Hamilton-Jones v David & Snape (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Neuberger,Mr Justice Neuberger,Lord Justice Neuberger |
| Judgment Date | 10 February 2004 |
| Neutral Citation | [2003] EWHC 3147 (Ch),[2004] EWHC 241 (Ch) |
| Docket Number | Claim No: CF 220059,Case No: CF220059 |
| Court | Chancery Division |
| Date | 10 February 2004 |
[2003] EWHC 3147 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Cardiff District Registry)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Neuberger
(Sitting in the Bristol District Registry)
Case No: CF220059
Mr Jeffrey Littman (instructed by Messrs. Charles, Crookes and Jones) for the claimant.
Mr Edward Cross (instructed by Messrs. Morgan Cole) for the defendant.
Hearing dates: 10 th, 11 th, 12 th December 2003
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.
The Facts
The claimant, Pamela Hamilton Jones, now aged 48, married Ridha Bougossa ("Mr Bougossa") a Tunisian national, in Tunisia in June 198They came to England for the birth of their daughter Nadia in May 1982, and then returned to Tunisia. In 1987, the claimant came to England with Nadia, in anticipation of giving birth to twins. Those twins, who were non-identical, were born in December 1987 in this country and were named Adam and Nathan. The claimant decided to stay in England, and, having obtained a small council flat in Bedfont in about June 1990, she moved to a larger council flat three months later. Mr Bougossa had by then come to England, and he moved into the latter flat with the claimant and their three children.
The marriage was not a success, and in August 1993, the claimant left her flat, together with her three children and changed her surname to Hamilton-Jones. In January 1994, by which time the claimant had moved to Caerphilly, Mr Bougossa started proceedings under the Children Act 1989 ("the 1989 Act"), in which the claimant was not represented. He obtained an order in those proceedings against the claimant in the Brentford County Court. On 8 th February 1994, the claimant instructed the defendants, David & Snape, a firm of solicitors. She told Huw Griffiths of the defendants that she was very concerned indeed that Mr Bougossa would take the three children to Tunisia. On 9 th February, the defendants obtained emergency legal aid for the claimant. The legal aid certificate, which was dated 11 th February 1994, was in these terms:
"To be represented on an application for a contact and/or residence order and prohibited steps and/or specific issue order."
On 14 th February 1994, the defendants applied for and obtained, for the claimant, two without notice orders from the Bridgend County Court in respect of each of the three children. The application referred to the fact that the claimant was "terrified" that Mr Bougossa would remove the children to Tunisia. The first set of orders stipulated that each child should live with the claimant "until the 14 th March 1994 or further order". The second set of orders provided that Mr Bougossa "is not to remove the child from the [claimant's] care"; i.e. it was a "prohibited steps" order. In each case, the court ordered that the matter be listed for hearing a month later, on 14 th March 1994.
On the following day, 15 th February, the defendant wrote three letters to third parties, each of which contained copies of the six orders which had been made the previous day by the Bridgend County Court. The first such letter was to the Caerphilly Police Station, stating that the claimant was "extremely afraid that Mr Bougossa could… attempt to remove the children from her care and attempt to take them from the country". The second letter was to the Tunisian Embassy, requesting them not to issue "passports to Mr Bougossa in respect of any of the children" and asking that, if such passports had been issued, "the date that they were issued and whether there is any procedure by which they can be withdrawn". The third letter was to the United Kingdom Passport Agency ("the Agency"). In that letter, the defendants wrote:
"We would be grateful if you could acknowledge receipt of these copy orders and confirm that you will not issue passports to any person but in particular the children's father… without our client's consent."
On the same day, 15 th February 1994, the defendants wrote to the claimant a fairly detailed letter, which began with the following two sentences:
"I enclose herewith copies of the residence of prohibited steps orders in respect of each of the three children.
I have forwarded copies of these orders to the Police Station in Caerphilly, the Passport Office in London and the Tunisian Embassy in London."
