brother Amr, then it is difficult to understand how he is able to state, as he did, what “the family’s view” is.[14]More than that, it was very clear to me from those answers that there is simply a determination in this case by the father not himself to take any orders from this court and not in any way to respect and obey the orders of this court. During the course of this hearing he was repeatedly to say, both from the witness box but also through Ms. Allwood from the well of the court, that he does not accept the jurisdiction of this court. He tried strenuously to suggest that the child was never habitually resident here. That is completely inconsistent with some of the propositions in his own one statement in these proceedings. In that he talked about their going to Egypt in December 2011 and doing “all holiday things that any normal family would do”. Note the use of the word “holiday”. He described how, when they flew to Egypt, he had left his car parked in front of the mother’s house in England, with all his important documents at her house. He referred to “Naomi’s promise of moving to the south of England more than a year ago”. He said that during an argument whilst they were in Egypt “Naomi wanted our divorce to be done before we leave Egypt to go back to the UK”. All those statements and propositions clearly underline that this was a child who was at the material time habitually resident here, who went with her parents to Egypt purely for a holiday, and who both parents intended and expected to return at the end of the holiday.[15]The father said, again from the well of the court, that there was some document with, or endorsement upon, their marriage certificate to the effect that if they were blessed with children any future disputes with regard to the child or children should be resolved by courts in Egypt. I asked him whether he had the document he was referring to at court. He said that it was one of the documents that the tipstaff had seized. There was an adjournment whilst the tipstaff brought to the courtroom all the documents currently held by the tipstaff, and the father was given an opportunity to go through them. He produced the marriage certificate and an English translation of it. There is simply nothing whatsoever to the alleged effect upon the marriage certificate itself. He said that there is nevertheless some other concurrent document, but he has not been able to produce it. He then fell back on saying that as part of the marriage ceremony itself questions had been put to the bride and groom and they had answered to the alleged effect.[16]These proceedings have been underway now for well over 18 months. The father says that at some earlier hearings, when he was representing himself, he had raised with earlier judges the question of the jurisdiction of the court. Be that as it may, there has certainly been no formal challenge to the jurisdiction of the court by formal application or any evidence clearly directed to a jurisdictional challenge. Ms. Allwood appeared on behalf of the father also at the hearing before Wood J. on 2 July 2013, and she has frankly told me that there was no challenge to jurisdiction at that hearing. In my view, frankly, any challenge to the jurisdiction of this court is forlorn and I reject it. But the position clearly emerges that one of the matters driving and influencing the attitude and position of the father is his own unwillingness to accept the jurisdiction of this court.[17]I am left in no doubt at all, first, that the father knows a great deal more about the current whereabouts and circumstances of his child than he is willing to reveal, whether in obedience to paragraphs 3 and 5 of the order of Wood J. or at all. I am also left in no doubt at all that if he chose to do so the father could send instructions to Egypt requiring whoever it is that is caring for the child to now cause the return of the child to England. He has not made the slightest attempt to do so. I am therefore quite satisfied to the criminal standard of being sure that the breach by the father of paragraphs 3, 4 and 5 of the order of 2 July 2013 is deliberate and is, frankly, contumacious. As I have already explained, I do not take the same view with regard to paragraph 6 for it might be much more difficult for him as a detained prisoner to make precise arrangements for telephone or Skype contact.[18]As I am satisfied that the father is, again, in breach of the freshly repeated orders of this court in paragraphs 3, 4 and 5 of the order made on 2 July 2013, the next question is what sentence or sanction I should impose for that breach. Mr. Mark Jarman has referred me to, and relies upon, the authority of the Court of Appeal in Re W (Abduction: Committal) [2011] EWCA Civ 1196; [2012] 2 FLR 133. That authority makes absolutely clear that in circumstances such as these it is, to borrow the language of the headnote:
“… legally permissible for the court to make successive mandatory injunctions requiring positive actions, such as the disclosure of information, notwithstanding a past failure to comply with an identical request. A failure to comply with any fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment.”
[19]On behalf of the father, Ms. Allwood has very attractively developed the argument in paragraphs 8, 9, 10 and 11 of her written position statement dated today. She says there, as she has again submitted this afternoon:
“The court cannot continue with the same offence. It is unfair if the father were to be sentenced again for the same offence. The well-known double jeopardy principle applies … the father is entitled to know the determinative ending date of such sentence and has served his time for the offence.”
