England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Birmingham Civil Justice Centre 33 Bull Street, Birmingham B4 6DW
		13/02/2014

Mrs. Justice Eleanor King DBE :

1. This is an application for the committal of Brunel Nsongo and Christopher Nsongo (otherwise known as Christopher Yamba), for contempt of court. The application arises out of an application for contact brought by SA for contact with his daughter JN. Brunel Nsongo is JN's mother and Christopher Yamba his maternal grandfather.
2. This judgment is given in open court and can be reported, as can the names of the respondents. There is however no public interest in the identity of the father (SA), or of JN being disclosed and accordingly they will be referred to throughout by initials.
3. This judgment will set out the background in brief and only to the extent necessary for an understanding of these committal proceedings. The full judgment dated 3^rd December 2013, given at the conclusion of the trial out of which these committal proceedings arise, should be read together with this judgment; it can be found in its anonymised version Re JN (a child) 3013 EWHC 4417 (Fam) and is published on BAILLI
4. SA, as I have indicated, is the father of JN, she having been born after a relatively short relationship with the mother. Despite having at all times wished to know his daughter and to play a part in her life, SA has never seen JN.
5. SA, having failed in his legitimate attempts to arrange to contact by agreement, issued an application for contact and for a parental responsibility order as long ago as 11^th January 2011. JN was then six months old, she is now three and a half.
6. The delay in the matter reaching trial is entirely down to the machinations, partly by the mother, but especially by the grandfather. Despite various delays by early 2012 two important things had happened within the contact proceedings:

i) As a result of safeguarding inquiries made by CAFCASS it became known that the mother had been the subject of care proceedings whilst living in the North West. The care proceedings arose out of allegations of sexual impropriety on the part of the grandfather. As a result of the mother's failure to co operate with the local authority in the area in which the mother now lives in the preparation of a court ordered report, (a s37 Children Act 1989 report), Birmingham City Council told the court that this lack of co-operation coupled with the information received from the North West meant that they were considering taking child protection proceedings in relation to JN.

ii) DNA tests, having been previously ordered and the mother having failed to attend, a penal notice was made to ensure the mother's cooperation. On 27^th February 2012 the DNA tests were carried out.

7. Against this backdrop on 21^st March 2012 the mother and JN left the country and went to the Congo, the mother's country of origin, ostensibly to attend the funeral of the maternal grandmother. JN has never been seen again.
8. The mother and grandfather's case is that JN had been killed in a road traffic accident on 3 March 2012 on the way back from the grandmother's funeral. It followed, the mother said, that the English proceedings should therefore come to an end; so far as SA is concerned it would be almost as if he had never had a daughter never having seen her in her lifetime. The mother remained in the Congo following the alleged accident and the grandfather informed neither the court or the social services of what had happened.
9. On 5 April 2013 the social worker, still engaged in trying to prepare the s37 report, and still unable to contact the mother, spoke to the grandfather whom she hoped would help her to get in contact with the mother. The grandfather told her that JN was dead.
10. For reasons which are not wholly clear, a decision was made not to tell the father about this until the next court hearing which took place on 8 June. It is hard to imagine anything worse than being told that your child is dead, let alone in such a way.
11. The mother did not return from the Congo until 25 June 2012. The fact of her return was only disclosed by the grandfather when he was required to give evidence on oath by HHJ Hindley as she sought to find out the whereabouts of the mother and the truth or otherwise of JN's alleged death.
12. All involved; that is to say HHJ Hindley, the guardian and the father were deeply suspicious of the alleged road traffic accident and the court set in train investigations to try and determine the truth or otherwise of the mother's tale.
13. The grandfather and the mother produced a raft of documents which they said confirmed the death of JN. Thereafter extensive and costly enquiries were conducted in the Congo on behalf of the children's guardian acting on JN's behalf in order to determine their authenticity.
14. It must be obvious to anyone, even without reading the judgment, that this is an appalling case: it is hard to think of a more cruel thing to do than to tell a father that his child was dead as part of an elaborate ploy to bring the proceedings to an end and with them any risk of child protection proceedings. Equally if it were true the JN were dead, how dreadful it would be for the mother not to be believed and to have to relive the events of that terrible time.
15. In order to resolve the issue as to which of these two equally distressing scenarios is true, the case was set down for hearing to commence on 10 December 2013. During the course of the trial all the evidence gathered in the Congo was examined. This documentary evidence related not only to JN's alleged death, but also to the truth or otherwise of the paternal grandmother having died and her funeral having taken place on 3 March 2011, the day JN was said to have died.
16. The judgment analyses each document and I concluded to the requisite standard of proof, namely the balance of probabilities that each and every one of them was forged and were fake. Whilst not an essential part of the findings, the court also noted:

