|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Egeneonu v Egeneonu  EWHC 2451 (Fam) (30 August 2017)
Cite as:  EWHC 2451 (Fam)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| Ijeoma Nkem Egeneonu
|- and -
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
The Respondent appeared in person
Hearing date: 30 August 2017
Crown Copyright ©
Mr Justice MacDonald:
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.
THE PRESENT POSITION
'Given the seriousness of the matter we propose on behalf of Mr Egeneonu that the hearing on the 30th and 31st 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'.
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)  1 FLR 277 at ). 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  22 EHRR 293 at 324 and also Re G (Contempt committal)  2 FLR 58 at ).
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  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)  1 FLR 277, Hale LJ, as she then was, observed as follows at :
'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  1 WLR 542 at ).
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.
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.