Evelyn Rojas Sanchez v Pawel Oboz and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,The Honourable Mr. Justice Cobb |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 235 (Fam) |
| Docket Number | Case No: FD14P00733 |
| Court | Family Division |
| Date | 06 February 2015 |
[2015] EWHC 235 (Fam)
Mr Justice Cobb
Case No: FD14P00733
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Gration (instructed by Dawson Cornwell, Solicitors) for the Applicant
The First and Second Respondents did not appear and were not represented
Hearing dates: 4 February 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in public.
The judge has given leave for this version of the judgment to be published.
Introduction
By application dated 30 September 2014, issued on 21 October 2014, Evelyn Rojas Sanchez (hereafter "the mother") seeks orders for the committal to prison of Pawel Oboz (hereafter "the father") and Jolanta Oboz (hereafter "the paternal grandmother"). This application arises in relation to alleged breaches of orders made on 8 August 2014 and 15 August 2014 within wardship proceedings brought under the inherent jurisdiction concerning Isabella, the three year old child of the mother and father, a child who is habitually resident in this country but who is currently in Poland. In those wardship proceedings, the mother has sought, and seeks, the return of Isabella from Poland where, it has now been found, Isabella has been wrongfully retained.
For the purposes of determining this application, I received and read evidence filed within those wardship proceedings, and evidence relevant to the committal application; I heard oral argument from Mr Michael Gration for the mother.
Neither the father nor the paternal grandmother was present at court. Mr. Gration invited me to proceed in their absence. The proceedings were, of course, conducted in open court in accordance with the Practice Guidance ( 2013).
Committal proceedings in the absence of the Respondents
It will be an unusual, but by no means exceptional, course to proceed to determine a committal application in the absence of a respondent. This is so because:
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 [56], 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) [2003] 1 AC 1, approving the checklist provided in R v Jones; R v Purvis [2001] 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) [2002] EWCA Civ 1559, [2003] 1 FLR 277 and Begum v Anam [2004] 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)).
As neither respondent has attended this hearing, and in view of Mr. Gration's application to proceed in their absence, I have paid careful attention to the factors identified in [4] above, and, adapting the guidance from R v Jones; R v Purvis, have considered with care the following specific issues:
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.
Crucial to my decision on whether I should proceed in the absence of the respondents is the requirement for proof that both had been satisfactorily served with the relevant documents, and were aware of the hearing (see [5](i) above). The documents before me reveal the following chronology:
| 2014 | |
| 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. |
| 2015 | |
| 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... |
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