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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Sanchez v Oboz & Anor  EWHC 235 (Fam) (06 February 2015)
Cite as:  EWHC 235 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| EVELYN ROJAS SANCHEZ
|- and -
The First and Second Respondents did not appear and were not represented
Hearing dates: 4 February 2015
Crown Copyright ©
The Honourable Mr. Justice Cobb :
Committal proceedings in the absence of the Respondents
i) Committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at , Ravnsborg v. Sweden (1994), Series A no. 283-B); in a criminal context, proceeding with a trial in the absence of the accused is a course which will be followed only with great caution, and with close regard to the fairness of the proceedings (see R v Jones (Anthony)  1 AC 1, approving the checklist provided in R v Jones; R v Purvis  QB 862);
ii) Findings of fact are required before any penalty can be considered in committal proceedings; the presumption of innocence applies (Article 6(2) ECHR). The tribunal of fact is generally likely to be at a disadvantage in determining the relevant facts in the absence of a party;
iii) The penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/family jurisdiction; the respondent faces the real prospect of a deprivation of liberty;
iv) By virtue of the quasi-criminal nature of committal process, Article 6(1) and Article 6(3) ECHR are actively engaged (see Re K (Contact: Committal Order)  EWCA Civ 1559,  1 FLR 277 and Begum v Anam  EWCA Civ 578); Article 6(1) entitles the respondent to a "a fair and public hearing"; that hearing is to be "within a reasonable time";
v) Article 6(3) specifically provides for someone in the position of an alleged contemnor "to defend himself in person or through legal assistance of his own choosing", though this is not an absolute right in the sense of "entitling someone necessarily to indefinite offers of legal assistance if they behave so unreasonably as to make it impossible for the funders to continue sensibly to provide legal assistance" (per Mance LJ (as he then was) in Re K (Contact: Committal Order) (reference above)). The respondent is also entitled to "have adequate time and the facilities for the preparation of his defence" (Article 6(3)(b)).
i) Whether the respondents have been served with the relevant documents, including the notice of this hearing;
ii) Whether the respondents have had sufficient notice to enable them to prepare for the hearing;
iii) Whether any reason has been advanced for their non-appearance;
iv) Whether by reference to the nature and circumstances of the respondents' behaviour, they have waived their right to be present (i.e. is it reasonable to conclude that the respondents knew of, or were indifferent to, the consequences of the case proceeding in their absence);
v) Whether an adjournment for would be likely to secure the attendance of the respondents, or at least facilitate their representation;
vi) The extent of the disadvantage to the respondents in not being able to present their account of events;
vii) Whether undue prejudice would be caused to the applicant by any delay;
viii) Whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondents;
ix) The terms of the 'overriding objective' (rule 1.1 FPR 2010), including the obligation on the court to deal with the case 'justly', including doing so "expeditiously and fairly" (r.1.1(2)), and taking "any … step or make any… order for the purposes of … furthering the overriding objective" (r.4.1(3)(o)).
This may be a useful checklist in all such cases. I deal with each point in turn.
|20 October||First hearing of the committal application before Russell J: On the mother's solicitors' undertaking to issue the committal application: the application was adjourned to 17 November for directions. The father and paternal grandmother were ordered to attend that hearing: penal notice attached to that requirement.|
|10 November||The father was served personally at his work address with the committal application, the affidavit in support, the order of 20 October 2014, and the Particulars of Breach; the father was also (re-)served with the Order of 8 August, and Order of 15 August (these having previously been served by post &/or e-mail). The documentation was provided in English and Polish. (reference: affidavit of process server).|
|The paternal grandmother is said to have refused to accept personal service of the documentation. (reference: affidavit of process server).|
|12 November||The paternal grandmother is said to have refused again to accept personal service of the documentation; the process server deposes to having left the documentation at the grandmother's address under her front door.|
|17 November||Directions hearing before Theis J: Neither the father nor the paternal grandmother attend. The proceedings were listed for substantive committal hearing on 10 December. A warning notice on the order explicitly declared (in bold and capitals) that if the father and paternal grandmother did not attend the hearing on 10 December "the Court may make such order as it considers to be appropriate in your absence, including (in the event that it is found that you are jointly or separately in contempt of court) an order for your committal to prison." The Order was adorned with recitals of what had been said at the hearing; it further specifically recorded that the parties may be eligible for criminal legal aid for the purposes of defending the application.|
|10 December||Hearing before Peter Jackson J: By the time of this hearing neither the father nor the paternal grandmother had been served with the Order of 17 November; the hearing was therefore adjourned, and re-listed for 4 February 2015 (estimate 1 day). The order is explicit that the hearing was adjourned to allow the respondents an opportunity to obtain legal advice, and to attend at the adjourned hearing; the order reflects that the respondents may be eligible for criminal legal aid. Once again, the order specifically warns the father and paternal grandmother that if they do not attend the hearing on 4 February, the court may proceed to determine the mother's application in their absence. The order re-states all of the relevant obligations to return Isabella.|
