England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/11/2015

Mr Justice Foskett:

Introduction

1. This case is a sequel to and arises out of the case of In the matter of K (A Child) [2014] EWCA Civ 905, [2015] 1 FLR 927, [2014] 3 FCR 428 and [2014] Fam. Law 1384. It will be necessary to quote in this judgment parts of the judgments given by Kitchin LJ and McFarlane LJ (with whom Maurice Kay LJ agreed) in that case, but an understanding of the issues that arise for consideration in the present proceedings will best be obtained by considering those judgments in full. Indeed it would be better if this judgment was read alongside the judgments of the Court of Appeal.
2. The Claimant, 'LL' as he is known in these proceedings, is the father of the child concerned who, despite the title of the earlier proceedings, was referred to as 'M' in those proceedings. M was aged less than 2 at the time of the material events, having been born in July 2012.
3. On 3 April 2014 Russell J, sitting in Manchester, sentenced the Claimant to an immediate term of imprisonment for a total period of 18 months for contempt of court arising from breaches of certain orders which she found established.
4. That committal order was set aside by the Court of Appeal with immediate effect following a hearing on 4 June 2014, the reasons for that decision being set out in the reserved judgments handed down on 15 July 2014.
5. The Claimant seeks compensation from the Lord Chancellor, the appropriate Defendant to these proceedings, for his alleged unlawful detention between 3 April and 4 June 2014 (a total of 63 days).
6. The proceedings before me have related to liability only. If it is established, there will have to be a further hearing on the level of compensation if agreement is not reached. Compensation is sought pursuant to sections 6, 8, 9 of the Human Rights Act 1998 and Article 5(5) ECHR.

Summary of background

7. I do not need to extend this judgment by a full recitation of the circumstances of the various hearings before Russell J and the orders she made leading to the order made on 3 April 2014. They are set out fully in paragraphs 1-31 of the judgment of Kitchin LJ.
8. As I shall indicate in more detail below (see paragraphs 26-50 below), the Court of Appeal allowed the Claimant's appeal against two orders that Russell J made: (i) that part of the order of 21 March 2014 which recited that the court expected the Claimant to make applications to the Singaporean court to ensure M's return to this jurisdiction (see paragraph 27 of Kitchin LJ's judgment) and (ii) the order for committal made on 3 April 2014. In relation to (ii), the Court of Appeal held that the judge should have recused herself from hearing the committal application, that the procedure adopted in relation to deciding whether there was a breach of the order of 21 March 2014 was incorrect, that there was insufficient evidence to justify a finding that the Claimant was in deliberate breach of the order and, finally, that the procedure adopted in the sentencing exercise was flawed.
9. The issue for consideration is whether those matters, either individually or collectively, are sufficient to justify a finding that the Claimant is entitled to compensation under Article 5. It will be understood that it is a somewhat invidious position for a judge of a co-ordinate jurisdiction to that of a judge whose conduct is under scrutiny to be faced with having to decide whether that judge acted in such a way as to have engaged in a "gross and obvious irregularity of procedure" (which is the essential test: see, e.g., paragraph 18 below). However, the parties have not suggested that there is any alternative procedure and, accordingly, I must endeavour to reach a conclusion conscientiously on the basis of the arguments and material before me. As it is and as I have already indicated (see paragraph 8), the Court of Appeal has indicated clearly the areas where the judge went wrong and my task is to decide whether those areas, either individually or collectively, cross the threshold into the territory encapsulated in the test to which I have referred. The application, though launched initially in the Family Division, has for obvious reasons been transferred to the Queen's Bench Division.

