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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child) [2014] EWCA Civ 843 (20 June 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/843.html Cite as: [2015] 1 All ER 230, [2014] Fam Law 1250, [2015] Fam 209, [2014] EWCA Civ 843, [2015] 2 WLR 392, [2015] 1 Fam 209, [2015] 1 FCR 75, [2014] 1 FCR 75, [2015] 1 FLR 871, [2014] WLR(D) 283, [2015] 1 FAM 209 |
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[Buy ICLR report: [2015] 2 WLR 392]
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
EXETER DISTRICT REGISTRY
His Honour Judge Tyzack QC (sitting as a Judge of the High Court)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
LORD JUSTICE UNDERHILL
____________________
In the matter of B (A Child) |
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Mr Paul Storey QC and Mr Anthony Ward (instructed by Cartridges) filed a skeleton argument on behalf of B
Hearing date : 6 May 2014
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Crown Copyright ©
Sir James Munby, President of the Family Division :
The background
The hearing before Judge Tyzack
"The court is reminded of the guidelines issued by the Family Justice Council in 2011 concerning children giving evidence in family proceedings. In deciding whether a child should give evidence, the court's principal objective should be achieving a fair trial. With that objective in mind the court should carry out a balancing exercise between, on the one part any possible advantages of the child's evidence and secondly any possible damage to the child's welfare of giving the evidence itself."
"I am not satisfied that he was fully and completely candid with the court … I would remind the family that if the court ever finds a serious lack of candour it could amount to a contempt of court, and contempt in this jurisdiction is punishable by a maximum of two years' imprisonment. That is why the court requires absolute candour from everyone".
"produce to the court forthwith all the records of telephone calls to and from his land line telephone and all records of any emails texts or other electronic means of communication [between 1 February 2014 and 7 May 2014]."
The order was endorsed with a penal notice which, in the same terms as that endorsed on the previous order, stated that:
"You have a right to ask the court to change or cancel the order but you must obey it unless the court does change or cancel it. You must obey the instructions contained in this order. If you do not, you will be guilty of contempt and may be sent to prison."
Judge Tyzack's judgment
"[Counsel], understandably, has applied for Mr and Mrs S's passports to be returned to them. It is said that they are caught in the middle, which I suppose in a sense they are. It is said that to retain their passports in court would be to punish them, which I suppose in a sense it does. They have a cruise booked, I think in May. They would like to go abroad to Ireland and to visit battlefields and cemeteries in France and Belgium. Those things are normal, pleasurable activities which everybody in this country can, if they can afford it, obviously reasonably enjoy. But Mr and Mrs S, I am sorry to say, are caught up in a very unfortunate dispute and the court is not satisfied that they have fully and wholeheartedly co-operated in the court's endeavour to ensure that B is returned to the jurisdiction of England and Wales. I am going to adjourn the application for Mr and Mrs S's passports to be returned because I would like to see, the court would like to see the extent to which Mrs S will now apply her mind, and maybe her husband's, to the essential task of putting persuasion / influence / pressure on [the mother] to return B to the jurisdiction of England and Wales. It is said by [Counsel], in effect, "What is the point of doing that because the mother has made up her mind and it is clear that she has made up her mind to stay where she is in Abu Dhabi or Dubai?" That may be so. But that, in my judgment, should not prevent the court from seeking to rely upon, as the court is entitled to, to rely upon Mr and Mrs S to put pressure and influence on their daughter to return B to the jurisdiction. So far, that has not been tried, and in my judgment the time has come for it to be attempted. Their passports will remain in court.
Similar considerations apply to L. I appreciate that I am dealing with a 16-year-old boy even more tragically caught up in this mess. But I was very disappointed to hear the evidence which he gave …
I am not satisfied that the court has so far received absolute candour from the wider family and absolute assistance and co- operation from them to influence their daughter or mother respectively to return. L's passport must remain in court. I adjourn his application until a later date, again, to see whether any appropriate pressure can be brought to bear upon this mother to act lawfully."
The appeal
Some general matters
"It has long been recognised that, quite apart from any statutory jurisdiction (for example under s 33 of the Family Law Act 1986 or s 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter."
