London Borough of Tower Hamlets v Ali & Ors [2014] EWHC 845 (Fam)

[2014] EWHC 845 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
No. FD14P00428
Venue Royal Courts of JusticeDate Monday, 17 th March 2014
Before
MR. JUSTICE COBB
Between
London Borough of Tower HamletsClaimantAli & OrsDefendant
B E T W E E N:
LONDON BOROUGH OF TOWER HAMLETS Applicant
- and -
ALI & Ors.Respondents
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J U D G M E N T
[1]By an application which was issued on the 13th March 2014 and served upon the father on the following day, the London Borough of Tower Hamlets seeks an order committing Imran Akel Ali to prison for breach of an order which I made under the inherent jurisdiction on the 11th March 2014. This hearing has properly been conducted in open court. For the avoidance of doubt, no party has applied for a reporting restriction order and, in my judgment, rightly so.[2]The deeply troubling story which lies behind this application is the disappearance of two children, girls, namely Azima Ali, aged nine, and Samira Ali, aged three, with their mother, whose name is Shahira Khatun. Azima and Samira are currently the subject of public law court proceedings which have been brought by the London Borough of Tower Hamlets. For some months they have been subject to interim supervision orders while they live at home with their parents. By a supervision order a local authority is required to “advise, assist and befriend” the child and take such steps as are necessary to give effect to such an order. I make this point because at the time of their disappearance the children were living at home, albeit under local authority supervision. A final hearing of the local authority’s application for orders in relation to the children has been listed for a date in May 2014 with a time estimate of five court days. I wish to emphasise that at that hearing both parents will have, or have had, the fullest opportunity to contest the local authority’s application and call evidence of their own. They are entitled to public funding so as to ensure that they are represented by family lawyers. Indeed, I note from the court bundle before me that they are so represented. I should also indicate that at the parents’ request within those proceedings a number of family members have been assessed as potential future carers for the children in the event that the court concludes that the parents cannot continue to care safely for the children.[3]I do not propose to rehearse the background history of the public law case. It is sufficient for me to record in this judgment that the local authority has significant concerns about the safety and wellbeing of these two children in the care of these parents or either of them individually. The mother is said to be, or have been, a heroin addict; the father has also been dependent on non-prescribed drugs. That said, the social workers have been attempting to work with the parents in order to maximise the prospects of the children being raised within their own family.[4]The father tells me today that as at the 10th March he and the mother had separated and that the mother had gone to live with her sister. Astonishingly, he says that when they separated he had in fact not enquired of her where she was living. I return to this later. It was apparent in cross-examination of him that (even on his own case) the so-called ‘separation’ was (if it was a separation at all) a rather fluid arrangement, certainly not complete nor permanent.[5]On the 7th March 2014, that is Friday two weeks ago, both children left their school and nursery. That was the last reliable sighting of them. On the 10th March 2014 the children did not attend for school or nursery. The school principal alerted Social Services. The social worker made inquiries and went to the parents’ home. The mother and children were not there. The paternal grandmother told the social worker that the mother had dressed the children ready for school and had taken them to school. The father denied knowledge of the whereabouts of the children and the mother. He specifically told the social worker on that first (or possibly subsequent) visit that day he had last seen the mother and children on the evening of the 9th March; he had not seen them on the morning of the 10th March as he had been sleeping when they left for school. He said that(a) he was not worried about them,(b) that the children’s passports were held by his brother, Mohammed,(c) that he did not know where the mother was living but believed she was at her sister Momina’s house, but claimed not to have Momina’s number, and further and finally(d) said that he would go round to Momina’s house to check. Social work investigations continued during that day. The mother’s sister, Momina, was contacted. She claimed not to have seen the mother for two weeks. The father’s brother, Mohammed Ali, was contacted. He had no knowledge of the whereabouts of the passports and said that he had never held them. The social worker visited the father again later that day. She asked to see upstairs in the children’s bedrooms. The father was, she said, irate. The social worker believed, though the father disputes this, that she was refused access to the upstairs rooms. On that disputed issue, I find that the father was indeed angry and blocked the stairs, whether deliberately to refuse access to the bedrooms upstairs or simply to be obstructive I am not sure. The father informed the social worker that he had not visited Momina’s house to find the mother and the children as he had said he would.[6]On the 11th March the London Borough of Tower Hamlets were sufficiently concerned about the whereabouts of these two young children that they brought an application before this court under the inherent jurisdiction. I was the urgent applications Judge. The authority applied for a collection order. At that stage the social worker could not identify where the authority would place the children in the event that they were traced and able to be collected. For that reason, and further because I was concerned not to interfere more than was proportionate or necessary with the carefully considered orders already made in the public law proceedings by which the children were in the care of their parents (described above), I declined to make a collection order but made a location order. By the terms of that order any person served with the order - and I pause here to observe that the mother and the father were both named specifically in the order - must(a) inform the tipstaff of the whereabouts of the children 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 children. Later on the 11th March the father telephoned Social Services to say that he had received a telephone call from, he believed, the mother, and had heard one of the children in the background.[7]On the 11th March I further made an order that the case would be restored before me again today, the 17th March, for me to consider what further or other steps ought to be taken to trace the mother and children.