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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> L (A Child) [2016] EWCA Civ 173 (22 March 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/173.html Cite as: [2016] EWCA Civ 173, [2017] 1 FLR 1135, [2016] Fam Law 668 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Justice KEEHAN
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE VOS
and
MRS JUSTICE THEIS
____________________
In the matter of L (A Child) | ||
In the matter of GOUS ODDIN |
____________________
Mr Edward Bennett (instructed by the authority's Legal and Democratic Services) for the local authority
Mr Matthew Maynard (instructed by Roberta McDonald) for L's guardian
Hearing date : 3 March 2016
____________________
Crown Copyright ©
Sir James Munby, President of the Family Division :
The legal context
The legal context: Tipstaff orders
"If the Defendants[1] or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she[2] must each:-
(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and
(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child."
Paragraph 4:
"The Defendant[3] … must … hand over to the Tipstaff (for safe-keeping until the court makes a further order) as many of the following documents as are in his or her possession or control … (b) every passport relating to the Defendants[4] and every identity card, ticket, travel warrant or other document which would enable the Defendants[5] to leave England and Wales."
Paragraph 5:
"This order or a faxed[6] copy of it must be personally served upon the Defendants[7] … PROVIDED THAT,[8] if the Defendants[9] … refuses or evades[10] personal service, the court will consider that he or she has been validly served if the effect of the order has been brought to his or her attention."
Paragraph 6:
"The obligations under paragraphs 2 and 3[11] above will continue until the Tipstaff takes charge of[12] the child …"
The collection order also contains a warning that:
"the court has directed the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with this order and has disobeyed any part of it."
The legal context: seeking information
"[36] 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.
...
[38] There are three further aspects of this jurisdiction which it is convenient also to mention. First, that legal professional privilege is no answer to such an order: Burton v Earl of Darnley (1869) LR 8 Eq 576n, Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591. Second, that the court's powers in this kind of case – where it is seeking to locate a missing child – are not subject to the limiting principles of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, [1973] 3 WLR 164. Thus there is no need to establish that the person against whom disclosure is sought has, albeit innocently, been involved in the abducting parent's wrongdoing. The jurisdiction can be exercised against someone who is not merely wholly innocent but also a 'mere witness'. It is enough for the court to exercise jurisdiction that the person from whom information is being sought may have information (however acquired) which may lead to the location of the missing child. 'Possibility' is enough; there need not be probability: Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591 (where the order was made to produce certain documents which, as Sir Richard Malins V-C put it at 578 and 592 respectively, 'it was just possible (I did not think it at all probable) … might lead to the discovery of … her residence, or where she is absconding with the wards.'). Third, 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,[13] 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: see Re S (Ex Parte Orders) [2001] 1 WLR 211, [2001] 1 FLR 308 at 222 and 320 respectively."
The proceedings
"UPON the court being satisfied that the attendance of Mr Gous Oddin to attend court for the purpose of examining the whereabouts of the parents [that is, L's parents] and the welfare and whereabouts of the child [that is, L] is necessary
… IT IS ORDERED THAT
1 Leave is granted to the local authority for a witness summons to be issued, whereby Mr Gous Oddin shall attend court at 9.30am on 8 October 2015 before Mr Justice Keehan sitting at … for the purposes of being examined as to the whereabouts of the parents and the welfare and whereabouts of the child, L …
2 Mr Gous Oddin … shall attend the hearing on 8 October 2015 for the purpose of examination as to the whereabouts of the parents and whereabouts of the child L …"
"Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?
A. Yeah.
You are today in a very, very serious position. I should tell you now that, subject to anything that is said by Mr Nuvoloni or by Miss McDonald, what I propose to do is to take evidence from you today. If I am not satisfied with your answers, I will adjourn the matter for a period of time to hold a committal hearing at the Royal Courts of Justice in London. If that comes to pass, I would very strongly advise you to seek legal representation for that hearing. Do you understand?