I see no reason to alter a word of that.
"in aid of this jurisdiction the court can make a variety of orders directed to the Tipstaff, including, in addition to location, collection and passport orders, an order authorising the Tipstaff to enter private residential property, if need be using force to open doors, with a view to searching for, removing and taking into custody anything (for example, a computer or a mobile phone, blackberry or other similar device) which there is reason to believe may contain information throwing light on the missing child's whereabouts".
The passport order (ground 2)
"In the Family Division use is often made of a power to restrain a party from leaving the jurisdiction and to require the surrender of passports. Thus when, for example, a foreign plaintiff complains that the defendant has wrongfully abducted a child to England and Wales and seeks an order for the child's peremptory return under the Child Abduction and Custody Act 1985, it is normal to order at the outset that until the hearing the defendant do not leave England and Wales and do surrender his or her passport. Such an order is made either under s 5 of the 1985 Act or pursuant to the court's inherent jurisdiction. Another example is where a foreign parent who might be disposed to misuse a period of contact in England in order to remove a child overseas is ordered in the exercise of the inherent jurisdiction to surrender his passport".
That was not, of course, what Judge Tyzack was doing here.
"The jurisdiction exists where the other party has established a right to interlocutory relief (such as an Anton Piller order) which would otherwise be rendered nugatory. It exists where a hearing is shortly to take place, the efficacy of which would be frustrated by his absence."
"to require a respondent … who is within this jurisdiction but who is not ordinarily resident within this jurisdiction to surrender his passport pending an imminent fixture to determine interim financial provision."
"The power to impound a passport pending the disposal of a financial remedy claim exists in principle in aid of all the court's procedures leading to the disposal of the proceedings."
"The purpose of a bench warrant is to bring the person detained to court and its purpose is effected as soon as he appears before the judge. At that moment he may or may not be in contempt of a court order. If he is not in contempt then in my view there is no power to detain him further. The direction of the court has been complied with and there is nothing before the court to enable the further power of detention to be invoked. If the person is prima facie guilty of contempt but the proceedings are part heard and are continuing, I can see no reason, in certain circumstances, not to detain him pending the conclusion of the case if the court is satisfied that he will not voluntarily attend on the next hearing day. The purpose is to secure the attendance of the alleged contemnor for the next court hearing. There is no precedent for detaining a party or a witness at the end of the hearing in order to compel another to comply with a court order (emphasis added)."
She added:
"The heart-rending emotions of a child abduction case do not take it outside the proper exercise of the court's powers."
"… the purpose of detaining the father was to bring pressure to bear upon and influence the conduct of the grandparents in Algeria. They were being told, in effect, your son is being held in prison in London and he will not be released until you return the grandchildren. It was thus an exercise in coercion whereby an individual was being deprived of his liberty so as to coerce others into doing what the court wishes. In my judgment, however laudable the motives or worthy the objective, this is not a power which is part of the law of England; nor should it form part of any civilised system of law."
"Mr Mostyn suggests that a restraint upon leaving England and Wales is wholly unlike imprisonment. I disagree."
"The use of ancillary powers which have the practical effect of restricting the liberty, or freedom of movement of an individual is recognised in the granting of injunctions, now under s 37 of the Supreme Court Act 1981 … There is an obvious difference in kind between an injunction and the arrest or physical detention of an individual, but such orders are analogous and illustrate the proper use of an ancillary power although it prima facie infringes the personal rights of the individual involved.
Where a power of arrest or detention has been recognised other than as part of a punitive jurisdiction, it is ancillary to the exercise of another power of the court and is legitimate because it is necessary to the implementation of the order of the court."
The penal notice (ground 4)
The order to attend court (ground 1)
The order for disclosure (ground 3)
The finding in relation to L's evidence (ground 5)
Lady Justice Black :
Lord Justice Underhill :
Note 1 As Wilson J pointed out in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, 154, the use of the writ ne exeat regno was inapt at that stage in the proceedings, though the order was entirely permissible under section 37(1) of the Supreme Court Act 1981 (now the Senior Courts Act 1981). [Back]