The jurisdiction sought to be invoked by the Claimant in these proceedings

10. It is common ground that judicial officer holders are immune from civil liability at common law for acts done in a judicial capacity that would otherwise be tortious and that a similar immunity is conferred on the Crown by virtue of section 2(5) of the Crown Proceedings Act 1947. It is also common ground that damages under the Human Rights Act 1998 may not be awarded in relation to judicial acts done in good faith save "to compensate a person to the extent required by Article 5(5) of the Convention": section 9(3) of the 1998 Act.
11. Article 5 of the ECHR reads as follows:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

12. The jurisdiction to award compensation thus derives from Article 5 and inevitably much of the jurisprudence relating to the exercise of the jurisdiction is to be derived from decisions of the European Court of Human Rights. However, there is a substantial background in English law that has informed the development of the European law. I have been taken through much of the law by Mr Jamie Burton, for the Claimant, and Mr Elliot Gold, for the Defendant. Without, I trust, doing an injustice to their analyses of the authorities, I hope to be able to express the essential question to be asked and answered more shortly and without a detailed analysis of the European jurisprudence - or indeed of the domestic authorities beyond a few.
13. The jurisdiction relied upon by the Claimant in this case has been sought to be invoked in two other recent cases, albeit unsuccessfully in each: Wright v. the Lord Chancellor [2015] EWHC 1477 (McGowan J) and W v. Lord Chancellor [2015] EWCA Civ 742. Both arose from Crown Court cases, the former concerning an unlawful sentence imposed in the Crown Court (set aside by the Court of Appeal Criminal Division nearly 6 years later when the appellant had served almost 6 years in custody), the latter concerning a conviction (with a consequent 9-year prison sentence) that was set aside on appeal some 2 years later, no re-trial being ordered. It follows that each claimant in those cases spent time in custody that, on the basis of the ultimate conclusion of the appeal process, each should not have spent.
14. Mr Burton has submitted that there is little to be derived from those cases in relation to the issues arising in this case. The context of each is, of course, different from the context of this case, but it is instructive, though not determinative of the present case, to see how the Court of Appeal assessed the conduct of the trial judge in W when considering whether a "gross and obvious irregularity" arguably occurred. To put that issue itself into the context of that case, the claimant had sought damages in two ways identified in the following paragraph of the judgment of Sir Brian Leveson, President of the Queen's Bench Division (with which Lord Dyson MR and Tomlinson LJ agreed):

"… the appellant commenced civil proceedings seeking damages pursuant to s. 6 of the Human Rights Act 1998 ("the 1998 Act") on the grounds that a public authority (the court) had acted incompatibly with his rights under the European Convention for Human Rights ("the Convention") and was not protected on the grounds that the failures did not constitute judicial acts done in good faith. A further argument was mounted that the claim also fell within Article 5 of the Convention: his detention was not lawful because the judge had failed "to conform to the substantive and procedural rules" of the criminal law of England and Wales."

15. In that case, therefore, the good faith of the trial judge was put in issue by the claimant. The Court of Appeal held that Mitting J, who heard the defendant's strike out application at first instance, was "entirely right to strike out the claim brought on the basis of the lack of good faith of [the trial judge because it] was doomed to fail": [40]. In this case there has been no suggestion of lack of good faith on the part of Russell J.
16. Reverting to W, the claim under Article 5 focused on the issue that is truly the central issue in this case as foreshadowed in paragraph 9 above. The President of the Queen's Bench Division summarised the authorities that led to the identification of that issue in that case in paragraphs 42-46 of his judgment having referred in paragraph 41 to the relevant parts of Article 5:

42. This provision has been considered by Strasbourg over the years and is not itself intended to provide compensation for those whose convictions have been quashed on appeal but which had been reached by a lawfully constituted court. In Krzycki v Germany (1978) 13 DR 57, the Commission made it clear:

"Art.5(1)(a) does not require a "lawful conviction" but only speaks of "lawful detention". This detention must be ordered "in accordance with a procedure prescribed by law" as Art. 5(1) lays down. Consequently the Commission has always refused to consider applications of prisoners who have been convicted and sentenced in accordance with a procedure prescribed by law and who complain that their conviction was based on error of law or fact (Decisions on the admissibility of Application Nos. 458/59, Yearbook 3, pp.222, 232; 1140/61, Coll. of Dec. 8, pp.57, 62)."

