ES (A Child), Re [2016] EWHC 3213 (Fam)

Case No FD12P00013

[2016] EWHC 3213 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF E S (A CHILD)

Venue Royal Courts of Justice

Date Wednesday, 7 th September 2016

Before

MR. JUSTICE BAKER

(In Private)

Between

Applicant MotherApplicant

Respondent FatherRespondent

B E T W E E N:

N I B Applicant

- and -

T S (1)

E S (by her children’s guardian) (2)

Respondents

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MARK JARMAN (instructed by Jones Myers) appeared on behalf of the Applicant Mother.

GERALDINE MORE O’FERRALL (instructed by Goodman Ray) appeared on behalf of the First

Respondent Father.

The Second Respondent was not represented

J U D G M E N T

[1]This is an application by a father for the discharge of long-running wardship proceedings concerning his daughter, E, who was born on 2nd February 2007 and is, therefore, now aged nine. The application is opposed by her mother, who urges the court to continue the proceedings.

[2]The background to this application is long and, in my view, tragic. It is summarised in the chronology and has been set out in previous judgments and I do not propose to recite it in full detail here. The mother is a British national and the father is an Egyptian and British national. The parties met in Egypt in 2005 and married in that country in 2007. E was born in Egypt on 2nd February 2007. She has dual Egyptian and British citizenship. Later that year the parties moved to the UK. In 2011 they separated. At that stage E remained with her mother, with contact with the father. In December 2011 the parties travelled to Egypt. It is the father’s case that while they were there they agreed that E would remain in Egypt with her paternal grandmother. The mother denies that such an agreement was ever reached. The mother returned to the UK without E at the end of the year. The father returned shortly afterwards.

[3]On 3rd January 2012 the mother started these proceedings by seeking an order for location and an order for summary return. That was considered by his Honour Judge Horowitz QC sitting as a judge of the Division, who made the order that E should be a ward of the court on that day, 3rd January, thus starting the proceedings which remain in place. He further made a location order and ordered the father to return the child to the jurisdiction forthwith. He gave further directions in the proceedings. Two days later the father was arrested by the police on service of the orders and brought before the court the following day. He indicated to Judge Horowitz that he did not know the address where the child was and did not know the telephone number of his mother, who was caring for the child. The judge concluded the father was in contempt of court and remanded him in custody until 10th January, directing the matter should return to court that day.

[4]On that day it came before His Honour Judge Mitchell sitting as a deputy judge of the High Court. He again heard oral evidence from the father and, as the order recorded, concluded beyond reasonable doubt that the father:(1) had repeatedly and continuously failed to give details as to the whereabouts of the child;

(2) had failed to make available a telephone number to contact the child and that the father was disingenuous in asserting that he had no means of communicating with E; and

(3) had failed to answer questions concerning his passports and travel documents. On making those findings, the learned judge remanded the father into custody for a further ten days, when he would be sentenced. He gave further directions for that next hearing.

[5]That hearing on 20th January also took place before His Honour Judge Mitchell. The order made that day records, amongst other things, that the father had been given two further opportunities to speak to his brother in Egypt by telephone. The judge concluded that, as a result of the contempt of court, the father should be committed to prison for a period of sixteen months from the date of his arrest. He gave further directions, including an order seeking information from the father’s family in Egypt and other orders designed to locate the child.

[6]The case thereafter returned to court on a number of other occasions before a number of other judges and I do not propose to recite the details of those hearings. The father was produced at the hearing and given opportunities to provide information as to the child’s whereabouts. On each occasion he said he was not able to do so. Further orders were made against him, ordering him to produce information. Thus, for example, on 15th January 2015 the matter came before Cobb J. He again took oral evidence from the father. He again found the father to be in contempt of court and he ordered a further sentence of imprisonment, in this case twelve months. He ordered the father to return or cause the return of E to the jurisdiction, repeating orders made on a number of previous occasions, and he further ordered the father to provide information to the mother’s solicitors as to the whereabouts of the child. He also ordered the father to arrange contact by telephone or Skype for the mother. Despite these orders, no contact took place at this stage, no information was produced about the whereabouts of the child and the father remained in custody.

