G (A Child), Re [2015] EWHC 2941 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No EX11P50004Neutral Citation Number: [2015] EWHC 2941 (Fam)IN THE HIGH COURT OF JUSTICEEXETER DISTRICT REGISTRYIN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURTAND IN THE MATTER OF G (A CHILD)Courts of JusticeEdward StreetTruroCornwallTR1 2PBDate 22 nd July 2015
Before
THE HONOURABLE MR JUSTICE BAKER
Between
BApplicantM (1)RespondentsG (by her children’s guardian) (2)RespondentJOHN LEWIS DIXON (3)Respondent
Transcribed from the official tape recording byMENDIP MEDIA GROUPRockeagle House, Pynes Hill, Exeter, Devon, EX2 5AZTelephone : 01392 213958 Fax : 01392 215643Email: ttp@mendipmediagroup.com
Mr Rupert Chapman appeared for ApplicantThe First Respondent was not present or representedMr Anthony Ward appeared for Second Respondent by her children’s guardianMr Christopher Godfrey appeared on behalf of Mr John DixonHearing dates 21 st and 22 nd July 2015
J U D G M E N TTHE HONOURABLE MR JUSTICE BAKER:
[1]This judgment is delivered at the conclusion of a hearing of an application for the committal to prison of a 50-year-old man, John Lewis Dixon. It is made in the course of very long-running proceedings involving a child, hereafter referred to as 'G', who was born in February 2005 and is therefore now aged 10 years.[2]G has been the subject of court proceedings for virtually all her life. The protagonists in the proceedings are her mother, M, and father, B. It is unnecessary for the purposes of this judgment to set out the sad and long history in any detail. Suffice it to say that G has always lived with her mother, M, and the principal issue in the proceedings has been whether she should have contact with her father, B, and, if so, on what terms. It has been the mother's case that contact should be significantly limited because of the alleged risk arising to G out of what the mother asserts to be B's violent nature. It is the mother's case that G has been exposed to acts of violence perpetrated by B on women and indeed it is said that G herself has claimed that she has witnessed such acts. B vehemently denies that allegation and asserts that G's mind has been poisoned against him by the mother.[3]These issues lie at the heart of the dispute between the parties, but have never, so far as I am aware, been the subject of a definitive fact-finding hearing.[4]Until shortly before his retirement last summer in 2014, this case was managed and heard by His Honour Judge Tyzack QC. He formed the view that the mother was substantially to blame for wrongly impeding contact between G and her father, B. He made a series of orders designed to lead the mother into making G available for contact. Eventually, on 6th September 2013, he made a residence order in favour of B, suspended on terms that the mother make G available for interview by the children's guardian, who actually at that stage had not yet been appointed as guardian but was acting as the CAFCASS reporting officer, and two periods of contact to be observed by him. That order was complied with and the CAFCASS officer reported that the contact had passed off uneventfully and was demonstrably enjoyed by G.[5]At the next hearing, on 28th October 2013, the mother did not attend, but the court was informed by her then fiancé, Mr Dixon, that she was ill. The court then ordered four days of staying contact to start two days after the hearing. It subsequently emerged that, on 28th or 29th October, the mother and G left the country, flying initially to Dubai. The staying contact ordered by Judge Tyzack accordingly did not take place and, on 31st October, Judge Tyzack ordered that the suspended residence order in favour of the father should come into effect. Thereafter the court made various attempts to locate the mother and G and bring about G's return to this jurisdiction.[6]On 6th February 2014, Judge Tyzack transferred the case to the High Court, while retaining management of it himself sitting under section 9, made G a ward of court, declared her removal from the jurisdiction to be unlawful and ordered the mother to return her to this country forthwith. He further made orders under section 33 of the Family Law Act 1986 against three individuals whom he ordered to disclose any information as to the mother's whereabouts and any information as to how to contact the mother. Those individuals were: the maternal grandmother, the mother's stepfather and her fiancé, Mr Dixon. The learned judge made further orders for disclosure of documents to the Devon and Cornwall Constabulary, who were independently investigating the matter as an alleged criminal abduction.[7]On 27th February 2014, Judge Tyzack made a further order, including, inter alia, a series of injunctions against those three individuals. All three of them were:(1) prohibited from providing the mother with any money;(2) ordered to provide the court with details of the mother's whereabouts and her communication details immediately on becoming aware of the same; and(3) ordered to lodge their passports with the court. By the same order, Judge Tyzack made a further order ordering the mother's older son, L, then aged 16, to attend court to give certain information as to the mother's whereabouts, including details of a visit which he had recently made to her in Dubai and further ordering him to lodge his passport with the court. A penal notice was attached to that order, as it had been to the order of 6th February.