The point that those submissions and that argument overlook is that he is not liable to be punished “again” for the earlier “offence” of breach of earlier orders. The order made by Wood J. on 2 July made fresh, free-standing orders by paragraphs 3, 4 and 5, and it is only for breach of those orders beginning on and since 2 July 2013 that he now stands to be sentenced. Ms. Allwood says at paragraph 11 that he “is entitled to know the determinative ending date of such sentence”. He always has known the determinative ending date of the successive sentences. On 2 July Wood J. sentenced him to a number of concurrent sentences of six months’ imprisonment for breach of terms of the order of Cobb J. made in January. The father knew and knows that the determinative ending date of those sentences is six months, with remission of half, so there is a determinative ending date early next week. If I sentence him again today for fresh breaches of the fresh orders made by Wood J. on 2 July 2013, I will do so for specified, stated, fixed terms. The father will know the determinative ending date of those sentences and will know, of course, that he will be released after he has served half the sentence.[20]That approach is very clearly regarded as lawful, permissible and indeed appropriate by the Court of Appeal in Re W (Abduction: Committal). Ms. Allwood expressly accepted before me that if Re W is rightly decided then it is indeed lawful and permissible to make successive orders for disclosure of information and impose successive terms of imprisonment if there is a successive breach of those orders. Her argument, in effect, is that the case of Re W (Abduction: Committal) was wrongly decided by the Court of Appeal. It is, of course, as she accepts, binding upon me and it is only at a higher level that it could now be challenged.[21]The second limb of Ms. Allwood’s argument is that, in any event, the father has now already served aggregate sentences of 42 months (that is, three and a half years). She correctly points out that the maximum term for a statutory offence of child abduction is one of seven years’ imprisonment. She submits that the time has been reached when it simply is disproportionate and wrong to sentence the father any further terms of imprisonment.[22]In that same authority of Re W McFarlane LJ. said at paragraphs 38 to 40:
“38. While such a course is legally permissible, the question of whether it is justified in a particular case will turn on the facts that are then in play. It will be for the court on each occasion to determine whether a further term of imprisonment is both necessary and proportionate. “39. Part of the court’s proportionate evaluation will be to look back at past orders and at the cumulative total of any time already spent in prison and to bear those factors in mind when determining what order is to be made on each occasion. The court should also have some regard, if that is appropriate, to the likely sentence that might be imposed for similar conduct in the criminal court. “40. This is not however a licence for the courts to subvert the 1981 Act by blindly making successive committal orders for the remainder of a contemnor’s natural life, as has been suggested on behalf of the father. It is a proportionate, stage-by-stage, hearing-by-hearing approach relying upon the discretion and judgment of the judge at each hearing.”
At paragraph 51 Hughes LJ. said to similar effect:
“Secondly, there is no doubt that there may be successive or repeated contempts of court constituted by positive acts disobeying an order not to do them. For my part, I am quite satisfied that there may also be consecutive or successive contempts of court constituted by repeated omissions to comply with a mandatory order positively to do something. However, where the latter is in question, it is plain that there may well come a time when further punishment will be excessive. When that will be is a matter of fact for each case.”
[23]Mr. Jarman has submitted that the situation has been reached in the present case where the very fact of repeated breaches of repeated orders of the court has become an aggravating factor. He says that Wood J. imposed concurrent sentences of six months’ imprisonment for the breaches of the order made by Cobb J. in January. Those have had absolutely no effect. Mr. Jarman submits, therefore, first, that the continuing breaches aggravate; and, second, that the time has again come when the court must impose a more severe sentence and suggests that I ought to sentence for a term of the order of 12 months’ imprisonment concurrent for each of the breaches. I am heavily weighed by those submissions. I do regard it as an aggravating feature that, despite now already serving 21 months’ actual imprisonment, and despite the court repeatedly ordering the husband to disclose information and cause the return of the child, he stubbornly and contumaciously refuses to do so. On the other hand, I am also very conscious that he has indeed already served the equivalent of three and a half years’ imprisonment. At some point the time will or may come “when further punishment will be excessive”, in the words of Hughes LJ. I do not consider that that time has come yet in this case, but I do consider that I would run a risk of excessive punishment if I were now to impose sentences of as long as 12 months, as Mr. Jarman suggests.[24]Balancing these factors, I have come to the conclusion that I should now impose concurrent sentences of six months’ imprisonment each for the breaches of each of paragraphs 3, 4 and 5 of the order made by Wood J. on 2 July 2013. I impose no sentence or penalty whatsoever for the breach of paragraph 6 of that order. The outcome is, therefore, that on this application to commit, the respondent, Tamer Salama, will be imprisoned again for three concurrent terms of six months’ imprisonment each, to be served consecutively to (that is, immediately after his notional release from) the terms of six months’ imprisonment imposed by Wood J. on 2 July 2013. There will be a further order essentially in the same terms, so far as material, of the order of Wood J. of 2 July 2013, with revised dates to be established with the Clerk of the Rules and inserted. Those dates should ensure that at least one week before he will be released from these fresh terms of imprisonment there will be a further hearing. I do not want to fall into the procedural difficulties that I have already described that arose from the tight timetable between paragraphs 1 and 7 of the order of 2 July. So my order must provide that a notice to show cause must be filed and served personally upon the respondent by a date which is at least seven days earlier than the date fixed for the next hearing. The order of Wood J. provided a half day time estimate for today’s hearing. At this moment, although we started promptly at half past 10 this morning, the clock is just ticking round to 4.15 pm. Accordingly, my order will provide a full one day for the next hearing. __________

Cited in 2 later judgments