England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LIVERPOOL DISTRICT REGISTRY
Liverpool Crown Court

		Queen Elizabeth II Law Courts Derby Square LIVERPOOL L2 1XA
		6th December 2013

MR. JUSTICE HAYDEN:

I am not going to reserve judgment I am going to give an extempore judgment.

1. This is an application brought by L County Council to commit MD and ID to prison for contempt of court. Local authority concern arose in respect of this family in June this year when a referral was received from the police regarding an incident of what was considered to be domestic violence at the family's home.

2. The local authority's perception, on investigating the family, was that the parents' relationship had been characterised by violence and volatility. Neither parent, in the Local Authority's view, was willing to engage with their investigations. The Mother, in particular, seemed determined to minimise the incident.

3. Social Services investigations revealed concerns regarding the parents' engagement with both the health and educational services for their children.

4. The Mother is in her thirties, the Father is forty-eight. Theirs is a relationship of seventeen years and has borne six children: A D who was born on the 15^th of February, 1998; RD who was born on the 3^rd of January, 2006; SD born on the 10^th of March, 2008; AD, born on the 19^th of December, 2009; AXD, born on the 29^th of March, 2011; and finally a little boy, born on the 10^th of October, 2012, RD.

5. Following that referral by the police to the local authority on the 13^th of June, the local authority convened a multi-agency core assessment planning meeting. That was on the 17^th of July. ID and MD failed to attend that meeting. It was plain that there was escalating professional concern regarding the parents understanding of the emotional needs of their children and their willingness to engage with the local authority.

6. A further meeting, again multi-agency, was convened on the 10^th of September, 2013, and again neither parent attended. Concerns were expressed to that meeting by both Education Services in relation to the non-attendance of children at school and by the Health Services of a lack of engagement with health professionals.

7. On the 16^th of September, 2013, the family was reported missing. As I have heard in evidence in this case, as the heat of Social Services scrutiny intensified, the Father asserts that he panicked and removed the family to the Republic of Ireland, making contact with people he knew there and extended family members.

8. The family were traced to Ireland. On the 19^th of September, the police in Galway were called to an incident at an hotel. Others staying in the hotel believed that they were hearing domestic violence being perpetrated in one of the rooms. MD has told me in her evidence that they were confused about that, and had misinterpreted the noise of boisterous children for domestic violence.

9. On the 22^nd of September – two days later – ID was arrested by police in Ireland on a European Arrest Warrant relating to the domestic violence allegations that had precipitated the involvement of the local authority in the first place. ID had been charged with an offence of causing grievous bodily harm against his wife, contrary to the Offences against the Person Act.

10. On the 24^th of September, the Children's Services in Ireland undertook a visit to the rented accommodation that the family had secured in Cork. However, the family were not there. And on the 27^th of September, 2013, an initial Child Protection conference was held in Preston in the absence of the family and the children were made subject to Child Protection plans under the category of 'Neglect'. At that stage, of course, the whereabouts of the children were still unknown to the Local Authority. The Mother had returned to Preston.

11. Up to the point of giving her evidence, the mother stated that she had returned to Preston with the children alone. But yesterday she told the court that when her husband was arrested in Ireland, she contacted his sister, HR, and she came to Ireland and helped her, MD, take all six children in their Renault Espace motor vehicle back to the United Kingdom. They returned, she told me, to their home in Preston. That home had been examined by the police and made secure, there were new locks and MD was unable to gain entrance. She then went, with her sister-in-law, to the south of England, they stayed at HR's home.

12. What is clear in this case is that on the 7^th and 8^th of October three of the children were flown out to Pakistan. They were: AD, who is fifteen, AXD, who is five, and SD, who is three (who will be celebrating her fourth birthday in a few days' time). There has been much discussion about how those children came to be put on that plane in that alarming and, in my view, quite brutal manner. What seems likely, doing the best I can on the evidence available to me, is that they were put on the plane without any adult to accompany them. The burden for looking after the two younger ones appears to have been placed on the 15yr old AD.

13. The children's final destination was Karachi. That took them by Islamabad. One cannot begin to imagine the anxiety that that trip must have caused to those children. It is not difficult for any adult member of the public to understand why, when a family feels the local authority to be circling in, they might panic and run away together to evade the consequences of intervention. I do not for a moment condone that, of course. But I do understand it. What is far more difficult to understand is the parents who would put a three-year-old on a plane to an alien continent in this way. They must both have become very removed from their children's most basic emotional needs. I find that illuminates the way they have behaved subsequently and the contempt in which they have held this court.