A. Yeah."
"THE JUDGE: (Long pause) Mr U, I am very sorry to tell you that I do not believe you have been telling me the truth. I do not believe that you have given me all the information that you can. This is what I propose to do. I am going to list this matter at the Royal Courts of Justice in London on Wednesday, 28th October. It will be listed for half a day. It will be listed as a committal hearing, when I will consider whether you are in contempt of court, and if you are in contempt of court, I will then proceed to decide what punishment you should face for that. Do you understand?
THE WITNESS: Yeah."
"THE JUDGE: On the face of the order, it should obviously refer to the fact that Mr U gave evidence under affirmation –
MR NUVOLONI: Of course.
THE JUDGE: – and I was not satisfied that he had provided either a truthful account or gave all possible information in respect of the whereabouts of L, and accordingly I have adjourned the matter off for a contempt hearing.
MR NUVOLONI: My lord, I will include that in the preamble."
The Transcript concludes:
"MR NUVOLONI: My Lord, is Mr U free to go?
THE JUDGE: He is free to go."
"UPON the court noting that Mr Gous Oddin remains subject to an Order of the High Court dated 30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Oddin
AND UPON the Court being satisfied that Mr Gous Oddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child
…
IT IS ORDERED THAT:
1. Mr Gous Oddin of … shall attend court at 9:30am on 28 October 2015 before Mr Justice Keehan sitting at The Royal Courts of Justice, Strand, London to show cause why he should not be committed to prison for a contempt of Court in not providing the Court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L ..."
The contrast with the judge's language as recorded in the Transcript will be noted. "I was not satisfied" has become "satisfied that … has not".
"UPON restating the following two recitals in the Order of the Honourable Mr Justice Keehan dated 8 October 2015, namely that:
the Court notes that Mr Gous Uddin remains subject to an Order of the High Court dated 30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Uddin; and
the Court was satisfied on 8 October 2015 that, following his giving oral evidence, Mr Gous Uddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child L
…
AND UPON the Local Authority having indicated … that it will endeavour to issue a committal application as soon as possible with Mr Gous Uddin as the Respondent/Defendant to that application;
…
IT IS ORDERED THAT:
1. The hearing listed for 28 October 2015 before Mr Justice Keehan sitting at the Royal Courts of Justice is vacated. The matter is re-listed before Mr Justice Keehan on 9 November 2015 at 10:30am with a time estimate of half a day, sitting at the Royal Courts of Justice, Strand, London …
2. The application made by the Local Authority to commit Mr Gous Uddin to prison for contempt of court referred to in the recitals above is to reserved to [sic] the Honourable Mr Justice Keehan and to be heard at the same time as the hearing listed at Paragraph 1 (above).
…
5. The requirement for the committal hearing to take place not less than 14 days after service by the Local Authority on Mr Gous Uddin of the committal application referred to in the recitals above is dispensed with, pursuant to Paragraph 12.2 of PD 37A FPR 2010.
6. The requirement for the application referred to at Paragraph 2 (above) to be served personally upon Mr Gous Uddin is dispensed with, pursuant to r.37.10 FPR 2010. The application may be served upon Mr Gous Uddin through service, by post or by e-mail, on his solicitors …
7. The requirement that this Order be served personally on Mr Gous Uddin is dispensed with. The application may be served upon Mr Gous Uddin through service, by post or by email, on his solicitors …"
We were told that the purpose of the proposed application being made by the local authority was to ensure that Mr Oddin would be able to obtain legal aid in circumstances where, as the order recited, the Legal Aid Agency had indicated that legal aid would not be forthcoming unless an application for committal was made.[14]
"2 I accept that I am still subject to the order of the High Court dated 30 December 2004 but I have mislaid the original order. I said then and I say now that I do not know the whereabouts of L or [her parents].
…
4 I state that I am not and never have been part of a conspiracy to abduct L and would not pervert the course of justice by lying to this Honourable Court or any of its officesr. Indeed, the Tipstaff not only made the consequences of breaking the Court's order abundantly clear but has held my passport, now expired, since service of the order. I have not had a holiday for 18 years."
"Gous Uddin of … shall attend court before the Honourable Mr Justice Keehan, sitting at Birmingham, to show cause why he should not be committed to prison for contempt of court in not providing the court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L."
