An application by HM Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court
| Jurisdiction | England & Wales |
| Judge | Sir James Munby, President of the Family Division |
| Judgment Date | 21 August 2013 |
| Neutral Citation | [2013] EWHC 2579 (Fam) |
| Docket Number | Case No: FD12P02046 |
| Court | Family Division |
| Date | 21 August 2013 |
[2013] EWHC 2579 (Fam)
Sir James Munby President of the Family Division
Case No: FD12P02046
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Melanie Cumberland (instructed by the Treasury Solicitor) for Her Majesty's Solicitor General
Mr Christopher Hames (instructed by Miles & Partners LLP) for Jennifer Jones
Hearing dates: 23?–24 July 2013
This is an application by Her Majesty's Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court. The Solicitor General has failed to prove his case. The application is dismissed.
The background
The background facts can be stated quite shortly. The respondent (who I shall refer to as the mother) is Welsh and lives in Wales at Llanelli. While working in Spain she met, and subsequently in May 1995 married, a Spaniard, Tomas Palacin Cambra (who I shall refer to as the father). They had five children; Sara, born in May 1996; Jessica, born in January 1998; Tomas, born in January 2000; Eva, born in November 2002; and David, born in August 2004. The marriage ran into difficulties and the parents separated in 2008. Since then there has been much litigation, both here and in Spain. The father has twice made successful applications in this jurisdiction for orders for return pursuant to the Hague Convention.
The second set of Hague proceedings culminated in an order made by Hedley J on 9 October 2012, which, so far as material for present purposes, was in the following terms:
"It is ordered that:
1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
2 Paragraph 1 above shall be given effect as follows
(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and
(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012"
The mother was present when that order was made. It was endorsed with a penal notice and subsequently, as she accepts, served on her. She takes no point on service.
In the judgment he delivered on 9 October 2012, Hedley J explained why he made that order: Re Jones [2012] EWHC 2955 (Fam). He concluded his judgment with these words:
"It seems to me to be one of those cases where the importance of upholding Convention policy in the face of flagrant and, in this case, repeated breach seriously outweighs the objections [of the children], especially when every matter that is relied on in support of those objections and in support of retention in this country is before the Spanish court and all the evidence is capable of being deployed before it. That is the court with jurisdiction, the court that ought to make the order, and, for all those reasons, I propose to direct the summary return."
The children were not delivered to Cardiff Railway Station, either by the time specified or at all.
During the evening of the same day, 12 October 2013, the out of hours judge, Charles J, made a location order and directed the matter to be listed before the urgent applications judge the following Monday, 15 October 2012. At a hearing on 15 October 2012, Roderic Wood J dismissed an application by the mother to set aside or stay the order of Hedley J. He discharged the location order made by Charles J and replaced it with a collection order. By the time an attempt was made to enforce the collection order in the early hours of 16 October 2012, the mother together with her partner, John Williams, and the children had disappeared. The matter came back before Roderic Wood J later the same day. He made various orders, the details of which are not material for present purposes, and, having made a statement to members of the press, authorised the disclosure of the children's names and publication of their photographs in order that their whereabouts might be discovered.
On 17 October 2012 the mother, her partner and the children were found by police at a guesthouse in Gwent. In accordance with the collection order the two younger children, Eva and David, were handed over to the father, with whom they returned to Spain. The two older children, Jessica and Tomas, refused to go. In the teeth of the order made by Hedley J, which despite many efforts by the mother to have it set aside has continued throughout in full force and effect, they remain in Wales with the mother.
The committal application
On 18 October 2012 Roderic Wood J invited the Attorney General to consider bringing proceedings against the mother for contempt. The Attorney General's Office wrote to the mother on 21 November 2012. She provided written representations in response on 12 December 2012, and 7 and 18 January 2013 and provided a very large quantity of material.
On 6 April 2013 the Solicitor General issued an application for the mother's committal. The grounds of the alleged contempt were set out as follows:
"The [mother], between 4pm on 12 th October 2012 and 17 th October 2012 failed to comply with paragraph 2 of the Order of Hedley J dated 9 th October 2012 … In particular, [she] failed to deliver up [the children] into the care of their father by 4pm on 12 th October 2012 at Cardiff Railway Station in order for them to return to Spain. [She] continued to breach paragraph 2 of the Order of Hedley J dated 9 th October 2012 by failing to deliver up the … children or causing them to be delivered up into the care of their father after 4pm on 12 th October 2012 and thereafter. [Her] breach of paragraph 2 of the Order of 9 thOctober 2012 continued until 17 th October 2012, when [she] and [the] children were found by police".