43. The European Court underlined that proposition in Benham v United Kingdom (1996) 22 EHRR 293 (ECtHR) which concerned the quashed committal of an unrepresented defendant to prison for non-payment of the community charge. Although the tests which permitted committal were found not to have been satisfied, the court concluded that there was no breach of Article 5(1) because the lawfulness of detention was a matter of national, domestic law.

44. The Court went on to adopt the distinction drawn by the House of Lords in Re McC (A Minor) [1985] AC 528 between custody decisions which are, on the one hand, voidable because they are wrong in law by reason of errors within jurisdiction and, on the other hand, those which are void ab initio and ex facie because they are so wrong in law as to be outside or in excess of jurisdiction. These were summarised in Benham in this way (at [25]):

"In its judgment [i.e. that of the House of Lords], a magistrates court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause; (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent."

45. Benham goes on to make it clear what is meant by lawful detention. It does so in these terms (at [46]):

"A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 55, and the report of the Commission of 9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61)."

46. [Counsel for the claimant] alighted upon the phrase "gross and obvious irregularity" on the basis that, in this (as in any) criminal case, the judge is required to spell out clearly to the jury the nature of the defence case and any inconsistency in the prosecution case. He also underlines that the Court of Appeal held that the trial judge failed to put the defence case at all, other than that it amounted to an irrational denial and, after the replaying of the video evidence, did not come close to achieving a fair balance."

17. In that case the Court of Appeal Criminal Division that had quashed the claimant's conviction did so on 5 grounds relating to the summing up (see [2011] EWCA Crim 1142), the first of which was characterised by the subsequent division of the Court of Appeal as giving rise to "serious criticism". It related to the way in which the date of the alleged sexual offence was dealt with by the judge and had the effect of removing from the jury's consideration the claimant's factual challenge to the credibility of the complainant's account. The next three grounds, characterised by the Court of Appeal Criminal Division as "material errors", related to deficiencies in the summing up of the claimant's own case in response to the allegations made against him by the complainant. The final ground related to the way the judge dealt with a request from the jury during their deliberations to see again the video interview given by the complainant. It is not an unfamiliar request in such a trial and there is a well-established format for dealing with such a request which requires a trial judge to warn the jury not to give disproportionate weight to the evidence because it is repeated after all the other evidence. The Court of Appeal Criminal Division held that "the jurisprudence demonstrates that the achieving of a fair balance is what is necessary and, in particular, in the absence of any warning, we do not consider that the judge came close to achieving that balance in this case."
18. The Court of Appeal rejected the submission of the claimant in that case as reflected in paragraph 46 of the judgment (see paragraph 16 above) in the following way:

"… to engage this aspect of Benham, it must be the exercise of power in a way that reveals a gross and obvious irregularity: in this case, although there were errors in the summing up, whether considered individually or cumulatively, they fall far short of being so serious and egregious as to amount to gross and obvious irregularities."

19. I will return to the impact of that case on the present, so far as it exists, in due course, but it is a helpful contemporary indication of what needs to be established for a "gross and obvious irregularity" to be held to have occurred. That expression is derived historically from Re McC (A Minor) (sometimes referred to as MCC v Mullan) to which reference was made in paragraph 44 of the judgment in W. As Mr Burton rightly says, that case was decided over 30 years ago and raised an issue (namely, whether justices in Northern Ireland could be made personally liable in a civil action for false imprisonment and trespass to the person arising from the making of a school training order in respect of a 14-year old when they had no jurisdiction to do so) that would not arise today. He submits that the House of Lords would inevitably have set the bar at a high level to permit such an action to be brought. The passage most frequently quoted in this context is that in the speech of Lord Bridge of Harwich (with which the majority of their Lordships agreed in full) at pp. 546-7:

"… once justices have duly entered upon the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass. As Johnston v. Meldon, 30 L.R.Ir. 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction: Rex (Martin) v. Mahony [1910] 2 I.R. 695; Rex v. Nat Bell Liquors Ltd. [1922] 2 AC 128. It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question. I take this view because, as I have intimated earlier, I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case [1969] 2 AC 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of section 15 of the Northern Ireland Act of 1964 or section 45 of the Act of 1979.