i) That it was agreed by all parties that in the Congo it is quite straightforward to obtain fake "official" documents and

ii) Evidence from one of the hospitals concerned that this is not the first case they have had to deal with where documents purporting to come from their hospital, have found to have been forged.

17. At the trial the court heard oral evidence from both the mother (who was represented by solicitor and counsel) and the grandfather, who was not represented, but whose case was largely on all fours with that of the mother. The mother, for her part, as recorded in the judgment, was flat and showed no emotion throughout her evidence. The grandfather, also as recorded in the judgment, showed in the main self-pity, and no empathy for his daughter or grief for his lost grandchild.
18. At the conclusion of the judgment, having found the documents produced by the mother and grandfather to be bogus, I made a number of findings, including, (summarised from paragraph 112 of the judgment):

i) The mother left the United Kingdom on 1 March 2012 as a result of the s37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to JN but, significantly as far as the grandfather was concerned, to JN and GN, the children of his most recent marriage.

ii) The mother travelled to the Congo with JN on 1 March. Thereafter the mother and JN lived with the extended family (and probably her uncle), until such time as the grandfather obliged the mother to return to the UK in 2013. I found it to be a moot point as to whether or not the mother would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return with him.

iii) I found as a fact that JN did not die in a road traffic accident or in any other way and that the documentation produced is fake. I found that JN is still alive and the mother and grandfather each know of her whereabouts whether it be in the Congo, France or UK.

iv) I was satisfied that the grandfather's relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown, on more than one occasion, that he will not allow his daughter to move away from him and establish her own life. I am satisfied that the grandfather brought the mother's relationship with the father to an end, wishing her to return to live with him.

v) I was also satisfied that the grandfather would not allow the mother to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back the England he was separating mother and child.

Then at Paragraph 118 I said:

it follows that I am satisfied that the grandfather has organised and manipulated events every step of the way… He is there at each appointment making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughters life.

19. At the conclusion of the trial I made an order, dated 13 December 2103, the relevant parts of which for the purposed of these committal proceedings are contained in paragraphs 5, 6 and 7

5) "The First Respondent Mother Brunel NSONGO and/or the Intervener Christopher Nsongo shall by 6 January 2014 return the child JN to the jurisdiction of England and Wales or shall direct that any person having care of the said child return her to the jurisdiction by the said date".

6) "The First Respondent and or the Intervener shall notify the guardian on … (and telephone numbers followed) of the date on which it is intended to return the child and within twelve hours of her return the address at which the child is living on order for the guardian to carryout or arrange for a safe and well check to be carried out"

20. A penal notice was attached to the order, although, in error, there was a typographical error mistake unnoticed by all, including myself, in relation to the grandfather, which put him on notice in relation to paragraph 1 of the order (that is the clause continuing the wardship) rather than paragraph 5 (the order for return.) The grandfather was, however present in court when the order was made and, I am entirely satisfied, was under no illusions as to what was required by the order. At the end of the proceedings; the grandfather said to the court that he court not bring JN back as she was dead and asked the court if it wanted the "body bringing back"
21. Neither the mother nor the grandfather has sought permission to appeal the order or the findings which informed it.
22. The mother and grandfather having failed to effect JN's return, the matter was brought back before the court again on 28 January 2014. On that occasion the transcript of my judgment was not available for reasons which have never become clear. The court, accordingly, made further provision for the transcript to be made available and the order was accompanied by the following recitals:

UPON THE COURT requesting that the Intervener shall read the transcript of the said judgment as soon as it is available and upon the court listing the case for committal hearing in respect of the First Respondent Mother and the Intervener Christopher Nsongo/Yamba,

AND UPON the court encouraging the Intervener, who to date has acted in person. To arrange to represented at the committal hearing, having been warned by the court that an immediate term of imprisonment will be considered by the court at that hearing

AND UPON the Guardian agreeing to provide the Intervener with a list of solicitors

AND UPON the First Respondent Mother making not application to the court for an order that the alleged body of the child JN be exhumed

AND UPON the mother producing in the face of the court a document purporting to be from the cemetery in Kinshasa where she asserts that JN is buried

23. The court thereafter ordered a committal hearing to be listed, time estimate a day, on 11 February 2014. The order set out the alleged breaches upon which reliance is placed.
24. The Guardian in addition, served a formal notice to show because why an order for committal to prison should not be made. Service was effected by personal service in respect of the grandfather and the mother's solicitors accepted service on her behalf. The alleged breaches are contained in the notice to show cause and I do not intend to read them out now, although they should be read into this judgment and relate to the failure of the grandfather and mother to return JN per paragraph 5 and paragraph 6 of the original order as set out at paragraph 20 herein.

The committal proceedings

25. Both the mother and grandfather have filed statements. Each continues to maintain that JN is dead. The mother has spoken of exhumation and at the hearing on 28 January produced, at the conclusion of the hearing, and without having first shown it to her legal team, a document on unheaded paper purporting to be from Mr. Mupu, the supervisor of the cemetery where JN was supposed to have been buried. The contents of this document are in direct contradiction to the evidence contained in Mr. Mupu's formal signed statement filed in these proceedings. The new document says that JN and the maternal grandmother were buried in the cemetery, of which Mr. Mupu is in charge.
26. The English translation of the alleged document which is "signed and stamped" reads as follows:

"I am Mr. Gaby Mupu, … I hereby acknowledge that Miss JN was buried on 6 March 2012. Mrs. Siskea Masamba was buried on 3 March 2012. Their bodies are here in my concession. When Nsongo family came to look for me I was not present. Only my son was there with ten employees. They are registered in our offices paperwork and all the documents are correct. I confirm I did not meet Miss PS on my way to the office. I declare that the statement above is true before god"

27. Today the grandfather has the benefit of experienced counsel in the form of Miss Walker and I am grateful to her for picking up the case at such short notice and the way with which she has conducted the committal proceedings.
28. Committal proceedings are serious, involving, as they do, the potential deprivation of liberty of a subject. It is in part for this reason that in the Practice Guidance, dated 13 May 2012 and issued jointly by the Lord Chief Justice and the President of the Family Division the first paragraph provides as follows:

"it is a fundamental principal for the of justice in England and Wales that applications for committal should be heard and decided in public, that is in open court

29. It is for the same reason that before finding the mother and grandfather or either of these to be in contempt of court it has to be satisfied to the criminal standard of proof, namely that it is satisfied beyond reasonable doubt or satisfied so that it is sure, that each of the mother and grandfather are in breach of the orders requiring them to return JN to the jurisdiction. The burden of proof in this case rests upon the Guardian who has issued the notice to show cause.
30. In her skeleton argument Miss Walker puts the case for the grandfather as follows: Essentially, all these breaches amount to the same failure, i.e. that the Intervener has failed to ensure the return of the child to the jurisdiction of the court. This breach cannot be denied. As a matter of strict liability the Intervener must accept the breach. However, that is within the context that he remains clear that JN died in the Democratic Republic of Congo on 3 March 2012. He maintains his position that he cannot return the child to this court as a result of the fact that she is buried in the DCR.
31. This court has to be satisfied that the grandfather and the mother are each in breach of the specified orders to the appropriate standard of proof. It follows that the court cannot be so satisfied unless it has found to the requisite standard of proof first that the grandfather and mother are each able to comply with the orders. The defence of the grandfather and the mother to these committal proceedings is that they are unable to comply with the terms of the order as JN is dead and buried in a cemetery in Kinshasa.
32. Faced with such a defence in order for the court to find to the criminal standard of proof that there has been a breach of the orders as set out in the notice to show cause, the court has to be satisfied of a number of component facts namely:

i) That JN is alive

ii) That the grandfather and the mother each know where she is and would have been able to arrange for her return if they so chose;

iii) That they have failed to arrange for her to be returned.

