England and Wales High Court (Family Division) Decisions

_{Neutral Citation Number: [2017] EWHC 2187 (Fam)}

IN THE CENTRAL FAMILY COURT

Case No:  ZC16P01311

Courtroom No.  26

First Avenue House

42-49 High Holborn

London

WC1V 6NP

Friday, 11^th August 2017

Before:

HER HONOUR JUDGE HUGHES QC

B E T W E E N:

STEPHANIE RICHARDS

and

NORRIS ROMAINE MARTIN

UNKNOWN COUNSEL appeared on behalf of the Applicant

MS J TOWNEND appeared on behalf of the Respondent

JUDGMENT(Approved)

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

HHJ HUGHES: 

1.                  This is a committal application.  I would like to start by saying that I am extremely sorry that it has taken until Friday afternoon, 11 August, to deal with this matter when the respondent, Mr Martin, was arrested on Wednesday and detained in custody on Wednesday.  The history of that is that – well starting on 31 July I suppose, or even the order of District Judge Jenkins, which was made on 21 June - that order flagged up there would be a hearing on 7 August to determine committal application, and that is in the order of the District Judge made on that day, which is to be found at B146-150.

2.                  It is right that there was another hearing in the court list, which was oral hearing on 31 July.  In addition, on 28 July, administratively through this court, because I was unable to sit on 31 July, there is an order which was made adjourning that case until 7 August.  That is at B164 of the bundle.  However, the father says he was not told that the hearing was not going ahead on 31 July, seemingly the mother was told and only the father turned up.  However, he was then told that the case was not in the list on the day, and of course he had already been at court with District Judge Jenkins on 21 July, the 7^th August had been mentioned.  The order that adjourned the committal was dated 28 July and that was sent in, he said he got it three days later.  He did not turn up at this court on 7 August. 

3.                  By that time it was alleged by the mother there had been nine breaches of previous orders and a number of judges had had a role in the case and indeed had been concerned about the situation and the fact the mother was not getting contact to the three relevant children, who were, a girl who was born on 15 November 2005, so she is now 11; another girl who was born on 3 December 2006, so she is 10; and a boy was born on 21 December 2007, and so he is nine. 

4.                  Therefore, when the respondent did not turn up at the hearing on the 7^th the court was told that a message had been received from his mother that he was ill.  However, it was my view that he should have been there, he should have sent a message to the court if he was ill.  There was no direct message from him, no suggestion he could come at any other time, and the time had come, and so I issued the Tipstaff Warrant on 7 August.  That was served on Wednesday, the father was arrested and he was brought before the court yesterday, 10 August.  It is most regrettable and a matter that I intend to investigate that there was no-one who could represent him yesterday.

5.                  Yesterday the case was eventually called on at about two o’clock in the afternoon; I asked the father if he wanted representation, he said he did, and the rest of the afternoon was spent really, very frustratingly, looking for someone to represent him.  It seemed that the problem was in the court the father had explained that he had no longer had benefits, and solicitors avoided the case because if he did not have benefits he did not have an automatic passport to legal aid, and in those circumstances they were unwilling to represent him.

6.                  This morning he was brought back to court.  The morning was spent in the same frustrating way that it had been spent yesterday afternoon, still looking for someone to represent him, but by now Ms Townend, whose clerk had said she might be able to do it last night, was at court.  I am extremely grateful to her, not only for representing Mr Martin but for the effort she put into it, and eventually at lunchtime she was able to find a solicitor, to whom I am also very grateful, because that solicitor has attended court, is willing to do it, as Ms Townend is, on a pro bono basis, and I am really extremely grateful to them both and ashamed to be part of a system that it has taken so long for any legal representation for someone facing committal to have. 

7.                  However, I am now dealing with the committal application.  Ms Townend, on behalf of the father, makes a number of preliminary points.  The first point she makes is that there is a requirement for penal notice on judgment and orders.  They may not be enforced unless there is prominently displayed on the front of the copy of the judgment or order a warning to the person required to do or not to do the act in question.

8.                  I have read that representation.  The requirement for a penal notice to be found at page 1988 of the Family Court Practice 2017.  I understand that in a lot of cases, where injunctions are obtained, parties may not be present in court, it is very important to draw these matters to their attention.  

9.                  However, I am afraid I take the view that this case is different, because this is a case where the father has attended the court on all occasions except 7 August; he has been warned about his conduct.  The penal notice is so clearly put on the documents.  Whilst it may not be on page one, it is certainly in some cases on page two.  Ms Townend may take this matter wherever else she wants, but I am afraid I override that because this is not a case where the father was unaware of what is required, and it seems to me I can continue to deal with the matter. 

10.              She says that the case is not properly on the court list, and for that I do accept some responsibility, because this a court at which I regularly sit.  I did say yesterday it must go on the list; it was put on the list, an open court matter.  It is not as I would have liked it to be put on the list, but on yesterday’s list and today’s list, when the matter is heard, it does say in open court, and a tannoy was sent out yesterday informing the court that this was an open court matter.  I do not think that was done today and I fully accept the media were not notified.  I have read the Lord Chief Justice’s directions and of course this was a case where the respondent was brought to court at short notice, and he does cover that position in his directions, and I agree it does say, ‘The media should be notified’.  However, I am not holding up this case because the media have not been notified.  I am not adjourning the case, I am going to deal with the case, and if I am wrong on any of these preliminary points no doubt the Court of Appeal will step in and say I should not have acted in the way that I did.

11.              She says that, in counsel for the mother’s position statement, it says that the Court has already indicated that a prison sentence is the only punishment here, and the court does not have an open mind.  That is not correct insofar as it relates to me.  What happened, at an earlier stage in the proceedings, was that the application was brought for the father to do unpaid work for breach of the order, and by the time that came in front of me I realised that he was looking after three children, but indeed these were persistent breaches and it seemed to me that that was not the way that court order should be enforced in circumstances of this nature.

12.              The matter does have a long history, and in the course of 2017 it is alleged that there were breaches on 12 March, 26 March, 9 and 23 April, 7, 14, 20, 28 May, and 1 July.  Ms Townend, counsel for the father, took him through the various breaches, asking him about the circumstances on each occasion.  He said ‘The children did not want to go and I could not make them go’. 

13.              I am afraid that the father has been in my court on several occasions and really I do not believe a word of that, not only do I not believe it, the children, as I repeat, are 11, 10 and 9, and they are under the father’s control and they do what he says.

14.              In order to deal with the application I heard oral evidence, at the insistence of the father’s counsel, from the mother, the uncle Albie Tew-Gardner, who was delegated to collect the children from the library at which the father was to deposit them, Leyton Library, and return them at the end of contact.  He told me that he had waited at the contact on various occasions, sometimes for 25 minutes on occasions when the children did not come, and there were several occasions.  The only time he successfully collected the children this year was on 11 June.

15.              The mother told me that the children greatly enjoyed seeing her, that had rung her and occasionally told her she wanted to see her, or said ‘We miss you’ and said ‘Daddy won’t let us’ and she had occasionally asked ‘Why don’t you ask Daddy if you can come’ and she said ‘Daddy won’t let us’.

16.              I am afraid I do not believe the father’s evidence.  From his stance on previous occasions and his stance today I know that it is not true that the children do not want to come, I know it is not true that he deprives the children of treats.  The fact is this father is very angry with this mother.  It goes back a long way.  He said twice or three times the mother disappeared for years, ‘I still let her see the children’, and that is right in the earlier stages. 

17.              However, the event that has triggered the matters in this case, and caused the father to breach all these orders, as I find he has, is the eldest child, now 13, leaving home and leaving the father.  The father is very anxious to see the eldest child who has made it equally clear she will not see him, and the father’s response to that is to deprive the mother of the other children.  The hint of how that I come to the conclusion that I have with regard to that is that the father said ‘District Judge Jenkins said if the three younger children went to see the mother it may be possible for me to see the eldest child.  Therefore, on 11 June, despite what he says are the children’s express wishes, he was able to get the children to the library and they had a lovely time with the mother, and I accept her evidence about that.

18.              Once the matter came back to the court, and District Judge Jenkins indicated that he had now seen a social work report, that the problems with the eldest child were deep-seated and too deep-seated just to simply restore contact, the father adopted his previous line and refused to allow the children to go, and that is at the root of this case.  However, I am afraid it has resulted in the father, in my judgement, for no good reason, refusing to allow these three younger children to have contact. 

19.              I take into account Re LW (Children) [2010] EWCA Civ 1253 and I look at what the order required.  The order requires the father once a fortnight to take the children to take the children to Leytonstone Library, where they would meet the uncle and then, five hours later, they would meet the uncle again and the father would retrieve them.  That, in my judgement, is not an onerous order.  Has the father done it?  On the one occasion in June, which is not the subject of this committal application, yes he did.  However, on the other occasions he has not.  Was it in his power?  Ms Townend says no.  He could not get these children aged 11, 10, and 9 to go.  I am sorry, he got them to go on 11 June, he could have got them to go on any of the other occasions had he wanted to do so.  However, I am afraid that it is not this father’s wish that the children see their mother, because the mother has the eldest one, and while he is not seeing her why should they see the mother. 

20.              Therefore, I am driven to the conclusion that he has deliberately and persistently disobeyed the court order.  There are no good reasons.  He has given several reasons.  In fact, the order of District Judge Jenkins set out very clearly that he said to District Judge Jenkins ‘he has not made the children available for contact and he is in breach of the orders because the children would be at risk of sexual abuse during contact, and the children refuse to go.  In addition, he said then he had some text messages, telephone messages, which showed evidence of sexual abuse’, and when the District Judge showed interest in that, and asked him to bring the telephone to court, it turned out there were no such messages.  Therefore, District Judge Jenkins said and upon it therefore, appearing to the court, there is no evidence whatsoever of the alleged sexual abuse.  That is how that allegation stands.  In addition, it is absolutely right for me to say that in addition to that evidence, which has been recorded in the order, there is a report from the Local Authority which says they have investigated sexual abuse and there is no evidence of sexual abuse at all.

21.              Interestingly, last night, when the father was going to be remanded in custody, he said he loved the children but he loved himself more and ‘the mother can have the kids’ if I would release him last night.  That indicates to me that actually there are no problems between the children and the mother, and actually it shows that he has just simply blocked the contact.  His decision to purge his contempt, or his request to purge his contempt, was made today that if I release him and leave the children with the mother I can wait for the Section 7 from the court which has been ordered and I can then consider the issues of residence and contact at that stage.

22.              I am afraid that these breaches are too serious; they have gone on for too long a time.  The father has been given chance after chance after chance, and I myself have given him several opportunities to comply with the Orders.  I said I will adjourn this, I will give you one more chance, I will give you seven days, let us see if it works next weekend.  He has just not adhered to the court decision and the court orders at all, and I am now going to sentence him to a term of imprisonment of 28 days.