Justices would, of course, be acting "without jurisdiction or in excess of jurisdiction" within the meaning of section 15 if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods would not, in my opinion, necessarily expose the justices to liability in damages."

20. Whilst Mr Burton's observation may have some force in a general sense, I detect nothing in any of the subsequent European authorities that in any way reduces the threshold from the very high threshold thus set. Indeed, in Mooren v Germany (2010) 50 EHRR 23 this approach was re-affirmed by the European Court of Human Rights where the relevant principles were recapitulated at paragraphs 72-81. I will not extend this judgment by reciting all those provisions, but I will quote paragraph 75 (omitting the footnotes) as follows:

"In its more recent case law, the Court, referring to a comparable distinction made under English law, further specified the circumstances under which the detention remained lawful in the said underlying period for the purposes of art.5(1): For the assessment of compliance with art.5(1) of the Convention a basic distinction has to be made between ex facie invalid detention orders— for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing—and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a "gross and obvious irregularity" in the exceptional sense indicated by the Court's case law. Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings."

21. Mr Burton's contention is that this re-statement suggests that an order such as that made in this case (namely, one by a judge sitting in a superior court of record in the domestic jurisdiction) could be declared ex facie invalid if made pursuant to a "gross and obvious irregularity" and thus be treated as void ab initio for the purposes of European law irrespective of the fact that the English domestic law is to contrary effect (see, e.g., R v Cain [1985] AC 46). I do not think that I can accept this proposition as it stands given its potential wide-reaching consequences.  Mr Gold, whilst not disputing Mr Burton's contention, submits that the distinction between void and voidable orders for detention remains of central importance when applying the "gross and obvious irregularity" test.  I am inclined to accept that, but I do not think I need to resolve this apparent dispute because it is, as it seems to me, in any event academic for present purposes. The potential for a claim for compensation under Article 5 was not disputed in, for example, W v. Lord Chancellor if a "gross and obvious irregularity" leading to the detention could be demonstrated. It was not demonstrated in that case. If it can be demonstrated in this case, it would seem that compensation should, in principle, be paid. However, the general principle remains that an order made by a superior court depriving someone of their liberty remains valid and lawful until it is set aside and the distinction continues to be recognised in the European cases: see, e.g., Liu v Russia (2008) 47 EHRR 33 and Khudoyorov v Russia (2007) 45 EHRR 5.
22. Whilst the use of the expression "serious and egregious" in W was plainly not designed to replace the words "gross and obvious", their use illustrates the nature of what needs to be demonstrated. Whilst the underlying policy that may have led to the use of the expression "gross and obvious" in McC will have changed given the immunity from suit of magistrates that now exists (since 1990), it is not difficult to see that permitting claims for compensation for corrected mistakes in judicial decision-making need to be confined to situations where "only something quite exceptional" has occurred. Mr Gold has so contended and that, in my judgment, must be so. As is often the case in this kind of situation, defining the parameters of what is "quite exceptional" is less easy than identifying a situation that can be so described.
23. Where someone has not been given proper notice of a hearing at which he is deprived of his liberty, there will plainly have been a "gross and obvious irregularity of procedure": see Lloyd v United Kingdom (29798/96) March 1, 2005, para. 115. However, a failure to afford legal representation to fine defaulters under the age of 21, whilst sufficient to quash the warrants, was not considered by the ECtHR to amount to such an irregularity: para. 114. In Liu v Russia (see paragraph 21 above), it was determined that a failure to give reasons for holding an applicant in custody, whilst sufficient within the domestic law to justify quashing the order thus made, did not meet the "gross and obvious" criterion. In Kolevi v Bulgaria (2014) 59 EHRR 23, however, the applicant was a high-ranking prosecutor who, whilst holding such position, was immune from prosecution according to the domestic law. Notwithstanding this, the Sofia City Court remanded him in custody pending prosecution for a number of alleged offences. That order was subsequently set aside by a superior court. The ECtHR said this at [177]:

"In the present case … the flaw identified in Mr Kolev's detention order can fairly be described as a "gross and obvious irregularity", given that domestic law prohibited in absolute terms the institution of criminal proceedings and the detention of persons enjoying immunity from prosecution. The detention order was therefore issued in excess of jurisdiction and was thus invalid and as such contrary to art.5(1)."

