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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K, Re [2014] EWCA Civ 905 (15 July 2014)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/905.html
Cite as: [2014] EWCA Civ 905
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Ms Justice Russell
FD14P00124
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MCFARLANE
and
LORD JUSTICE KITCHIN
____________________
| In the matter of K (A Child) |
____________________
Mr M Jarman (instructed by Landmark Legal) for the Respondent
Hearing date: 4 June 2014
____________________
Crown Copyright ©
- These are appeals by a father against orders made by Russell J in wardship proceedings concerning M, a young boy who was born on 5 July 2012 and is currently in Singapore where he is being cared for by his paternal grandparents.
- The first appeal, for which the father needs permission, is against an order of 14 March 2014 by which the judge declared that M is habitually resident in this jurisdiction, required the father to return or cause the return of M to this jurisdiction by 18 March 2014 and directed that until M had been returned the father's passport should remain with the Tipstaff. The judge ordered the father to pay to the mother her costs which she summarily assessed in the sum of £51,800.28.
- The second appeal, for which the father also needs permission, is against an order of 21 March 2014 by which the judge required the father to return or cause the return of M to this jurisdiction by 28 March 2014. The order contained the following recital:
- The third appeal is against an order of 3 April 2014 by which the judge refused an application that she should recuse herself from the proceedings and sentenced the father to an immediate term of imprisonment for a total period of eighteen months for his breaches of the orders of 14 March and 21 March 2014 and another order which she had made on 19 March 2014, in each case for failing to return or cause the return of M to this jurisdiction. More specifically, the judge imposed a term of imprisonment of six months for the father's breach of the order of 14 March 2014, a term of imprisonment of twelve months for his breach of the order of 19 March 2014 to be served consecutively to the term of six months for his breach of the order of 14 March 2014, and a term of imprisonment of twelve months for breach of the order of 21 March 2014 to be served concurrently with the other two terms.
- We heard full argument on all three appeals on 4 June 2014 and I would therefore grant the father permission to appeal against the orders of 14 and 21 March 2014. At the conclusion of the hearing we formed the clear view that we must allow the appeal against the order committing the father to prison and we therefore set that order aside and directed that he be released from custody forthwith. We indicated that we would provide our reasons for so deciding and our decision in relation to all other issues before us in writing. That I now do.
- The mother, a Mongolian citizen, and the father, a Singaporean citizen, met in Singapore in late 2010. The mother was at that time studying English in that country and the father was working there as a banker. They began a relationship and in June 2011 they were married. By the time of the marriage the father had begun to work for J P Morgan in London.
- In October 2011 the mother secured a United Kingdom visa which allowed her to join the father in London. She moved into a flat which he had bought in Westbourne Terrace and she has lived there ever since. Some nine months later M was born. The father was working full time and the mother was M's primary carer.
- Difficulties in the marriage emerged soon after M's birth and in 2013 the relationship deteriorated still further. The mother contacted the police in February 2013 and alleged that she had been the victim of domestic violence. This led to the father's arrest but he was later released without charge. This was followed by an assessment by Westminster social services who reported that the mother and father had indicated that they intended to remain in the United Kingdom.
- In July 2013 the mother and father travelled to Singapore with M for a holiday and with the intention of leaving M in the care of the paternal grandparents. It was the mother's case that it was clearly understood and agreed by the father and the paternal grandparents that this arrangement would only be for a few months and would allow the mother to study full time for some exams she wished to take in the autumn of that year. It was the father's case that the mother agreed that M would live with the paternal grandparents for at least a year, if not indefinitely.
- The mother and father duly returned to the United Kingdom without M. The mother began to study full time and in the autumn sat and passed the exams for which she had enrolled. The father continued to work at J P Morgan. The mother said in evidence that in November 2013 she told the father she wished to return to Singapore to collect M and bring him back to the United Kingdom. The father disputed this account but he accepted that he booked and paid for two tickets for himself and the mother to fly to Singapore on 17 January 2014 and three tickets which would allow them to return with M to the United Kingdom on 25 January 2014.
- The mother and father travelled to Singapore on 17 January 2014 as they had arranged. However, on 22 January 2014 and without any prior notice, the mother was served with divorce and custody proceedings which the father had issued in the High Court of Singapore some two days earlier. The father also told the mother that he had resigned from his job in London and had arranged to take up a position in Singapore, and that he would therefore not be returning with her to the United Kingdom.
- The mother responded to these events by instructing English solicitors who made an emergency application in the Family Division of the High Court in London. The matter came before Cobb J on 24 January 2014 and on that day he made two orders. The first required the father to surrender his passport to the Tipstaff. The second directed that M should be and remain a ward of this court until further order and required the father to return or cause the return of M to this jurisdiction on 25 January 2014 as, on the mother's case, had been planned. He also directed that the application should be listed for further hearing on 30 January 2014. The orders were communicated to the father by email that evening.
- Despite the orders of Cobb J, the father did not return to London with M on 25 January 2014 or arrange for M to be returned to the care of the mother. Accordingly M travelled alone. As she was leaving, an attempt was made to serve her with an order made by a Deputy Registrar of the Subordinate Court of Singapore prohibiting her from removing M from Singapore. Then, on her arrival in London, she found that the locks to the flat in Westbourne Terrace had been changed and that she could no longer access her joint account with the father.