[8]On the 12th March, in the morning, two Police officers acting on the instructions, and as agents, of the High Court tipstaff, attended at the parents’ address. After a short delay the father answered the door, indeed on their account only opening the door when they announced that they were Police officers. The officers asked where the mother was. The father claimed not to know. He told the Police officers that the children were “with their mother”. He told the officers that he had last seen the children and the mother on Sunday, the 9th March, and that his wife had taken them to school on the morning of the 10th March, though he had not in fact seen them leave. There is a discrepancy between the Police officers as to whether the father had actually said that he had seen his wife and the children on Monday, the 10th. I do not find it necessary to make a determination on that discrepancy. When challenged by the officers with the fact that the children were missing he said, “They are not missing, they are with their mother”. He told the officers that he had been separated from the mother for two weeks. He said that although he had known that they were missing for, by now, 48 hours, he had not reported them missing to the Police. He said that he had telephoned family members to inquire specifically naming two brothers, but could not provide the relevant phone numbers of those brothers. I interpolate here to say that the father’s brother told me this morning on sworn oral evidence that he had not in fact spoken with the father on the telephone in this period. There was evidence of the children being in the flat, coats on coat hooks in the hallway, children’s toothbrushes in the bathroom. The father handed the Police officers his mobile phone. It is reported by the officers that the father generally appeared evasive. The officers contend that they had reasonable cause to believe that the father was in fact withholding information about the mother’s and children’s whereabouts. After a telephone call to the High Court tipstaff they arrested the father. The property was searched but the children’s passports were nowhere to be seen. The father said that he did not know where they were (this was of course different from the information he had given the social worker). When the father was arrested he is reported to have asked how long he would be in custody, “because I am supposed to be going on holiday”.[9]The father was brought to court on the 13th March, the following day, and at that hearing Russell J remanded the father in custody to today’s hearing. She made further orders requiring the attendance at court today of other family members. Pursuant to her order, the notice of committal was issued later that day and served on the father, as I have said, on the following day. This notice contains the following alleged breach of the location[10]At the outset of the hearing today I was advised that the father’s mobile telephone, seized by the Police on the 12th March, as indicated above, contained a number of ‘whatsapp’ or text messages in Bangladeshi or Sylheti and in English, and a recently sent photograph of Samira. The dates of the text messages appear to span a number of weeks. I put the case back so that an interpreter could be located to translate the text messages for the court.[11]In the meantime I heard brief sworn oral evidence from the father’s brother. He told me that he had a “feeling” that the mother and children were in Bangladesh but advised me that this was not because he had been told this but simply that the mother had travelled there in the past.[12]The evidence laid before the court by the local authority now reveals the following, that mobile telephone text messages or ‘whatsapps’ had passed between the father and his nephew, a man called Shahed, in Bangladesh in a period which spans about six weeks. It now transpires that the father believes that the mother is having a relationship with Shahed. In that period it appears that on one occasion the father had sought to send Shahed some information or documents by email or text but had not been able to do so. On the 18th February a number of pictures with typed text on them, possibly court orders, were exchanged by text. On the 8th March, that is Saturday of last weekend, the father received a ‘whatsapp’ message from Shahed which reads:
“On the way Dacca … need more 6 hour.”
There is then a selection of photographs one of which is of Shahed in a car. On the following day, the 9th March, the father sent a message to his nephew, Shahed, which includes this phrase, “Anyway, tell my sister-in-law [the word in Sylhet was Babi, and the father told me that he could not say that it was not a reference to his wife] to enjoy the sex I could not give”.[13]The father on the 11th March at 0736 received three photographs from the mobile telephone of Shahed in Bangladesh. Two of those photographs are photographs of Samira. The local authority asserts, with considerable justification, that these text messages very strongly indicate that by the morning of Tuesday, the 11th March, not only was Samira in Bangladesh but the father must have known that.[14]The father gave evidence before me this afternoon. He told me that he could not now recall when he had last seen the children. Possibly it was Saturday 8th, or possibly Sunday 9th March. He ascribed his loss of memory either to a 2008 head operation or alternatively the after-effects of a tooth operation which had been conducted some time on the 4th March. He was now confused, he told me, whether the mother had taken the children to school on the Monday morning. If she had done so it would, on his case, have been during a time when he and the mother were in fact separated and she was living away from the home (though he did not know where). He believed that his wife and Shahed, his nephew living in Sylhet, Bangladesh, are engaged in a relationship. He had in the past seen messages from Shahed to his wife and had confronted Shahed and his wife about this in the past. She, Mrs. Khatun, had denied it, but the father went on to tell me that the mother had been to Bangladesh twice on her own to stay with Shahed, once in April 2012 and again in September 2012. Significantly, he told me that he first suspected that the mother and children had in fact fled abroad to Bangladesh sometime on Tuesday, the 11th. He told me because he was calling her and when he called her mobile phone he heard a different ring tone. He told me that when she did not pick up the phone he sent her texts. These texts have been read to the court. In the early hours of the 11th March he sent a text to the mother which includes these terms:
“I'm so stupid and naïve that everything was happening in front of my eyes but did not see. Anyway, I hope you are getting enough now because you have a lot of load to offload if you get my drift. Anyway, enjoy the passionate making out and don’t worry you get pregnant because I've taken the long-term precaution … Love you still.”
He goes on:
“Good luck with your new good looking husband and please don’t bullshit me that it was just a phase because I know that you got married to this guy.”
In the early hours of the following morning, the 12th March, about eight or nine hours or so before the Police went to the father’s property, the father texted the mother again. “I can't believe you forgot. I went out begging for money because we didn't have any after doing all this for you. You still deceive me. I hope it was worth it …”