14. On the 16^th of October, 2013, the case was transferred to the High Court in order that it could invoke the powers of the inherent jurisdiction, and utilise the panoply of measures at its disposal to locate and secure the children's return.

15. The case came first before His Honour Judge Rawkins, the designated family judge for Lancashire, sitting as a deputy judge of this court and subsequently before Mr. Recorder Goldrein, Q. C., and Miss Susan Grocott, Q. C. On each occasion the Court issued a return date for consideration of the wardship jurisdiction. On each occasion, though with less success, the Court sought to issue penal notices requiring the parents to co-operate with the order of the court to identify both the children's location, their whereabouts and what had happened to them.

16. Mr. Crabtree, on behalf of MD, points to procedural flaws in the committal process, centring his criticism on the failure to ensure personal service or to attach a penal notice to the appropriate order. Further, he says, the claim for breach is brought under the wrong provisions. But, he concedes, ultimately this does not matter because the court has kept in constant review it's obligation to re-consider the wardship and to survey the landscape at each occasion. In so doing the Court preserves the potential to punish any contempt of its own motion under its own jurisdictional powers. The jurisdictional gateway is set out in the Civil Procedure Rules 1998, section 81.2:

"(1) This Part is concerned only with procedure and does not itself confer upon the court the power to make an order for –

(a) committal; (b) sequestration; or (c) the imposition of a fine in respect of contempt of court.

(2) Nothing in this Part affects the power of the court to make an order requiring a person –

(a) guilty of contempt of court; or (b) punishable by virtue of any enactment as if that person had been guilty of contempt of the High Court, to pay a fine or to give security for good behaviour.

(3) Nothing in this Part affects any statutory or inherent power of the court to make a committal order of its own initiative against a person guilty of contempt of court."

17. The case came before me listed for one day, but I have heard extensive evidence over two days. I have permitted the parents and their advocates a huge degree of latitude. For whilst I am dealing with contempt of the court's order, I have not lost sight of the primary objective here, that is to return the children back to this country. There can be no doubt at all that the children are 'habitually resident' in the U.K.

18. These are committal proceedings. They involve the liberty of the individual. The standard of proof to establish a breach is the criminal standard, the burden here rests on the Local Authority to prove its case throughout.

19. For that reason it is important to scrutinise the evidence carefully, and to analyse it critically.

20. Very helpful guidance is found in the case of Re. A. (Abduction contempt) [2009] 1 FLR 1. This is a judgment of the Court of Appeal, Hughes L. J., as he then was, delivered the judgment. I have reminded myself of the key principle in that judgment namely: the contempt must be established in disobedience to the order to return, rather than the original abduction.

21. I emphasise that I am not here addressing the removal to Pakistan itself. That is, on the face of it, an abduction. It may be the subject of a criminal prosecution. The Social Services here repeatedly encouraged the mother to report it to the police but she has declined to do so.

22. At the time of the removal, there had been no court order forbidding the removal of a child from the jurisdiction. And as Hughes L. J. in Re A ( Supra) commented:

"The fact that the removal might have been an appalling mistreatment of the child is nonetheless not the issue in the contempt application here."

Rather, I am required to identify the specifics of contempt, i.e. those circumstances in which both of the parents have, it is said, acted in a continuous deliberate and disobedient way to the court. I have to make clear findings not only that breaches occurred but that they were deliberate.

23. I say, by way of preface to those findings, that I have had no difficulty in establishing, on this evidence, that both the parents have been in contempt of the orders of this court. I also bear in mind that if the court is satisfied that obstacles had been raised by the Father in a manner demonstrating that he did not wish to obey the order, then that is perfectly capable of being a relevant consideration as to whether I am sure the Father could achieve the return of the child if he chose so to exert himself.

24. For reasons which I will amplify below I have no hesitation in concluding that the Father knows where these children are and is able to secure their return. Indeed, the Father has told the social worker this, in terms.

25. Miss Watkinson, on behalf of the Mother, points out that I should take into account the undoubted sovereignty of paternal rights over the child in an Islamic system and to consider whether or not it was the Father who was declining to exercise his authority as oppose to the mother acting jointly and with full autonomy. She was floating this tentively as a defence, but absent establishing duress it can in my view amount only to mitigation (though it might be powerful).

26. As I have said, this couple have had six children together over a seventeen-year relationship, whilst I can understand a panic flight to Ireland, in my judgement the removal of the children to Pakistan was of a wholly different complexion. I had at first been inclined to believe that the exportation of these children was part of a continuing panic. But as I have listened to the evidence, I have concluded that it is has a rather more troubling motivation.