- On 30 January 2014 the proceedings came on for hearing before Bodey J. The father, who had by this time returned to the United Kingdom, appeared in person, assisted by a Singapore lawyer. It became clear there was a live issue between the parties as to M's habitual residence, the mother maintaining that he was habitually resident in this jurisdiction and the father that he was habitually resident in Singapore. The judge also noted the existence of the concurrent proceedings in Singapore but, upon the father agreeing not to take any further steps in those proceedings so far as they concerned M, the judge gave directions for the hearing of the habitual residence issue.
- The effective hearing of that issue eventually took place before Russell J on 7 March 2014. Both parties were represented by counsel and they had each made witness statements upon which they were cross-examined. The judge handed down her reserved judgment one week later on 14 March 2014 and made the first order against which the father now appeals. The order requiring the father to return M to the jurisdiction was endorsed with a penal notice.
- The father failed to return or secure the return of M to this jurisdiction by 18 March 2014 and so the matter was listed before Russell J for the following day, Wednesday 19 March 2014. The father now appeared in person and it was by this time apparent that he had booked tickets for the grandparents to travel with M to London on Monday 17 March 2014 but that they had missed their flight. The father had then booked the grandparents on to another flight leaving on the following day and arriving early in the morning of 19 March 2014. But they had missed that flight too.
- On the morning of the hearing the father disclosed a series of emails in which he had emphasised to the grandparents how important it was that they should bring M to the United Kingdom. In particular, on Friday 14 March 2014 he wrote informing the grandparents of the judge's decision and then continued:
- All of these emails were shown to the judge at the hearing. However, she was not impressed and observed to counsel:
- Then, a little later the judge emphasised to the father that he had to do everything possible to bring about M's return:
- He was also told that he had one last opportunity to ensure M was returned and for him to remain at liberty:
- The judge encouraged the father to secure legal representation because, as she put it:
- The judge thereupon made the order, endorsed with a penal notice, requiring the father to return or cause the return of M to the jurisdiction by 8.00 am on Friday 21 March 2014 and standing the matter over until that day.
- The father promptly emailed the grandparents once again, informing them that the judge had given him one last chance and that he had booked tickets for M's grandfather to travel with M to London the following evening. He apologised for the fact that the flight was indirect and that he had not also booked a ticket for the grandmother but explained that this was now all he could afford. He urged them to respect his rights and to travel to London. Shortly afterwards, the grandfather replied saying that although he and the grandmother were very worried about him they would not return M to this jurisdiction.
- On 21 March 2014 the matter was restored before Russell J in accordance with her direction. She read the further email correspondence to which I have referred and enquired whether the father had taken action against the grandparents in Singapore. She was told by counsel for the mother that, to the best of the mother's knowledge, he had not. She then said this:
- Then, after referring to the decision of this court in R v Kayani; R v Solliman [2011] EWCA Crim 2871, [2012] 1 FLR 824, the judge continued:
- The judge again emphasised to the father that he should endeavour to secure legal representation and that he was entitled to public funding. After telling him once more that the likelihood of a substantial term of imprisonment was very high, the following interchange took place:
- The judge then made her order reciting that the court expected the father to make applications to the Singaporean court to ensure M's return to this jurisdiction and ordering the father to return or cause the return of M by 28 March 2014. The judge also directed that the matter should be listed for further hearing before her on 3 April 2014 and ordered the father to attend at that hearing. This is the second order against which the father now appeals.
- On 27 March 2014 the father made a without notice application to Theis J to discharge the order of 21 March 2014. The judge refused that application and directed, entirely properly, that any such application should be made to Russell J.
- The matter was therefore listed before Russell J in Manchester on 3 April 2014. Once again, the father appeared in person. At the outset of the hearing, the father made an application that the judge should recuse herself on the ground of apparent bias. He also applied for the committal application to be heard by a different judge. The judge retired and then returned and delivered a short judgment rejecting both applications. Having dismissed the father's applications, the judge then proceeded to deal with the committal application itself. In this regard she was referred to the application that the father had made to Theis J and also to an application made by the mother to Cobb J on 28 March 2014 for a freezing injunction against the father in light of certain property dealings which he had undertaken. The judge then asked the father to give evidence. He made an affirmation and, as on the previous occasion, was immediately cross-examined. He explained that the grandparents were retaining M and acting on their own accord. He continued that they had commenced proceedings against both him and the mother in Singapore and had refused to return M to this jurisdiction, despite his repeated requests. His relationship with the grandfather had, he said, broken down and he could not commence proceedings against the grandparents in Singapore because, as he put it, it would destroy his family. It was suggested to him that the email correspondence to which I have referred was fabricated and he responded that that was not true. At this point the father was asked questions by the judge and he said in terms that he disagreed with the order requiring M to be returned to this jurisdiction but that he understood that he was compelled to comply with it.
- The father was then asked if there was anything else he wanted to say. He responded that there were indeed a few points that he wished to make and proceeded to explain that he was unable to travel to Singapore himself because he had delivered up his passport; that he had done everything that he could to arrange for M's return and, in that regard, had bought tickets for M and one or both of the grandparents on three occasions; that he had exhausted his funds; and that he had pleaded with the grandparents to comply with the order to the point that the grandfather was no longer speaking to him or responding to his emails.