24. With these illustrations to hand, as well as the illustration afforded, in particular, by W, where do the circumstances of this case stand?
25. I have summarised the basis for the decision of the Court of Appeal in paragraph 8 above. I need to record in a little more detail precisely what was said about the judge's handling of the case before endeavouring to answer the question.

The Court of Appeal's reasoning for setting aside the committal order

26. I will refer briefly to each of the grounds relied upon by the Court of Appeal to hold that the committal order could not stand.
27. First, the recital contained in the order of 21 March 2014 to which a penal notice was added. The inclusion of the recital was said to be inappropriate for the reasons given by Kitchin LJ in paragraphs 49-52. In short, it was not clear enough to bring home to the Claimant what he had to do and it effectively coerced him into taking proceedings against his parents in a foreign jurisdiction which is something the court would not have had the power to order. It was inappropriate, it was held, to found committal proceedings on such an expectation.
28. Second, the refusal of the judge to recuse herself from the committal proceedings on the grounds of apparent bias. This is dealt with in paragraphs 55-59 and reinforced by McFarlane LJ at paragraphs 77-78. Kitchin LJ said this at [55]:

"… It seems to me that [the Claimant] had substantial grounds to be concerned about her hearing the committal application in the light of the comments she had made at the hearings on 19 and 21 March 2014. I have set out the material parts of the transcripts earlier in this judgment but it will be recalled that on 19 March the judge told him that if he did not secure M's return he knew what the consequences would be; that he had "one last opportunity" to secure M's return to the United Kingdom and "to remain at liberty"; and that he was "likely to be imprisoned" if he failed. Then, on 21 March, he was told that that, in the light of his failure to take action against the grandparents in Singapore it was "likely the period of imprisonment would be lengthy"; that his breach of the order of 14 March was "plain"; that he was responsible for M's return; and that he was required to take action against the grandparents in Singapore and yet he had done "Nothing. Nothing"."