27. It has become clear to me that the Father is a highly controlling personality. The papers provide abundant evidence of it. That control extends to his children, even now, in Pakistan. He is, in my assessment, a strikingly self-centred man with no empathy, as far as I can see, for either his wife or his children. And what was most remarkable in the two days that I have listened to his evidence, is that he communicated no sense at all, at any stage, of the character of any of these children as individuals or displayed any empathy for the trauma of what they must be going through.

28. He told me that having been removed from the United Kingdom ultimately to Karachi –the children are now engaged on a holiday tour of Pakistan. This he said was why he had difficulty in contacting them at present. It is a feeble indeed risible explanation. It does the Father, who is an intelligent man, no credit at all. He knows well how ridiculous his explanation sounds. As a lie it is pitiful.

29. He is a man who seemed to me to have absolutely no insight at all into the emotional needs of these children. I took the view that his contempt of this court and his resistance to the social workers was motivated by 'saving face', saving his own face – and his determination that neither the social workers, nor the court, would be in charge of his family. It is the challenge to his own self-aggrandised authority that is the issue for him here and not the welfare of his children.

30. I am satisfied that whilst the Father was in custody in Ireland he continued to dominate and control events through his sister, HR. The Mother was, in his perception, a loose cannon, a potential weak link; and so she was given, in my judgement, only such information as he fed out to her. I do not believe that she has been fully aware of the details of the Father's plans. I am absolutely confident that the Father knows exactly where the children have been and where they are now; that is not the same in the case of the Mother.

31. Whilst the Father was still in custody on the 23^rd of October, - sometime after ten o'clock at night the Mother sent a text message to the children's guardian which she forwarded to the social worker, Angela Switze, the following day. That read as follows:

"I don't know what to do or who to ring. I've tried every number. I have to contact my husband's sister and I can't get through now. The other number is not ringing at all. I sent her a message on FB" – [meaning Facebook] – "last week to ring me. And she still hasn't rang me. I'm beginning to think that they're avoiding me to ring. I ring Pakistan number but the phone gets put down on me. I've not been allowed to talk to my two babies at all since October. Don't know what to do. I'm really worried now. I just want to talk. I need to know they are okay. And I can't know by just sitting here. Shall I go to the police? because my husband hasn't spoke to her neither. He just says he will write to her. She is the one who has my children and she promised me I could talk with them any time I want. But has my children. And she promised me I could talk with them any time I want. But I never have. She is hiding from everyone, even me and my husband. And what do we do now? I'm sorry to text you late. MD.".

32. Earlier, on the 23^rd of October, the Mother had telephoned the social worker directly. She said she had tried to ring BD, the Father's brother and he had, she said, hung up on her. She said she could not contact HR. She said the Father has not phoned her. She said the grandfather, KD, did not know anything. And she was feeling 'tricked' by the paternal family, as she put it.

33. I have no doubt that there were times when she was deliberately kept out of the loop by a husband who was determined, even from the confines of his prison cell, to remain in control. From prison on the 12^th of November, 2013, ID prepared, with his solicitors, a statement of that date. He has since dispensed with the services of those solicitors. They provided to the court, in handwritten manuscript, a statement which ID verified as accurate and its contents as true. It is again illuminating.

34. Paragraph 14 of that statement reads as follows: "As I have already explained to the guardian, Hannah Makinson, I played the part in arranging the children's travel to Pakistan and I am able to find out where they are." In the following paragraph he says, "It has always been my full intention to co-operate with the Local Authority. I am still considering my legal position, given the children's 'dual nationality'," as he calls it. He goes on, "It is my full intention to return the children to the jurisdiction if it is in their best interest and welfare." The father was here goading the Local Authority in clear terms. If these children are to return, it is to be his decision not the court's. It is arrogant, self-aggrandisement. It is an egregious contempt of the orders of the High Court.

35. Notwithstanding that ID had dispensed with his lawyers, the Legal Aid Agency permitted him to have a new firm of solicitors, who in turn instructed counsel, Mr. Simon Crabtree. Yesterday, however, his services were also dispensed with. I have been told, as Mr. Crabtree was bound to tell me, that his instructions were withdrawn because the Father, ID, alleged that Mr. Crabtree had put a case that he had not been instructed him to put. It revolved around some of the observations that were in an affidavit of Miss Switzer the social worker. That statement was filed on the 11^th of November, 2013. And at paragraph 2 it reveals:

"on the 29^th of October, 2013, the Father was served with a copy of the order. On the 30^th of October, 2013, the children's social worker, Rachel Howarth, together with the children's guardian, Hannah Makinson, delivered it to the Father at Her Majesty's Prison, Preston". During that visit the Father asserted that he had "made the travel arrangements for the children, and that they had travelled accompanied by his friends, and they were staying with those friends in Pakistan". He denied that his sister, HR, had been involved in the arrangements. He did not identify his friends, or the address at which the children were staying. He informed the social workers that he could "arrange the children's return at any time."