[8]On 28th March, Judge Tyzack made a further order in similar terms, including similar orders against the maternal grandmother, the mother’s son L, and her fiancé, Mr Dixon and ordering all three to attend court on 7th March. It is unnecessary to recite the terms of this order in any further detail save to note that the order in respect of Mr Dixon provided, under paragraph 5 of the order, that his passport was to remain lodged with the court, under paragraph 6, that he was prohibited from providing the mother with any further money and, under paragraph 7, that he would produce to the court all his telephone records. Again a penal notice was attached to that order.[9]Solicitors on behalf of L, the mother's 16-year-old son, filed a Notice of Appeal, including a number of grounds, namely that the judge was wrong to order L to attend court, that he was wrong to order L's passport remain lodged with the court until further order, that he was wrong to order disclosure of L's communications with the mother and that he was wrong to attach a penal notice to the order against L, given his age. The Court of Appeal duly allowed the appeal by L and gave a reasoned judgment, now reported as Re B [2014] EWCA Civ 843. Pointing out that Judge Tyzack, in his judgment, had made the passport order to induce L and, for that matter, the maternal grandmother, to put pressure on the mother to return to the jurisdiction, Sir James Munby, President, held that this amounted to an impermissible coercion and that Judge Tyzack had therefore been wrong to make the passport orders, not only in respect of L, but also in respect of the other individuals, including Mr Dixon. The other orders in respect of L were also set aside.[10]Following this appeal, the matter returned to court before Judge Tyzack on 7th May 2014. At that hearing, Mr Dixon and the maternal grandmother, who both attended the hearing, produced telephone records in accordance with the earlier order. The judge confirmed that G remained a ward of court and confirmed that a number of other orders made at the hearing on 6th February remained in place. By paragraph 4 of the order of 7th May, the judge discharged a number of the orders made on 28th March. According to the sealed order, the orders discharged included all three of the orders made against Mr Dixon on that date, namely paragraphs 5, 6 and 7, as summarised above, although, in argument before me at this hearing, Mr Anthony Ward, on behalf of the guardian, who had attended the hearing on 7th May, stated that, in his draft order submitted to the court at the request of Judge Tyzack following the hearing, paragraph 6 of the order of 28th March had not been included in the list of those orders to be discharged. The order of 7th May then stated in paragraph 5 that:
"As a result of paragraph 4 above, the maternal grandmother, Mr Dixon and L are forthwith discharged from these proceedings."
Paragraph 6, however, included a further order against Mr Dixon, namely that he was prohibited from taking any steps to facilitate the mother remaining outside the jurisdiction for a period of 12 months. Unlike earlier orders, the order of 7th May did not, however, include a penal notice.[11]Following Judge Tyzack's retirement in August 2014, the case was transferred to me. Thereafter I held a series of hearings exploring further ways of securing G's return to this jurisdiction. At those hearings I had the benefit of information provided by the police, who were pursuing their investigation and also endeavouring to obtain the return of G and the mother to this country. By that stage, further information had been discovered revealing that the mother had left Dubai and travelled to Vietnam. Efforts to obtain her extradition were made by the police, but they were unsuccessful and the mother and G subsequently left that country, moving, it is believed, to Cambodia. Meanwhile, the mother occasionally communicated with the court and also with the President of the Family Division, whose office duly forwarded her emails to me. Although the mother was able, when she chose, to contact the court, it was very difficult for the court to contact her. Eventually, however, through the guardian's solicitor, a line of communication was established and a telephone hearing arranged in which the mother took part from an unknown location, but believed to be overseas.[12]At that hearing, the mother reiterated her position that she did not intend to return to this country unless and until things were resolved. I pointed out that matters could not be resolved without a court hearing and that she and G would have to be present in this country for that to happen, but I further pointed out that I was coming to this case afresh, that there had been no full investigation or hearing into the allegations she had made and that I would approach such a process with an open mind. I further indicated that, if she returned, I would be minded to impose a six-month pause in any further litigation in the proceedings, allowing G to settle back in this country with the mother before the court reconsidered the question of G's contact with her father, B. The mother indicated that she would think about this proposal. Following that hearing, at the mother's request, I spoke to G briefly, over the telephone, although I did not discuss the issues in the proceedings with her. In the event, a few days later, the mother emailed the court, stating that she and G would not be returning to this country.