J (A Child), Re [2015] EWHC 1627 (Fam)

[2015] EWHC 1627 (Fam)Case No FD15P00108
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 June 2015
Before
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
In the Matter of J (A Child)
B v P
Hearing Hearing dates: 29 May, 4 June 2015
Ms Mehvish Chaudhry (instructed by Dawson Cornwell) for the applicant (the father)

Judgment This judgment was delivered in open court

[1]In this case the court has blundered. I need to explain why and express my apologies for what has happened.[2]On 24 April 2015 Pauffley J made an order in accordance with the Hague Convention requiring the respondent mother to return her seven year old daughter, J, to the United States of America by midnight on 8 May 2015: B v P [2015] EWHC 1160 (Fam).[3]The mother applied to the Court of Appeal for permission to appeal. Her application was refused on the papers by King LJ on 7 May 2015. However, King LJ granted a stay until 4pm on 21 May 2015 and directed that any application for an oral renewal must be made by 4pm on 11 May 2015. At that stage both the mother and the father were acting in person (the father had of course been represented before Pauffley J, as had the mother). The Court of Appeal Office (CAO) was, however, aware of the identity of the father’s solicitors, Dawson Cornwell, and on 7 May 2015 emailed King LJ’s order to them. Later the same afternoon, Miss Tazeen Said, the immensely experienced Family Lawyer in the CAO, also emailed a copy of King LJ’s order to Dawson Cornwell, accompanied by a message helpfully drawing attention to the fact that “a stay of execution has been granted in order to allow time for any oral renewal hearing, but permission to appeal refused.”[4]The mother renewed her application for permission to appeal. The hearing was fixed for 22 May 2015, so King LJ extended the stay previously granted. I should explain that 22 May 2015, a Friday, was the last day of term, the short vacation running from Saturday 23 May to Monday 1 June 2015 and the first day of the next term being Tuesday 2 June 2015.[5]On 25 May 2015 the father emailed the CAO asking “Can you please inform me of the courts final ruling on this matter.” The emailed response the next day, 26 May 2015, sent, it may be noted, only to the father, was “The permission to appeal is refused and you will receive in due course.” Later the same day the father forwarded that email to Dawson Cornwell.[6]On 29 May 2015, during the short vacation, Ms Mehvish Chaudhry, instructed by Dawson Cornwell, made a without notice application for relief against the mother. The application was supported by a witness statement of the father’s solicitor, Ms Anne-Marie Hutchinson of Dawson Cornwell, and accompanied by a draft order setting out the relief sought. As it happened I was acting as vacation judge, so the papers were emailed to me. Having read the papers I took the view that there was no need for a hearing. I accordingly made an order in the terms sought, save that I amended the opening recital, to read “Upon written application by” rather than “Upon hearing” and by deleting the words “at a hearing” from recital (4). At the same time I made, as requested, a passport order directed to the Tipstaff.[7]The reason why I proceeded without notice to the mother is set out in a recital to the[8]Paragraph (e) sets out what, on 29 May 2015, was my understanding and also the understanding of Dawson Cornwell. Ms Hutchinson’s witness statement deposed to the facts set out in paragraphs (e) and (f). Ms Hutchinson exhibited the exchange of emails between Dawson Cornwell, sent on 28 May 2015, and the mother’s solicitors, sent on 29 May 2015, referred to in paragraph (f). Of more immediate importance, she also exhibited the email from the CAO dated 26 May 2015 to which I have already referred.[9]On the basis of the material put before me by Ms Chaudhry I had no hesitation in making an order in the terms sought and also a passport order. For present purposes the two most important provisions in the order were those contained in paragraphs 7 and 9. Paragraph 7 ordered that J be returned to the United States of America by 23.59 on 5 June 2015. Paragraph 9 ordered the mother to book the tickets by no later than 4pm on 2 June 2015. Other paragraphs of the order were consequential upon the passport order.[10]The passport order was executed by the Tipstaff on 31 May 2015. The mother was served with the other order on 1 June 2015.[11]On the morning of 4 June 2015 my clerk received, via the office of the Clerk of the Rules, an email from the mother asserting that on 22 May 2015 King LJ had granted a stay until 12 June 2015. Enquiries brought to light the order King LJ had made on 22 May 2015, though, no doubt because of the vacation, it was not sealed until 2 June 2015. The order was in the following terms:
“IT IS ORDERED that: 1 The application for permission to appeal be refused; 2 The Applicant Mother do make any further application either: a to commit the Respondent Father for breach of his undertakings given to the court and recorded on the Order of 24 April 2015; or b any further application for a stay of the Order of 24 April 2015 beyond that provided for in this order such application to be made to the High Court Family Division by 4pm on 2 June 2015 in proper form and to be served upon the Respondent Father and his legal advisors; 3 The order of Mrs Justice Pauffley of 24 April 2015 be stayed until 4pm on 12 June 2015.”
The order recites that the mother had appeared before King LJ in person. I should add that, so far as I am aware, the mother has not in fact made any such application to the Family Division. a to commit the Respondent Father for breach of his undertakings given to the court and recorded on the Order of 24 April 2015; or b any further application for a stay of the Order of 24 April 2015 beyond that provided for in this order[12]I required Dawson Cornwell to appear before me as a matter of urgency the same afternoon, the urgency, of course, deriving from the terms of paragraph 7 of the order I had made on 29 May 2015. At my invitation Ms Chaudhry also appeared, instructed by Dawson Cornwell. The hearing was also attended by the Clerk of the Rules, Ms Carolyn Bowstead, by the Manager of the In Court Support section of the CAO, Ms Sharon Walker, and by Ms Said, for whose attendances and assistance I am grateful.[13]Ms Chaudhry accepted that, except for the provisions in paragraphs 12, 13, 16, 17 and 18 relating to the passports, my order of 29 May 2015 could not stand and had to be discharged. There was, however, she submitted, no reason why either the passport order or those paragraphs should be discharged. I agreed. I accordingly made an order, that:
“The order of the President dated 29 May 2015 is hereby set aside save for paragraphs 12, 13, 16, 17, 18 and the Tipstaff passport order shall remain in full force and effect.”
The order also gave the parties permission to apply on short written notice to the Family Division urgent applications judge at the Royal Courts of Justice.[14]At the hearing on 4 June 2015 I was supplied with further information and documents, supplemented in some respects by further information I received later the same day after the hearing had concluded.[15]I deal first with the additional information so far as it relates to events before I made the orders on 29 May 2015. Having received the forwarded email from their client on 26 May 2015, Dawson Cornwell telephoned the CAO the same day and were told the name and telephone number of the associate dealing with the matter. They called the number given and left a message stating their name and number, and the case number, and asking for a call back. There was no response. The next day, 27 May 2015, they telephoned again and got no answer. The same thing happened again on 28 May 2015. It was at that point that they sent the mother’s solicitors the email I have already referred to.[16]So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.[17]The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:
“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”
They added:
“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”
Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.[18]The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:
“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”
The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.[19]I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:
“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”
Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.[20]Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.[21]I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.[22]There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.[23]The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.