29. Third, the failure to warn the Claimant that he was not obliged to give evidence and the procedure adopted when he did give evidence. This is dealt with at paragraphs 60-61. There was, it was held, a failure "to keep in mind the important principles applicable to contempt proceedings articulated by this court in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133." I will return to the case of Hammerton below (see paragraphs 32-34 below).
30. Fourth, the issue of whether the Claimant's "breach" of the order was deliberate was dealt with in paragraphs 62-72. I need not try to summarise those paragraphs save to say that the Court of Appeal was of the view that the judge had failed to apply the right test to the issue of whether it had been "established to the criminal standard that the [Claimant] had deliberately failed to comply with the three orders".
31. Finally, the sentencing process was pursued in an incorrect manner. Kitchin LJ said that the judge "did so without giving [the Claimant] any further opportunity to secure representation or to make any submissions on his own behalf as to the gravity of the contempts of which he had been found guilty or by way of mitigation." She should, it was said, have given "the parties an opportunity to address her as to the consequences of her findings and the appropriate order to make."
32. I will deal with each of these matters individually and then consider them collectively, but before doing so I should return briefly to Hammerton (see paragraph 29 above). Mr Burton placed considerable emphasis on the fact that Wall LJ (a judge, of course, with immense experience in the field of family law) said that the judgment of Moses LJ "should … be required reading for every judge hearing or aspiring to hear family proceedings, and in particular an application in such proceedings to commit one of the parties to prison for contempt of court." It was a case involving a litigant in person who was the subject of committal proceedings for alleged breaches of undertakings not to contact his former wife, but who was also seeking contact with his 5 children. It is plain from the judgments of Moses LJ and Wall LJ that some significant errors in procedure had occurred in that case and emphasis was laid on the need to ensure that proper and fair procedures were followed, most particularly where a litigant in person was concerned.
33. It should, perhaps, be noted that Hammerton was not a case where the question of the recusal of the judge arose.
34. Mr Burton submitted, in effect, that the judge made two errors in this case that had been made in Hammerton and that she had plainly overlooked the strictures of the Court of Appeal as set out in that case. That lent force, he submitted, to the proposition that these errors were "gross and obvious". I will return to this below, but I will deal with each of the grounds upon which the decision of the Court of Appeal was based. It is, however, necessary to place that analysis in its proper context.
35. Although it does not ordinarily fall to a Queen's Bench Division judge to deal the with emotional complexities and family dynamics with which all judges exercising the family jurisdiction must deal with on a daily basis, it is not difficult to envisage the problems that can arise. Securing compliance from reluctant parties with the wish of a court, whether expressed in the form of an order or otherwise, is one problem area, particularly where the interests of young children are at the forefront of the court's consideration. Where, as in this case, a very young child is outside the physical jurisdiction of the court, the urgency of dealing with the situation is even greater. Some insight into the processes in operation can be gleaned from the short judgment of McFarlane LJ (another judge with immense experience in this field) where in paragraph 73 he said this:

"The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court's considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case the judge did just that, and no criticism has been sustained in relation to her actions."

36. It should, of course, be noted that, although Russell J was the judge who ultimately had to deal with the problem in this case, two other Family Division judges had played a role in trying to resolve the position about M. However, the observations of McFarlane LJ demonstrate that robust messages to the Claimant were plainly appropriate in this case and no criticism was made of Russell J by the Court of Appeal in that regard. Indeed it is also plain from the judgment of Kitchin LJ that the court was alive to the real concerns that Russell J had self-evidently had about the true motivation of the Claimant. At paragraph 48, when considering the order of 21 March 2014, he said this:

"I recognise that by this time the judge was becoming increasingly frustrated by the father's failure to return M to the jurisdiction and was anxious to bring that about as soon as possible. I am also fully conscious of the findings that the judge had made as to the father's integrity, having deceived the mother as to his intentions on returning to Singapore the previous January. It also seems to me that this court should be very cautious about imposing unnecessary restrictions upon the armoury which judges may properly deploy to prevent the grave harm that is inflicted on children (and other innocent family members) by the wrongful removal and retention of those children abroad."

37. There is no doubt that there were ample grounds for the judge to believe that the Claimant was being duplicitous and manipulative. The misconceived application to Theis J confirmed it if confirmation were needed.
38. Furthermore, in relation to the comments made by the judge reflected in paragraph 55 of Kitchin LJ's judgment (see paragraph 28 above), Kitchin LJ made this observation at [56]:

"I have no doubt that these comments and observations were made by the judge in order to bring home to the father just how important it is to comply with orders of the court and out of a deep concern for M's welfare."

