England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2015

The Honourable Mr Justice Cobb :

1. On 4 February 2015, I heard an application on behalf of Evelyn Rojas Sanchez (hereafter "the mother") for the committal to prison of Pawel Oboz ("the father") and Jolanta Oboz ("the paternal grandmother") (see [2015] EWHC 235 (Fam)). The mother alleged breaches of two orders made by Judges of the Family Division dated 8 and 15 August 2014; by those orders the father and the paternal grandmother were required to return the child Isabella (aged 3) to this jurisdiction from Poland, where they had unlawfully retained her following a holiday.
2. I took the unusual course, for reasons set out in that judgment (see [4] and [5] of [2015] EWHC 235 (Fam)), of hearing that application in the absence of the Respondents, who had remained in Poland. I found that the father had been properly served with the proceedings, had been afforded adequate notice of the application, and had offered no explanation for his absence; I concluded that it was fair and just to proceed in his absence. I determined the facts of the application and concluded that the mother had made good her case. I specifically found (see [38] and [41]) that the father had breached the orders by not returning Isabella to this country, and had not taken steps to facilitate her return. I adjourned the question of sentence so that the father could avail himself of representation, further giving him the opportunity to return Isabella to the jurisdiction; had this happened by today, I would have been able to take into account on the question of sentence.
3. I found that the paternal grandmother had not been properly served with the relevant order giving her notice of the 4 February hearing, and adjourned consideration of the application relating to her.
4. Since the 4 February hearing, multiple efforts have been made to serve the respondents. These efforts have involved the mother's solicitors in sending the relevant material (including my earlier judgment, order, and notice of this hearing), translated into Polish:

i) By post, to the father's home and work address;

ii) By e-mail;

iii) By courier to his work – where he is reported to have opened the package of documents and then handed the package back when he had seen what was included;

iv) By facebook.

Moreover, the mother's solicitor – through a Polish speaker within the firm – has endeavoured to speak with the father on the telephone to advise him of the hearing, but the father cut the call off (I am satisfied) after the date and time of this hearing had been communicated, seeking to disengage with this additional process of notification. A voicemail message was left to the same effect on the same number.

5. Neither the father nor the paternal grandmother is at court today. Isabella has not been returned to this jurisdiction.
6. I repeat and have borne very much in mind the matters which I set out at [4] of the earlier judgment, acutely conscious of the Article 6 rights of the parties.
7. Isabella is a three-year old child who, until her unlawful retention in Poland in the summer 2014, was (as she still is) habitually resident in this jurisdiction. It is here that she has her home. I had cause to remark in the case of LBTH v Ali [2014] EWHC 845 (Fam), [2015] 1 FLR 205 that untold damage is done to children who are spirited away from one country to another, without warning or preparation; disruption to their routines, the predictability of their lives, their family relationships and social relationships, and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot go unpunished.
8. I stand by those words. The wilful retention of a child abroad in circumstances such as these is child abduction of the most heinous kind; it is an act of emotional abuse to the child. In this case, Isabella has been deprived of her relationship with her mother who until her unlawful retention in Poland was her primary carer; she has been denied the regularity of an environment which is familiar to her.
9. The father has been defiant in subverting the English court orders. I am wholly satisfied that he was, and is, fully aware that he has been required to return Isabella to this country; he has chosen to turn his face against the English law. By adjourning today's sentence I gave the father opportunity to return Isabella &/or to come to court to explain himself &/or to offer some mitigation for his conduct. He has chosen to do none of these things.
10. I have had regard to the guidance offered by Hale LJ as she then was in Hale v Tanner [2000] 2 FLR 879. I have not assumed that imprisonment is the automatic punishment for breach of a family court order. However, I am satisfied that an immediate sentence of imprisonment is entirely justified on the facts of this case.
11. A sentence of 12 months imprisonment reflects the intrinsic gravity of the father's breaches and marks the disapproval of this Court. That is the sentence which I impose. The father, once apprehended, will serve half of that time in custody; he will have the opportunity to come to the court to seek to purge his contempt if he chooses to do so.
12. The paternal grandmother has not yet been effectively served with the process; it is not right that I should proceed in her absence. Mr. Gration asks for a further period in which to try to serve her. These committal proceedings cannot continue indefinitely, but I do regard it as in the interests of justice, fulfilling my responsibilities to the parties and to the child to give the mother a further period of 4 weeks in which to try to serve her in order to deal with the alleged contempt. I will re-list this as soon as possible in April.
13. With the mother's agreement, I authorise the release of a photograph of Isabella to the media, in order that steps can be taken to draw attention to the orders which have been made in this case.
14. That is my judgment.