Henry Ogbemudia Emoni v Sandra Ojoma Ndidi Atabo
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 01 December 2020 |
| Neutral Citation | [2020] EWHC 3322 (Fam) |
| Docket Number | Case No: FD19P00680 |
| Date | 01 December 2020 |
| Court | Family Division |
[2020] EWHC 3322 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: FD19P00680
Mr Richard Wheeler appeared for the Applicant
The Respondent did not attend and was not represented
Hearing dates: 1 December 2020
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 is an application by Henry Emoni for a finding that Sandra Atabo, the Respondent, is in contempt of court in relation to four court Orders. The Applicant and Respondent are the parents of Nizana Emoni, a girl, aged 11.
The first issue before me is whether I should go ahead with this application in the absence of the Respondent. Mr Emoni is represented by Mr Wheeler and I record my very great gratitude to Mr Wheeler, who is doing the case pro bono, and has been of very great assistance today. Miss Atabo is not present and not represented.
I consider it appropriate to conduct the hearing remotely even though it is a committal application. Miss Atabo is known to be in Nigeria and is not going to be able to attend in any event and it is appropriate the matter is heard by video link.
Miss Atabo has not attended today. It is clear from the notes in the Family Court Practice 2020 (the Red Book) at §1.131 that it can be appropriate to proceed with an application for committal in the absence of the alleged contemnor. The circumstances in which the court may do so were considered by Cobb J in Sanchez v Pawell Oboz and Jolant Oboz [2015] EWHC 235 (Fam). At paragraph 4 Mr Justice Cobb held:
“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)).”
At paragraph 5 Mr Justice Cobb set out:
“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)).
I will deal with each of these issues in turn.
First, whether Miss Atabo has been served with documents and notice of the hearing? I have no doubt that Miss Atabo has been served with the relevant documents and notice of today's hearing. In the Order dated 2 November 2020 Miss Atabo's attendance at today's hearing was expressly required. The order provided for service by email given that personal service is extremely difficult to effect in Lagos. The relevant email address is one that has been used by her on a number of occasions and on which she has had no difficulty receiving emails. The Order of 2 November 2020 was sent to that email address by the court on 3 November 2020 and all relevant documents were sent to that email address. In light of that history I have no doubt she has been properly served with documents including the notice of today's hearing.
Second, whether she has had sufficient notice to enable her to prepare? Mr Emoni first applied for committal some months ago, at a stage when Miss Atabo was engaging with the proceedings. This application was adjourned from 2 November 2020. She has had sufficient time to prepare for today.
Third, whether any reason has been advanced for her non-appearance? No reason has been given for her not attending today or at the last hearing. Miss Atabo has, so far as I am aware, simply chosen not to engage in the more recent parts of these proceedings.
Fourth, whether she has waived the right to be present by her behaviour? She has not waived the right to be present in that her conduct has not amounted to a waiver. However, as I have explained, she appears to have chosen not to be present or engage.
Fifth, whether an adjournment is likely to secure her attendance based on the history? Miss Atabo has had ample opportunity to attend and has shown herself to be capable of doing so in the past. I can only assume her non-attendance is a matter of choice and there is no reason to believe that if I adjourned, she would attend a restored hearing.
Sixth, the extent of disadvantage to her in not being present? It is a major disadvantage to her not to be present as she cannot give oral evidence or cross-examine Mr Emoni. But I do have a number of witness statements from her at earlier stages in the proceedings so this is not a case where her non-attendance means I have no idea what her case is, or that I do not have material to consider the arguments she might have sought to put.
Seven, whether undue prejudice would be caused to the applicant by delay? This case concerns Mr Emoni's efforts to have his daughter returned to the UK where she was habitually resident prior to removal. Any further delay is prejudicial to the child and Mr Emoni. I am very conscious of the fact that the proceedings have been going on for close to, if not over, a year.
Eight, whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondent? The forensic process is more difficult if the respondent is not present. However, I do have evidence from her and in my view both a fair and effective trial can proceed without her.
Finally, the overriding objective. In my view, the just course here is to proceed in the Respondent's absence given that she has chosen not to attend.
For those reasons I consider it is appropriate to continue to hear this application in the Respondent's absence.
Procedural Rules
Part 37 of the Family Procedure Rules deals with the procedure for contempt. It was recently amended by Family Procedure (Amendment No 2) Rules 2020 [SI 758/2020]. The new rules aim to simplify and clarify the process for contempt applications and to bring it closely into conformity with the new rules in the Civil Procedure Rules.
The relevant definitions for today are in r.37.2:
“contempt application” means an application to the court for an order determining contempt proceedings;
“order of committal” means the imposition of a sentence of imprisonment (whether immediate or suspended) for contempt of court;
“penal notice” means a prominent notice on the front of an order warning that if the person...
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...2021. Service in this manner is permissible in the light of Wilmot v Maughan [2017] EWCA Civ 1668, applied by Lieven J in Emoni v Atabo [2020] EWHC 3322. They have similarly been served with notice of hearing dates. They are, I am quite sure, well aware of the committal applications agains......