England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/08/2017

Mr Justice MacDonald:

INTRODUCTION

1. This is an application to commit the respondent, Levi Bernard Egeneonu (also known as Bernard Nkem), to prison for contempt of court. The application arises out of proceedings in wardship concerning the parties' three children, all born in the United Kingdom. The applicant, Ijeoma Egeneonu, is the children's mother. The respondent is the children's father. The applicant is represented today in court by Mr Andrew Powell of counsel. The respondent is today without legal representation at court, in circumstances which I will come to.

BACKGROUND

2. The background of this matter can be summarised relatively shortly. For the purposes of this judgment I take that background from the case summary provided to the court by those representing the applicant. I make clear that I do not, for the purposes of this judgment, make any findings of fact, and nor should my summary of the background for the purposes of this judgment be taken as making any findings of fact.
3. The brief background is that the applicant mother and the respondent father were married in 2001 and travelled to London together from Nigeria on 28 March 2002. The mother and the father hold dual British and Nigerian nationality, as do the three children. As I have recounted, the children were born and grew up in the United Kingdom.
4. On 16 July 2013, the entire family left London to travel to Nigeria. The mother contends before the court that this was a planned holiday and that she never intended to move back to Nigeria permanently. The mother further contends that, whilst in Nigeria, the respondent father told her that they would not be returning to the United Kingdom despite her wish to do so. The mother contends that she lived with her parents in Nigeria to escape what she alleges was the father's abuse, and that the children lived with the father, his family or his staff. The father, as I understand it, disputes substantial portions of this narrative.
5. The mother returned to the United Kingdom from Nigeria using emergency travel documentation obtained from the British High Commission on 12 November 2013. The children did not come with her. On 22 November 2013, the mother commenced proceedings in the United Kingdom, applying for the children to be made wards of court and for an order that the children be returned to the jurisdiction of England and Wales. The father initially engaged with the proceedings, having returned to the United Kingdom from Nigeria on 4 December 2013. A number of hearings followed.
6. On 17 December 2013, the father gave an undertaking to Moylan J, as he then was. That undertaking is recorded in the recital to the order and read as follows: 'Not to intimidate, harass or pester the mother, whether by himself or obstructing anyone else to do so'. He also undertook: 'not, whether by himself or instructing or encouraging any other person, to use or threaten violence against the mother'. At a hearing, on 20 December 2013, an injunctive order was made by Moylan J. Paragraph three of that order recites 'neither party shall leave the jurisdiction of England and Wales until the children arrive in the jurisdiction of England and Wales'.
7. A further hearing occurred on 29 January 2014. At that hearing the father was in attendance and was represented. The following matters were determined by the court:

a. the children's habitual residence was in England and Wales;

b. the children should be made wards of court;

c. the father had control of or knowledge of the whereabouts of the children and was able to cause their return to the jurisdiction of England and Wales from Nigeria;

d. the children should be produced at the British High Commission in Lagos Nigeria by no later than noon, Nigerian time on 6 February 2014, when the children were to be transferred into the care of their maternal uncle for the purposes of applications by that relative for emergency travel documents;

e. the father should provide written consent for the nomination of that family member as the applicant for emergency travel documents;

f. the father should cause the children to be returned to the jurisdiction of England and Wales no later than midnight on 14 February 2014;

g. the father should confirm no later than 12 noon on 7 February 2014, with independent documentary evidence in support, that he had booked flights for the children's return to this jurisdiction; and

h. the father should arrange for payment in the amount of £285 to the relative to cover application fees for the emergency travel documents.

8. Despite that order, and detailed arrangements being negotiated, it is said that the father failed to return, or effect the return, of the children to the jurisdiction of England and Wales. Accordingly, the matter was returned to court in February 2014, and an order was made on 14 February 2014 for the father personally to attend a hearing on 19 February 2014. Service of that order was attempted on the father at the family property but was unsuccessful.
9. At approximately 7pm on 14 February 2014, the applicant received a telephone call from a caller in Nigeria informing her that the caller had seen the first respondent in Nigeria. The father did not attend subsequent court hearings listed in February, notwithstanding the court making orders directing the father personally to attend each of those hearings.
10. In April 2014, those acting on behalf of the mother issued proceedings in relation to why the father should not be found in contempt of court for breaching a number of the orders that had been made prior to that date. The committal proceedings were initially listed to take place before the court on 1 and 2 December 2014. Due to various issues, which I need not go into, the final hearing ultimately was listed to take place on 2, 4, and 6 March 2015. The final hearing of the mother's committal application proceeded over the course of three days, during which the father participated via a telephone link. He had, by that time and prior to prior to the final hearing, dispensed with the services of Freemans Solicitors, who he had previously instructed.
11. Evidence was heard from the father and two witnesses that he sought to rely on. A further relative was also represented by counsel at that hearing. The father submitted a large number of documents in support of his case.
12. On 6 March 2015, the court found that the father was in contempt of court on the basis of grounds set out in the application for his committal dated 11 April 2014. On 6 March, the court indicated that it was appropriate for it to defer consideration of sentencing against the father, to enable the father to personally attend the sentencing hearing and to enable him properly to present mitigating circumstances to the court. In his judgment, Newton J, who conducted the committal hearing, indicated that he would be placing particular weight as to whether the children had been by then returned to this jurisdiction.
13. On 8 May 2015, the father did not attend the sentencing hearing, or take advantage of the opportunity to telephone the court, or, seemingly, to instruct lawyers. In those circumstances, Newton J proceeded to sentence the father to 12 months immediate imprisonment for each of the breaches found proved to be served concurrently.
14. It is apparent, from the history that I have recited, that at the time the sentence was passed the father was out of the jurisdiction in Nigeria. The mother engaged in further litigation in an attempt to recover the father from the jurisdiction of Nigeria to serve his sentence in this country. That litigation, which I do not need to go into in detail, resulted in her application to recover the father from Nigeria being dismissed by the President of the Family Division on 18 January 2017.
15. In any event, by the end of February 2017 it became apparent that the father had, of his own volition, returned to the jurisdiction of England and Wales, although he did not make himself known to the court at this time. In the circumstances, the mother restored the matter to the court on 7 March 2017, and applied for orders designed to ascertain the whereabouts of the father within this jurisdiction. With the assistance of these orders, the Tipstaff and the Metropolitan Police located the whereabouts of the father. He was arrested and bought before the court. On 26 March 2017, the father was committed to HMP Pentonville. The father continues to serve his sentence for contempt, but is due to be released, having served half of it, on 26 September 2017.
16. The mother, thereafter and entirely understandably, continued to pursue litigation in this jurisdiction, in an effort to secure the location of the children's whereabouts in Nigeria, and to secure the return of the children to this jurisdiction. By this time the father was represented by VLS solicitors. They filed a notice of acting on 19 May 2017.
17. On 7 June 2017, the matter came before Baker J. By that time, the mother contends, the father had not provided any further information concerning the whereabouts of the children to the mother directly, or through her solicitors, since his imprisonment. On 27 June 2017, pursuant to an order of Baker J, the father filed a statement indicating that he had no objection to the children returning to the United Kingdom but claiming that, as a consequence of his arrest and detention in prison, the Nigerian community had determined that the boys were not allowed to come back to the United Kingdom. The father asserted that a number of paternal and maternal relatives in Nigeria could exert influence, but, due to his continued incarceration, he was unable to cause the children's return.
18. On 29 June 2017, the father applied to purge his contempt, the grounds of which are set out in the bundle before me. The application to purge was dismissed by the court, and, at that dismissal hearing, the court took the opportunity to direct that the father should, by 13 July 2017, file and serve a statement providing a telephone number for the children's paternal aunt, who the mother believes is caring for the children, and the steps that the father had taken to instruct and persuade a number of relatives, who the father asserts were caring for the children, to return them to the jurisdiction. It is apparent from the papers before me that that information has not yet been provided.
19. In the circumstances, on 4 August 2017, the mother issued a further application to commit the respondent father to prison for breaches of various of the orders which I have summarised during the course of this short account of the background. The matter thus comes before this court today for a final hearing of the further committal application.

THE PRESENT POSITION

20. As can be seen from the history that I have recounted, the respondent has, before today, changed solicitors from Freemans to VLS Solicitors. The latter coming on the record for the respondent in May of this year. However, ahead of this final hearing, correspondence was received by the court from Duncan Lewis Solicitors, by way of email dated 25 August 2017. That email from Duncan Lewis informed the court that the respondent father had previously engaged VLS solicitors, that he was dissatisfied with the representation provided by that firm, and, accordingly, he had now de-instructed them.
21. The email from Duncan Lewis continued that the father now wished to instruct their firm. Duncan Lewis confirmed that a request for the legal aid certificate to be transferred to their firm had been made on 17 August 2017. The email went on to note the date of this hearing and to note that they were yet to be in receipt of confirmation from the Legal Aid Agency that the certificate had been transferred. In the circumstances, they made the following request:

'Given the seriousness of the matter we propose on behalf of Mr Egeneonu that the hearing on the 30^th and 31^st of August 2017 be adjourned to allow sufficient time for the certificate to be transferred, so that Mr Egeneonu is given a fair opportunity to receive legal advice for his case to be appropriately prepared'.

22. The court, thereafter, received an email from Bindmans, who represent the mother in this matter. That email, received by the court on 28 August 2017, indicated that the mother opposed the adjournment of the final hearing of the committal application, unless that application could be heard in full before 26 September 2017. The significance of that date, of course, being the date on which the respondent father is due to be released as a consequence of Section 258 of the Criminal Justice Act 2003, the father having, at that point, served half of his custodial sentence pursuant to the order and sentence of Newton J.
23. By way of explanation for her opposition to an adjournment, in short the mother feared that were the father to be released from custody before the determination of her further committal application, he would simply leave the jurisdiction before that application could be determined, thereby depriving her of a remedy were the court to ultimately conclude, on the evidence before it that a further committal order was merited. The mother's fears in this regard, she says, are heightened by the fact that the father has previously proved himself capable of leaving the jurisdiction, despite orders being in place to prevent from doing so. Within this context, the mother's case is that the father's change of solicitors is a 'device' and that he is simply seeking to delay the determination of her present application to commit him as part of a plan to abscond from the jurisdiction in due course.
24. With respect to the position of the father, at 10.20am this morning the father indicated to Prison Officers in the cells at the Royal Courts of Justice that he was too ill to come to the courtroom. When I caused enquiries to be made as to the nature of his illness I was informed that the father had 'acid reflux'. I directed that the father put in writing his reasons for not wishing to be brought up from the cells. The letter the father produced in manuscript form indicates, in summary, that he has 'developed a stomach bug or acid reflux since yesterday evening' and that he has had, or has a bad headache and chest pains. He contended, within the course of that letter, that he was too weak and unfit to come up from the cells at that particular point.
25. The nature of the father's complaints meant that, pursuant to their policy, the custody service was required to call a doctor to examine the father. That call was made at approximately 11am. This has caused a delay in the start of the proceedings today. The doctor has now had an opportunity to examine the father. The court has been informed that the doctor certified the father fit to attend court and to be produced in the courtroom. The father has confirmed orally to me this afternoon that that was indeed the opinion of the doctor who examined him. The father confirms today, before me, that he does seek an adjournment of this final hearing, in order to allow him time to instruct his new solicitors and to prepare a defence to the committal application that has been made.
26. Within that context, matters have this morning moved on. Whilst the court waited for the father to be medically examined, a further email has been received from Duncan Lewis. That email confirms that the Legal Aid Agency has now transferred the certificate to that firm and that the certificate includes representation for a committal application. In the circumstances, Duncan Lewis are now on the record for the father. Duncan Lewis repeat in their email of this morning that they wish a short further period of time to enable them to receive the papers from the father's previous solicitors, and for them to prepare to take instructions and prepare the father's defence.
27. By reason of diligent work on the part of the Clerk of the Rules, the court has also been able to confirm that the final hearing of the committal application can be relisted for a final hearing in short order before a Deputy High Court Judge prior to 26 September 2017. In the circumstances, the applicant mother does not now oppose an adjournment of this final hearing. However, whilst there is a measure of agreement in respect of an adjournment, it is nonetheless appropriate that this court consider the application for an adjournment on the merits, in circumstances where this matter has set up for a two-day final hearing during the vacation period, when time in the High Court list is at a particular premium.

THE LAW

28. The legal principles relevant to the decision of the court are set out in the decision of the Court of Appeal in Hammerton v Hammerton [2007] 2 FLR 1133, and a number of more recent authorities. Those principles can be summarised as follows:

a) By virtue of Section 6 of the Human Rights Act 1998, it is unlawful for a court, as a public authority for the purposes of Section 6(3) of the 1998 Act, to act in a way incompatible with the respondent's rights enshrined in Article 6 of the convention for the protection of Human Rights and Fundamental Freedoms.

b) Proceedings for committal are a criminal charge for the purposes of Article 6, (see Re K Contact Committal Order) [2003] 1 FLR 277 at [21]). Thus, the respondent of such proceedings has the right enshrined in Article 6(3)(c), namely, 'to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require'

c) The interests of justice in principle call for legal representation when deprivation of liberty is at stake (see Benham v the United Kingdom [1996] 22 EHRR 293 at 324 and also Re G (Contempt committal) [2003] 2 FLR 58 at [22]).

d) The lack of legal representation for a respondent in committal proceedings constitutes a serious procedural flaw leading to a failure to hold a fair trial (see Ronald Brown v London Borough of Haringey [2017] 1 WLR 542).

e) Such a right exists even where a respondent has parted company with one set of lawyers. In Re K (Contact: Committal Order) [2003] 1 FLR 277, Hale LJ, as she then was, observed as follows at [23]:

'One has to say that in the context of ordinary criminal proceedings, the fact that the respondent has parted company with one set of lawyers would not normally be regarded as a good reason for depriving a respondent of access to another set of lawyers for those proceedings'

f) The obligation to afford the respondent representation imposed by virtue of Article 6(3)(c) is not, however, unlimited. A respondent's intransigence in unreasonably failing to cooperate with whatever legal assistance is offered, or in refusing it, may make it impossible for legal assistance to be continued. In Re K, Mance LJ, as he then was, contemplated at paragraph 34 a respondent who had behaved 'so unreasonably as to make it impossible for the funders to continue sensibly to provide legal assistance'.

g) Absent the type of impossible behaviour identified by Mance LJ in Re K, a litigant in person who is liable to be sent to prison for contempt of court is entitled to legal representation. If the respondent is unrepresented then, save in circumstances of extreme urgency, an adjournment should be granted so that representation may be obtained. Bad behaviour earlier in the proceedings, including a tendency towards extreme truculence, is unlikely to justify proceeding without permitting the respondent to secure legal representation (see again Ronald Brown v London Borough of Haringey [2017] 1 WLR 542 at [41]).

h) The more serious a case, the more a respondent is likely to need persuasive and skilful representation. It is almost impossible to envisage a case where such representation will not be needed, if only to remind a judge of the principles which apply. Even in a case where a respondent admits each and every allegation alleged, representation will be needed so as to assist the judge in considering the appropriate disposal.

DISCUSSION

29. Within the context of particular circumstances of this case, in considering whether it is appropriate to adjourn this matter by reason of the father seeking to change, and now having changed his legal representation immediately prior to the listed final hearing the questions for the court appear to be a) whether there is evidence of unreasonable behaviour on the part of the father in the manner in which he has dealt with the issue of his legal representation and b) whether there is any other reason why the application should not be adjourned to afford the father the opportunity to provide instructions to his legal representatives before the final hearing.
30. I am bound to say, making clear that I have not heard detailed submissions by or on behalf of the father, that the timing of his change of solicitors is somewhat suspicious given the proximity of the final hearing. The court's suspicions are increased by the respondent's claim, immediately before the case was due to be called on, that he was suffering from a sudden minor illness that prevented his production. Those suspicions are amplified by some continuing reluctance on the part of the father to come into court even after he had been certified fit for production by a doctor, although I make clear that the father has agreed, latterly, to be present in the courtroom this afternoon.
31. All that said, I accept that there is no clear evidence currently before the court that the father's change of solicitors is the result of unreasonable behaviour on the part of the father. Nor have I had the opportunity today to hear any detailed explanation from the father, or his new solicitors, as to why he has sought to change solicitors so close to the final hearing, although the father made clear today that he had a general dissatisfaction with the level of service being provided by his former solicitors and was clear that he did not wish to continue with those solicitors in the circumstances.
32. Within this context, and having considered matters carefully, I am satisfied that it is appropriate to adjourn the final hearing for a short period to enable the father's new solicitors to receive the papers in this matter and to advise their client in respect of the applicant's committal application. In reaching this decision I particularly bear in mind the following matters:

a) Proceedings for committal are a criminal charge for the purposes of Article 6 of the Convention.

b) The respondent in such proceedings has the right enshrined in Article 63C, namely to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require.

c) Within this context, and ordinarily, a lack of legal representation from a respondent in committal proceedings constitutes a serious procedural flaw leading to a failure to hold a fair trial.

d) Within this context the interests of justice, in principle, call for legal representation when deprivation and liberty is at stake.

e) These principles apply even where a respondent has parted company with a set of lawyers, save where the respondent's intransigence in unreasonably failing to cooperate with whatever legal assistance is offered, or in refusing it, make it impossible for legal assistance to be continued.

f) Whilst the court entertains suspicions regarding the behaviour of the father in relation to his legal representation, there is currently no cogent evidence before the court to establish such unreasonableness on the part of the father in this respect.

g) The court has received information that the father now has new solicitors acting for him, who will be able to represent him at an adjourned final hearing and who have requested a short adjournment to allow them to prepare the respondent's case.

h) The more serious a case the more a respondent is likely to need a persuasive and skilful representation. This is a very serious case in which, it seems to me, the father must be at grave risk of losing his liberty for a further and significant period of time, and

i) The matter can be relisted in short order within 12 days of today's date.

33. Within this context, whilst it necessitates the adjournment of a two-day final hearing, and the concomitant waste of very valuable court time during the long vacation, I am satisfied that it would be wrong for this court to proceed today without the father having the benefit of representation, when the court has had confirmation that legal aid is now in place for his new lawyers and the matter can be re-listed quickly.

CONCLUSION

34. In the circumstances, I grant the application to adjourn the final hearing of the applicant's application, to commit the father to prison, and adjourn the final hearing to 11 September 2017 with a time estimate of two days, before a Deputy High Court judge sitting in open court at the Royal Courts of Justice. I direct that an expedited transcript of this judgment be obtained at public expense. I will also direct the production of the father from prison for that hearing.
35. Whilst I have today acceded to the father's application to adjourn this final hearing on the basis I have set out in this short ex tempore judgment, I wish to make crystal clear to the father that the patience of this court if not inexhaustible. The father is now instructing his third set of solicitors. Those solicitors are highly experienced in family law matters and in the type of case with which the court is now concerned.
36. I am not, as I have said, satisfied that there is currently cogent evidence before the court that the father has behaved so unreasonably with respect to the legal representation that has been provided to him to date through the provision of legal aid that a refusal of his application to adjourn on the grounds of a change in legal representation is merited. However, were the respondent to seek once again to change solicitors ahead of the adjourned final hearing, such further change in that short period of time would, it seems to me, constitute strong evidence that the respondent is, in fact, engaging in a course of conduct that is designed to frustrate the hearing of the applicant's application to commit him.
37. Were the court to so conclude, and having regard to the observations in Re K, the respondent father needs to know that the court would be unlikely to be diverted a second time from hearing the applicant's application to commit the respondent to prison for a further period. In these circumstances, his legal aid certificate now having been transferred to Duncan Lewis, I make clear that the father needs to engage fully with his new solicitors in the coming days, as they prepare his defence to the application to commit him for a further period of imprisonment on 11 September 2017.
38. That is my judgment.