[13]At that point, the father resurrected an application which he had originally made to Judge Tyzack and had at various points before me suggested he wished to revive. He identified grounds for believing that the four individuals identified above – namely the maternal grandmother, the mother's stepfather, L, who, by this stage, had attained the age of 18, and Mr Dixon (no longer engaged to the mother, but still a close friend – had information in respect of the whereabouts of the mother and G. Furthermore, in the case of Mr Dixon, information from the police indicated that he had left the country and travelled to Vietnam and/or Cambodia on three occasions in the previous year or so, namely for one month between May and June 2014, for ten weeks between November 2014 and February 2015 and for eight weeks from 8th April 2015 to 5th June 2015. These travel details suggested, submitted the father, that Mr Dixon not only knew of the mother and G's whereabouts, but was actively involved in helping the mother to retain G abroad. Furthermore, the father, who, at that point, was acting in person – as he had been for most of the proceedings, at least in recent times – argued that Mr Dixon's actions amounted to a breach of the orders made against him and that he was therefore in contempt of court. The father therefore proposed to issue applications(1) under section 33 of the Family Law Act 1986, against all four individuals, requiring them to attend court again and disclosure information in their possession as to the whereabouts of the mother and G; and(2) against Mr Dixon for his committal to prison. He announced his intention to proceed with these applications at a directions hearing on 26th June 2015 at which I made an order for the filing and listing of his proposed committal application and further ordered the four individuals (the grandmother, her husband, the mother's stepfather, L and Mr Dixon) to file and serve information within their possession relating to the mother's whereabouts and any information concerning how they contact and communicate with the mother and G, plus details of any such communications in the past six months and details of any bank accounts and any transactions they may have had with the mother and G or with each other concerning the mother and G in the previous 12 months. I further directed the four to attend a hearing before me in Truro on 21st July 2015. I requested the police to file a statement setting out details of Mr Dixon's known travel movements and relevant financial transactions since January 2014.[14]In addition, I made a further passport order against Mr Dixon. I make it clear that this was not made in an attempt to coerce Mr Dixon into disclosing information, but rather because of prima facie evidence that he was actively involved in assisting the mother to retain G outside the jurisdiction and, given his frequent trips to Vietnam and Cambodia in the previous 12 months, prima facie concerns that he was a flight risk and without a passport order would fail to attend the hearing on 21st July to answer the committal application and give information pursuant to section 33. In my judgment, this use of the order was entirely consistent with the permitted scope of such orders as explained by the President in his judgment in Re B, supra. The crucial distinction between the passport order made by Judge Tyzack on 7th May 2014 and the passport order made by me on 26th June 2015 was that, whereas Judge Tyzack's order was intended, as he frankly acknowledged, to induce the four individuals against whom the orders were made to put pressure on the mother to return G to this jurisdiction, my order was intended to ensure that Mr Dixon did not flee the jurisdiction prior to the hearing on 21st July, at which he would be required to answer questions concerning the whereabouts of the mother and G and to meet the father's application for his committal. The order was thus in line with those granted in the cases cited by the President at paragraph 21 of the judgment in Re B, in particular(1) Bayer AG v Winter [1986] 1 FLR 497, where a defendant was ordered not to leave the jurisdiction until he had complied with Mareva and Anton Piller orders requiring him to disclose information,(2) Thaka v Thaka [1987] 2 FLR 142, where the court made an order detaining a husband for a few days until the hearing of a judgment summons for alleged maintenance arrears, and(3) Re J (A Minor: Wardship) [1988] 1 FLR 65, where a mother was restrained from leaving the jurisdiction until she had undergone a blood test. These are all instances of cases where, as Wilson J, as he then was, described in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148,154:
"the jurisdiction exists where the other party has established a right to interlocutory relief, such as an Anton Piller order, which would otherwise be rendered nugatory. It exists where a hearing is shortly to take place, the efficacy of which would be frustrated by his absence."