36. What is particularly difficult to follow is that ID's evidence, both in chief and in cross-examination, seemed broadly to reflect what the social worker had said in that statement. The only distinction, as Mr. Crabtree emphasised, was that ID asserted that the children were staying with "family" in Pakistan and not "friends". Everything else he said in evidence and he said was accurate: he had made the travel arrangements for the children to Pakistan; he said that the children were staying with family members; he said that HR had made the travel arrangements.

37. Mr. Crabtree, understandably, felt that he could not continue and ID declined to come up from the cells for the rest of the afternoon. My view, I am afraid, is that he was simply endeavouring to confuse and impede the process of the court, for there is no logic at all to his behaviour. I think it had not occurred to him that the case would proceed without him. Rather like a child when he discovered the Court was not responding to his refusal to come back to the court he returned of his own momentum.

38. The Father told me in evidence that he had been seeking to speak to family members in Pakistan, but he said for reasons he did not know, unknown people were answering the telephone and claiming not to know who he was. I find that entirely implausible. It is abundantly clear, as the Father has asserted to the social workers, in his own statement, and a number of times from the well of the court and from the dock of the court, he knows where the children are and he can get them back but he has chosen repeatedly to block the process. He is, as I have said, in flagrant contempt of the orders of this court. He has lied repeatedly, in the way that I have taken some time to illuminate, even where those lies make absolutely no sense at all.

39. I turn now to the Mother. MD has had the services of solicitors and counsel. For reasons that I do not know, nor have I enquired about, she dispensed with the services of her solicitor at the beginning of this hearing. Her counsel, Miss Watkinson, on whose judgment I rely, considered that notwithstanding the removal of her instructing solicitor she could continue to act on this mother's behalf. She has done so with great skill. Whilst remaining at all times true to her instructions, she has plainly tried to guide the Mother to a more realistic appraisal of her own situation.

40. There is a background of allegations of domestic violence. The episode of violence which gave rise to this whole process resulted in a trial that took place in the Crown Court some time at the end of November before a jury. It appears, from the little I have been told about it, that that trial ran its course and resulted in ID's acquittal. I accept, as I am bound to, the findings of the jury.

41. The Mother was the complainant. She told me in this court that she had explained to the jury how her injuries were an accident and not deliberately inflicted upon her by her husband at all. She told me, too, that the 'grievous bodily harm' prosecuted by the Crown was in truth no more than a slight cut above her eye. Without revisiting the findings of the Jury but looking at the broader canvass of evidence available to me I am satisfied that she was minimising the incident. It is echoed in her account of the occasion in Ireland when the Garda were called. The mother told me that the neighbours had been completely mistaken about the sounds of violence, which they perceived to be coming from her room. They had mistaken it, she said, for the children jumping around boisterously. Again I consider this to be a highly unlikely explanation.

42. I do not however need to make any findings on these issues, they seem to me to be part of a clear picture which leads me to the conclusion that this woman's autonomy has been systematically eroded by her husband's bullying dominance. I make that finding on the basis of what I have seen and heard in this court, watching the dynamic between the couple and hearing the evidence of the Social worker

43. During the course of her evidence, the mother was barely able to answer a single question without looking to her husband to see whether he was indicating his approval or signalling his disapprobation. So dramatic was that impact in this courtroom that her own Counsel asked for a screen to be provided in order that the Mother could answer questions without having to look at her husband. In those circumstances where husband and wife are pursuing essentially the same case this would not ordinarily be an application that I would accede to, but I did here with no hesitation. It was remarkable to see the extent to which the Mother relaxed when the curtain was drawn round her, even if the tenor of her evidence did not change greatly.

44. She was cross-examined, both by Miss Holloran, on behalf of the Local Authority, and by Miss Bowcock on behalf of the children. It was Miss Bowcock's cross-examination that seemed to discomfort her most, and during the course of her answers to Miss Bowcock she changed her story on a number of significant points.

45. She had been asked whether she sent her children to Pakistan accompanied or unaccompanied. "If they were accompanied," she was asked, "who was it they went with?" If they were unaccompanied, how could she do it? She found those questions almost unbearably painful. And even as I relate it now, the pain shows in her face.