"I have been advised by my solicitors that there is an Order dated 31 December 2004 which requires me to inform Tipstaff if I have any information as to the whereabouts of L or information which would assist in locating her.
I wish to co-operate with the Court but emphasise that I do not know the whereabouts of L. I have not seen my brother … or my sister-in-law … or L since 2004. My passport and that of my wife … and my parents have now been held for the last 11 years. We cannot travel abroad. My family and I are being punished for the actions of my brother when we did not take part or assist in any way in the abduction of L. We are being made to suffer for my brother's actions. I would respectfully ask that after the length of time which has elapsed our passports are returned to us."
"I have not had sight of the Tipstaff order made in 2004. I cannot remember after this length of time whether it was served upon me or my parents. I do recall that the police came to my parent's home. My parents, my wife and I were required to hand our passports to the Court. About a year later we asked for their return but this was refused. After that we made no further requests. Eleven years hare now elapsed and my father, my wife and I believe that we should be able to obtain current passports enabling at least my wife and I to travel abroad. My father is in no fit state to travel. It is an infringement of my human rights that my mobility is restricted and I have no freedom to travel."
The case-law
"[14] This brings me to the second source of error. That was the decision of the judge to hear both the application for contact and the committal proceedings at the same time … But the decision to hear both applications at the same time led to inescapable errors in procedure. Once the judge had decided to hear both the applications together, he was faced with an insoluble conflict. It was for Mr Hammerton to make good his claim for contact …
[15] But at the same time as Mr Hammerton was seeking to establish his claim for contact, it was incumbent upon Mrs Hammerton, in seeking committal, to prove breaches of his undertakings and of the court order to the high standard of proof necessary in committal cases. Moreover, as Butler-Sloss P pointed out in [Re G (Contempt: Committal) [2003] EWCA Civ 489, [2003] 1 WLR 2051] (para [22]) Mr Hammerton was not obliged to given evidence at all in his own defence. The court was obliged to warn him that he did not need to give evidence. No such warning was given. But the evidence he gave about the alleged breaches of the undertakings and of the order was clearly relevant to the issue as to whether any form of contact was appropriate in the interests of the children. Accordingly, if Mr Hammerton exercised his right not to give evidence in the committal proceedings, he would almost inevitably fail in his claim for some form of contact.
[16] Thus, the decision of the judge to hear both applications at the same time placed Mr Hammerton in an impossible position. There was no means of reconciling the need for him to establish his case for contact, in the course of which he would have to deal with the alleged breaches of undertakings and of the order, and defending himself, at the same time, in the committal proceedings. There is no hint at any stage of the transcript of anyone advising Mr Hammerton of his rights in respect of the committal proceedings …"
Wall LJ gave a separate judgment expressing (para 31) his "complete agreement" with Moses LJ's analysis on this point.
"40 A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67. It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence.
41 If the committal application is heard at the same time as other issues about which the alleged contemnor needs to give evidence, he is placed in the position where he is effectively deprived of the right of silence. That is a serious procedural error: see Hammerton v Hammerton [2007] EWCA Civ 248. This is precisely what happened in the present case. Furthermore no-one told Mr Thorogood that an alleged contemnor has the right not to give evidence.
42 If the contempt application had been the subject of a separate hearing and Mr Thorogood had been informed of his right not to give evidence, he might have exercised that right. He could then have dealt with the contempt allegations by way of submissions. In that regard it should be noted that the judge based her two findings of contempt upon answers which Mr Thorogood had given under skilful cross-examination.
43 Mr Milford points out that Mr Thorogood was reminded of his right not to incriminate himself. That is true, but it is not sufficient. Mr Thorogood should have been told that he was not obliged to give evidence. Furthermore the litigation should not have been managed in a way that forced Mr Thorogood into the witness box.
44 Mr Milford submits that even if there had been a separate hearing of the contempt application, the result would have been the same. If Mr Thorogood gave evidence, he would have been caught out in cross-examination. If he had declined to give evidence, the court would have drawn adverse inferences.