|[Later the same day] The father was personally served at his place of work in Poland with the order of the 10 December, and the statement of the mother filed in the committal proceedings. (reference: further affidavit of process server).|
|22 December||The mother's solicitor served the father with all the documents filed in the committal proceedings up to that point (as attachments) by e-mail (to the e-mail address which the father has used for previous e-mail correspondence with the mother, and from which he later sent his documents for this hearing) and by post.|
|8 January||The mother's solicitor served the father with the Order of the 10 December, by e-mail (to the same e-mail address to which the documents had been sent on 22 December 2014, which the father himself had used for e-mail correspondence). The covering letter made clear (in bold and underlined) of the date of the hearing (in fact the solicitors record the right day [Wednesday], wrong date [stating it to be the 5th] February); the order had the correct date for the hearing.|
|20 January||The mother's solicitors sent a letter to the father (by e-mail) reminding him of the time, day and date of the hearing (date corrected), the requirement to attend; they confirm that a Polish interpreter will be present.|
|26 January||The mother's solicitors sent a letter to the father (by e-mail) reminding him of the time, day and date of the hearing, the requirement to attend, and sending a bundle index and Practice Direction Documents|
|The court bundle is further sent to the father via Facebook page (the mother's solicitor has, I was advised, subsequently been 'blocked').|
|28 January||The mother's solicitors sent a letter to the father (by e-mail) reminding him of the time, day and date of the hearing, the requirement to attend, and sending a full scanned copy of the bundle|
"In response to your e-mail with an attached document dated 8/1/2015 I would like to thank you for sending me the order of Mister Justice Peter Jackson from 10/12/14. There were errors in the earlier messages you had been sending me, but the last e-mail reached me without any technical difficulties. By virtue of the power of attorney (sic) granted to me in point 3 of the above court order I would like to present you with the affidavit and following exhibits…."
i) The father was personally served on 10 November 2014 with the orders requiring him to return the child, including a continuing obligation to do so;
ii) The father was personally served on 10 December 2014 with all of the relevant documents, including the orders requiring him to return the child, including a continuing obligation to do so, and the order which listed this hearing on 4 February 2015;
iii) By no later than 8 January 2015, the father had all of the relevant documents, including the order listing this hearing.
"Orders … must be obeyed. … Non-compliance with orders should be expected to have and will usually have a consequence".
Particulars of Alleged Breach
i) Tipstaff passport order of Wood J (4 July 2014); by this order, the father was required to hand to the Tipstaff every passport, identity card, ticket, travel warrant or other document which would enable him to leave England, and was prohibited from obtaining or making any application in relation to such document. Although there was a very strong inference, argued Mr. Gration, that the father had breached this order (as I have mentioned, the father had in fact left the country), it was conceded that he may not be able to discharge the heavy burden of proving the breach to the required standard, in the absence of the father; Mr. Gration reserved the right to pursue findings arising from an alleged breach of this order at a later time;
ii) Order of Roberts J (15 July 2014); this order did not, in fact, contain a penal notice;
iii) Order of Moylan J (31 July 2014) as the order had been erroneously drawn to include a direction to the father to return the child by a date (23 July) which had in fact passed.
"(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."
i) The burden of proof lies on the Applicant mother; the Respondent father does not need to prove anything;
ii) Any issues of fact relevant to the alleged breaches must be established beyond reasonable doubt (Re C (A minor) (Contempt)  1 FLR 578 at 588) (I refer to this as "the required standard" for shorthand below).
Findings of Fact: Alleged breaches of the Order of 8 August 2014
i) Carried on its face a clear and explicit warning that if the father acts in breach of this order it will be open to the mother to apply to have him committed to prison for contempt of Court. A similar warning was made in relation to the paternal grandmother;
ii) Required the father to return or cause the return of the child, Isabella, to this jurisdiction by 14 August 2014;
iii) Required the paternal grandmother to return or cause the return of the child, Isabella to this jurisdiction by 14 August 2014;
iv) Contained a clear penal notice warning that breach of the order requiring the father and paternal grandmother not to return Isabella could lead to a finding that they had been in contempt of court and imprisoned or fined, or their assets seized;
v) Contained specific requirements on the father and paternal grandmother in relation to the booking of the tickets, and the facilitation of Isabella boarding the flight by 14 August 2014;
vi) Directed the father to attend a further hearing listed before a High Court Judge of the Family Division sitting at the Royal Courts of Justice, Strand, London at 10.30 a.m. on 15 August 2014 (a penal notice attached to this provision too).