[7]On 15th May 2013 a freezing order was made by Bodey J in relation to all of the father’s bank accounts in the course of these proceedings. The matter came back before Wood J in July 2015, who conducted the hearing over two days. He also made a finding beyond reasonable doubt that the father was in contempt of court of the orders of Cobb J made six months earlier. He again imposed an immediate custodial sentence upon the father totalling six months to run consecutive to the term which he was already serving. He again ordered the father to immediately return or cause the return of the child to the jurisdiction and ordered the father to provide information concerning the whereabouts of the child to the mother’s solicitors.

[8]The matter came to the court on 2nd September 2015, on this occasion before Holman J. On this occasion the judge, having heard the oral evidence of the father, again found beyond reasonable doubt the father was in contempt of court, on this occasion for breach of the orders of Wood J of July 2013, and he imposed a sentence of six months imprisonment for the breaches to run concurrently to each other but consecutive to the term which the respondent was already serving. On this occasion a judgment was given and a transcript was produced, which is before me. I have read it and I draw attention to these matters.

[9]The judge noted the position of the father, as set out in oral evidence, that the view of his family was that E was an Egyptian child born in Egypt and that the family was not taking orders from a foreign court and that the father had said that he would not go against his family. However, the judge found:

“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.”

The judge continued:

“I am left in no doubt at all first the father knows a great deal more about the whereabouts and circumstances of his child than he is willing to reveal, whether in obedience to paras.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 instruction 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 on being sure that the breach by the father of paras.3, 4 and 5 of the order of 2nd July 2013 is deliberate and is, frankly, contumacious.”

Later in the judgment

the judge added this observation at para.23:

“I do regard it as an aggravating feature that, despite now already serving twenty-one 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 may come ‘when further punishment will be excessive’ were the words of Hughes LJ [in Re W (Abduction: Committal) [2011] EWCA Civ 1196]. I do not consider that this time has come yet in this case.”

[10]In December 2013 a further application was made by the mother’s solicitors to commit the father to prison for contempt of court. This led to an acknowledgment of service in which the father contested the notice to show cause and requested the strike out of the claim on the grounds inter alia that the committal application was an abuse of court process. When the matter came back before Holman J on 19th December, the judge on this occasion dismissed the application for committal. It is important to look carefully at his reasons for doing so, as set out in the judgment delivered that day, which has also been transcribed. First at para.10 the judge noted:

“Frankly, nothing has changed between 27th September 2013 and today and so for the purposes of this judgment, but only for the purposes of this judgment, I will proceed on a working assumption, without making an express judicial finding, that the father could, indeed, between then and now have complied with the orders that I made on 27th September and that his failure to do so is a contempt of court.”

A little later in the judgment, however, the judge continued at para.15: “It is extremely important in this case to appreciate and have firmly in mind that there is no evidence that the father has committed any actual criminal offence under the law of England and Wales or the United Kingdom. In para.54 of the judgment of the Court of Appeal in R v Kayani; R v Solliman

[2011] EWCA Crim 2871

Lord Judge LCJ said at para.54: ‘The abduction of children from a loving parent is a an offence of unspeakable cruelty to the loving parent and to the child or children… It is a cruel offence even if the criminal responsible for it is the other parent.’ Mr. Jarman understandably emphasises that passage in that judgment. I wish to make it absolutely clear that I do not in any way whatsoever condone the actions of the father in the present case, nor do I minimise in any way whatsoever the gravity of what has happened and is continuing to happen and, indeed, the cruelty of it upon the mother but it is extremely important not to forget that those words of Lord Judge related expressly to an ‘offence’ and to ‘the criminal’ responsible for it.’” ‘The abduction of children from a loving parent is a an offence of unspeakable cruelty to the loving parent and to the child or children… It is a cruel offence even if the criminal responsible for it is the other parent.’

