ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE BAKER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE McFARLANE
| IN THE MATTER OF
W (A CHILD)
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Mr J Turner QC and Ms G More O'Ferrall (instructed by Pluck Andrew Solicitors) appeared on behalf of the Respondent mother.
Crown Copyright ©
Lord Justice McFarlane:
"3. The mother met the father in 2003 and they conducted an on/off relationship as a result of which [A] was born on 7 November 2006. The relationship ended in March 2008. On 7 November 2009 [A] went to stay with her father, with her mother's agreement, for a week of contact. The mother believed that the father was taking her to Southport for a holiday. In fact, unbeknownst to her the father flew with his own mother and [A], to Pakistan. When the father failed to return [A] to the mother's care at the conclusion of the holiday as planned, he spoke to her over the telephone and informed her that she was never going to see [A] again. He returned to [this] country and was arrested. There then followed a series of further conversations in which the father reiterated that the mother would never see [A] again and would have nothing further to do with her.
4. The father was apparently not detained by the police and on 18 December 2009 the mother issued an application [in wardship] leading to the hearing before Mrs Hogg J to which I have already referred, in which the learned [judge] on 21 December, made an order divided inter alia that the child should become a ward of the court, that the father should immediately disclose to the court, the mother and the police, the location of the child, including the exact address where she is resident and the name and contact details of any person who was presently caring for the child. Furthermore, the order required the father to 'Cause the child to be returned to England and Wales forthwith'.
5. Thereafter there were various negotiations between the mother's solicitors and the father which Mostyn J in his judgment, described as 'Sordid negotiations whereby he wanted only to have to return [A] provided he had an equal share of the care of her'."
"When I pushed [the father] for a response in relation to what would happen if we could not reach an agreement he became frustrated and said that [A] was 'settled in Iran with her brother' (by which he meant his son) and his partner. He said that his partner was really [A's] mother and that [the mother] was her 'biological mother'."
Secondly, at page C16, a telephone conversation on 1 March:
"He said that if [the mother] was willing to relieve all her rights and responsibilities as [A's] mother then he would 'pay her a lump sum of £250,000'. He said that £100,000 would be in an account by the 29th March and then £150,000 would be available the month after. I told him I thought it was entirely inappropriate to be making such an offer but he was insistent that I speak to [the mother]. A copy of [the father's] email detailing the proposal is attached."
And indeed, the court has a copy at page C50 of an email from the father in precisely those terms. It was matters such as that to which Mostyn J had referred.
"Mostyn J rightly criticised this approach of the father as an attempt by him to 'Parley with the court about its orders'. As Mostyn J observed, 'Orders are there to be complied with, it is part of the rule of law and if they are not complied with then he must expect to suffer the consequences'. As Mostyn J observed in his judgment, the father's response was the exact opposite of what was required of him by the order of Mrs Hogg J. Instead of returning [A] to England, it seems that he arranged for [A] to be removed to Iran. In his evidence before Mostyn J, the account given by the father was that he had arranged for [A] to be cared for in Iran by the family of his former girlfriend [AK] … and a friend of the father's, called [MK]. The father told Mostyn J that he had moved [A] to Iran because he was fearful that his own father would go to Pakistan to recover her and take her back to England."
It is no surprise to this court that Mostyn J regarded the matters I have just summarised as being distinct aggravations of the already aggravated circumstances of the original abduction.
"I am sure that he is deliberately concealing information from the court about his daughter's whereabouts."
That finding led to a finding of contempt of court by the father failing to comply with the order that had been made on 15 March 2011, requiring disclosure of information as to the child's whereabouts and the contact details of those who the father knows are caring for her.
"In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court."
"It was open to the mother to make a fresh application to commit the father for contempt; she would then have to demonstrate, by sufficient evidence to make the judge sure, that there was a means by which the father could effectively return the child and that he had failed to do so. If such contempt were proved, it would not be in the least surprising, in the context of the deliberate prior abduction of a toddler, if the judge were to think in terms of a sentence several times longer than the one already imposed…"
Then in the body of the judgment itself, Lord Justice Hughes is quoted in these terms:
"It is open to mother to make a fresh application. Father should understand that it is his duty and his legal obligation to do everything within his power to undo the grave wrong which he has done both to the child and the mother."
That authority would seem to contemplate, despite the mindset and the continued behaviour of the father in failing to bring the child back, continued use by fresh order and if breached, fresh contempt proceedings of the process that was undertaken in this case.
"That order was not complied with, and it was a single breach. It seems to me that it was quite plain that there was no power in the court to commit Mr Jalal again on 23 July 1996.
I would conclude by drawing attention to the fact that the current edition of Borrie and Lowe on the Law of Contempt … p 630, n 15, in a passage dealing with the case of an offender who repeatedly commits contempt, states:
'If [the strategy of seeking increasingly longer sentences] is adopted care should be taken that a fresh order is made on each occasion lest a plea of autrefois convict is raised.'"
"The enforcement aspect is more difficult. If we thought it at all likely that the dismissal of all Mrs Barrell's applications to this court and the continuance of her incarceration for some reasonable period would lead to her producing the securities or enabling them to be recovered by the Official Receiver then we would be in favour of refusing her application for release … But we do not think there is the least likelihood that if Mrs Barrell were kept in prison she would now within a short time disclose the true story of these securities."
"Of the two elements of the punishment inflicted by the original order, one has by now surely been served, namely, that of punishment for the contempt itself. All that remains now of the order, so it is asserted, is that part of the period of two years which can only be said to relate to the coercive effect which it was hoped by the judge the sentence would impose on him. It being obvious to everyone now that no form of coercion, including no matter how long a stay in prison, is going to cause this man to change his mind, it is pointless to keep him where he is."
In contrast to those two reported cases, there is nothing in the evidence that was before Baker J to establish that a similar stalemate had been reached with this father stoically refusing to cooperate. On the contrary, the father's case was that he too would like to know where his daughter now is and was putting forward suggestions for locating her.
Lord Justice Tomlinson:
Lord Justice Hughes:
Order: Appeal dismissed