- The judge then retired to consider her judgment. She returned a little while later and gave an ex tempore judgment finding the father guilty of contempt of court and imposing the sentences to which I have referred. This is the third and final order against which the father appeals.
- The father appeals against three aspects of this order, namely the judge's finding and declaration that M is and was at all material times habitually resident in this jurisdiction; the order requiring the father to return or cause the return of M to the jurisdiction; and the order requiring the father to pay all of the mother's costs, which the judge summarily assessed in the sum of £51,800.28. I will deal with these in turn but must first outline some of the findings made by the judge in the light of the evidence which she heard.
- It is clear that the judge considered the father a thoroughly unsatisfactory witness. His evidence was, she held, contradictory and contained many serious assertions about the mother which were wholly unsubstantiated. Further, he had taken a series of steps which were intended to conceal from the mother his true intentions when they travelled to Singapore in January 2014. Strikingly, he had not informed the mother that he intended to divorce her and had instructed lawyers to prepare proceedings against her; that he had withdrawn from their joint account £18,000 the day before their departure; or that he had arranged with his employers to relocate to Singapore. Moreover, he had taken positive steps to mislead the mother by renewing his United Kingdom work visa and by buying three air tickets so that the whole family could travel together to London on 25 January 2014 when he had no intention of doing any such thing. He was also ignorant of M's routines and had taken no interest in the steps the mother had taken to prepare for his return. All in all he was, the judge considered, underhand, devious and cruel.
- By contrast, the judge found the mother to be a calm and dignified witness who felt isolated, having neither family nor support. Nevertheless, she had arranged further part time study for herself at Birkbeck College and had arranged a nursery place for M, a matter of which the father was aware.
- In light of all these findings it comes as no surprise that the judge preferred the mother's evidence over that of the father as to their intentions when they took M to Singapore in July 2013. The agreed purpose of the visit was, the judge held, to leave M with the paternal grandparents until November 2013 to allow the mother to complete her full time studies. It was a temporary arrangement which was only extended to January 2014 because the father indicated that his work commitments did not allow him to travel before that time. There was never any agreement that M would remain in Singapore other than for this relatively short period of time. Since January 2014, M had been retained in Singapore by the paternal grandparents without the consent of the mother.
- Against this background I come to consider the issue of habitual residence. The judge found that M was originally habitually resident in the United Kingdom and that this state of affairs did not ever change, primarily because his stay in Singapore from July 2013 was for a fixed purpose and intended to be temporary. He was not living with either of his parents and the mother planned to resume his care not later than January 2014.
- Mr Armstrong, who has appeared on this appeal on behalf of the father, contends that the judge fell into error because she wrongly assumed that M was originally habitually resident in the United Kingdom; did not take proper account of the temporary nature of the residence of the mother and father in the United Kingdom and the greater connection of the father with Singapore; and had inadequate regard to the fact that by January 2014 M had been resident in Singapore for some five months, a country with which he had an important connection as a Singaporean national.
- The principles to be applied by a court considering the habitual residence of a child were considered by the Supreme Court in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. As Baroness Hale explained at [54], habitual residence is a question of fact and the task of the court is to ascertain the place which reflects some degree of integration by the child in a social and family environment. This will depend upon many factors including the reasons for the family's stay in the country in question.
- More recently, in In re LC (Children)(Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] 2 WLR 124, Baroness Hale provided this further guidance at [59]-[60]:
- Then, after explaining that a child-centred approach must be adopted, Baroness Hale continued at [63]:
- I believe the judge was therefore entirely right to focus her attention on M and to consider whether he had achieved a sufficient degree of integration into a social and family environment in Singapore for his residence there properly to be characterised as habitual. It was also entirely proper for the judge to begin by considering the position before the particular events which have given rise to these proceedings. In that regard, I do not believe there can be any real doubt that until July 2013 M was habitually resident in England. He was born here and lived with his mother and father in the property which the father had bought in Westbourne Terrace. True it is that the father is Singaporean and the mother Mongolian, but this was the country in which the father was working and the mother was studying and in which they intended to live.
- Did the position change in July 2013 when the mother and father travelled to Singapore to leave M in the care of the paternal grandparents? I believe the judge was perfectly entitled to hold that it did not. M was entrusted to the care of the paternal grandparents for a few months but no more. It was understood and agreed that when the mother had completed her course of full time study the mother and father would return to Singapore where they would be reunited with M and then return with him to London. The arrangement was intended to be a temporary one until the father decided to separate from the mother and to relocate to Singapore. But at that point the father deceived the mother and concealed his true intentions from her in the manner I have described. In consequence the mother and father never had a common intention that they would continue their lives together as a family in Singapore or that M should continue to live there. In all these circumstances I believe the quality of M's residence and the degree of his integration into a social and family environment in Singapore was such that the judge could properly conclude it was not habitual. In my judgment the approach the judge adopted on this issue cannot be faulted; indeed I think the answer to which she came was correct.
- The judge is then criticised for failing to deal with the issues of welfare and forum conveniens. Mr Armstrong submits that the judge fell into error in failing to have regard to the fact that M is being cared for by the paternal grandparents, that Singapore is a signatory to the Hague Convention and that the court in Singapore was already seized of the case at the moment the English proceedings were issued. He also contends that the judge was wrong to make an order in the terms that she did requiring the father to return or cause the return of M to this jurisdiction. He argues that the judge ought rather to have made an order which clearly identified the steps which the father was required to take, and that was particularly so since the father had been required to deliver up his passport.