45 What Mr Milford says may well be true. Indeed, as things have turned out, Mr Thorogood may be a very lucky man. Nevertheless there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case."
The proceedings: the hearing on 18 January 2016
"Q. Good. I would just like to ask you some questions about the fact you do not believe that you personally were served with ---"
at which point the judge interjected, asking Mr Oddin to confirm his name and address. The Transcript continues with the following questions by Miss Norman:
"You have raised the issue about not being served with the 2004 order? – A. Yes I don't remember being served with that order. When my barrister told me that my Mum ---
Q. Just speak up a little bit more clearly – A. When my barrister told me that my mother had one of the orders, so then I agreed she must have had an order.
Q. Which barrister are you talking about? – A. Mr – the previous one.
Q. Do you mean the barrister previously involved in these committal proceedings? – A. Yes
Q. And so at some time during these committal proceedings, that barrister told you your mother had had an order? – A. Yes.
Q. Did you see an order? – A. He showed me an order.
Q. Who showed you an order? – A. The barrister.
Q. And that is during these committal proceedings? – A. During the committal proceedings, yes.
Q. When you saw it, had you seen it before? – A. I don't remember seeing it before, no.
Q. Okay. You talk in your statements about the tipstaff making it clear how important it is to keep the order and not to disobey it. What did you mean by that? How did you know what the tipstaff thought? – A. I don't remember the tipstaff telling me anything like that.
Q. Sorry …? – A. I don't' remember that bit."
"MR JUSTICE KEEHAN: I am afraid, no, it will not because the tipstaff was not present in court. – A. I've never seen the tipstaff.
MISS NORMAN: You have never seen the tipstaff? – A. No, I don't know who they are so I never seen –
Q. These words are in your statement. – A. Yes.
Q. Obviously you did not literally write it yourself? – A. No.
Q. But you have read it, have you not. – A. Yes.
Q. When or how did the tipstaff make the consequences of breaking the court clear? In writing, in person or do you not know. – A. I probably read it on the order.
Q. On the order that you were shown by the barrister? – A. Yes, the barrister probably.
Q. Before these committal proceedings started – the run up to them started last October – were you aware of the terms of the order? – A. Before the committal hearing, no.
Q. Now we know that you handed in your passport and you have been deprived of your passport since you had first handed it in? – A. Yes.
Q. How did you come to hand it in? What happened? – A. The solicitors rang me up and told me I have to give them my passport.
Q. Whose solicitors was this? – A. It's my Mum's solicitor.
Q. Your mother's solicitors? – A. Yes.
Q. Your mother had been part of the proceedings? – A. That's right, yes.
Q. And so what did you do with your passport? – A. I went and handed it into the solicitors."
Mr Oddin was then cross-examined before being re-examined by Miss Norman.
"MISS NORMAN: My Lord, I expressly asked the question were we dealing with the 2004 order or were we dealing with contempt in the face of the court, and I understood your Lordship to say we were dealing with the 2004 order.
MR JUSTICE KEEHAN: The two are related, though, because if I find that I do not accept the evidence that Mr Oddin gave me on 8th October, or if I do not accept the evidence he has given me today and I find that he is lying to the court, I am then entitled, or may well then be entitled on that basis to be satisfied that he is not telling the truth, that he knows more than he is telling and is therefore in breach of the 2004 order.
MISS NORMAN: My difficulty is this, as I have suggested to your Lordship earlier on, that your Lordship found him to be at fault in a much wider area than the 2004 order. The 2004 order was matters which might reasonably assist in locating the child and that was it, nothing about welfare or parents or anything else. And so if we focus on that issue …"
"This matter is listed today before me for committal proceedings against one of the father's brothers, Mr Gous Oddin. The issue is, do I find that he is in breach of the order made consequent upon that abduction on 30 December 2004."
He then quoted paragraph 3 of the collection order. In paragraph 5 of his judgment, he said this:
"The question was raised by Ms Norman, on behalf of Mr Oddin, at the start of this hearing as to precisely on what grounds Mr Oddin was being considered for committal and contempt proceedings. I made plain that that related solely to the order of 30 December 2004. But very plainly when considering whether there has been a breach of that order, I am entitled and I must consider the totality of the evidence before me and, in particular, whether I find that Mr Oddin is telling the truth or not. If I find that he is not telling the truth, I then have to consider the reason or possible reasons for him lying to the Court."
