England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		25th November 2016

MR JUSTICE HOLMAN:

1. There is before the court an application to commit Sayed Gulab Shah Hashimi to prison for contempt of court. I make plain at the outset of this judgment that, for reasons which I will give, I propose to dismiss for all time that application. However, at the outset of this judgment I must frankly draw attention to a regrettable procedural defect which occurred today. So far as I am aware, I, personally, have never had any previous dealings with this case, and certainly no recent dealings. I, myself, read the papers for the first time yesterday evening. I did not, as perhaps I should have done, personally examine the published cause list for today to check that the case had been correctly listed for hearing in public, as any proceedings for committal must be.
2. Throughout this morning I have indeed sat publicly in open court. I have been robed and both counsel have been robed. But it was only at lunchtime today that I checked the cause list myself and saw to my dismay that the published cause list listed this matter as "Application in court as in chambers". I have since seen a copy of the actual notice that was pinned on the notice board outside this court room this morning, and that notice also refers to "Application in court as in chambers". The published cause list does give the surname of the alleged contemnor as "Hashimi". The notice outside the door of the court did not give any name at all, and only the case number of the underlying proceedings.
3. As a result of that serious defect, I took two steps during the lunch adjournment. First, I caused a fresh notice to be posted outside the door of the court, which now states "For hearing in open court, application for the committal to prison of Sayed Gulab Shah Hashimi for contempt of court", and continues by giving the court number of these proceedings and repeating the surname Hashimi.
4. The second step was that I arranged for my clerk to notify the Press Association office here in the Royal Courts of Justice that I am indeed hearing an application for committal in open court today. As a result of that telephone call, a journalist was indeed present when this hearing resumed at about two o'clock this afternoon, although I note that the journalist has subsequently left.
5. I deeply regret that irregularity. I take personal responsibility for it. I have learned the lesson that a judge must personally always check the cause list for defects of that kind. I can only say in my defence, or in some mitigation, that neither counsel, both of whom are exceptionally experienced, noticed or drew my attention to the defect.
6. I pass from that irregularity to the substance of this application to commit. The underlying proceedings concern a boy who was born in Afghanistan in late December 2009. If he is still alive he will now be approaching the age of seven. At the time of his birth, his parents, who are or were married to each other, were living together in Afghanistan. They are first cousins to each other. They have a common uncle. Within a very few weeks of the birth of the child, the father, who had recently been granted British citizenship, spoke to the mother about her travelling to England with him without, at that stage, the child. In this judgment I use the phrase "spoke to" as there may be some underlying dispute as to how far the mother acted as a result of encouragement, or persuasion, or coercion from the father, with which I do not further deal in this judgment.
7. The fact is that within about a month of the birth of the child, the mother and the father did both travel to England leaving the child at that stage in the care of the uncle. It is the case of the mother that she understood that the child would follow fairly soon to England once his capacity to enter the United Kingdom had been established.
8. The mother has never seen that child again. For at least six years she has not had the slightest idea where her child is. She does not know whether he is still in Afghanistan, and, quite frankly, in view of the strife within that country in recent years, she cannot even reliably know whether her child is still alive. It is hard to imagine a greater suffering and torment than that which that mother must daily go through.
9. She and the father continued to live together in England, and indeed a further child, a daughter, was born to them. By the time the daughter was born the parents had separated and, as I understand it, the father has never seen the daughter, although he does know perfectly well that the daughter is living with the mother in England, albeit at an address or whereabouts which are kept confidential from him.
10. The mother first began proceedings to try to establish the whereabouts of her son in early 2011. It is not necessary for the purposes of this judgment to describe the subsequent procedural history or the many court hearings which have taken place, including at the level of the Court of Appeal. I do, however, mention that both parents are publicly funded through legal aid. I have been told today that the approximate costs which have been incurred by the legal aid fund in relation to each parent since the first commencement of any proceedings in 2011, but not including the costs of this hearing today, are approximately £41,000, including all VAT and disbursements in the case of the father, and £63,660 in the case of the mother. The aggregate of those figures is £104,660.
11. From first to last it has been the case of the father in these proceedings that at some point long ago the child ceased living with the uncle, and the father simply does not know where the child is or any information about him or his wellbeing. The mother has never accepted that.
12. There was a fact finding hearing before Newton J in October and November 2015. Then, as now, the mother was represented by Mr Hassan Khan, instructed by Dawson Cornwell, solicitors, and the father was represented by Mr Paul Hepher, instructed by Jones Myers, solicitors. The course of the evidence and argument appears to have occupied a full five days between 26 to 30 October 2015. The judge reserved his judgment and gave it on 30 November 2015. The judgment of Newton J was delivered in private, but he gave leave for an anonymised version of it to be published and it was ascribed a neutral citation number of [2015] EWHC 3456 (Fam). I am not certain, as I speak, whether that judgment was made publicly available on the BAILII website.
13. In summary, Newton J concluded to the civil standard of proof that the father has always known, and did still at that date, November 2015, know the whereabouts of the child. It must be stressed that that was a judgment reached expressly on the civil standard of the balance of probability. With regard to the then current whereabouts of the child, Newton J said at para.21:

"I do not know and cannot speculate as to where [the child] may now be, but having regard to my very clear findings, I logically infer on all the evidence that it is reasonable to suppose that the father knows precisely where [the child] is to this day."

14. Pausing there, it is important to observe that the way in which the judge carefully expressed himself as to the father's knowledge of the child's current whereabouts was that he "logically inferred" that it was "reasonable to suppose" that the father knows precisely where the child is.
15. In the light of that judgment there was a further hearing before Peter Jackson J on 26 May 2016. Again, he sat in private, but approved his judgment for publication in an anonymised form. That judgment was ascribed the neutral citation number [2016] EWHC 1252 (Fam), and I have been informed by counsel that that judgment certainly is upon the BAILII website, and so has been, and is, available for anyone with an interest in this matter directly to read.
16. Peter Jackson J did two things. First, he decided, having regard to two decisions of the Supreme Court, known as Re A and Re B, that the High Court should exercise its inherent jurisdiction in relation to this child. That was based upon the fact that he is a British citizen by descent (his father having been granted British citizenship shortly before he was born), and that the jurisdiction should be exercised in relation to him even although there is not a shred of evidence that he has ever set foot anywhere in the United Kingdom, let alone ever been habitually resident here. There has been no challenge to, or appeal from, that decision by Peter Jackson J.
17. The second thing which he did was to make an order against the father in the following terms:

"The father, Sayed Gulab Shah Hashimi shall file and serve a statement of evidence dealing with the following matters no later than 4 pm on 9 June 2016 …"

There were then set out under sub-paragraphs (a) to (h) the various matters with which the statement was required to deal. In broad summary, the matters related to the current whereabouts of the child, with whom he is residing, and other questions to do with his schooling and wellbeing. A penal notice was correctly attached to that order, and prominently displayed on the front page of the order as the rules require.

18. The father did make a statement dated 6 June 2016, which I assume was indeed filed and served by the time and date specified by Peter Jackson J. That statement sets out seriatim the lettered paragraphs (a) to (h) of paragraph 1 of the order of Peter Jackson J, and answers each with brief statements to the effect that he does not know where the child is currently residing, and can give no other information in relation to him. In response specifically to paragraph (e), which asked "when he last saw the child and/or had contact with the child", the father stated:

"I last had contact with my child when my ex-wife came to England around five or six years ago."

That statement contains at the end, above the signature of the father, a prominent statement in bold capital letters that, "I confirm that the contents of this statement is true". Although the language may differ slightly from the usual language of a statement of truth, it is quite clear and evident that that sentence was subscribed to by the father as being a statement of truth.

19. The mother and her advisers do not accept the truth of that statement, and considered the father to be in contumacious breach of paragraph 1 of the order of Peter Jackson J.
20. The mother applied for, and obtained, further legal aid to enable her to make an application to commit the father to prison for contempt of court. On 4 August 2016 the mother's solicitors issued a formal application in this court asking that the father be committed to prison for contempt of court. The basis of the application in Part C of the formal notice of application is that:

"… on 9 June 2016 the respondent filed a statement in which he continued to assert that he knew nothing of the child's whereabouts."

The plain inference is that that continued assertion is dishonest and untrue.

21. Since that application was issued, there have been three further hearings before High Court judges, or a Queen's Counsel sitting as a deputy High Court judge, prior to the present hearing. The last of those three hearings was before Parker J on 21 October 2016. As I understand it, the substantive committal application had been listed for hearing before her that day, but only an hour of court time had been allowed which was patently insufficient for the court to hear and determine this application. An order was made by Parker J at the request, certainly of counsel for the father, that the committal application should be re-listed first for a preliminary hearing in open court here today to determine the following issues:

"Whether the mother's application should proceed to a final committal hearing, or whether the application should be dismissed.