- In my judgment there is nothing in any of these points. The court was concerned with M's welfare in circumstances where the father had taken unilateral action to separate him from his mother by deception in the context of a breakdown in their relationship. The judge concluded that M's best interests required his immediate return to his mother's care. As the judge made clear, this did not preclude a consideration at a later stage of more general welfare issues or, indeed, of issues of forum. But, having satisfied herself that M was habitually resident in this jurisdiction and the father having given an undertaking not to pursue the Singaporean proceedings concerning M, it seems to me the judge was perfectly entitled to conclude that M's immediate welfare needs would best be served by restoring him forthwith to his mother's care. Moreover, the judge considered it important that the father should not be permitted to frustrate her order by returning to Singapore as he had made it abundantly clear it was his intention to do. At this stage she had every reason to believe that the father would comply with her order and that the grandparents would respect any request by their son to return M to this jurisdiction and the care of his parents. In these circumstances I consider the judge was entitled to make the order that she did.
- Finally I must deal with costs. The court has jurisdiction to make such order for costs as it thinks just. Although it is unusual to order one party to pay the costs of another party in proceedings of this kind, it is perfectly proper to do so where the conduct of one party has been unreasonable. In this case the judge considered that the father's conduct had indeed been unreasonable in that he had consciously acted in such a way as to mislead the mother as to his intentions and to conceal from her the steps he was taking to instigate proceedings in Singapore. The effect of this conduct was to sever contact between the mother and her child and to prevent her from securing his return to her care. All of these matters only became apparent in the course of the hearing before the judge, and they did so in the manner I have described. I believe this conduct merited the exercise by the judge of her discretion to award costs against the father in the sum that she did.
- As I have mentioned, the substantive part of this order, which was endorsed with a penal notice, extended the deadline for the return of M to this jurisdiction to 28 March 2014, and it contained the recital which I have set out earlier in this judgment.
- The father contends that the judge ought not to have made this order, that she ought to have recused herself at this stage on the grounds of actual or apparent bias and that she ought to have directed that the father's passport be returned to him. However, at the hearing of this appeal Mr Armstrong focused his attention on the recital and submitted that its inclusion in the order was wrong in principle.
- I recognise that by this time the judge was becoming increasingly frustrated by the father's failure to return M to the jurisdiction and was anxious to bring that about as soon as possible. I am also fully conscious of the findings that the judge had made as to the father's integrity, having deceived the mother as to his intentions on returning to Singapore the previous January. It also seems to me that this court should be very cautious about imposing unnecessary restrictions upon the armoury which judges may properly deploy to prevent the grave harm that is inflicted on children (and other innocent family members) by the wrongful removal and retention of those children abroad.
- Nevertheless I have a profound unease about the inclusion of a declaration of the court's expectation, as this recital purports to be, in an order of this kind for the following three inter-related reasons. First, it is of course a fundamental principle that any injunction must set out clearly what it is that the respondent may or may not do or, in the case of a mandatory injunction, as here, what it is that the respondent must do. A recital such as this is not an injunction but there is a real risk that that is what it may be understood to be. Indeed the use of the phrase "the court expects" clearly indicates an assumption by the court, the assumption in this case being that the father will take action against the grandparents in Singapore.
- Second, I am very doubtful it could ever be appropriate for the court to include in an order such as this a recital that is intended to pressurise or coerce a respondent into taking particular action which the court does not have the jurisdiction to order or, in so far as it does have jurisdiction, which it would not be prepared to exercise. In the present case the judge did not hear any developed argument or submissions as to whether the court had jurisdiction to order the father to take action of any particular kind in the courts of Singapore, and nor have we. Further, we have heard no submissions as to the nature of any such proceedings, whether and how they could be instigated by a person who could not leave this jurisdiction, the procedural steps they would involve, how long they would take, what they would cost or what their likely outcome would be. Yet by this simple recital the court expressed its expectation that the father would not only commence such proceedings but also, implicitly, pursue them to a successful conclusion.
- Third, I am very concerned that such a recital may be used as a foundation or support for a subsequent application for committal for contempt in the event that the respondent fails to fulfil the court's stated expectation. As will be seen, that is precisely what the judge did in this case. She attached weight to the father's failure to commence proceedings in Singapore in deciding whether the father was in contempt, and also, having found that he was in contempt, in considering what sentence she should impose.
- I have come to the conclusion that in all the circumstances of this case the recital was wrongly included in the order of 21 March 2014. It amounted to an attempt to coerce the father into taking unspecified steps which the judge was not prepared to order and yet it was always likely to be used, as it was in fact used, as support for the judge's subsequent findings of contempt.
- Mr Armstrong pursued the other attacks on this order only faintly and I think he was right to take that course. The judge was not asked to recuse herself and at this stage her primary objective was still to secure the return of M to this jurisdiction as soon as possible. Despite the father's protestations, the judge still believed there to be a real prospect of achieving this objective in the relatively near future. The judge had jurisdiction to make the order she did and it lay within the scope of a reasonable exercise of her discretion, although as I must now explain, its terms would render it very difficult to enforce by way of committal.