i) the father was present throughout, as was the paternal grandmother; both gave oral evidence;
ii) the father conducted the proceedings in English throughout; the father has a "very good grasp" of English (per judgment of Moor J), having lived and worked in the USA or England for the majority of the last 12 years;
iii) at the conclusion of the hearing, the Judge explained to the father the expectations on him pursuant to the order (see  below);
iv) the father understood that he was expected to return Isabella by a date in the following week (see his last answer in the exchange quoted at ).
- "Mr. Justice Moor: … I am going to say that Isabella must come back to this country by 12.00 noon next Thursday
- F: Yes, my Lord
- Mr. Justice Moor: I have also got to warn you that I am going to attach a penal notice to that, and that if it is not complied with, an application may be made for your committal to prison.
- F: Yes, my Lord
- Mr. Justice Moor: And if it is proved beyond reasonable doubt (which means so that the judge is sure) that you are in breach of the order, then you could go to prison for up to two years.
- F: Yes my Lord. What kind of confirmation I am going to get that my wife can take care of my daughter when she returns next Thursday?..." (emphasis by underlining added)
"The lawyers representing me in court have not explained clearly enough to me the consequences of violating court orders. The legal advice provided by my counsels did not prove sufficient for me to protect myself from the accusations of the applicant mother concerning my daughter's departure from the UK to Poland. My opinion has been influenced by my shock at being summoned before the Honourable Court as a perpetrator whose actions were considered unlawful. The consequences of the lies my wife told in relation to my daughter's departure to Poland were beyond my comprehension. It has never occurred to me that my actions, undertaken with my wife's knowledge and consent to my daughter's and the whole family's best interest, could carry the threat of a prison sentence. Especially that the Family Divisions of the Polish Courts do not have the legal means to punish parents with a prison sentence".
He adds (and this passage is specifically relevant to any alleged breach of the Tipstaff order, which has not yet been adjudicated):
"The court order not to leave the country that was imposed on me by the civil court was not clear. In the country I come from, such court orders can be issued only by a criminal court, in relation to a justified suspicion that the person concerned may have committed a crime. Therefore, I was not aware that violating this court order could bear consequences defined in the criminal law. Especially given that, in my view, the freedom of individuals to move within the borders of the EU, guaranteed by treaties, was of primary importance".
i) the orders served on him are explicit on their face as to the potential consequences of breach, and that
ii) Moor J had explained to the father in person the obligation on him to comply.
i) The father did not return or cause the return of the child to England and Wales by 12 noon on 14th August 2014, or at all.
ii) The father did not (as he was ordered to do):a) Book flight tickets for the child and an appropriate accompanying adult to travel from Poland to England to arrive by no later than 12 noon on 14 August 2014;b) Notify the mother of the booking of any such flight tickets by 6 p.m. on 12August 2014, or at all;c) Cause the child to board the plane upon which the child had been booked to return to England and Wales;d) Instruct any accompanying adult to take the child onto the plane upon which the child had been booked to return to England and Wales.
iii) The father did not attend the hearing listed before a High Court Judge of the Family Division sitting at the Royal Courts of Justice, Strand, London at 10.30 a.m. on 15 August 2014.
Findings of Fact: Alleged breaches of the Order of 15 August 2014
i) Required the father to return or cause the return of the child, Isabella, to this jurisdiction by 22 August 2014, with a continuing obligation on him to do so if he had not done so by then;
ii) Required the paternal grandmother to return or cause the return of the child, Isabella, to this jurisdiction by 22 August 2014, with a continuing obligation on her to do so if she had not done so by then;
iii) Contained a clear penal notice warning that breach of the order requiring the father and paternal grandmother not to return Isabella could lead to a finding that they had been in contempt of court and imprisoned or fined, or their assets seized.
i) The father did not return the child to England and Wales forthwith, by 12 noon on Friday 22 August 2014 or by any later date.
ii) The child has not been returned to England and Wales at all.
i) Determination of alleged breach by the father of the Tipstaff order (4 July 2014);
ii) Determination of penalty for the proven breaches by the father of the relevant orders,
until 2pm on 9 March 2015. I shall in any event deal with penalty on that day. The father must attend that hearing; at that hearing he may make representations, and present any mitigation, relevant to penalty. If he has returned or caused the return of Isabella to this country by that date, this will obviously be taken into consideration in the determination of any penalty imposed.