[11]Thus Holman J emphasised that there was no evidence, nor reason to believe, that the father had committed any criminal offence at all under the law of England and Wales. In saying that, of course, he was referring to the criminal offence of abduction. He was, however, faced with the fact that the father had on repeated occasions committed a contempt of court. He noted that Parliament had fixed a maximum sentence of two years imprisonment for contempt of court. He further noted that the father had by now served the equivalent of twice the statutory maximum. He then continued at para.24:

“24. The reality of this case is that this man has taken a stance, at any rate for so long as he remains in prison. He asserts that he cannot comply with these orders. Judges, including myself, have been sure that he can comply and is, rather, choosing not to comply, but that is the stance which he has taken. Although successive orders are legally permissible, the reality in this case is that from day one this father has manifested an absolute determination not, under pressure of court orders, to reveal the whereabouts of his child and not to cause her return to England. That is a very grave contempt of court in the circumstances of this case but it was no less grave at the outset than it is now. The reality is that he has made very plain indeed at a very early stage that he would not comply with these orders. For that flagrant contempt he could of course have been sentenced to the maximum term. The maximum term was two years imprisonment. It seems to me the court has to be very cautious indeed not to subvert altogether the will and intention of Parliament when enacting s.14 of the Contempt of Court Act 1981 by now contemplating sentencing for aggravated periods that are more than double that term. It seems to me that this case has moved beyond the scope of what was described by the Court of Appeal in Re W and that the man cannot be punished further. 25. So far as the coercive purpose of any sentences concerned, I am afraid it is my clear view that this man has had an absolute determination, at any rate while he remains detained in prison, not to obey the orders of this court and that the coercive force of any sentences of imprisonment is now spent. So if I were to commit him to prison for a further term, the realistic purpose would be solely to punish him, which, for the reasons I have given, I cannot lawfully further do.”

[12]Thus the sentence of imprisonment for contempt of court came to an end and the father has not subsequently been committed to prison, although it remains manifestly clear to my mind that he has remained in contempt of court. Holman J gave further directions at the conclusion of this hearing and in a further order made on that date ordered that the freezing order of 15th May be relaxed to a certain extent to allow the father to withdraw certain sums from one of his accounts.

[13]The matter came next before Hogg J in January 2014. At that hearing the order records that the parties agreed to go to mediation. Further, the order records that the mother informed the court through counsel that if E was returned to this jurisdiction, she could reside with her father in the first instance. The learned judge continued the wardship, which had been continued by successive judges since the original order of His Honour Judge Horowitz and made further directions, including the direction that the father should by 3rd February 2014 file and serve a statement setting out all practical proposals for the return of E to this jurisdiction. The matter returned to court on 5th February. On that occasion Hogg J ordered that E be joined as a party to the proceedings and that Mr. Mellor of the CAFCASS team should act as her guardian. The judge recorded in her order that the father had on that occasion made arrangements with the paternal grandmother to telephone him at court and make E available on the phone to talk to her mother and, indeed, that happened in the presence of Mr. Mellor. That was the first time, as I understand it, the mother had spoken to her child for two years. The judge made further orders to facilitate the return of E to this country, for example by providing that the port alert should be lifted to prevent any member of the father’s family being arrested should they bring E back to this country. The judge made a series of further orders, including renewing the order that the father should immediately return or cause the return of E to this jurisdiction. Shortly afterwards the parties attempted mediation through Reunite but that organisation concluded that mediation was not suitable because the father was asserting that he had no power over his family in Egypt.

[14]A further hearing took place before Hogg J in April 2014. The orders on the father to return the child were renewed. On 23rd April a Skype contact took place at the office of the mother’s solicitors in the presence of the mother, father and Mr. Mellor of CAFCASS. A further Skype contact took place on 7th May at that location, on this occasion with an interpreter. In September the matter returned to court, when Hogg J noted in her order that, although there had been some contact, she was concerned that the father had been apparently unable to set up regular Skype contact. She renewed orders for the child’s return and made a further order that Skype contact should take place on a regular basis, ordering the father to make E available for Skype contact each Saturday. In other words, it is clear from that order, as from the other numerous orders in these proceedings, that the learned judge took the view that the father was in control of what happened to his daughter. A further order in similar terms was made in October 2014 when Hogg J ordered the father to make arrangements for contact every Friday at an agreed location between E and her mother on a laptop computer. Eventually, in late 2014, weekly Skype contact between E and her mother started. The arrangements were, as I understand it, that the father took his laptop computer to the offices of the mother’s solicitors in Leeds, where contact took place.