- The father appeals against this order for committal on a series of grounds. In broad summary he contends that the judge wrongly refused to recuse herself or to direct that the committal application should in any event be heard by a different judge; failed to comply with important procedural safeguards; failed properly to consider whether he could in fact comply with the orders which had been made and whether his failure to secure M's return to the jurisdiction was contumelious; and proceeded to sentence him without giving him an opportunity to address her in relation to the gravity of the contempts she had found or to make any submissions in mitigation. I will deal with these matters in turn.
- As I have explained, the father appeared in person at the hearing on 3 April 2014 and at the outset made his application that the judge should recuse herself on the grounds of actual or apparent bias against him. It seems to me that he had substantial grounds to be concerned about her hearing the committal application in the light of the comments she had made at the hearings on 19 and 21 March 2014. I have set out the material parts of the transcripts earlier in this judgment but it will be recalled that on 19 March the judge told him that if he did not secure M's return he knew what the consequences would be; that he had "one last opportunity" to secure M's return to the United Kingdom and "to remain at liberty"; and that he was "likely to be imprisoned" if he failed. Then, on 21 March, he was told that that, in the light of his failure to take action against the grandparents in Singapore it was "likely the period of imprisonment would be lengthy"; that his breach of the order of 14 March was "plain"; that he was responsible for M's return; and that he was required to take action against the grandparents in Singapore and yet he had done "Nothing. Nothing".
- I have no doubt that these comments and observations were made by the judge in order to bring home to the father just how important it is to comply with orders of the court and out of a deep concern for M's welfare. That does not, however, deal with the issue of apparent bias. Here the approach to be adopted is well established and was explained by Lord Hope in Porter v Magill, Weeks v Magill [2001] UKHL 67 [2002] 2 AC 357 at [102]-[103]. The court must first ascertain all the circumstances which have a bearing on the issue and then consider whether those circumstances would lead a fair minded observer to conclude that there was a real possibility that the judge was biased.
- Applying these principles in this case, it seems to me that a fair minded observer would indeed have been minded to conclude that, by 3 April 2014, the judge had made up her mind, or was at least strongly disposed to find, that the father was in clear breach of the orders requiring him to return or secure the return of M to this jurisdiction, that those breaches were deliberate and that the father should be given a substantial custodial sentence.
- How then did the judge deal with the father's application? She dismissed it in very short order, saying:
- In my judgment this was not adequate to address the concerns which the father had raised. It is true he did not agree with the judge's assessment of him on 14 March as underhand, devious and cruel, or her conclusion that M was habitually resident in this jurisdiction, but he had also drawn the judge's attention to the fact that she had twice threatened to commit him to prison for a substantial period of time and on numerous occasions had made what he described as prejudicial comments. I consider these were valid points and that it was incumbent upon the judge to address them if she was minded to proceed to hear the committal application. Her judgment is, however, entirely conclusory. It contains no exposition or reasoning which would be sufficient to satisfy a fair minded observer that, despite the comments and observations she had earlier made, she had not already decided that the father was in deliberate breach of her orders and should be sentenced to a substantial period of imprisonment. Not without considerable regret because I have no doubt that the judge was acting throughout with the best of intentions, I have come to the conclusion that this ground of appeal has been made out and that the judge ought to have directed that the committal application should be heard by another judge. In circumstances such as these, where a judge is steeped in ongoing contested wardship proceedings, it seems to me that it will often be a better course, and it will certainly be a safer one, for another judge to hear any committal proceedings.
- I turn then to the second ground of appeal and I can deal with this quite shortly. The judge having rejected the application that she should recuse herself, proceeded to hear submissions from Mr Jarman on behalf of the mother. The father was then asked by the judge to give evidence in the manner I have described earlier in this judgment. After taking the affirmation he was immediately subjected to questioning, first by Mr Jarman and then by the judge herself. It was only then that the father was asked if he wished to say anything.
- Here again I believe the judge fell into error for she failed to keep in mind the important principles applicable to contempt proceedings articulated by this court in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133. So far as this appeal is concerned, I would reiterate that proceedings for committal are a criminal charge for the purposes of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ("the Convention"); the burden of proof lies on the person seeking committal; and a defendant is not obliged to give evidence and this is a matter of which he should be warned. The father was given no such warning, however. To the contrary, he was asked to give evidence and was immediately cross-examined, first by Mr Jarman and then by the judge. This was, it seems to me, wholly wrong. Appearing as he was in person, the judge ought first to have explained to him the nature of the proceedings and that he was not obliged to give evidence at all. Then, if he wished to give evidence he should have been given an opportunity to give evidence on his own account before being subjected to cross-examination. The father was denied the warning to which he was entitled and then subjected to a procedure which was the inverse of what it should have been.
- The third ground of appeal is directed to the judge's conclusion that the father was in contempt of court for failing to comply with the orders of 14, 19 and 21 March 2014. Here again it is important to have certain matters in mind at the outset. First, the father's alleged contempt lay in his failure to secure M's return to this jurisdiction, not in his deceptive behaviour in securing the separation of M from the mother or in his misguided application to Theis J on 27 March 2014. Second, contempt of court must be established to the criminal standard and the burden lies upon the applicant. Third, contempt of court involves a contumelious, that is to say deliberate, failure to comply with an order of the court. Finally, as Hughes LJ (as he then was) emphasised in Re A (Abduction: Contempt) [2008] EWCA Civ 1138, [2009] 1 FLR 1 at [6], [10] and [12], the order must be one with which the alleged contemnor had the ability to comply.
