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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Cambra v Jones & Anor [2014] EWHC 2264 (Fam) (09 July 2014) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2014/2264.html Cite as: [2014] EWHC 2264 (Fam) |
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FAMILY DIVISION
(In Open Court)
Strand, London, WC2A 2LL |
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B e f o r e :
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TOMAS PALACIN CAMBRA |
Applicant |
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- and - |
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JENNIFER MARIE JONES JESSICA MARIA PALACIN JONES |
Respondents |
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Mr Christopher Hames and Ms Laura Morley (instructed by Miles & Partners) for the first respondent
Mr David Williams QC (instructed by Brethertons LLP) for the second respondent
Hearing dates: 30 April, 1-2 May 2014
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Crown Copyright ©
Sir James Munby, President of the Family Division :
"the children chorused emphatically right from the outset that there was no way they were going back to Spain … they were resolute. Each individually in their different ways remained steadfastly so throughout the time I spent with them."
Quoting what he had been told by Tomas, Mr Mellor said:
"He was absolutely insistent he wouldn't co-operate. He said: You'd have to tie me up; you'd have to drug me'."
Jessica is similarly recorded by Mr Mellor as having said to him:
"I don't think anyone in this country is going to drag me kicking and screaming, they're not going to drug me, they're not going to put me in handcuffs. I'm not going to get on that plane. Once I get to Spain, if I'm not legally allowed to live with my mum here in Wales, they won't let me get on a plane to come back home."
Summarising matters Mr Mellor said:
"I see no prospect of anyone prevailing upon them at this stage, in their current frame of mind, to comply with the orders that have been made for their return … The resistance shown by these children is exceptional, in my experience."
Coming from someone with Mr Mellor's vast experience, that last observation is striking.
"Both were emphatic; they felt exactly the same, under no circumstances did either wish to return to Spain. Neither could identify anything anyone could do or say that might lead them to change their minds. Both stated their absolute determination to resist any steps to make them go back."
He summarised his reading of the situation as follows:
"I remain of the view that in their present frame of mind, it is extremely unlikely that Jessica and Tomas can be prevailed upon to return to Spain. Though others, notably the father, may have constructive, practical suggestions to make, for my part I cannot identify any means by which their compliance might be secured."
"In my judgment the harsh reality is that both Jessica and Tomas have been fundamentally let down by their mother by her refusal to comply with the court order requiring them to return to Spain. She has put them in an impossible situation which has resulted in them being physically separated from their siblings, with whom they have always lived and clearly have a close relationship with. Her actions have, in my judgment, fractured those significant relationships to the long term detriment of all the children. Despite the orders in place in the Spanish courts and the attempts by this court and the Court of Appeal, together with undertakings offered by the father to ensure the return would take place with no risk to the mother of further proceedings on her return to Spain she has, wholly unreasonably in my view, refused to exercise her parental responsibility in relation to Jessica and Tomas in such a way that would assist and support them to return to Spain and be re-united with their father and siblings."
She added this (para 54(2)):
"The mother is to be deprecated for the position she takes. She has, in my judgment, abdicated her parental responsibility for these children and she will have to answer to them and their siblings in due course. I do not see her position now in isolation, it has been part of a concerted campaign by her over a number of years to thwart and undermine the legitimate orders made regarding the welfare of these children in Spain."
"his instructions are the mother will not return to Spain and will not take any steps to return Jessica and Tomas to Spain … Mr Hames' express instructions are that the mother will not take any steps to comply with any order made requiring her to encourage Jessica and Tomas to return to Spain."
"(1) The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law. (2) The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopt Hughes LJ's language [in Re A], Could he do it? Was he able to do it? These are questions of fact. (3) The burden of proof lies throughout on the applicant: it is for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it. (4) The standard of proof is the criminal standard, so that before finding the defendant guilty of contempt the judge must be sure (a) that the defendant has not done what he was required to do and (b) that it was within the power of the defendant to do it."
"if the answer is that it was not (or, to be more precise, that it has not been proved that it was within his power) then that is the end of the allegation, and it matters not at all that [he] may by his own acts (or omissions) on previous occasions have brought about the state of affairs upon which he now relies by way of defence."
That is particularly important in the present case where, as I have said, the mother in very significant part bears responsibility for the children's intransigence.
"principle that in relation to committal "it is impossible to read implied terms into an order of the court": Deodat v Deodat (unreported, 9 June 1978: Court of Appeal Transcript No 78 484) per Megaw LJ. An injunction must be drafted in terms which are clear, precise and unambiguous."
Mr Turner seeks to avoid this difficulty by disavowing reliance upon any implied term and asserting that the provision for which he contends is necessarily implicit in the language of the orders. I disagree. Why should it be implicit that the mother has to have recourse to all lawful means, irrespective of cost or practicability, rather than it being implicit that she is to use her best endeavours or that she is to use all reasonable endeavours? To this, at the end of the day, Mr Turner really had no answer. As I observed in relation to a similar point which arose in The Solicitor General v J M J (Contempt) [2013] EWHC 2579 (Fam), [2014] 1 FLR 852, para 22, "It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt."
"59 Whilst this judgment has focussed on the dry legal landscape one cannot ignore the underlying human element to this case. As Mr Mellor observed in his oral evidence he was struck by the observations of Mr Justice Hedley about the role the parents had played, how they had chosen to parent and the damage that they had done to their children. I would echo and associate myself with the astute observations of Mr Justice Hedley, who considered this case in October [2012], when he said
" … the position of the parents is one of complete impossibility. I do not think they begin to even understand, if they care in the slightest, that they carry on their battle with a total disregard for the cost paid by their children for what they are doing. It is deeply saddening and deeply troubling that parents can be quite so unspeakably selfish as to conduct this kind of battle over years and years and stand by and watch their children pay the price of it. That is how they chose to parent and they must answer for it to their own children in the fullness of time."
60 As Mr Mellor commented what he found so troubling is that the parents do not appear to have heeded one word of what Mr Justice Hedley said so we now have this impossible situation. I am deeply concerned about the emotional health of this family, in particular all the children, if the parents continue their past behaviour into the future. I sincerely hope that will change."
I agree with every word of what those two wise judges said. Matters today are no better, only worse.
"No certificate shall be granted under section 12 of this Act where the decision of the judge, or any order made by him in pursuance of that decision, is made in the exercise of jurisdiction to punish for contempt of court."
Mr Turner submits that since my decision was a decision to not exercise the jurisdiction to punish for contempt of court, the power to issue a certificate under section 12 is not inhibited by section 15(4). I do not agree. As Mr Williams put it, a decision whereby contempt is not found proved is as much a decision made "in the exercise of jurisdiction to punish for contempt" as a decision finding contempt. Precisely so.