33. Each of these findings was made at the conclusion of the trial but to the civil standard of proof namely the balance of probabilities.
34. The court is therefore faced with this conundrum:

Can a court be satisfied so that it is sure that a party is in breach of an order and thereby in contempt of court where the alleged breach is dependant upon facts found by the court by application of the lower standard of proof namely the balance of probabilities?

35. Put another way – can the court properly find to the criminal standard of proof that the mother and grandfather are in contempt of court in failing to return JN to the jurisdiction based on a finding that she is alive and that they are therefore able to comply with the order, where that primary finding that JN did not die was made to the civil standard of proof.
36. In my judgment it cannot; the facts upon which the allegation of contempt depend must have been determined to the same standard of proof as the subsequent breach namely, beyond all reasonable doubt.
37. The present case is most unusual on its facts. Although is rare that there will be on occasion a question as the whether a party is physically able to comply with an order – it is not a unique situation, for example there maybe an issue as to whether a father can procure the return of a child in the circumstances where he says he is unable to exert his authority with relatives abroad to obtain the release of the child. In such circumstances the court must make the finding that the father can procure the return of the child to the appropriate, namely criminal, standard of proof before moving on to consider whether he has failed to do so.
38. The question therefore is can this court be satisfied to the criminal standard that each element necessary to enable a court to find that the grandfather and mother are in breach of the order has been proved?
39. The trial of the issue took place over a week commencing 10 December 2013. Each of the mother and grandfather gave lengthy evidence. There is a detailed judgment. My recollection of the evidence is clear. All the parties, (and particularly counsel for the mother and grandfather), are content that, having heard brief additional evidence from the grandfather and the mother, it is appropriate for me (on the basis of the evidence called and relied upon in the trial, in addition to today's evidence), to consider the totality of the evidence afresh and decide whether I can be satisfied, so that I am sure, that each of the elements set out above have been proved to the criminal standard of proof.
40. On 28 January, as already alluded to, the mother produced the document which I have read out. This letter, purporting to come from Mr. Mupu, had a telephone number on it. In her statement of 6^th February the mother said at paragraph 3(iii) how that letter came to be produced, saying:

"The document dated 10.12.2013, which I produced at court on 28^th of January 2014 is a statement by Gary Mupu who is the manager of the cemetery in Kinshasa where JN is buried. My uncle, Nasamba Renay, sent this to me by post and I received it in December during the fact finding hearing. I asked my uncle to get this document for me because I wanted to prove that my mother and daughter wee buried in that cemetery"

41. At the court's request Angela Wilson (referred to in the principal judgment and who has been responsible for co-ordinating enquiries in the Congo), made further inquiries at her request and a Mr. Eddo Mukendi, who took Mr. Gaby Mupu's original statement at the cemetery, telephoned Mr. Mupu last night (10 February at 19.56). Mr. Mupu confirmed his original evidence to Mr. Mukendi saying that he was "seen on two occasions and he signed the documents to confirm the documents in relation to the burial were false".
42. Mr. Mukendi confirmed the contents of this telephone call to Angela Wilson in an e-mail which, in turn, was forwarded to the guardian this morning.
43. I have that e-mail sent from Mr. Mukendi to Angela Wilson on Monday 10 February 2014 at 3.31. The e-mail is written if French, but it is thereafter translated in another e-mail on the same page (dated 11 February 2014 at 08.22) which is addressed to the child's guardian and also copied into Angela Wilson, it reads as follows:

"Dear Joe and Kay", ...that is the Guardian and the Guardian's associate),"I hope you receive this before court this morning. Below is an e-mail I received last night from Eddo at CATSR. He says that he called Gaby Mupu on the telephone last night (Feb 10) at 19.56 and Mr. Mupu said that he was surprised to learn that there was a letter that he signed on 10^th December and where he says he did not meet Pera. In his words: "I know Pera very well because she saw me on two occasions and I signed the documents to confirm that the documents she presented to me were false. If you tell me there is a signed letter on December 2013, this involves only the person who signed it because I do not recognise it."