46. She has changed her position. She said initially that the children went to Pakistan alone. Later, she said that they were accompanied. She said that it was organised by her husband. She said that it was organised by HR. I have no doubt at all that she feels under very considerable strain and pressure, but she is never able entirely to disentangle herself from the sphere of her husband's influence to be properly open and co-operative with this court. What she does throughout is to prevaricate, to seek refuge in ambiguity, which is itself a defiance of what the court has asked her to do, namely to co-operate openly and honestly in securing the return of her children. She simply fails to engage. Her magnetic north is to yield to her husband, even when her own liberty, as here, is in jeopardy.

47. Doing her best to reconcile one of a number of contradictions in the Mother's evidence, Miss Watkinson told me today, in submission, that when the Mother had talked in evidence about a telephone call to AS and later changed the identity of the individual to HR, what the Mother had in fact intended to say was that there were two separate telephone calls to each of those individuals. It was a desperate, almost childlike, effort to square an impossible circle, to rationalise evidence in which she recognised she had factually contradicted herself –yet again!

48. Moreover, the mother's assertion that it was HR to whom her husband was speaking, came in circumstances where the Mother had asked to be recalled to give supplementary evidence. I gained the impression that she was coming to the witness box a second time in an attempt to be more candid. To give evidence implicating HR, her husband's sister, could not have been easy for her. I am satisfied that this in truth was what she was trying to do. Rather than acknowledging that she had lied and changed her mind, the only recourse she has now is to say that there were two separate telephone calls.

49. As Miss Bowcock points out, all this plainly illustrates a determination to prevaricate rather than to co-operate fully with the terms of the order and is therefore in and of itself a breach. There is however, a more striking contempt than this. On the 18^th of November, the social worker, Angela Switzer received a telephone call from MD. MD had a query in respect of her contact with her children. MD was asked if she had spoken to her three children in Pakistan. MD said she had not, she had just seen a few messages and photos on Twitter. MD said, "The wardship is for the United Kingdom and if the children are happy there why do they need to come back to then be taken into foster care? SD," she said, "especially, will not be able to handle this." The words were spoken by MD, but the thinking was entirely that of her husband. In that comment she declared her colours, which were to stand by him rather than the orders of this court. Like her husband she offered naked defiance to the courts orders.

50. MD has also been asked, repeatedly, by the Social Services to process a complaint of abduction in respect of her children. She has, from time to time, indicated that she would be prepared to do so but her actions let her down.

51. The social worker asked her on the 21^st of November what ID was saying to her about the children returning to the United Kingdom. MD said that her husband, "was waiting to see how the court hearing went on the 4^th of December." The social worker discussed with her the consequences of that attitude and reminded MD of the orders that the judges had made in this case and the position that put her in. MD told the social worker she knew and understood this but could not do anything else.

52. She was specifically reminded that she had said previously that she was going to ask the police to help her find HR but then said ID had told her not to. The social worker again reminded MD that she should do everything she could to have her children returned; that she had been ordered by the High Court to do precisely that.

53. The social worker asked her if she believed that the children would be returning and MD said no. She then went on to say, "They have return tickets for March, so I do not know." And the social worker advised MD to continue to try and do whatever it takes to have her children returned home before or on the 27^th of November, and advised her not just to wait until the 4^th of December. The social worker advised her to speak to her solicitor about the seriousness of her own situation and the risk of custody that she faced if she continued to obstruct the return of the children, and if she continued to lie to the court. There was also some discussion on what impact all this must be having on the children who are here in the United Kingdom (seemingly because they did not have passports or else they, too, would have been dispatched to Pakistan).

54. Finally, the social worker asked MD, on the 15^th of November, to attend a meeting on the 22^nd of November at the St. Luke's Family Centre, to complete a one-to-one assessment and to gather information. MD was asked about her efforts to contact HR at that meeting. She said that she and her husband had been unable to get hold of HR, she said "Social Services are telling us to get the children back. But how can we do this when HR won't answer her calls?" ID had recalled HR to his life at a moments notice and she responded to his bidding instantly. It is inconceivable that she would not take her brother's telephone calls. It is a further lie and MD knew it to be. Her entire body language revealed her own recognition of the hollowness of her evidence.

55. I do not for a moment believe that HR refused to answer the telephone whilst ID was present. I cannot accept that this was a truthful account by the Mother. On the 15^th of November – MD said she was going to the police to ask for their help to speak to HR. It was explained to her that the courts have ordered the children to be returned and, once again, reiterated that she needed to do everything possible to return the children. She did not follow that advice and has continued to disregard it since. In her case, too, and for these reasons, to the requisite standard of proof, I find her to be in contempt of the orders of this court.

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