"At the start of these committal proceedings Mr Oddin gave evidence before me on 8 October 2015. There is a transcript of the evidence he then gave in the bundle before me today. I remind myself of what I said to Mr Oddin at the conclusion of his evidence on that occasion" –
and the judge then set out the passage from the Transcript which I quoted in paragraph 18 above.
"I remain of the view that the evidence given by Mr Oddin on 8 October was evasive and untruthful. He was being asked very simple questions about what information he had received about L and from whom. The transcript demonstrates that he evaded answering those questions for a considerable period of time. He then eventually said that his wife passed on messages that she had received to him and then also implicated his brother, FM and his wife, Mrs DB. He did not during the course of his evidence on the 8 October mention an individual now known and called Mr J."
14 Just before Mr Oddin went into the witness box today I was told for the first time that he disputed that he had been served with the order of 30 December 2004. When, after he had been sworn, he told me that he was not asserting that he had not been served with the order of 30 December, but he could not recall being served with the order of 30 December 2004. That came as something of a surprise because in his statement of 3 November 2015 at paragraph 4, which just a few moments into his evidence he had confirmed was true, he had said, "I state I am not part and have never been part of a conspiracy to abduct L, and I would not pervert the course of justice by lying to this honourable court or any of its officers. Indeed the tipstaff not only made the consequences of breaking the court order abundantly clear but has held my passport now expired since the service of the order."
15 When asked to explain why that passage had appeared in his statement of November he sought to assert that the conversation that he had with the tipstaff had been at the last court hearing in these committal proceedings. That was plainly a lie because the tipstaff has not been present at any of these committal hearings. On that issue I find that he is lying."
"No mention was made by Mr Oddin of the involvement of Mr J in any of his statements or in his evidence of 8 October. When he was pressed as to why it was that he had not mentioned Mr J he was, once again, evasive. He did not know why he had not mentioned his name. When he was pressed that he must have known why he did not mention him, he eventually conceded that he may not have mentioned him because he did not want to get him involved because he was not a family member. It is quite clear to me, and I am quite satisfied beyond all reasonable doubt, that Mr Oddin either made a deliberate choice not to mention Mr J to me or that the reference to Mr J is a complete fabrication. I am inclined to believe it is a fabrication; either way it is a deliberate lie to this court."
"17 … What I am quite satisfied of, so that I am sure, is that Mr Oddin, both in his evidence of 8 October and today, has told serial lies. I also find that what he told the guardian was accurately recorded by her. Moreover, in giving that information he, at that time in May 2015, was using the present tense to describe the circumstances, the health and the welfare of L. He now denies those matters. I am satisfied, so that I am sure, that the reason why he denies saying those matters to the guardian is because he knows full well what the position is of L, whether that is by direct communication with his brother or his sister-in-law or indirectly I know not, but I am quite satisfied that he has told all of these lies to me to cover up what he knows to be the truth. He has covered up and I find, so that I am sure, that he has information which would reasonably enable the tipstaff to locate the whereabouts of L and that he has quite deliberately chosen to conceal that information by the lies that he has told this Court. I am quite satisfied, so that I am sure, that there is no other reasonable explanation for the lies that I have found that he has told me. I find no other reasonable explanation as to why he now denies what is said by the guardian of their conversation on 28 May.
18 Accordingly I am entirely satisfied, so that I am sure, that Mr Oddin is in breach of the order made on the 30 December 2004, paragraph 3 and I find him to be in contempt of Court."
"By reason of my findings I am quite satisfied, so that I am sure, that you have information which you have not disclosed to this Court nor to the Tipstaff which might reasonably assist in locating her wherever she may be. I consider that that is a deliberate course of conduct on your part and I therefore consider it to be an extremely serious contempt of Court, particularly where a child who was made the subject of a care order and a freeing order as long ago as 2004 has still not been located.
