Erhire v E O-I (by his next friend)

A mother appeals against a sentence of eight months' imprisonment, not suspended, passed upon her by Mrs Justice Macur in the High Court, Family Division, Principal Registry, on 14 February 2011. On 3 February 2011 the judge had found that the mother had committed a contempt of court on 9 November 2010 by breaking an order made by Mr Justice Mostyn on 8 November 2010. The latter order had been made in wardship proceedings relating to the mother's son, namely E, who was born on 10 March 1993 and who was therefore, at the relevant time, aged 17. The facts that he has recently attained the age of 18 and that therefore the wardship proceedings are now at an end have no impact upon the validity of the various orders made therein and particular on the order dated 14 February 2011 which is the subject of the appeal.

Until August 2010 E lived with the mother and his older sister in London. E's father lives in Nigeria and, according at any rate to one statement of the mother made in the wardship proceedings, he has no parental responsibility for him under Nigerian law.

It seems that in about July 2010 E consulted solicitors in London, namely Dawson Cornwell, and expressed concern that his mother was planning to take him to Nigeria and there to force him into a marriage. Acting by Ms Hutchinson, a partner in that firm, as his next friend, E obtained a forced marriage protection order under s.63A of the Family Law Act 1996, inserted into that Act by the Forced Marriage (Civil Protection) Act 2007. The precise terms of the protection order are irrelevant. On E's instructions the order was not served on the mother. No doubt the plan was to keep the order in abeyance until it was absolutely clear that adversary proceedings between E and his own mother were necessary in order to protect him from subjection to a marriage against his will.

Later in July 2010 E travelled voluntarily with the mother and the sister to Nigeria on the understanding that it was to be a family holiday and that he was to return to England on 3 August 2010. In the event, on about that date, the sister did return to England; but E did not then return to England and he has remained in Nigeria ever since.

The non-return of E to England led to the issue by him as plaintiff, again acting by Ms Hutchinson as his next friend, of an originating summons in wardship. He remained a ward of court until his recent birthday. On the date of issue of the originating summons an order was made for E's return to England; and I expect that it was personally addressed to the mother.

On 16 October 2010 the mother returned to England, where she has remained ever since. But she did not bring E back with her. In the wardship proceedings there were a number of hearings before judges of the Family Division in October, November and December 2010. Material was placed before the court which gave rise to substantial concern that E was being retained in Nigeria against his wishes. There may or may not have been material which also gave rise to concern that he was being prepared for subjection to a marriage. As I will explain, Mr Ogunbiyi, who appears for the mother today, tells us that such material as there was in that regard was exiguous. At all events the efforts of the judges were directed in the first instance to the speedy return of E to England.

By late in October 2010 or early in November 2010 E, by his next friend, had issued a summons for his mother's committal to prison for breaking orders, of which I understand there to have been several, which required her to cause E to be returned forthwith to England. But, no doubt reluctant to press forward with a summons which might lead to his own mother's committal to prison, E seems to have been content that, under the shadow of the committal summons, yet further attempts should be made to attract the her cooperation in securing his early return to England. By 8 November 2010, being the date of the hearing before Mostyn J, it seemed that his return to England was likely to be achieved. By that time he had been placed by the mother in a boarding school in Ibadan; and it seems that, perhaps through the good offices of a firm of solicitors in Nigeria who were assisting Ms Hutchinson, the school had indicated that, were the mother to instruct them to cause E to be taken to the airport at Lagos by noon on 9 November 2010, it would cause him to be taken there, with the result that he could catch the flight departing for London at 3pm. The only other complication appeared to be that the mother's sister, whom I will describe as the aunt, was in possession of E's passport and so it was necessary also for the mother to instruct the aunt to give possession of the passport to the school by 8.30am on 9 November 2010 so that it could equip E with it for the purposes of the flight.

The order of Mostyn J, made on 8 November 2010 at the end of a hearing at which the mother was present and represented by counsel, recited that the mother was thereby formally instructing and authorising both the aunt to hand over the passport to the school and the school to cause E to be taken to the airport at the times to which I have referred. Nor was this arrangement merely recorded by way of recital. The third paragraph of the judge's order, made by consent, was that:

"The mother shall sign a separate letter today to the effect of her instruction as set out above and this shall be given to the child's legal team today at court for them to send by email or facsimile to the said school."

No doubt it was also intended that the letter should be sent to the aunt.

On the face of it the mother complied with what Mostyn J had ordered and indeed with what she had agreed. For on that date, 8 November, she duly signed a letter, addressed compendiously to the aunt and to the headmistress of the school, in which she gave the necessary instructions and authorities to the aunt to give possession of the passport to the school and to the school to cause E to be taken to the airport. Unfortunately there was a typographical error in the letter in relation to the date of the flight but, happily, that misled no one.

A few hours later, however, otherwise than through her solicitors, the mother sent, presumably by e-mail or by fax, another letter to the headmistress. It was dated 9 November 2010 and by it the mother authorised and requested the headmistress to hand E over to the aunt "because she is the main GUARDIAN and she has been the one that has been coming to the school regarding his welfare…" The school duly received the letter and appears to have considered that, in the light of it, it was not able to act upon the previous instruction to cause E to be taken to the airport.

In due course, by way of an additional summons for committal, E, by his next friend, therefore added to the charges already made against the mother the charge that she had broken the third paragraph of the order dated 8 November 2010. It was the additional summons which came for hearing before Macur J on 3 February 2011. The mother was present and represented by counsel; and she gave oral evidence to the judge. Her case was that the letter written by her to the school dated 9 November 2010 had not been intended to subvert the instructions which she had given to the school and indeed to the aunt in the letter dated 8 November 2010; and she contended that her object in sending the second letter was to assist in E's transport to the airport by causing the school to deliver E into the care of the aunt so that she could take him to the airport. But the judge rejected "out of hand" the mother's account of her motive for sending the letter dated 9 November. There had of course been no reference in that letter to any intended conveyance of E by the aunt to the airport; and by the letter dated 8 November the mother had made it clear that it was...