And then two minutes later:

“Sorry for all the trouble I've caused you so forgive me, my love.”
He goes on: And then two minutes later:[15]As is apparent from my earlier account of the history, the father did not tell the Police on the 12th March that he knew or suspected that the mother was with Shahed in Bangladesh. He told me that he did not tell anyone, he does not know why he did tell anyone, but he thought he may be able to sort it out. In relation to the text from his nephew, “On the way to Dacca”, the father unconvincingly told me that, “I thought he was on a trip or something”. The father told me that he did not see the 11th March message from his nephew with the photographs of Samira even though these had been received by his phone for 24 hours or more before the Police went to his property and I know, as the father has accepted, that he used his phone and the ‘whatsapp’ facility on it to communicate with his wife at least twice since the arrival of those photographs.[16]Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that when served with the location order on the 12th March the father had knowledge which might reasonably assist the tipstaff in locating the children. I so find for the following reasons:(a) first, that the father has himself admitted to believing that the children and the mother were abroad in Bangladesh as early as Tuesday, the 11th March. His text messages to the mother are clear evidence of this.(b) In fact I find that the father, beyond reasonable doubt, suspected that they were in Bangladesh before that time.(c) I further find that the father had received and seen the photograph of Samira (taken in Bangladesh) on the 11th March shortly after it had arrived, certainly well before the Police attended at his home.(d) I find that the father deliberately misled the Police in declining to assist in disclosing what was a high probability in his own mind that the children and the mother were in Bangladesh at the time that they questioned him about it.[17]For those reasons, I find the breach of my order proved and I will now allow Miss Adams to make any representations she wishes to do so as to the question of penalty.

[LATER]

[18]Mr. Ali, will you stand, please. Mr. Ali, it appears almost certain that your wife has left this country with your two children who are the subject of court proceedings. I suspect, but do not find, that if she has done so it has been to frustrate the due process of the law and specifically to avoid participation in the court hearing at which the Family Court would be considering the local authority’s concerns about the wellbeing of the children. You have said yourself you believe that the mother is a heroin addict yet you have failed, as I have found, to assist the court in attempting to locate these children, allowing the children to remain in the care of their heroin addict mother without supervision by authority.[19]On the 11th March, Mr. Ali, I made orders designed to trace and locate these children, and once located to restrict their movement while decisions were made about their immediate futures. As you will have just heard, I did not make orders at that time permitting their immediate removal into foster care. However, you, Mr. Ali, have deliberately withheld and, in my judgment, continue to withhold information which could lead to the whereabouts of the children. You have obstructed the Police, you have obstructed Social Services, and you have obstructed this court in our joint endeavour to trace your missing children. It is your obstruction of the court order which provokes this application for committal.[20]Mr. Ali, untold damage is done to children who are spirited away from one home to another, let alone from one continent to another, without warning or preparation. Disruption to their routines, the predictability of their lives, their family relationships and social relationships and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot, and should not, go unpunished. Parents who seek to protect those who remove children in these circumstances, who deliberately obstruct the due administration of justice, and knowingly breach court orders should also expect to be punished appropriately by the court.[21]I accept, Mr. Ali, that there is no evidence of your involvement in any preplanning of this trip to Bangladesh, but you have, in my finding, deliberately obstructed the due administration of justice and, by your lies to the court today, continue to do so.[22]I have taken into account your home circumstances, that you presently assist in caring for your elderly mother, but the sentence which I impose has to be a custodial sentence to reflect the gravity of your breach.[23]The sentence I impose is one of four months imprisonment. You will serve one-half of that sentence. Thank you. Would you please take him down.

order

“That the Respondent father has knowledge or information pertaining to the whereabouts of the children. He has given differing accounts to the local authority and tipstaff.”

Cited in 1 later judgment