I have considered all that has been said on our behalf. I accept and take fully into account that you are a man of good character and that you have on past occasions in this unhappy matter [we were told that this was a reference to events in 2003-2004 before the collection order was made] assisted the Local Authority with the securing of the return of L. But I am quite satisfied that you have chosen not to do on this occasion. I have considered the range of options. I am quite satisfied that given the seriousness and the severity of the contempt that I find you to be in a custodial sentence, an immediate custodial sentence is inevitable. Accordingly, the minimum sentence I pass is one of six months immediate imprisonment."
Discussion
"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."
However, as he went on (para 78):
"The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process."
i) First, what the judge said in the second sentence of paragraph 14 of his judgment is not borne out by the Transcript (the relevant passages from which I have set out in paragraphs 36-37 above).
ii) Secondly, the judge's analysis in paragraph 15 of the judgment simply fails to engage with much of what Mr Oddin said in the course of his oral evidence, in particular his evidence to the effect that he had "never seen the tipstaff" and "don't know who they are" and that his knowledge of the order was derived from what his previous barrister had told him – this must have been a reference to the hearing on 9 November 2015.
iii) Finally, and fatally, although the judge found Mr Oddin to have been lying (seemingly in relation to the Tipstaff's presence in court) he made no finding that Mr Oddin had been served with the collection order, let alone a finding as to when he had been served.
Behind all this is the regrettable fact that at no stage does it seem to have occurred to anyone to find out from the Tipstaff when and in what circumstances the collection order had been served, in particular on Mr Oddin (if it ever was).
"the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be "prominently displayed". It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, "on the front of the copy of the … order". It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, "a judgment or order … may not be enforced …" In my view, the words "may not be enforced" where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal."
The collection order
i) First, it is wholly wrong in principle that a collection order should be left in place, hanging over peoples' heads like the sword of Damocles, for anything remotely approaching the eleven years throughout which this collection order has been in force.
ii) Secondly, it is undesirable, to put it no higher, to allow an order to remain in force which is not compliant with FPR 37.9(1).
iii) Finally, and decisively, the perpetuation, beyond a comparatively short period, of the passport order (paragraph 4(b) of the collection order), essentially for purposes of coercion, was wrong in principle and fundamentally objectionable: see In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 24-33. This should never have been allowed to happen. Mr Oddin's protests as set out in his three witness statements (paragraphs 22, 24 and 27 above) were well-founded. It is very much to be regretted that Mr Oddin and other members of his family should have been deprived of their passports for so long and without any proper justification. They have been badly ill-used by the court.
Other matters
A final observation
Lord Justice Vos :
Mrs Justice Theis :
(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.
(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.
(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.
(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.
Note 1 The current form (where paragraph 3 is now paragraph 14) reads “respondent” in place of “Defendants”. [Back] Note 2 The current form reads “they” in place of “he or she”. [Back] Note 3 The current form (where paragraph 4 is now paragraph 16) reads “respondent” in place of “Defendants”. [Back] Note 4 The current form reads “respondent” in place of “Defendants”. [Back] Note 5 The current form reads “respondent” in place of “Defendants”. [Back] Note 6 The current form (where paragraph 5 is now paragraph 20) inserts “or scanned” before “copy”. [Back] Note 7 The current form reads “respondent” in place of “Defendants”. [Back] Note 8 The current form reads “but” in place of “PROVIDED THAT”. [Back] Note 9 The current form reads “respondent” in place of “Defendants”. [Back] Note 10 The current form inserts “or seeks to evade” before “personal”. [Back] Note 11 The current form (where paragraph 6 is now paragraph 21) reads “12-14” in place of “2 and 3”. [Back] Note 12 The current form reads “locates” in place of “takes charge of”. [Back] Note 13 For passport orders see now In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871. [Back] Note 14 The correctness of this stance on the part of the LAA is not before us. I merely make the obvious point that legal aid is, in principle, available to anyone facing committal proceedings, whether or not there is a formal application (as there may not be where the contempt was allegedly committed in the face of the court). [Back] Note 15 That is (see most recently, Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17) the rule that judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger. [Back]