39. That, therefore, was the essential background to the issues confronting the judge. One might add to that the fact that the Claimant had previously been represented by solicitors and Counsel and, by the time of the relevant hearings before the judge, was unrepresented. Given his employment status with a well known banking enterprise, it is understandable that the judge may have wondered why he was unrepresented at this stage.
40. As to the first ground of criticism referred to by the Court of Appeal, it seems to me that, looked at in isolation, it could not possibly amount to a "gross and obvious procedural irregularity". The approach the judge adopted was obviously wrong for the reasons given by the Court of Appeal, but it was doubtless a bona fide attempt to fashion a requirement that would result in M being returned to the jurisdiction. Whilst, of course, any judge has to take ultimate responsibility for an order that bears his or her name, I do note that the experienced Counsel representing the mother did not alert the judge to any concerns that there may be about the enforceability of this part of the order. A court faced with dealing with a litigant in person is entitled to expect some reminder from a represented party about matters of this nature.
41. Turning to the recusal issue, in his closing submissions to me Mr Burton appeared to place this feature at the forefront of his submissions that Russell J had been guilty of a "gross and obvious procedural irregularity". It is, of course, clear from the Court of Appeal's decision, that she should have recused herself in the circumstances. However, I have observed that the issue did not arise in Hammerton and my attention has not been drawn to any other authority in the family jurisdiction where anything has been said about this in the present context. In those circumstances, it was incumbent on the judge to apply the well known test set out in authorities such as Porter v Magill [2002] 2 AC 357 and Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451. The approach foreshadowed in those authorities requires, at the end of the day, an exercise of judgment for the judge making the recusal decision subject, of course, to a higher court saying that the decision to proceed in a particular situation was wrong if that view is formed by the higher court.
42. Recusal and adjournment to another judge will have costs and delay implications in any case. Both must, of course, be countenanced to ensure that no injustice does arise from a judge continuing with a case with which he or she should not continue. But judges at all levels will be concerned to avoid delay and will be alert to the tactic, not infrequently sought to be deployed by litigants in person, to seek the recusal of a judge who has made some adverse order or comment concerning the position of that litigant. Russell J's reasons for not recusing herself were expressed briefly, but there can be no doubt that she saw no need to do so. That has to categorised as a misjudgement in the light of the Court of Appeal's subsequent ruling, but can it be said to amount to a "gross and obvious procedural irregularity"? I do not think so.
43. Turning to the procedural errors referred to in paragraph 29 above, Mr Burton has submitted, by reference to paragraph 35 of Hammerton, that the Court of Appeal must have taken a view that the errors were sufficiently serious to justify the setting aside of the committal orders without regard to the other areas of criticism. I do not consider that this is the effect of the decision of the Court of Appeal. After reciting the criticisms of the judge, Kitchin LJ simply said that the appeal against those aspects of the order of 3 April 2014 that related to the refusal of the judge to recuse herself and those relating to the allegations and findings of contempt should be allowed. He did not preclude the possibility that a conclusion of deliberate contempt might be made if the correct procedure was followed when the matter was reconsidered.
44. As it seems to me, these procedural errors, coupled with taking the wrong approach to the evaluation of the question of whether the contempt was deliberate, once rectified, could still result in adverse findings against the Claimant. If these errors had stood collectively, but in isolation from the others, I do not consider that they would amount to "a gross and obvious procedural irregularity" and I do not think that conclusion can be inferred from the reasoning of the Court of Appeal. They would certainly amount to a procedural irregularity, but not one which was "so serious and egregious" as to amount to a "gross and obvious irregularity". The situation here seems to me to have some parallels with the kind of mistakes made by the trial judge in W which the Court of Appeal in that case said were not even arguably within the "gross and obvious" category.
45. I should, perhaps, also add that Counsel for the mother positively invited the judge to proceed procedurally as she did and this may have distracted her from the correct procedural course.
46. The final area of criticism (see paragraph 8 above) relates to the failure of the judge to afford the Claimant "the opportunity to which he was entitled to make submissions in his own defence as to the seriousness of the contempts which the judge had found and also by way of mitigation". I think Mr Gold is right to say that the Court of Appeal did not truly criticise the judge for failing to afford the Claimant the opportunity of finding new representation (despite what was said in Hammerton at paragraphs 49-52), but considered that he should have been invited to make submissions in his own defence. That would be consistent with the judge informing the Claimant of his potential entitlement to legal aid, the importance of obtaining representation and inquiring why he was unrepresented. She did not believe his explanations.
47. Mr Gold submits that the judge's failure to invite him to make submissions in his own defence did not, in any event, bear upon the decision whether or not to impose a term of imprisonment because she considered that the contempt was very serious. The representations may have had an impact on the length of any such term. The Court of Appeal was critical of the judge's reasoning for concluding that the contempt was "serious" (see paragraph 73 of Kitchin LJ's judgment), but the seriousness of the contempt lay in the Claimant having taken insufficient steps to bring M back into the jurisdiction.
48. As Mr Gold says, the judge did have information about the Claimant's personal circumstances and with that information she attempted to reach an appropriate sentence by reference to the authorities to which she referred. She sought to give reasons for her decision. What occurred did not, he submits, constitute a total failure to follow appropriate procedures, but represented some failure to do so in an otherwise bona fide attempt to follow due process.
49. Affording someone, particularly someone who is unrepresented, the opportunity to say something before a custodial sentence is imposed is, I apprehend, an almost invariable requirement of fairness and it was not afforded in this case. Again, the Court of Appeal did not indicate that, if it had stood alone, this failure would have been sufficient to justify setting aside the order. I am inclined to think that had all previous steps in the committal proceedings been in accordance with the appropriate procedure, this failure would have been criticised but would not have been held to be sufficiently fundamental to set aside the committal order as such. In that event the Court of Appeal would probably have substituted an appropriate sentence in the light of the information then available.
50. As it was, this failure, along with the other deficiencies in the procedure adopted, resulted in the remission of the case to the High Court "to consider as soon as reasonably possible what further or different orders should be made against the father in the light of this judgment, such consideration to include the possibility of requiring the father to take particular action in Singapore" (paragraph 75).