[15]In early 2015 at the hearing before Hogg J the court and the parties discussed the possibility of both parties travelling to Egypt to participate in mediation and possibly for contact to take place. A further hearing took place in June 2015 at which further directions were given. In August 2015 the mother travelled to Egypt but, as I understand it, no mediation or contact took place.

[16]In October 2015 the matter came before Roberts J for the first time. On that occasion she renewed the direction to the father to make E available for contact with the mother by Skype every week. In order to facilitate contact the learned judge was persuaded to lift the restrictions on the father leaving this country and she discharged the order on him leaving the jurisdiction and also the port alert. As a result, in December 2015 the father travelled to Egypt and in the following month the mother travelled there too. She travelled in the hope that contact would be arranged if she went there herself. In the event, however, no contact took place. Furthermore, although there had been some indirect contact in the less restrictive circumstances provided by Roberts J’s order, namely between the mother and E on the mother’s iPad without the father being present, those indirect visits have come to an end suddenly in January 2016. Since that date the mother has had no contact of any sort with E.

[17]The matter was brought back before Roberts J in March 2016. By that date the mother had returned from Egypt but the father was still in Egypt. The learned judge, therefore, listed the matter for a further hearing a few weeks hence. That hearing which took place on 21st March was also before Roberts J. On that occasion she ordered again that Skype contact should take place once a week. She gave further directions and she listed the matter for a further hearing on 15th April, at that point indicating, no doubt at the request of the father, that she should consider whether these wardship proceedings should continue.

[18]The hearing on 15th April 2016 took place before Sir Peter Singer. What happened there is recorded in the order he made on that occasion in the recitals thereto from which I read:

“The court was informed that no indirect contact by Skype between the mother and E had taken place since 15th January 2016. The father indicated to the court that he was not aware why this had not taken place. The father indicated to the court that he travelled to Egypt with both his British and Egyptian passports and entered Egypt with his Egyptian passport but that his Egyptian passport was retained in Egypt by his brother at his brother’s request. The father stated that he then left Egypt, using his British passport and that his English passport was stamped on exiting Egypt. The court directed that a copy of his British passport and stamp were provided to the court and to the mother. The father commenced giving oral evidence to the court, during which it was quickly established that the father appeared unwell and stated that he had in the preceding nine hours taken four 45mg tablets of a medication, mirtazapine, prescribed for him. This was in excess of the prescribed dose of one 45mg tablet each day at night time. Consequently, a paramedic was called to court to assist the father, who recommended the father go to hospital for a further health assessment, although such an overdose was not toxic. The father refused to go to hospital until his British passport was returned to him. The court reconvened at 2.15 p.m. to hear argument in relation to the father’s passport and refused the mother’s application that the father’s passport should be held either by the Tipstaff or by the father’s solicitor but made a passport order in respect of the father’s Egyptian passport. The father left court for hospital immediately his British passport was returned into his possession.”

On that occasion Sir Peter Singer repeated the order for indirect contact via Skype and made a port alert order and listed the matter before me on 28th June. The father subsequently attempted to apply for permission to appeal the port alert. That application was declined by Holman J on 24th May.

[19]Thus, the matter came before me for the first time on 28th June of this year. What happened on that occasion is again set out in the recital, for which I recorded as follows:

“Both parties attended the hearing. The court was informed that no indirect contact via Skype between the mother and E had taken place since 15th January 2016. The court heard opening submissions…. The court heard further submissions on behalf of the father and an application that he should not give oral evidence. Having heard submissions, the court determined that the father should give oral evidence. The court was then informed by counsel for the father that during opening submissions the father had taken a number of prescription tablets. The court concluded that the father was not in a fit condition to answer questions. Paramedics attended court and the father was taken to hospital. The paramedics advised counsel for the father informally that the level of overdose taken, eight mirtazapine tablets, was not toxic but required hospital attendance. The court did not make any findings or determine any issues at this hearing.”

[20]At the conclusion of the hearing, I directed the matter should come back before me on 4th July. In particular, following submissions on behalf of the father, who had indicated that her client was reluctant to answer questions from the mother’s counsel, I directed that that Mr. Jarman, instead of asking questions directly, should submit in written form the questions he wished to be put on a number of topics listed in the order so that at the next hearing the court could put the questions, in addition to any other questions the court thought fit at the next hearing.