In the event that the matter proceeds to final committal hearing, what consequential directions should apply."

22. Secondly, the committal application was listed separately for "a final committal hearing in open court" on two consecutive days in February 2017, to be vacated in the event of the application being dismissed here today.
23. With hindsight, it was regrettable that the order went on to excuse the attendance of the father personally from the hearing today, provided his solicitors and/or counsel attend the hearing. The result is that the father is, quite lawfully and permissibly, not present today, but he is fully and very well represented.
24. The mother has also chosen not to attend today. This has the effect that I have been hearing this important matter today with neither parent present, which, to my mind, is regrettable.
25. The reason why Mr Hepher asked Parker J to list this application for a preliminary issue hearing today is that he considered, and now submits, that this is an application to commit which cannot succeed. There are essentially two limbs to his argument. The first is a submission that, in fact, the father has fully obeyed and complied with the requirements of the order of Peter Jackson J. The second is that, in any event, it will be impossible for the mother to prove to the required criminal standard that the statement dated 6 June 2016 is untrue, or to prove, in summary, that the father knows a lot of information about this child that he is refusing to disclose or reveal.
26. It seems to me, however, that there is a quite separate, and indeed fatal, defect in the present application to commit the father to prison. Rule 17.6 of the Family Procedure Rules 2010 provides as follows:

"False statements

(1) Proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth."

Pausing there, it seems to me that the present application to commit for contempt of court falls fairly and squarely within the language of that paragraph. The father has made a statement. It is verified by a statement of truth. The gravamen of the application to commit is that it is a false statement without an honest belief in its truth.

27. Rule 17.6 continues as follows:

"(2)  Proceedings under this rule may be brought only –

(a)  by the Attorney General, or

(b) with the permission of the court."

28. In this case the proceedings are not brought by the Attorney General, who, so far as I am aware, knows nothing whatsoever about them. Further, Mr Hassan Khan, who appears on behalf of the mother, has frankly accepted that there was no prior application for the permission of the court, and the proceedings have, accordingly, not been brought with the permission of the court.
29. The rule is supported by a Practice Direction, PD17A. Within that practice direction appears the following:

"Penalty

6. Attention is drawn to rule 17.6 which sets out the consequences of verifying a statement of case containing a false statement without an honest belief in its truth, and to the procedure set out in Chapter 5 of Part 37 and in paragraphs 4.1 to 4.7 of Practice Direction 37A (Applications and proceedings in relation to contempt of court)."

30. So paragraph 6 of the practice direction signposts consideration of Chapter 5 of Part 37 of the rules, and also paragraphs of Practice Direction 37A. The relevant rule is rule 37.17, which is headed "Committal application in relation to a false statement of truth". I do not propose to lengthen this judgment by reading the whole of that rule. Suffice to say that the rule makes crystal clear, as did rule 17.6(2), that a committal application in relation to a false statement of truth in connection with family proceedings in the High Court may be made only with the permission of the court or by the Attorney General.
31. When one turns to paragraphs 4.1 to 4.7 of the Practice Direction PD37A, it is again made crystal clear that such an application may only be made with the prior permission of the court or by the Attorney General. It is important to note that paragraph 4.1 of the practice direction states:

"… However, the Attorney General prefers a request that comes from the court to one made direct by a party to the proceedings in which the alleged contempt occurred without prior consideration by the court …"

Paragraph 4.2 of the practice direction makes absolutely clear that any application for permission to make an application to commit for contempt of court in relation to a false statement of truth must be supported by an affidavit of evidence in support of the application, which must:

"(1) identify the statement said to be false;

(2) explain -

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1."