Conclusion on the "gross and obvious irregularity" point

51. My analysis of each of the individual areas of criticism made of the judge's approach in this case has led to the conclusion that none constitutes judicial conduct that merits the description "quite exceptional" or "so serious and egregious" as to amount to a "gross and obvious procedural irregularity". This conclusion seems to me to be consistent with the way the Court of Appeal expressed itself in relation to the various errors. That there were errors cannot be denied, but the context in which they were made needs to be re-emphasised: the judge was dealing with a father who had deceived the mother of a very young child into permitting the child to be taken out of the jurisdiction many thousands of miles from where he was born. Having done so, he (on the judge's not unjustified perception) did everything possible to impede the return of the child to his mother and to the jurisdiction contrary to the legitimate orders of the court. Coercive pressure was required to secure compliance with these orders. The judge perceived, again with probable justification, that the Claimant was seeking to manipulate the whole process to his advantage. It is likely, having formed that view, that the judge inadvertently overlooked some of the relatively basic requirements of dealing with the kind of problem thrown up in such a situation. However, her good faith is not questioned and it is as plain as can be that the focus of the procedure she adopted was upon the interests of the little boy at the heart of the dispute who was effectively trapped in Singapore and unable to be reunited with his mother in the UK. It would, in those circumstances, be a very harsh conclusion to say that she behaved in a fashion that amounted to a "gross and obvious procedural irregularity."
52. Mr Gold has conceded that the errors involved here were serious, but nonetheless submits that they do not reach the level of exceptionality required to justify a claim for damages under Article 5. I consider that to be a well-founded submission if each error is considered in isolation for the reasons I have endeavoured to set out.
53. I have also considered whether the same conclusion should be reached when all the various matters are taken together, either simply as a collective unit or as a series of errors with a cumulative impact. Whilst, in principle, one could see that the cumulative impact of a series of errors is greater than each individual component, I remain of the view that the context in which these cumulative errors occurred is such that it would be unfair to categorise what occurred as involving a "gross and obvious procedural irregularity". It is, of course, correct to say that the process that led to the Claimant's incarceration for 63 days has been held to be inadequate for the purpose and flawed for the reasons given by the Court of Appeal. However, given the background, it is at least possible that the outcome would have been the same or similar if the correct procedures had been implemented.

Overall conclusion

54. As I have observed previously (see paragraphs 20 and 22 above), the bar for establishing a claim for damages in this context is necessarily set at a high level. I do not consider that the circumstances of this case cross the threshold thus established.
55. Accordingly, I do not find liability established.