In my judgment, the passport order made by me against Mr Dixon on 26th June 2015 falls squarely within this category.[15]It was agreed that the main order made on 26th June, as summarised above, would not be served before the passport order had been served on Mr Dixon. In the event, there was a delay in the service of the passport order. When the tipstaff's representative, (in fact a member of the local constabulary), finally served the passport order on Mr Dixon on 4th July 2015, Mr Dixon informed him, untruthfully, that the passport was still held by the court. This information was relayed to me by the tipstaff. I informed him that I had been informed by the police, who had by then filed their statement as to Mr Dixon's travel movements, that the passport had in fact been returned to Mr Dixon in May 2014 and that he had indeed travelled abroad on several occasions since that date, to Vietnam and Cambodia. The tipstaff's agent therefore returned to Mr Dixon on 8th July, whereupon Mr Dixon handed over his passport. Being satisfied that there were prima facie grounds for believing that he had broken the passport order, I ordered Mr Dixon to attend before me on 10th July. I further ordered that he should not communicate with the mother in the interim. When Mr Dixon failed to attend before me on 10th July, I issued a warrant for his arrest, directing that he be brought before me in Exeter on the following working day, Monday, 13th July. In the end, that warrant was never executed, but Mr Dixon attended before me voluntarily on 13th July. At that hearing he accepted that he had been in breach of the passport order. Furthermore, I had, in the intervening days, received emails from the mother, (wherever she is), indicating that she was aware of the hearing on 13th July. I therefore adjourned the question of Mr Dixon's breach of a passport order to the hearing listed before me on 21st July in Truro to be considered alongside the father's application to commit Mr Dixon to prison. I advised him to obtain legal advice and that he may qualify for Legal Aid.[16]Thus the case came before me again on 21st July, in Truro, in accordance with my order of 26th June, to consider three matters:(1) the father's application for the committal of Mr Dixon to prison,(2) Mr Dixon's admitted breach of the passport order,(3) the presentation of further evidence from Mr Dixon and the other individuals, as directed by the court in the order of 26th June.[17]At the hearing, in addition to Mr Ward, who again appeared on behalf of the guardian, the father was represented by Mr Chapman of counsel and Mr Dixon by Mr Godfrey of counsel. I am very grateful to all counsel for their assistance in this case and in particular to Mr Godfrey who has, at very short notice, had to master a great deal of information on behalf of Mr Dixon.

Committal Application

[18]The father's application to commit Mr Dixon, which he prepared himself, asserted that Mr Dixon was in breach of a number of orders contained in the various orders made by Judge Tyzack on 6th February 2014, 27th February 2014, 28th March 2014 and 7th May 2014, including orders to disclose information as to the whereabouts of the mother and G, prohibiting him from providing money to the mother and prohibiting him from facilitating the mother in any way in remaining outside the jurisdiction. In the course of submissions, however, it became apparent that there were serious procedural flaws in all of these orders.[19]First, the order of 7th May expressly discharged a number of orders contained in the order of 28th March. According to the sealed order, the orders discharged included all of the orders made against Mr Dixon on 28th March, although, as stated at the bar, Mr Ward's understanding, as reflected in his draft sent to the court, was that one order, namely that prohibiting Mr Dixon from giving money to the mother, was not intended to be discharged.[20]Secondly, the order of the 7th May was silent as to the earlier orders made against Mr Dixon on 6th February and 27th February. It was the father's case that those orders therefore remained in force, but paragraph 5 of the order of 7th May stated, as quoted above, that:
"As a result of paragraph 4, Mr Dixon (and others) were forthwith discharged from the proceedings."
In addition, the order of 7th May identified a number of paragraphs of the order of 6th February which were "confirmed," but these did not include those paragraphs containing orders directed against Mr Dixon. Furthermore, Mr Godfrey informed the court on behalf of Mr Dixon that attendance notes taken by the solicitor who represented Mr Dixon on the hearing of 7th May indicated that it was stated by the court that all previous orders would be discharged. Mr Godfrey therefore submitted that there was, at the very least, a significant ambiguity concerning whether the earlier orders against Mr Dixon remain in force and, on his instructions, they plainly did not.[21]Thirdly, whereas there is no doubt that paragraph 6 of the order of 7th May did remain in force, prohibiting Mr Dixon from taking any steps to facilitate the mother remaining outside the jurisdiction for a period of 12 months, the order of 7th May did not, as stated above, include a penal notice.[22]The Court of Appeal has stated that technical flaws in procedures leading to committal applications are not necessarily fatal to the success of those applications - see for example, Nicholls v Nicholls [1997] 1 FLR 649 and S-C v H-C [2010] EWCA Civ 21. As Wall LJ (as he then was) observed in the latter case, at paragraph 16:
"There is abundant authority in this court that the formalities of committal proceedings are to be strictly observed, but that a breach of the formalities may be overlooked if it does not affect the justice of the case."