Meanwhile, on 17 th February, the defendants asked Mr Bougossa's solicitors what passports he was holding, and whether they enabled him to remove the children from this country, and Mr Bougossa's solicitors replied by return denying any intention of removing the children. The defendants replied a couple of days later saying that he had in fact threatened to remove them.
On 28 th February 1994, the Agency replied to the defendants acknowledging receipt of the letter of 15 th February, going on to say this:
"As requested, a note of [the three children's] names have been entered onto our records for a period of 12 months and every effort will be made to ensure that standard passport facilities are not granted during that time. If at the end of this period you wish their names to remain on our records, this Office should be advised otherwise the details will be deleted therefrom. …
If you fear that the children may be taken out of the country without your client's permission, there is a ports precautions scheme to prevent the unlawful and permanent removal of the children abroad. It operates not through the Passport Department but through the local police.
If the possibility or removal is real and imminent, the police may agree to circulate their names to the ports of departure in the United Kingdom. More information about this scheme can be obtained from any Police Station."
On 9 th March there was a hearing at the Bridgend County Court attended by both Mr Bougossa and the claimant, and the prohibited steps orders and the interim residence orders were renewed. At the foot of each of these orders it was stated, as is now standard practice, that "any person with parental responsibility may ask the… Agency not to issue a passport allowing the child to go abroad…". An order was also made permitting Mr Bougossa to have contact, and a supervised contact order in relation to the twins was agreed between the parties on 26 th July.
In May 1994, the Court Welfare Officer prepared a report referring to the claimant's "fears that Mr Bougossa was likely to kidnap the children". In June 1994, a Contact-Counselling Report, prepared at the request of Mr Bougossa, suggested that he had "a developed understanding of the mother's anxieties as well as his own".
On 27 th September 1994, Mr Bougossa announced his intention to move to Caerphilly, and a week later his solicitors complained to the defendants of the claimant's failure to afford him contact. Because of the lack of contact being afforded to him, Mr Bougossa applied to the court, and, in that connection, the defendants instructed counsel on 19 th October, informing him of the claimant's fears of the three children being removed to Tunisia if unsupervised contact was granted. Mr Bougossa's application was heard on 1 st November, when the claimant did not attend. The Judge considered that her fears of the three children being removed from the United Kingdom were "quite remarkable, quite genuine although possibly not justified", and adjourned the hearing, which took place on 21 st November. This adjourned hearing resulted in the grant of an order for supervised contact in favour of Mr Bougossa, which he then, on 1 st December, applied to enforce by serving the order together with a penal notice. Eventually, a consent order was made on 20 th December 1995 for contact at a contact centre.
Another hearing was due on 4 th May 1995. In anticipation, the Official Solicitor had provided a report dated 25 th April 1995. In this report, reference was made to the claimant's "deeply held belief that the father will remove the children to Tunisia", and that accordingly "she insists that all contact should be supervised". The Official Solicitor also recorded that Mr Bougossa "strenuously denies that he intends to remove the children to Tunisia" and wanted "a more flexible arrangement" for contact. The Official Solicitor also referred to the fact, as was the case, that on 12 th September 1994 Mr Bougossa "obtained British naturalisation". Indeed, he had exhibited a copy of his certificate of naturalisation to a statement made on 16 th November 1994 in support of his application.
The Official Solicitor's report went on to refer to the fact that, while no attempt had been made to remove the three children to Tunisia, the claimant said "that this was because she had never let the children out of her sight". She was described as being "dismissive of safeguards such as the retention of passports or even assurances from the Tunisian Embassy". The Official Solicitor, while acknowledging that the claimant lived "in fear of the father abducting the children", said that he had "seen no evidence to suggest that there is a risk of abduction, although he acknowledged "that while the father is now a British national, he has family, and his origins are in Tunisia".
The report then referred to the fact that Nadia refused to see her father, and, while this was unfortunate, nothing could be done about it. The report went on to say this in paragraph 36:
"In the Official Solicitor's view Nathan and Adam should have regular contact with the father. To allay the mother's fears about abduction the Official Solicitor recommends that the father's...
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