Fahad Abdi v Manchester City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Phillips,Lord Justice Birss |
| Judgment Date | 20 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1214 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001221 |
[2023] EWCA Civ 1214
Lord Justice Moylan
Lord Justice Phillips
and
Lord Justice Birss
Case No: CA-2023-001221
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MACDONALD
Royal Courts of Justice
Strand, London, WC2A 2LL
The appellant appeared in person
Sara Mann (instructed by Manchester City Council) for the First Respondent
The Second to Fifth Respondents were not in attendance and were not represented
Simon Miller (instructed by Pluck Andrew Solicitors) for the Sixth Respondent
Hearing date: 14 September 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal concerning a committal for contempt of court for failing to comply with court orders made in proceedings relating to four children aged between 11 and 6. It is an appeal by Mr Fahad Abdi (“Mr Abdi” or “the father”) from the committal order made by MacDonald J (“the judge”) on 11 May 2023 by which he committed the father to prison for 12 months for breaches of orders made on 16 February and 3 March 2023.
The appeal is opposed by Manchester City Council (“the local authority”), which applied for the committal order and which is the applicant in the substantive proceedings. The children's mother (“the mother”) is a respondent to this appeal.
The judgment below is reported, [2023] EWHC 1248 (Fam) (“May judgment”). The judge had determined a previous committal application on 5 December 2022 and that judgment is also reported, [2022] EWFC 160 (“December judgment”). The details set out and quoted below are largely taken from these judgments which contain a much fuller account of the background.
The children were born in the United Kingdom. The parents are Somalian although the mother is understood also to have Dutch nationality. The local authority has been involved with the family since 2012. Because of the events described below, the factual background relating to the family's circumstances in England has not yet been the subject of any court determination and judgment.
The local authority and the Police were actively engaged with the family in March 2022. The absence of the children from school led to the Police visiting the family home on 23 March 2022. The father told them that the children were in New York. The Police telephoned the mother who “was not forthcoming with information”. It subsequently became known that the mother had flown to Istanbul with the children on 18 March 2022 where she obtained medical treatment for one of the children. The mother then flew with the children to Somalia in April 2022. She returned to England later in April 2022, leaving the children in Somalia.
The father is entitled to free legal representation but has chosen to act in person at this hearing. He made powerful oral submissions at the hearing and conveyed his firm belief that he has been the subject of an unjust process and unjust decision which have caused him very considerable harm. The local authority was represented by Ms Mann and the mother was represented by Mr Miller.
Proceedings
The local authority commenced proceedings on 13 October 2022. On 14 November, HHJ Singleton KC, sitting as a High Court judge, made an order requiring the mother and the father to return the children forthwith to England and made a passport and a location order which required each of the parents, among other things, to inform the court through the Tipstaff “of the whereabouts of the children” and to give the Tipstaff their passport(s) and any other travel documents.
The location order was executed on the father on 18 November 2022. He was arrested by the Police for failing to provide the required information and documents. At a subsequent hearing on 22 November 2022, and as recorded in the order, the father “has today agreed to provide his mobile 'phone and any travel documents he has in his possession to the local authority for analysis. To this end he has today provided the keys to his home to his solicitor and given them authorisation to enter his property to retrieve the said items”. The order also provided that the father's telephones were to be subject to forensic analysis by a jointly instructed expert with the solicitor for the local authority being “the nominated lead solicitor”.
During the hearing of the appeal, the father sought, in effect, to challenge this recital, saying that he questioned how his belongings, in particular his mobile telephones, came to be in the possession of the local authority. He suggested that they had been obtained improperly, it appeared probably by his home being “raided” or broken into. Despite the father's challenge, there is no reason to conclude that the recital does not accurately record what was agreed at the hearing on 22 November 2022 at which the father was legally represented. This shows how his mobile telephones came legitimately to be in the possession of the local authority.
The local authority applied for the committal of both the mother and the father including for failing to comply with the order to return the children to England and to disclose the whereabouts of the children. The father's case in response was that he did not know where the children were “and contends that they were last known to be with the mother earlier this year” and that his travel documents “were lost, and then found, but by the time they had been found they had been cancelled”.
At a hearing on 29 November 2022, the committal application was adjourned. The father was represented at that hearing but his counsel applied for, and was granted, “permission to withdraw by reason of professional embarrassment”.
In his December judgment, the judge set out a summary of the relevant legal requirements relating to committal applications. These included that each alleged contempt must be proved to the criminal standard of proof; that the burden of proof lay on the local authority; that the father was entitled to remain silent and was not obliged to give evidence; and that the father must be given the opportunity to secure legal representation to which he was entitled.
The judge recorded that he was satisfied that each of the procedural requirements had been met. He referred to the fact that the father had been represented by counsel at the hearing on 29 November 2022 but that she had withdrawn as referred to above. As set out in the December judgment:
“The father is today unrepresented. He informs me that he has now also dispensed with the services of his solicitors and indicated that he now represents himself. He did not make an application to further adjourn this hearing.”
The judge also set out that, if a contempt was proved:
“In sentencing the contemnor, the disposal must be proportionate to the seriousness of the contempt, reflect the court's disapproval and be designed to secure compliance in the future. Committal to prison is appropriate only where no reasonable alternative exists. Where the sentence is suspended or adjourned the period of suspension or adjournment and the precise terms for activation must be specified.”
The judge found that, at the time the location order was executed, the father “knew the then current location of the children”. In the course of a detailed judgment, the judge set out an account of the history. The mother had explained that she had taken the children to Somalia “under duress from the father and the wider paternal family”; that they had been “collected at the airport by [a] paternal uncle … and other males who the mother had never met before”; that “her phone was immediately taken off her as was her passport and the children's passports”; and that “she and the children were taken to a gated community in Mogadishu”. She had subsequently, effectively, been forcibly returned to England by the father's cousin without the children. She said that, on her return, the father had said “that he would return to Somalia to recover the children and … she remained with him in the hope that he would do this as soon as possible”.
The father did then travel to Somalia in May 2022, but he did not return with the children. As set out in the December judgment, “the father has denied that he travelled to Somalia in May 2022” but, following the father's arrest, the Police had found “a boarding pass for a flight to Addis Ababa, Ethiopia on 6 May 2022” in his home. I return to this finding below, as the father argued before us that it was wrong.
The mother then travelled to Somalia between August and September 2022 when she tried, but failed, to find the children with the assistance of the Somalian courts and police. Evidence on which the judge clearly placed significant weight was a “voice note” the father sent the mother which the judge set out in full in the judgment and which he described as follows:
“The mother alleges that during the period in which she was in Somalia the father sent her a voice note threatening that she should “behave” and stating that she had no right to go to Somalia to search for the children without his permission. The voice note is in Somali and has been provided to the police. A certified translation of the voice-recording is exhibited to the mother's statement. The father did not seek to deny that his is the male voice that can be heard on the voice note. Of note in light of the mother's contention regarding the warrant issued by the Somali court, the voice note records the father admonishing the mother for “going to the house without telling me so that you can...
To continue reading
Request your trial