[21]The matter came back before me on 4th July. On that occasion the father gave evidence. His evidence was very much in line with what he had said on previous occasions. It is unnecessary for me to read out in full what he told the court on that occasion. He confirmed that he travelled to Egypt in the first week of December 2015 and returned in March this year. He gave an account of where E was living. He said he did not know the address but she was staying in a villa at a resort, which he described. He described how he had had contact with E on a number of occasions during his visit. He said that, when he tried to raise the subject of the long-term, there had been a reluctance amongst his family members to talk about the matters. He said that decisions were taken by his grandfather’s brother, who was effectively the head of the family, and it was not a matter for him to decide what should happen to his daughter. He was not able to contact that gentleman directly. If he wished to speak to him, he had to go through one of his own younger brothers. He knew that there were proceedings had started in Egypt, to which I shall return later, but said that he was impeded from taking part in those proceedings by the freezing order imposed in this case. He accepted that it was a good idea for any child to be in a relationship with both parents but told the court that E had formed a resentment against her mother because of the way in which she perceived the mother had treated the father, in particular causing him to be imprisoned. He had no information about where the child was at school or how she was doing at school. He said that he had asked his family members but had been told: “please don’t ask.” He said that he did not take any photographs when he was visiting her on this occasion. He reiterated that E did not want to speak to her mother at present. No orders or findings were made on that occasion because of a shortage of time and the matter was adjourned until today for submissions to be made about what course the court should now make. However, subsequent to that an application was made by the father in person to lift the port alert order so that he could travel to order and, after further email communications, which I need not describe in any detail, I agreed to lift that order. However, the father did not travel to Egypt in the summer, he says because he did not have sufficient funds to do so. An application by him to have funds released by further relaxation of the freezing order was rejected by Holman J at a further hearing on 2nd August.

[22]Thus, the matter came before me today. Before going on to the submissions that have been put before me today by the parties I should refer briefly to the Egyptian proceedings. I have only limited details of those proceedings. What is known is that proceedings have taken place in Egypt and that orders have been made on two occasions that the child should be placed in the mother’s care. It is not clear to me what role, if any, the father has played in those proceedings. It is his case that he has played little, if any, role. Furthermore, it is not clear to me what steps, if any, have been taken to enforce the order made by the court, save that I do know as a result of a translation of a document put before me today that in May this year the Egyptian court appears to have passed a prison sentence on the father because of his non-compliance with a court order. Other than that, it seems to me it would be unwise for this court to draw any further conclusions as to what has happened in the Egyptian proceedings.

[23]The question for me now is whether or not these wardship proceedings should continue. On behalf of the mother, Mr. Jarman argues that they should. The child has been separated from the mother for several years, despite many orders to the contrary made by this court and, it seems, the Egyptian court. The mother has had no direct contact now for five years and has had very limited indirect contact via Skype over a short period of time between 2014 and early 2016. That contact has come to an end suddenly without any real explanation and there has been no contact now for nine months. Mr. Jarman describes it as intolerable and contrary to E’s welfare interests. As a result, he submits that these proceedings should continue to provide a means by which the relationship between the mother and her daughter can be restored in E’s best interests. Mr. Jarman submits that judges have repeatedly found that the father has openly defied court orders. Judges have simply not accepted his argument that his family is in control of what happens to his daughter and that he is powerless to decide what should happen to her in the future. Mr. Jarman submits that the father has chosen to stop indirect contact and that it is within his power to restart it. He submits that the father has failed to engage with the Egyptian court. He submits that, insofar as the father feels aggrieved about what has happened to him in the course of these proceedings, it is entirely self-inflicted.