- In this case the father had delivered up his passport and so could not return to Singapore to collect M himself. He also maintained that he had done everything he could to comply with the three orders made against him. In that regard he had pleaded with the grandparents to return M to this jurisdiction and had arranged air tickets on three separate occasions but, so he said, they had refused to cooperate. There was nothing more he could do because he had exhausted his funds and because he could not take action against his parents for that would destroy his family.
- In the light of this evidence it seems to me the critical issue for the judge to decide was whether the mother had established to the criminal standard that the father had deliberately failed to comply with the three orders. That in turn required the judge to consider whether she was sure that the orders were ones with which the father could have complied, but that he had wilfully failed to do so.
- In her substantive judgment given on 3 Aril 2014, the judge set out by way of introduction the background to the application. In doing so she addressed the application that the father had made to Theis J in these terms:
- The judge then dealt with the father's deceptive conduct in Singapore which was, she considered, calculated to keep M in Singapore and away from the mother before continuing:
- This finding of collusion would clearly not support a finding of contempt, based as it was on the balance of probabilities. The judge then turned to the substance of the committal application and, after referring to the efforts she had made to ensure that the father secured legal representation, mentioned the advice he had been given that he needed to take active steps against his parents in Singapore. The judge then revisited the application to Theis J before continuing:
- This completed the judge's reasoning and, once again, I have come to the conclusion that it does not provide adequate support for the judge's findings of contempt. First, it appears to elide the failure by the father to comply with the orders, about which there could be no doubt, with the further and separate question whether that failure was contumelious. He could only be in contempt if the orders were ones with which he could comply and that his failure to do so was deliberate.
- Second, it takes no account of the fact that the father could not himself leave this jurisdiction or the efforts he had made to persuade the grandparents to travel to London with M or the airline tickets he had bought for them. It was certainly suggested to the father that the email correspondence which I have summarised earlier in this judgment was a sham but he denied that was the case and the judge made no finding about it save that it was more likely than not that the grandparents and the father had colluded, a finding which, as I have said, could not support a conclusion that the father was in contumelious default.
- Third, in considering these issues the judge appears to have attached considerable weight to the application made by the father to Theis J. However, save in so far as it demonstrated that the father was at this point able to secure representation, this application had little or nothing to do with the alleged contempts.
- Fourth, the findings of contempt appear to have been founded at least in part upon the judge's view that the father could and should have commenced proceedings against the grandparents in Singapore. However, the judge appears to have assumed not only that the father could have commenced such proceedings but also that they would have resulted in an order of the Singaporean Court which would have compelled the grandparents to return M to this jurisdiction or secured his return here in some other way by, at the latest, 28 March 2014. That assumption may or may not have been justified but it was something about which the mother gave no evidence and the father was not asked. Nor did the judge have any evidence from any person qualified in the law of Singapore to assist her as to the nature of the proceedings the father was expected to have brought, the principles applicable to them or the procedural steps he would have had to follow. In this connection it is also highly material that on 19 March 2014 the grandparents themselves commenced proceedings in Singapore against the mother and the father seeking an order that they be appointed as M's guardians and that they be granted custody, care and control of him pending the resolution of the divorce proceedings between the mother and the father. The Singaporean court is therefore seized of this matter and while this may be said to undermine the father's claim that he could not commence proceedings against the grandparents, it seems to me that it also rendered it quite impossible for the judge to be sure that the father could have secured an order from the Singaporean court which would have secured M's return to this jurisdiction by 28 March 2014.
- For all these reasons I believe the judge was wrong to decide as she did that the father was in contumelious breach of each of the three orders. That is not to say that the father may not in the future be shown to be in deliberate breach of an order designed to ensure or at least further the return of M to this jurisdiction. However, proceedings for committal are, as I have said, a criminal charge for the purposes of Article 6 of the Convention and must be treated and proved accordingly. In the present case I have come to the conclusion that they were not.
- The final ground of appeal concerns the judge' approach to sentence. As I have explained, the judge not only found the father to be in contempt but then proceeded to deal with sentence, and she did so without giving him any further opportunity to secure representation or to make any submissions on his own behalf as to the gravity of the contempts of which he had been found guilty or by way of mitigation. Indeed the judge took it upon herself, and without hearing anything more, to declare that the contempt was "a very serious one". This was, it seems, for two reasons: first, the father had breached the clear orders to return M to the jurisdiction "with the apparent connivance of the parents"; and second, "the behaviour and duplicitous behaviour since judgment was given on the 14th March disclose flagrant and deliberate breaches of three court orders in a concentrated effort to keep M from his mother". The first of these was a finding that the judge had never made, save on the balance of probabilities; and the second appears to reflect once again the judge's concern at the without notice application the father had made to Theis J, an application which, though certainly foolish and wrong, seems to me to have had only peripheral, if any, bearing on the gravity of his contempts.