44. The evidence before the court from Mr. Mukendi (having spoken to Mr. Mupu) is that as of last night Mr. Mupu stands by his evidence (and the signed statement filed in the original proceedings) to the effect that JN is not buried in the cemetery at Kinshasa.
45. At the request of the grandfather the telephone number on the document purporting to have come from Mr. Mupu and produced by the mother on 28 January 2014, was called, with the assistance of the interpreter, on numerous occasions this morning. The calls were made from Miss Hodgkiss (counsel for the mother) telephone. The parties' representatives were present. It is agreed by all parties that at no time did the telephone make a connection with the number dialled. It follows therefore (and is also accepted by all parties), that no connection having been made; Miss Hodgkiss's telephone number did not become available to the person whose number she was calling.
46. During the short adjournment between 13.41 and 13.47 (and one can only speculate as to the coincidence of the calls being returned from the other side of the world during that brief period in the day, when a call could be answered), Miss Hodgkiss received no less than five missed calls. The call was returned, again with the assistance of an interpreter. This time the call was answered and a male at the other end said that he was Mr. Mupu. Quite properly, no further questions were asked of him. All this naturally begs the question as to how the person speaking knew to ring at all (no connection having been made earlier) let alone to know Miss Hodgkiss's phone number.
47. Miss Hodgkiss, in compliance with her duty as an officer of the court, informed me that whist her lay client, (the mother), does not have her mobile telephone number, the grandfather, who it will be remembered has until recently been unrepresented), does have her mobile number.
48. Having been given this information by Miss Hodgkiss, I rose briefly to allow both the grandfather and the mother to give instructions as to whether they intended to apply for an adjournment to allow further enquiries to be made in the Congo of Mr. Mupu. During that brief adjournment the mother, offered an explanation to her legal team as to how Mr. Mupu (if it were he on the telephone) came to have the telephone number of Miss Hodgkiss. The mother told her legal team that during the course of the lunch adjournment she had unbeknownst to them gone into the city centre and telephoned her uncle in the Congo, to ask him to ring Mr. Mupu and ask him to ring Miss Hodgkiss.
49. I indicated that I was not prepared to adjourn the matter at this stage and would, if needs be, reconsider the matter after oral evidence.
50. Both the mother and the grandfather gave evidence which centred around the veracity, or otherwise of the new document from Mr. Mupu. The mother's evidence was frankly incredible and riddled with inconsistencies.
51. In relation to the document, itself, in contradiction to her statement (where it will be recollected, she said she had received this new document in the post by her uncle during the course of the trial), she now says that she did not receive it until after the trial and had chosen not to tell her legal team as she wanted to show it to the judge herself.
52. Either explanation is hard to credit. The former, as it was a highly significant document, and would, arguably have undermined a key aspect of the case as it would have suggested that Mr. Mupu had filed two wholly inconsistent statements. The latter is simply not believable I do not accept that with an order in place requiring her to return JN to this country by a date in early January, the mother once having received such a document would not have told her lawyers it was in her possession and a document capable of undermining the critical findings of the court.
53. In relation to the telephone call, said to have been made by Mr. Mupu to the court today, the mother's evidence was pitiful; she could not remember where she bought an international phone card or the location of that now rare facility, a public telephone kiosk, from where she says she made the phone call to her uncle in the Congo. She said she was given no receipt when she bought the international card and that she thereafter threw the card away, even though it had significant credit still on it.
54. The mother told the court that she had got Miss Hodgkiss's number from her father's phone which he had given her and she had taken with her to the phone box. The grandfather contradicted this and said in his evidence that he did not go with the mother to make the call and that while she was away making the call he made a number of calls on his phone himself to deal with his domestic arrangements. Both simply cannot be true and it should be remembered that each gave evidence within a couple of hours of the events described.
55. I am satisfied so that I am sure that the mother was telling lies throughout her evidence in relation to both the alleged telephone call and the provenance of the document.
56. The grandfather's evidence was particularly unattractive. Today, unlike the trial, he has been trying to distance himself from his daughter, emphasising that he was not in the Congo and was not a witness to the car accident. He said he knew the mother had Mr. Mupu's letter during the trial and that he had advised her to show it to her counsel, but, he said: "children don't always follow your advice" and "he cannot beat her or make her do things" He referred – unattractively – to his daughter and the uncle as "having dropped him in the shit."
57. The grandfather was unable to offer any explanation as to why as an Intervener, knowing that serious findings were sought against him, he did not either during the trial or after the findings were made draw to the court's attention the fact that the mother, to his certain knowledge, had evidence which would undermine the case brought by the father and Guardian.
58. I bear in mind that the grandfather was unrepresented, but as I recorded in my earlier judgment he was attentive, articulate and he is highly intelligent.
59. I accept without reservation that the evidence in the e-mail from Mr. Mukendi is "not best evidence". During the course of the trial, however I had cause to consider the credentials of CFAB and to examine the way the various documents had been examined and the evidence gathered in respect of their veracity. I remain of the view that the enquiries, (coordinated latterly by Angela Wilson), were efficiently, honestly and effectively conducted. I do not accept (as was suggested by the grandfather) that the e-mail from Mr. Mukendi was a panic response from him, having made errors in his investigations and in order to "watch his back", as was suggested by the grandfather.
60. On the contrary, I accept that a telephone call was made last night, that Mr. Mupu was spoken to and that he confirmed his earlier evidence that neither the paternal grandmother nor JN are buried in his cemetery.
61. I accept the submission of the Guardian that the receipt of the evidence so quickly between Friday (when enquiries as to the veracity of the new letter from Mr Mupu were set in motion), and today wrong-footed both the mother and the grandfather and led them into the antics of today, antics which I take extremely seriously as they were I and satisfied so that I am sure, designed further to mislead the court and show a continued determination to keep JN hidden and a willingness even now to forge documents undeterred by the findings of the court at trial.