32. By paragraph 4.3 the court has a range of discretions on such an application, including to direct that the matter be referred to the Attorney General for him to consider whether to bring proceedings for contempt of court.
33. Paragraph 4.5 provides that any request to the Attorney General must include the same information as is required in an affidavit in support to the court, as I have described above. So, if there was a request to the Attorney General he needs to be informed why the maker knew the statement to be false at the time it was made, and it needs to be explained to him why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.
34. In my view, it clearly follows from the provisions of the rules, and most clearly from the provisions of Practice Direction PD37A, that the question of permission in this sort of situation is not a mere formality. Far from it, the application for permission clearly has to be supported by detailed affidavit evidence which, amongst other things, explains why the maker knew the statement to be false at the time it was made, and also explains why contempt proceedings would be appropriate in the light of the overriding objective. I will not in this judgment cite from the overriding objective in rule 1.1 of the Family Procedure Rules, but, as is well known, the overriding objective includes consideration of proportionality, the saving of expense, and the appropriate sharing of court time and resources. So the requirement of permission is an important protection and safeguard, not only for alleged contemnors, but also the wider public interest.
35. As I have already said, it is hard to imagine a more dreadful situation than that of this mother, who has no idea where her child is, and has not seen him since he was about one month old. The child is a British citizen, and Peter Jackson J has already decided on that basis alone that this court should exercise its inherent jurisdiction in relation to him. That said, there must be some limits. As I have said, over £100,000 of public money has already been expended on litigation in relation to the whereabouts of this child, who has in fact never, ever set foot in the United Kingdom. At some point, a judge will have to grapple with the overriding objective and considerations of cost and proportionality, and/or may have to decide whether the point has come at which the Attorney General, who is the guardian of the public interest, should decide how far to pursue committal proceedings in a situation such as this.
36. So, in my view, the requirement of rule 17.6(2) and the other rules and Practice Direction provisions to which I have referred, is not a formality. I certainly cannot, in relation to committal, simply overlook the failure to apply for permission. Rule 17.6(2) is mandatory and not discretionary in its effect, for it says in terms that "proceedings under this rule may be brought only …"
37. As the mother failed to apply for, or obtain, the permission of the court before she issued her application to commit on 4 August 2016, I must, as I do, dismiss that application in any event, on the ground that the proceedings commenced by it were issued without the prior permission of the court, and are not brought by the Attorney General, in breach of the requirement of rule 17.6.
38. Pausing there, that decision may (I stress 'may') have left open to the mother the right and opportunity now to issue a proper application for permission, properly evidenced by an affidavit complying with all the requirements of paragraph 4.2 of Practice Direction 37A. If she were later to do so, then the court (and maybe a different judge) on another day would have to consider that application. Before she was able to do so, it appears likely that she would have to obtain a fresh grant of legal aid, as the scope of her present certificate will have been exhausted by the dismissal of the present application for committal.
39. That consideration apart, difficult questions might arise if she were now to apply for permission to bring proceedings for the committal of the father, as to whether he could, or should, be exposed a second time to an application for committal for contempt. I do not say that he could not be, since neither counsel, nor indeed I, have researched the point, and I have heard no submissions whatsoever upon it. It would raise considerations of double jeopardy.
40. It seems to me, however, that on the facts and in the circumstances of this present case, I should today go further than dismiss the present application solely on the ground of the breach of rule 17.6. As I said at a much earlier stage in this judgment, Mr Hepher had already developed in his written position statement two strands of defence to the present application. The first is his submission and argument that in any event there has been full compliance with the literal requirements of paragraph 1 of the order of Peter Jackson J of 25 May 2016. In making that submission, Mr Hepher fastens on the language of the opening words of paragraph 1, which required that the father "shall file and serve a statement of evidence dealing with …" Mr Hepher's submission is that, undeniably, the statement dated 6 June 2016, which the father filed and served, does "deal with" the listed matters, in that it sets each one out and gives an answer to them. I suggested to Mr Hepher that it can surely be implied or read into the opening words of paragraph 1 that the statement must be a statement which is a true and honest one to the best of the father's knowledge and belief. Mr Hepher does not accept that, and relies upon numerous authorities to the effect that in proceedings to commit someone to prison there must be absolute strictness, and the person concerned must know with complete clarity what it is that he must do, or refrain from doing. Mr Hepher submits that there is simply no room in circumstances such as this to imply anything into an order of that kind.
41. The second strand of Mr Hepher's submissions is that, in any event, on all that is known about this case, the mother has no realistic prospect of proving to the required criminal standard of proof that the father's statement of 6 June 2016 is in any material respect dishonest or untrue. It is, of course, the case that it flatly contradicts that which Newton J had already found in his judgment of 30 November 2015. But, as Mr Hepher points out and as I have already stressed, that was a judgment based purely on the civil standard of proof, and such relatively speculative reasoning as that "I logically infer … that it is reasonable to suppose that …"