The application came before me on 23 July 2013. The Solicitor General was represented by Ms Melanie Cumberland and the mother by Mr Christopher Hames. The Solicitor General's case was supported by an affidavit sworn by a Legal Advisor in the Attorney General's Office. In response there were witness statements from the mother, from Mr Williams, and from a very old friend and neighbour of the mother, Allyson Thomas. I heard oral evidence from both the mother and Mr Williams. I reserved my decision overnight. The following morning, 24 July 2013, I announced that the Solicitor General had failed to prove his case. I made an order dismissing the application, with no order as to costs. I said I would give my reasons in due course.
A preliminary point
Mr Hames, as he was entitled to, questioned Roderic Wood J's referral of the case to the Attorney General and challenged the locus standi of the Law Officers to make an application for committal.
It is well known that, on occasions, judges refer the papers in a case which has been before them to some outside agency with a view to that agency considering whether or not to take any steps arising out of the matters referred by the judge. Sometimes the papers are referred to the police, the Crown Prosecution Service or the Director of Public Prosecutions with a view to the possible commencement of criminal proceedings. Sometimes the referral is to some professional or other regulator. Sometimes the referral is to Her Majesty's Revenue and Customs. Sometimes, as here, the referral is to the Law Officers. No doubt there are other instances. Although the basis upon which such referrals are made has not very often been explored in any depth — the judgment of Charles J in A v A; B v B [2000] 1 FLR 701 is an exception — there can be no question about the right of the judges to act in his way. Nor, in my judgment, can there be any objection to a judge, as here, referring the papers to the Law Officers with a view to them considering whether or not to bring proceedings for contempt; and, I should make clear, whether the contempt is criminal or, as in the present case, civil. I was personally involved, whilst at the Bar, in a case in 1984 where Hollis J referred the papers to the Law Officers with a view to possible committal proceedings (in the event no application was made). Ms Cumberland was able, on instructions, to tell me of a more recent example in a case, also in the Family Division, before Macur J.
The more important question is as to the locus of the Law Officers to make such an application. On this I was referred to four authorities: Attorney-General v Times Newspapers Ltd [1974] AC 273, Gouriet v Union of Post Office Workers [1978] AC 435, Clarke v Chadburn [1985] 1 WLR 78, and Attorney General v Harkins, Attorney General v Liddle [2013] EWHC 1455 (Admin), [2013] All ER (D) 215 (Apr). I was also taken certain passages in Arlidge, Eady & Smith on Contempt, ed 4, in particular paras 2–184 – 2–187.
It is quite clear, in my judgment, that the Law Officers have locus to apply for the committal of an alleged contemnor even if the contempt is civil and involves the breach of an order obtained, as in the present case, by a private individual in the course of proceedings between private individuals. The Law Officers act to safeguard the public interest and the administration of justice. I need do no more than quote what Lord Reid said in Attorney-General v Times Newspapers Ltd [1974] AC 273, 293:
"I agree with your Lordships that the Attorney-General has a right to bring before the court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before...
To continue reading
Request your trial
-
J (Children)
...proved as it had not been established that, at the relevant time, it was within the mother's power to comply with the order (see [2013] EWHC 2579 (Fam)). 5 In August 2013, the President was asked by the father to make a further order requiring the return of the children to Spain. His judgm......
-
Integral Petroleum SA v Petrogat Fze
...of Sir James Munby in In the matter of an application by Her Majesty's Solicitor General for committal of Jennifer Marie Jones [2013] EWHC 2579 (Fam)). iv) The Court could not be sure that Ms Sanchouli had seen the order before 11am UAE time on 14 January 2018, and sufficiently in advance ......
-
Mr Aiyub Karbhari and Another v Mr Ilyas Ahmed
...Customs in accordance with the practice most recently referred to in In the Matter of an application by Her Majesty's Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court [2013] EWHC 2579 (Fam). I have requested the attendance of a detective of......
-
Bloom v Bloom (publication of un-anonymised judgment)
...that the court could refer matters to public authorities, applying Solicitor General v JMJ; aka Re Jones (alleged contempt of court)[2013] EWHC 2579 (Fam), although the court did not itself usually report crimes that it had uncovered to the authorities and there was no general rule that fin......