Conclusion

62. I have listened carefully to the evidence today and read the statements filed in these committal proceedings. I have put them together, as invited to by all counsel, with my analysis of the evidence following the trial in December ; I have considered whether I can be satisfied so that I am sure of the following:

i) JN is alive.

I am so satisfied and my conclusion is reinforced by the attempts of the mother and the grandfather to undermine the original findings by their bare faced behaviour by as I find it, forging another document, notwithstanding that the court was not deceived in respect of the early forgeries. I make it clear, for the avoidance of doubt, that I find to the criminal standard of proof not only that JN is alive but that the evidence upon which I base those findings as set out in the main judgment and in particular to the forgeries are to the same criminal standard of proof.

ii) I am satisfied, so that I am sure, that both the mother and the grandfather know the whereabouts of JN.

iii) I am satisfied so that I am sure that the grandfather could, if he so chose, arrange for JN's return from wherever she is.

iv) I am, however, at present unable to find beyond all reasonable doubt that the mother is able to facilitate JN's return from wherever she may be. I held before, and I remain of the view, that the grandfather controls the mother. In my judgment I recorded that I had been told that the mother had married and was expecting a child. I queried within my judgment whether the grandfather would now let her go, and allow her to build her own life. The mother inadvertently in evidence today provided me with the answer. When I asked the mother about her husband, she quickly said that she sometimes goes to Milton Keynes to see him and then later tried to say she only comes to Birmingham for "appointments," unspecified. It is quite clear to me that she continues to live alone with the grandfather and not with her new husband. I am not satisfied to the requisite standard of proof that she would be able to defy her father and in the teeth of his opposition arrange the recovery of JN.

63. It follows therefore that I am satisfied to the criminal standard of proof that the grandfather is in breach of the orders as made by me on 13^th December and contained in paragraphs 5 and 6 as set out in detail and particularised in the notice to show cause.
64. So far as the mother is concerned, I am not satisfied on the evidence as it is today that she would be able herself, effectively, to procure the return of her child, absent the assistance of permission of the grandfather, and I will deal in a moment with the consequences of that finding.

Mitigation heard;

Sentence of the court 6 months imprisonment.