England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT AT LEICESTER

		2nd June 2014

1. These wardship proceedings come before me on an application for committal of the first respondent father, Yunus Chhatbar, for breach of an order made by Her Honour Judge Hampton on 16^th October 2013.
2. The relevant part of Judge Hampton's order is to be found at paragraph 5 and reads as follows:

"The respondents and/or any person served with this order must not

a) make any application for;]

b) obtain, seek to obtain, or

c) knowingly cause, permit, encourage or support any steps being taken to apply for or obtain any passport, identity card, ticket, travel warrant or other document which would enable either i) the child or ii) the respondents to leave England and Wales".

3. The background to this application can be stated shortly. Yunus Chhatbar is the father of a little boy A. A is now aged one. A's mother is Safiya Rehman. The local authority, Leicestershire County Council, has been involved with this family since before A was born. Following A's birth the local authority's concerns intensified.
4. On 15^th October 2013 the local authority obtained an emergency protection order and a recovery order. However, unbeknown to the local authority the family had in fact left England on 12^th October and had travelled to the Turkish Republic of Northern Cyprus.
5. On 16^th October, having discovered that the family had left the country, the local authority began wardship proceedings That same day Judge Hampton made a collection order containing the paragraph to which I have already referred.
6. The father returned to England voluntarily on 13^th November. He returned alone. The mother and A remained in Northern Cyprus. Upon his arrival at Birmingham Airport the father was arrested and his passport seized.
7. On 16^th November the father was brought before Mr Justice Baker at the Royal Courts of Justice in London. If the father had been unaware of Judge Hampton's order before he appeared before Mr Justice Baker, he was left in no doubt about the meaning and effect of that order when he appeared before Mr Justice Baker. The hearing before Mr Justice Baker was adjourned until 16^th December and the father was released from custody.
8. Having been released from custody the father made an application for a new passport. On his application form he claimed that his original passport had been lost. That was a lie. As the father well knew, his passport was being held by the High Court Tipstaff.
9. Having obtained a new passport the father then obtained travel documents to enable him to return to Northern Cyprus. He left England on 30^th November. On 16^th December the proceedings came before Mr Justice Bodey. Neither parent was present and neither was represented. The application was adjourned.
10. The application next came on for hearing before Mr Justice Mostyn on 28^th February 2014. Though still living outside the United Kingdom the father took part in that hearing by video link. He challenged the court's jurisdiction asserting that A was not habitually resident in the United Kingdom. Mr Justice Mostyn ruled that A was habitually resident in the UK. His decision is reported as Leicester City Council –v- Chhatbar 2014 EWHC 830 (Fam). The father applied for permission to appeal against that decision. His application was refused. So far as I am aware there has been no application to renew the request for permission before the Court of Appeal.
11. The next month the father again voluntarily returned to England. He was arrested at Gatwick Airport during the early hours of 23^rd March. He was held in custody. He appeared before Mrs Justice Theis at the Royal Courts of Justice on 24^th March. The order made by Mrs Justice Theis at paragraph two notes as follows:

"And that the respondent Yunus Chhatbar admitted that he had disobeyed the order by applying for and obtaining a new passport by informing the UKBA that his passport had been stolen when in fact his existing and expired passports had been seized and held by the Tipstaff of the High Court on 14^th November 2013".

12. The judge granted the father bail. However, upon leaving her court room, the father was arrested by Leicestershire Police and taken to Leicester where he as charged with three offences, two of which are relevant to this committal application, namely that the father had fraudulently applied for and had used a new passport. He was remanded in custody to await trial.
13. The matter came back before Mrs Justice Theis on 31^st March. Whereas the father had been unrepresented when he appeared before her on 24^th March, now he was represented by counsel. Through his counsel the father repeated the admission recited on the face of the order or the 24^th March. The father pleaded guilty to the charges against him when he appeared before the Crown Court. He was sentenced on 7^th May by the then Resident Judge for Leicester, His Honour Judge Pert QC. He was sentenced to a total of 12 months imprisonment. I am told that his earliest release date is believed to be 23^rd September, though there has been some suggestion of a possible earlier release on tag.
14. It is clear that the sentence imposed in the Court Crown was in respect of essentially the same matters as those for which the respondent father now appears at this committal hearing. Judge Pert's sentencing remarks began in these terms; he said;

"You and your wife and partner took your son to Northern Cyprus, I am not concerned with the rights or wrongs of the situation at that time, save to observe that you had plainly chosen your destination having in mind the fact that it is not possible to arrange extradition from Northern Cyprus. The matter was before the High Court and the High Court made an order that you surrender your passport. On your return to the United Kingdom your passport was duly seized. In the full knowledge of that order of the High Court you fraudulently applied for a fresh passport. It was a deliberate, cynical and flagrant disregard of the order of this court".

15. What sentence should I now impose in respect of the father's admitted contempt of court? Both Mr Downs, who appears for the local authority, and Mr Littlewood who appears for the father, draw my attention to the recent decision of Sir James Munby P. in Chelmsford County Court –v- Ramet [2014] EWHC 56 (Fam). In that case the President dealt expressly with the question of the approach to be adopted by the family court where, as in that case as also in this, the same conduct has given rise to both criminal proceedings and committal proceedings. The answer to the question is to be found at paragraph 20 of his judgment which reads as follows;

"All I need do here is extract a few propositions which are particularly apposite in the present case, where the criminal proceedings have already concluded:

i. First, as Balcombe LJ indicated in Smith v Smith, page 64, my task is to sentence for the contempt, the matters arising under sections 14 and 118 of the 1984 Act – rather than for the crimes.

ii. Second, I must take into account the outcome of the Crown Court proceedings. As it was put by Thorpe LJ in Lomas v Parle, para 48, 'it is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence.'

iii. Third, a person is not to be punished twice for the same conduct. So, as Wilson LJ put it in Slade v Slade, para 21, 'the second court should…decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court.' What I must do 'is to sentence only for such conduct as was not the subject of the criminal proceedings.'"

16. In this case, on behalf of the father Mr Littlewood submits that applying that approach to this committal application no further sentence is appropriate. Against the background history as I have described it I accept that submission. There will be no order on the committal application. This hearing has taken place in public. As required by the Practice Guidance issued jointly by the Lord Chief Justice and the President of the Family Division on 3^rd May 2013, I direct that a transcript be obtained at public expense and be placed on the BAILII website.
17. I also direct that in any reporting of this judgment nothing shall be published which might identify A either by name or location.
End of judgment