- Here again, therefore, I believe the judge fell into error. She ought to have dealt with the issue of contempt first and then given the parties an opportunity to address her as to the consequences of her findings and the appropriate order to make. This course would have afforded the father the opportunity to which he was entitled to make submissions in his own defence as to the seriousness of the contempts which the judge had found and also by way of mitigation, and would have permitted the parties to assist her as to those matters which it was appropriate for her to take into account in deciding what penalty she should impose.
- I would dismiss the appeal against the order of 14 March 2014, dismiss the appeal against the order of 21 March 2014 save to the limited extent I have indicated, and allow the appeal against all those parts of the order of 3 April which are directed to or concern the application for the judge to recuse herself and the allegations and findings of contempt. I would encourage continued liaison between the High Court of Singapore and this court, through the Office of the Head of International Justice for England Wales, to try and secure the return of M to this jurisdiction as soon as possible. I would remit this matter to the High Court to consider as soon as reasonably possible what further or different orders should be made against the father in the light of this judgment, such consideration to include the possibility of requiring the father to take particular action in Singapore.
- I entirely agree with all that my Lord has said and I agree that the outcome of this appeal must be as he describes in paragraph 75.
- The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court's considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case the judge did just that, and no criticism has been sustained in relation to her actions.
- The difficulty that can arise, and did arise in this case, occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order made in the circumstances that I have described. The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process.
- I agree with both judgments.
Lord Justice Kitchin:
Introduction
"E. AND UPON the court repeating to [the father] that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the Respondent Father to make applications to the Singaporean court to ensure [M] is returned to this jurisdiction pursuant to this Court's Order."
The background
"I want both of you to bring [M] back to the UK as soon as possible. This is very urgent because the judge will THROW ME IN JAIL if [M] is not back in the UK by that time [Tuesday 18 March 2014]. Please I need your support in order to do this."
The following day, he wrote again:
"I have booked tickets for both of you and [M] to travel to the UK on next Mon evening, 17 Mar at 11:10 pm. Please make sure that you and [M] are on that plane for London. I really need your help to comply with the UK court orders."
In a further email on 16 March 2014, he emphasised:
"I hope you respect my decision to do this as after all I am [M's] father, and I have no choice in this matter since I have been compelled with the threat of imprisonment by this judge."
Then, after they had failed to catch the first flight, he wrote on 17 March 2014:
"I cannot believe you missed your flight and put me in this predicament!!! Please don't let me down especially at this crucial time. I really need your support. You know that given the judge's temperament, I will be thrown in jail. …
Please be on that plane. Please DO NOT forsake me. I am calling out to you as your only child who is in dire need of your help."
To that last email, the grandparents replied on the same day that they had spent the whole weekend thinking about the matter but would not return M to the United Kingdom because they feared he would suffer in the mother's care.
"Well, if [M] is not back here immediately, [the father] is quite right to suppose that he will be going to prison for a considerable length of time. How do you want to deal with it?
The father was thereupon directed to enter the witness box where he made an affirmation and was cross-examined. After explaining that the grandparents were refusing to return M to his mother because they believed it was not in his best interests, the following interchange took place:
"MS JUSTICE RUSSELL: No, I understand that, and nor are you going to be allowed to travel to Singapore, so I fully understand that. Nonetheless, you must have some sway with them, and if he is not here, you know what the consequences will be. There will be – it will be done properly – there will be an opportunity for you to be properly legally represented, but the courts have in the past and will again in the future if necessary imprison people that do not obey their orders.
A. I have fully complied with the order to arrange for [M] to come back. My parents – I don't think it's fair that I should be jailed because of my parents' default.
Q. Well, that is another issue.
MR JARMAN: You have parental responsibility. You will impress on your parents –
A. I have.
Q. – that they must return [M] to this jurisdiction by Friday?
A. Yes, I have.
Q. If they do not, an application will be made for you to be sent to prison.
MS JUSTICE RUSSELL: This is the last chance.
A. I fully understand that and will try my best again.
…
MS JUSTICE RUSSELL: How long do you think you would go to prison for?
A. I don't even want to guess. I don't even want to guess. I do not want to go to prison.
MR JARMAN: There have been cases in this jurisdiction, in this court, where a father has spent two continuous years in prison for failing to return his child to this jurisdiction.
MS JUSTICE RUSSELL: Well, there has been more than one case, in fact.
A. I do not want to go to prison. I can say that."
"MS JUSTICE RUSSELL: That means that you must do everything, which means that it is no good just arguing with your parents; you need to put it into effect, and however you do that – the court will not consider it to be sufficient that you say, "I asked my parents but they're reluctant, so they refused." You need to do more than that. Do you understand?
A. Yes, I – my Lady, I have spent money that I don't have. I don't even have money for lawyers to represent me. I've spent money that I don't have to buy them tickets, and I've changed them, and they've cost a lot. I don't see how much longer I can go on like this."
"MS JUSTICE RUSSELL: Mr [the father], I urge you to go and get legal representation. Because you are entitled to be represented because there is a real prospect of you losing your liberty – do you understand that? The matter is going to be listed for a committal hearing on Friday, unless [M] is here on Friday.
A. I don't understand why … I don't think it's fair that I should be liable for my parents' default.
Q. Well, I am afraid that you are. They are not the child's parents. You are. Take action. If necessary, take action against them.