order

“The reason why the order was made without notice to the respondent is because: a. By order of Pauffley J dated 24 April 2015 the child was return to the USA by no later than midnight on 8 May 2015 accompanied by the mother; b. The mother applied for permission to appeal the order of Pauffley J and this application was refused by King LJ on 7 May 2015 and stay of execution granted until 4pm on 21 May 2015; c. The mother applied out of time for an oral renewal hearing, this was heard on 22 May 2015. The stay of execution was granted until lunchtime on 22 May 2015; d. On 26 May 2015 the father received confirmation from the Court of Appeal that the mother’s oral application for permission to appeal had been refused; e. The mother has not complied with the order that the child be returned the USA accompanied by the mother. The stay of this order expired at lunchtime on 22 May 2015; f. It has been confirmed by solicitors acting for the mother today (29 May 2015) that: (a) they have no current instructions from the mother; (b) they do not hold the mother’s passport and; (c) they continue to hold the child’s passport. g. The mother was ordered on 20 March 2015 by order of Mrs Pamela Scriven QC sitting as a Judge of the High Court to lodge her passport with her solicitors by no later than 4pm on 23 March 2015. This order has not been complied with.” a. By order of Pauffley J dated 24 April 2015 the child was return to the USA by no later than midnight on 8 May 2015 accompanied by the mother; b. The mother applied for permission to appeal the order of Pauffley J and this application was refused by King LJ on 7 May 2015 and stay of execution granted until 4pm on 21 May 2015; c. The mother applied out of time for an oral renewal hearing, this was heard on 22 May 2015. The stay of execution was granted until lunchtime on 22 May 2015; d. On 26 May 2015 the father received confirmation from the Court of Appeal that the mother’s oral application for permission to appeal had been refused; e. The mother has not complied with the order that the child be returned the USA accompanied by the mother. The stay of this order expired at lunchtime on 22 May 2015; f. It has been confirmed by solicitors acting for the mother today (29 May 2015) that: (a) they have no current instructions from the mother; (b) they do not hold the mother’s passport and; (c) they continue to hold the child’s passport. g. The mother was ordered on 20 March 2015 by order of Mrs Pamela Scriven QC sitting as a Judge of the High Court to lodge her passport with her solicitors by no later than 4pm on 23 March 2015. This order has not been complied with.”