42. Mr Khan, on behalf of the mother, has frankly accepted that she has no other evidence than that which was deployed before Newton J. He submits, however, that Newton J only made his findings and expressed them on the civil standard because that was all that he was being asked at that stage to do. Mr Khan speculates, to put it no higher, that if Newton J had been considering the factual matters to the criminal standard he would still have been able to make, and would have made, the broad findings that he did. Mr Khan submits to me that, in principle, the mother should be permitted to mount her application to commit, and given the opportunity to deploy again all, or such parts as she wishes, of the evidence that was deployed before Newton J in order to seek to persuade the court to the higher, criminal standard that the father does know the whereabouts and other information in relation to the child and is being deliberately untruthful and dishonest.
43. It is at that point that considerations of proportionality may vividly arise. The hearing in front of Newton J lasted five full days, plus the day of judgment. It may be that less evidence would be deployed a second time round, but at all events a hearing measured in days, not hours, seems to be contemplated by Mr Khan.
44. I do not today make any definitive ruling or determination upon the two strands of the submissions made by Mr Hepher. But I have come to the broad overall view that the present proposed application to commit, based as it is upon the terms of paragraph 1 of the order of 25 May 2016 and the contents of the statement of 6 June 2016, has low prospects of success.
45. I will not, for today's purposes, say more than that; but taking that view as to its prospects of success, I propose also to dismiss the present proceedings upon the second and concurrent ground that even if permission was now granted, the proposed substantive application to commit, based upon the terms of paragraph 1 of the order dated 25 May 2016 and the statement of the father dated 6 June 2016, has low prospects of success.
46. The effect of that is that this mother can now never again resurrect, or attempt to resurrect, any application to commit the father for contempt of court based upon, or arising out of, the terms of paragraph 1 of the order of 25 May 2016.
47. What I propose to do, however, is make a fresh order echoing, but in different terms to, that earlier order. I hope that the language of this fresh order will be so clear that it would be impossible for Mr Hepher or anyone else ever even to mount or renew an argument as to ambiguity. I shall order, in the exercise of the inherent jurisdiction of this court in relation to a child who is a British citizen, that the father must, by a specified date, make and file and serve an affidavit on oath, or an affirmation, in which he gives true and honest answers to a relatively short list of questions.
48. I will not in this judgment reproduce those questions. They are very direct questions, most of which first require a 'yes' or 'no' answer. They focus exclusively on the current whereabouts of the child, and with whom he may be living, and upon when the father, himself, last had any direct or indirect contact or communication with the child. Mr Khan agrees that it is, frankly, premature at this stage to develop further questions with regard to such matters as the wellbeing or schooling of the child, or the languages he speaks. All that can be for another day, if ever the whereabouts of this child are ascertained.
49. My purpose and intention is, first, to make clear beyond any doubt that the answers must now be given on oath or affirmation. A mere statement of truth will not suffice. Second, to make express in the order that the answers which are given must be true and honest answers to the best of the father's knowledge and belief, and that he must positively state on affidavit or affirmation that his answers are true and honest answers to the best of his knowledge and belief.
50. When that has been done, and in the light of whatever answers are given, the mother can take stock and consider whether there is any further action that she can properly take.
51. The final matter to which I refer is the current status of the child in these proceedings. By an order made long ago in December 2014, this child was made a ward of court. I am not quite clear as to the circumstances in which, or the reasons why, he was made a ward of court at that stage. However, it is quite clear to me from my brief engagement with this case today that it is wholly inappropriate that this child continues to be a ward of this court, even if at some earlier stage it was appropriate.
52. It is important to stress that the inherent jurisdiction of the High Court in relation to children may be, and frequently is, exercised without the child concerned being actually made a ward of court. When a child is made a ward of court, the court thereby assumes responsibility for decision making in relation to the child. This child is a British citizen, but, as I have now said several times, there is not a shred of evidence that he has ever set foot in the United Kingdom. It is of the essence of this case that neither the mother nor the court (and, so he says, the father) have the slightest idea where the child is or where he has been now for several years. In those circumstances, it seems to me both unnecessary and completely inappropriate that he should remain a ward of this court, since the court cannot realistically make any decisions in relation to him at all.
53. For those brief reasons I propose today, without I think much opposition from Mr Khan on behalf of the mother, to direct that the child hereby ceases to be a ward of this court. But the order will make clear, for the avoidance of doubt, that the court continues to assert and exercise its inherent jurisdiction to make orders in relation to, or in connection with, him and his whereabouts and wellbeing.
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