[24]On behalf of the father, Miss More O’Ferrall submits that there is no benefit to E from continuing the wardship process, which on her submission has continued for five years without achieving any meaningful success in terms of making orders that have had any material effect on her welfare. Her client’s approach is summarised in a letter which he sent to the mother’s solicitors on 30th July when seeking to have the port alert lifted. I have read the whole of that letter, much of which is criticism of the mother and her legal representatives. His approach is summarised in the following passage:

“Hopefully if you are aware of what I am hoping to achieve your side’s negative and destructive approach in these proceedings would calm down a little bit and stop coming in the way of progressing forward.. (a) I wanted to fulfil the child’s wish to have her daddy during this special time for her. (b) I wanted to reduce her fears that she is less than other children around her, who can go out with at least one of their parents to buy them new clothes and presents for the holidays. (c) I hoped the festive atmosphere over there during this time of the year would have created a good opportunity for me to work on reducing E’s current resentment towards the mother. (d) I envisaged that having her wishes fulfilled, having her daddy with her, buying her the presents she wanted and going out with her to the places she wanted to visit would have uplifted her spirit and would have put her in a cheered up mindset and in a state of improved emotions. (e) This mindset would have definitely helped me a lot in my objective to bring down the aforementioned resentment and, when reaching an appropriate lower level, I would have discussed with E the question of her calls with the mother. My intention was to discuss the subject and express it to her in the form that it is a wish of Daddy that she speaks to her mum and she keeps the contact going. (f) I would have continued with the help of my mother these efforts and process of persuasion until the child agrees to re-establish the contact with your client.”

[25]The father is maintaining his position that the mother’s conduct is counterproductive and that she has denied her daughter the opportunity to see her. Miss More O’Ferrall emphasises in her submissions the strong sense of grievance which she says the father feels about his ill-treatment at the hands of the English Family Court. He apparently relies on his interpretation of Holman J’s judgment, which he regards as indicating that he has not committed a crime. Thus, he has, it is said, a sense of injustice and of resentment at the interference of the English court, which is shared by his family. It is said that there is no prospect of any progress so long as these proceedings continue.

[26]In analysing these submissions, I begin by addressing the father’s alleged sense of injustice. I tell the father straight that such feelings are unwarranted. If he thinks that Holman J’s view was that he had not committed any offence which required imprisonment, he is wrong. Holman J was plainly of the view that the father had not committed the criminal offence of abduction but he was equally plain the father was in breach of orders and he made no criticism of the approach of the previous judges in passing prison sentences for those breaches. Indeed, he himself had passed such a sentence only a few months earlier. Holman J’s view was that it was inappropriate to make a further sentence given the overall sentencing powers of the court for contempt of court. He emphatically did not criticise any of the earlier decisions about how the father’s disgraceful behaviour and contumacious contempt should be dealt with.

[27]I listened carefully to the father’s evidence on the last occasion. I did not believe much of it. In particular, I do not accept that he is powerless to influence his daughter’s future and totally in the hands of his family. I consider that he is presenting a false case to the court in putting forward this argument. I note that that is a view which has been reached by judges on previous occasions. I have no doubt, however, that, if the father wanted to do so, he could arrange for his daughter to return to England and could do so within a few days.

[28]In my view, this father is behaving in a disgraceful, manipulative and abusive way towards E and her mother and the court. His assertion that all would be well if the wardship came to an end is, in my view, totally implausible. I do not believe him. He has demonstrated a willingness to refuse to comply with court orders and has defied a number of judges on many occasions at many hearings. I find that the steps that he offers to take in the letter in the passage that I have read out are steps that he could take if he chose to do so immediately, whether or not these proceedings continue. In other words, I see no reason why he could not bring about an immediate resumption of indirect contact, nor any reason why he could not talk to E about how it is important to have contact with her mother.

[29]That, of course, does not mean that these proceedings should necessarily continue. In making that decision, it is E’s welfare that must be my paramount consideration. Although she has not been in this country for several years, and although no contact has taken place, I do consider that these proceedings have served a useful purpose, and are continuing to serve a useful purpose, by providing a forum wherein her future can be considered in this jurisdiction, and furthermore by applying some pressure to the father, who, I am satisfied, is in control of events, to persuade him to bring about a resumption of relationship between daughter and mother. In my judgment, it is important for these proceedings to remain alive so that this court can do what it can to help. It may be that only a minimal amount can be achieved in the circumstances but this court is not going to desert E. Accordingly, the application for dismissal of the wardship proceedings is refused.