A. I have no more money, my Lady. And they are not my agents. They are not … they're not my alter ego.
Q. That is a matter that I will ultimately have to decide. I am telling you what is happening now. The court is giving you one last opportunity to get [M] here and for you to remain at liberty. The case will be listed on Friday in open court for committal proceedings. You will be served with proper documents. Please make sure that the documents are properly drawn."
"MS JUSTICE RUSSELL: Yes. Well, it is the liberty of the subject, because you are likely to be imprisoned if [M] is not here. You understand that, do you not?
A. I do, and I … "
"MS JUSTICE RUSSELL: Can you sit back down. Mr Jarman, I am concerned about sentencing someone to what will be, if I find him to have been in breach of the order (because I have not heard all the evidence yet) – but on the face of it, there is no evidence before me, and I am sure that [the father] would have put it there, to indicate that he has taken any action in Singapore to make sure that his parents enforce the order of this court, as he was advised to do and told to do – it is likely that the period of imprisonment will be lengthy."
"Now, I will have that in mind when I sentence you for breach of the order that I made on the 14th of March. The breach is plain. [M] is not here. I have told you in uncertain term that you must make your parents return him, and if that means taking action in the Singapore court, that is something you have to do without any delay. You are responsible for his return. He is being denied being with his mother, who loves him, and I have no doubt that if he could tell me, he would tell me he loved his mother. It is an offence of unspeakable cruelty."
"[The father]: Yes, my Lady. I wish to point out that I am not depriving my wife of contact with my child. She is free to travel to Singapore and I have offered to pay for her flight tickets.
MS JUSTICE RUSSELL: … – this court has ordered you to bring the child here. Not to allow his mother to go to Singapore. That does not begin to meet the breach of the order, as must be self-evident to you. You have done nothing in Singapore to ensure that he is returned. Nothing. Nothing.
[The father]: My Lady, respectfully, I have no more monies left.
MS JUSTICE RUSSELL: I am tired of hearing you say that. Take action in Singapore.
[The father]: It is not sufficient that I do not consent to my parents' application in Singapore?
MS JUSTICE RUSSELL: No. You have shown me nothing. Nothing to show that you have taken action in the Singapore court. Nothing at all. Nothing from you to the Singapore court saying you want your child – not your parents' child – your child returned to this jurisdiction. You have lodged no documents with the Singapore court, have you? Have you?
[The father]: No.
MS JUSTICE RUSSELL: So you have done nothing.
[The father]: Given the short time …
MS JUSTICE RUSSELL: Well, do it. You have some time now to get represented and to take action."
The order of 14 March 2014
"59. The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so. An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so. Hence, although much was made of it in argument, the question of whether or not a child is "Gillick-competent" is not the point: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
60. In the case of these three children, as of others, the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para 37) that "wishes", "views", "intentions" and "decisions" are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed "habitual".
"63. The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another."
The order of 21 March 2014
The order of 3 April 2014
"1. I will not recuse myself. I do not consider that this matter is before me for any other reason than that Mr K has failed to comply with court orders. It is clear that he disagrees with my judgment and makes some specific complaints about it. The correct route in that case is that of appeal.
2. Much of what Mr K said before me today amounted to arguments that he was trying to put against the judgment which I have made. Any fair and impartial observer would find no bias in these proceedings other than that the court found against Mr K and thinks that that necessitates a different court considering matters of contempt. The hearing will go ahead."
"8. On 27th March, the day that M should have been travelling if he was to return to England by the 28th March, a solicitor privately instructed by [the father] attended before Mrs Justice Theis ex parte. He was represented by a Mr Brookes of Messrs Carters solicitors. The application was to discharge the burden of the order dated 21st March in returning M to England and further to adjourn this court hearing date. The application was made without notice to the mother or her solicitors. It was I find a deliberate attempt to undermine and subvert due process. Moreover that fact that [the father] paid lawyers to make this wholly misconceived application gives lie to his claim that he is without funds."
"11. Again M has not been returned to the jurisdiction. [The father] has taken no active steps to get his parents to return M to this jurisdiction. I have seen nothing from his parents which would indicate anything other than an active desire to keep M from his mother and on the face of the evidence before this court that it is more likely than not that they have colluded with him in M's retention."
"17. It was a blatant attempt to overturn an order of the court and to subvert the court's jurisdiction, specifically the enforcement of court orders. Not only did [the father] seek to have these committal proceedings adjourned he failed to disclose he was doing so by not identifying this hearing as a committal on the face of the draft order he sought to put before Theis J (paragraph 1 c) and d) of that draft order).
18. Paragraph 3 of the order dated 21st March specifically sets out that this court shall consider the father's compliance with the order dated 21st March 2014 as well as the previous two orders of the 14th and 19th of March 2014.
19. The court has determined today that [the father] is in contempt of court for the breaches of all three of the court's orders as M has not been returned to the jurisdiction of this court. There is no doubt about this, the contempt alleged is therefore proved to the necessary standard of proof that is to say beyond all reasonable doubt. Before I turn to sentence I shall add that the steps taken by [the father] to have the orders effectively set aside amount to a determined and organised course of conduct which is contemptuous of the jurisdiction of this court. Moreover he has continued to lie to the court particularly regarding his financial situation."
Conclusion
Lord Justice McFarlane:
Lord Justice Maurice Kay: