England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		The Royal Courts of Justice Strand London WC2A 2LL
		28th February 2018

MR JUSTICE HOLMAN:

1. This case of Egeneonu clearly has a very long and complex history indeed. It concerns three children who are now aged almost 16, almost 13, and about 10 and a half. They are the children of two parents who are, or were, married to each other. Both the parents are sitting in the court room as I speak. The father is in custody, having been committed to prison on an earlier occasion for contempt of court.
2. As I understand it, both parents are citizens of Nigeria and also citizens of the United Kingdom. All three children are citizens both of Nigeria and of the United Kingdom. For many years the parents and the children all lived together in England. However, in July 2013, now over four and a half years ago, the parents and children travelled to Nigeria. The children have never returned, nor been returned, to England. As I understand it, the mother says, in effect, that she was tricked into taking the children to Nigeria in the belief that they were going only for a short holiday, and her children were kept from her and have never been permitted to return.
3. Very rapidly after that, proceedings were issued in this court and there has been a very large number of orders. I have counted up during the course of this afternoon that at least 14 judges have previously dealt with this case. There has been a number of orders, all directed to the father and/or a man called Victor Egeneonu, designed to cause and facilite the return of the children from Nigeria to England. The identity of Victor Egeneonu seems to be hotly disputed. The mother adamantly asserts that Victor is a brother of the father of the children. The father no less adamantly asserts that Victor is his son.
4. There was most recently a hearing before Williams J, who has now dealt with this case on several occasions, on 9 February 2018, only about three weeks ago. On that occasion both the father and Victor Egeneonu were personally present in the court room. Williams J made two orders. The overall gist and intended purpose of them was that Victor would travel to Nigeria and cause and facilitate that the three children went, first, to the British High Commission in Lagos, and then, after emergency travel documents had been supplied for them, flew to England in time for this hearing today.
5. None of the children have been produced in England and there is not the least indication that any of them are, in fact, in England today. The whereabouts of Victor, today, are uncertain and obscure. The solicitor for the mother says that there was a period of time when she was trying to communicate with him via his mobile 'phone and got a ringing tone indicative that the 'phone was, at that time, international. More recently, she has rung the same 'phone and got ringing tones which indicate that the 'phone is now back within England. Beyond that indication, the actual whereabouts, today, of Victor are unknown. The father has said that Victor is still in Nigeria, but that may or may not be true.
6. If all, or any, of the children had been returned in time for this hearing today, then this hearing was patently set up primarily as a hearing focussed on the welfare and well-being of the children. To that end, an officer of Cafcass High Court Team attended with a view to consideration being given to whether the children should be joined as parties to these proceedings and represented by Cafcass. Since the children are not, in fact, here, and there is no reason to suppose that Cafcass could establish a reliable and confidential means of communication with them, it does not seem to me – nor did it seem to the Cafcass officer who attended – that there is, currently, the least role for Cafcass in these proceedings. So I have sent the officer away, with my thanks to her for attending. Patently, if ever the day comes when any one or more of these children does return to England and is present before this court, then the judge on that occasion would instantly communicate with Cafcass and arrange for that child, or children, to be rapidly seen and interviewed by an experienced Cafcass officer.
7. The orders made by Williams J. also clearly contemplate the alternative scenario and outcome that the children were not, in fact, brought back to England as has now happened. Paragraph 8 of one of the two orders made by Williams J. provided that Victor Egeneonu must personally attend the hearing here today at The Royal Courts of Justice at 2.00pm on Wednesday 28 February 2018. That order was made in the presence of Victor Egeneonu personally, and Mr Alistair Perkins, who appears today on behalf of the mother and also appeared on that occasion, has assured me that Victor Egeneonu perfectly understood, before he ever even left the court on 9 February 2018, that he was required to attend here again today. Mr Perkins also says that Victor Egeneonu has attended court on a number of occasions in connection with these proceedings and knows exactly where the court is and his way around when he gets here. I do mention that today happens to be a day of bad weather with quite a large fall of snow and there have been transport disruptions. However, telephones continue to work and neither the court nor the solicitors for the mother have received any kind of call or communication from Victor Egeneonu, to the effect that he has been disabled from attending today as a result of the weather conditions or, indeed, any other reason.
8. With regard to personal service upon Victor Egeneonu of the formal order made on 9 February 2018, paragraph 11 of that order provided that personal service could be dispensed with on the basis that he was present at the hearing itself and that an envelope marked 'confidential urgent' should be left for his attention at his known home address, by no later than 6.00pm on Monday 12 February 2018. With regard to service, there is now a statement by a process server, Martyn Kemp dated 12 February 2018, which testifies that on Monday 12 February 2018 at 7.55pm he left an envelope, marked 'confidential urgent' and for the attention of Victor Egeneonu, at an address in Erith, Kent which I assume to be the address in question. I mention that paragraph 11 of the order of 9 February 2018, from which I have quoted, required that envelope to be left by no later than 6.00pm that day. In fact, it was left at 7.55pm, almost two hours too late. It may or may not later transpire that, by the time it was actually left, Victor Egeneonu was already on his way to Nigeria.
9. I mention also that, as well as the required documents, the envelope contained a covering letter from the mother's solicitors, Bindmans LLP, dated 12 February 2018. That letter contained a statement that, 'The court has ordered you to do the following…' and then seven itemised matters are set out, all connected with the actual return of the children from Nigeria to England. Most unfortunately, that letter from Bindmans did not include, as an eighth matter which the court had ordered Victor Egeneonu to do, that he must attend here today.
10. Despite those areas of difficulty with regard to compliance with paragraph 11 of the order of Williams J, the fact remains that today's hearing was, as I understand it, fixed during the course of the hearing on 9 February 2018 and Victor Egeneonu was personally in the court room and personally told that he must attend here this afternoon. He has not attended this afternoon. He has not sent any kind of message, of which I am aware, to either the solicitors or the court, giving any explanation or reason why he is not here and, on the face of it, he is in breach of paragraph 8 of the order of Williams J made on 9 February 2018.
11. This court cannot tolerate failure by parties to attend and engage in proceedings in circumstances when they have been expressly ordered to do so. I have no idea what Victor Egeneonu might have been able to say if he was here, or what contribution he might be able to make to these proceedings. I have already, this afternoon, expressed my own anxiety and reservations as to the extent to which a court can properly engage, by mandatory orders, persons who are not themselves the parent of the child, or children, concerned and who are not themselves, on the face of it, actually detaining the child concerned. But a co-equal judge, Williams J, was satisfied, on 9 February 2018, that he should make the orders which he did against Victor Egeneonu, and satisfied that he should order him to attend today.
12. For those reasons I intend to issue a warrant for the arrest of Victor Egeneonu. That warrant is directed to the Tipstaff. The solicitors for the mother will, of course, after I have risen, give to the Tipstaff such information as they can with regard to the whereabouts of Victor Egeneonu. If the Tipstaff is able to find him and arrest him, he will be brought before the court in custody. The judge on that occasion will then decide what further steps to take.
13. As to the balance of the matters this afternoon, as the children are still in Nigeria, the mother wishes to proceed with a fresh application to commit both the father and Victor Egeneonu to prison for further alleged contempts of court. A number of the contempts alleged clearly fall within the provisions of Chapter 4 of rule 37 of the Family Procedure Rules 2010, which require the permission of the court before they can even be made. Some of the matters fall within the scope of rule 37.13. Others fall within the scope of rule 37.17. All those matters require, by virtue of rules 37.13 and 37.17, the permission of the court. Rule 37.15 makes procedural provisions for the application for permission and that rule is imported, also, into the provisions of rule 37.17 by rule 37.17(3) of the rules.
14. In summary, rule 37.15 requires the application for permission to be served upon the proposed respondent, or respondents, accompanied by specified documents. The rule then gives, to the respondent or respondents, 14 days after service within which to file and serve an acknowledgment of service and, if the respondent wishes, to file and serve evidence.
15. Accordingly, I am unable to substantively hear even the application for permission today, as these applications have not yet even been served upon either the proposed respondent father, or the proposed respondent, Victor Egeneonu. Therefore, so far as Victor Egeneonu is concerned, the first step is, necessarily personally, to serve him with this proposed application; and, unless and until they are able to find him, the solicitors for the mother are in no position to do that.
16. So far as the father is concerned, he is present in the court room as I speak, having been brought here in custody pursuant to a production order. The solicitors for the mother desire to take advantage of this opportunity to serve him with their application and the prescribed supporting documents. As he will leave in custody in prison transport, they are unable, as they might otherwise have been able to do, to serve him immediately after he leaves the precincts of the Royal Courts of Justice. I, personally, have a strong dislike of persons being served within the Royal Courts of Justice, but sometimes, for reasons of expediency, it has to happen. There are rules, or provisions, which require that such service takes place in the presence of the Tipstaff. I have, accordingly, arranged that the deputy Tipstaff, Mrs Sally Land, is present; and after I have risen, and immediately after the prison escorts have taken the father outside the four walls of the court room itself into the corridor outside, the solicitor will be able to serve all the documents upon him in the presence of the Tipstaff. The solicitor must then, of course, make a proper affidavit of service describing exactly what has happened, the time and place of service, and listing all the documents which have been served upon him.
17. So far as a return date is concerned, it is highly unsatisfactory that this case has now meandered between, as I say, at least 14 different judges. The judge with whom it has had the most close connection recently is Williams J. I have been able to arrange that there can be a one-day hearing in front of him on Wednesday 21 March 2018 at 10.30am. Accordingly, the application for permission to make the applications to commit the father and Victor Enegeonu to prison for contempt of court will be listed before Williams J on Wednesday 21 March 2018 at 10.30am, with one clear day allowed. The solicitors for the mother must arrange for a production order to be made so that the father is brought before the court, again, for that hearing.
18. Patently, this is a very serious and complex situation in which both the father and Victor Egeneonu need the benefit of skilled legal representation. For that reason, I am willing to recite, in the order made today, in the broad terms of recitals C and D of the second of the two orders made on 9 February 2018, that this is a situation in which legal aid requires to be given to each of them and that they require it very urgently indeed.
19. Mr Perkins will fashion a suitable form of words, based on his recitals C and D to that earlier order. I make plain, however, that I am not willing to make a formal 'declaration' as such. In my view it is only very exceptionally indeed that a court should ever make a formal 'declaration' without prior notice to the person, or body, whom it is proposed to bind by the 'declaration'.
20. The final matter with which I must deal is that today the father has placed before me a document headed 'Position Statement for the hearing on 28 February 2018, by Levi Nkem Egeneonu'. That, in turn, is supported by a statement made by him, dated 24 February 2018, which is broadly to the same effect as the contents of his more formal 'Position Statement'. Those documents have been placed by him before me today, and he kindly brought spare copies which have now been given, also, to the solicitors for the mother. Additionally, in advance of today, the father sent to the court a quantity of statements and other material which, however, had not been sent to the solicitors for the mother. With his agreement, I have handed all that material, unread by me, to the solicitors for the mother. They must, of course, afford him assistance by arranging it in an orderly way and ensuring that, at any future hearing, it is in an appropriate bundle, or bundles, for the court.
21. The gist of this position statement by the father, and of his further statement and indeed his oral representations to me today, is that these entire proceedings are, as he calls them, 'fraudulent'. He says, in a sentence, that the mother has made a very large number of untrue statements about the true facts in relation to their children. He says, further, in effect, that the lawyers are not actually acting on the instructions of the mother but are fraudulently conducting these proceedings for some purpose of their own.
22. To a degree, what the father says in his documents is the corollary or, in colloquial terms, flip-side of the mother's case. So I will ask Mr Perkins to ensure that, when he drafts the formal order for today, it places firmly on the agenda for consideration by Williams J at the longer hearing on 21 March 2018, those documents which the father has recently produced and which are, effectively, encapsulated in his 'Position Statement' to which I have referred.
End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com