That case also involved an application for committal for breach of an order which did not include a penal notice. On the facts of that case, the Court of Appeal concluded that it was important for the formalities to be observed if the order is to have penal consequences. By implication, the Court of Appeal was not ruling out the possibility that the absence of a penal notice would not necessarily be decisive if it could be established that the alleged contender was aware of the penal consequences of breaking the order, but the scope for such an exception seems to me to be limited.[23]Looking at the constellation of technical flaws in this case, it seemed clear to me, after hearing preliminary submissions, that the committal application was seriously undermined. After taking instructions, Mr Chapman indicated, on behalf of the father, that he was withdrawing his application to commit. I consider this to be a very sensible course in the circumstances.

Breach of Passport Order

[24]Mr Dixon accepts that he lied to the tipstaff's representative on 4th July, when he attended at his home and requested him to surrender his passport. The order required him to hand over his passport. It empowered the tipstaff to arrest any person whom he had reason to believe had disobeyed the order. It contained a penal notice warning that breach of any part of the order would be a contempt of court punishable by imprisonment and that, whether or not arrested by the tipstaff, any person in breach of the order may be summoned to court and, if found in breach, was liable to be committed to prison and have his assets seized.[25]The powers given to the tipstaff by orders made under the inherent jurisdiction are very important for the administration of justice and the protection of children. If they are disobeyed there is a risk that judicial process may be thwarted and, in some cases, the lives and welfare of children put at risk. Thus, those who wilfully disobey such orders must expect courts to take a serious view. A flagrant breach of a tipstaff order, such as occurred on this occasion, will normally be punished by a custodial sentence. In this case, Mr Dixon has accepted that he was in breach and apologised to the court on 13th July and again before me on 21st July. He says he lied for two reasons: first, because he did not want the father and the court to know that he had been out of the country and, secondly, to protect G and keep her whereabouts secret. He now accepts that he acted foolishly and regrets lying to the tipstaff's representative. Plainly, he allowed his love for and loyalty to the mother to colour his judgement. On his behalf, Mr Godfrey submits that it was an act of foolishness because, on any view, it was likely that the court would know that the passport had been returned to Mr Dixon and, in all probability, would further know about his travels abroad. Mr Godfrey points out that Mr Dixon is a man of good character, who runs a business, for whom imprisonment would be devastating, both personally and professionally.[26]I regard any breach of a tipstaff order as a matter of great seriousness and, as I have said, those who breach such orders should normally expect a term of immediate imprisonment. In this case, however, having heard Mr Dixon's explanation and apology and bearing in mind the mitigation put forward by Mr Godfrey, I have concluded that, on this occasion, there must be a sentence of imprisonment, but that it can be suspended. I therefore impose a sentence of two months' imprisonment, suspended for a period of 12 months.[27]Mr Dixon has further offered that the passport order should remain in force so that the court can keep his passport as he has no intention of travelling abroad to see the mother again, but I have concluded that by accepting such an offer this court would be falling into the trap identified by the President in Re B supra, namely retaining a passport as a means of coercing a third party to return to this jurisdiction. The purpose of the passport order was to secure Mr Dixon's attendance at this hearing for the application to commit and to give information under section 33. That point has now passed. It would not be right for the passport order to remain in force. Instead, Mr Dixon has volunteered an undertaking that he will give 14 days' notice to the guardian's solicitor of any intention to travel abroad in the next 12 months.

Whereabouts of the Mother and G and the Future

[28]At the hearing, Mr Dixon, the grandmother and the mother's stepfather have all filed statements and given oral evidence as to the whereabouts of the mother and G. L did not attend as he is apparently on holiday in the Far East, where he is almost certainly spending time with the mother and G. Mr Dixon, the grandmother and the stepfather have given the court further information, which it is unnecessary to recite in this judgment.[29]I conclude by reiterating what I said to the mother in the telephone hearing a few weeks ago: this court remains extremely anxious as to the welfare of G, who has been away from this country, her family and friends for 21 months. Those who have seen her say that she appears well and I have no reason to doubt that the mother is caring for her properly, but it cannot be in her interests to be out of this country, away from family, friends and school, living the life of a fugitive. If the mother returns with G, there will be a pause in these proceedings, this court will allow the mother and G to settle here before re-opening the question of G's contact with her father. If the mother wishes to raise allegations against the father, this court will arrange a hearing at which those allegations can be considered and findings of fact made upon which future decisions concerning G's welfare will be made.[30]Of course, there is an ongoing police investigation and DS Brewer, who has attended court, has made it clear that he cannot, himself, give any guarantee as to how that investigation will be resolved and it is no function of this court to give directions to the police or the CPS about those investigations. There is, however, a police liaison service with which the mother has apparently been in conversation to discuss the mechanisms for her return to this country. I strongly urge her to bring G back as soon as possible so that she can resume her life here.