Ijeoma Nkem Egeneonu v Levi Egeneonu
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] EWHC 43 (Fam) |
| Docket Number | FD13P02234 |
| Court | Family Division |
| Date | 18 January 2017 |
[2017] EWHC 43 (Fam)
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
FD13P02234
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Julian B Knowles QC and Alistair G Perkins (instructed by Fisher Meredith LLP) for the applicant
Mr Christopher Hames QC (instructed by Freemans) for the respondent
Hearing dates: 18–19 October 2016
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I have before me an unprecedented application in a case which in its mundane circumstances is of an all too familiar type.
Following their removal to Nigeria, children were made wards of court. Their father is in contempt of court, having breached various court orders: in particular, by failing to return the children to this country and by himself fleeing abroad to Nigeria. The mother seeks the father's extradition from Nigeria. For that purpose she seeks a declaration that the contempts of which the father has been found guilty are criminal and not merely civil. She puts her case on two bases: the contempts, she says, (i) relate to wards of court and (ii) involve interference with the administration of justice.
So far as I am aware, in all the long history of wardship no such application has ever been made before. But that is not of itself any answer if the argument is sound. In my judgment, it is not.
The facts
I am concerned with three children, born in respectively 2002, 2005 and 2007. Prior to July 2013, they had been living in this country with their parents. In July 2013 the children went to Nigeria, where all three remain, in circumstances which were the subject of controversy between the parents. The applicant mother began proceedings on 22 November 2013, when Ms Alison Russell QC (sitting as a Deputy High Court Judge) made a without notice Tipstaff order directed to the respondent father. Further orders were made by Moylan J on 17 December 2013 and 20 December 2013. On 30 January 2014, Russell J, as by then she had become, ordered that the three children be wards of court, as they remain. On 6 February 2014, the father, who until then had been in this country, left for Nigeria, where he remains. Further orders were made by Russell J on 26 February 2014, 5 March 2014 and 14 March 2014.
For present purposes, the following are the relevant provisions of these orders:
i) By paragraph 2 of the order of 22 November 2013 the father was ordered:
"Not [to] (a) Make any application for, (b) Obtain, seek to obtain, or (c) Knowingly cause, permit, encourage or support any steps being taken to apply for, or obtain any passport, identity card, ticket, travel warrant or other document which would enable … [him] to leave England and Wales."
ii) By paragraph (c) of the order of 17 December 2013 the father undertook:
"Not to intimidate, harass or pester the mother whether by himself or instructing or encouraging anyone else to do so."
iii) By paragraph (d) of the order of 17 December 2013 the father undertook:
"Not to whether by himself or by instructing any other person to use or threaten violence against the mother."
iv) By paragraph 3 of the order of 20 December 2013 the father was ordered:
"[Not to] shall leave the jurisdiction of England and Wales until the children arrive in the jurisdiction of England and Wales."
v) By paragraph 2 of the order of 30 January 2014 the father was ordered:
"forthwith [to] arrange for the children … to be produced at the British High Commission, Lagos, Nigeria, by no later than noon (Nigerian time) on 6 February 2014, when the children are to be transferred into the care of the children's maternal uncle, Dr Anthony Osuji …"
vi) By paragraph 4 of the order of 30 January 2014 the father was ordered:
"[to] cause the children … to be returned to this jurisdiction no later than 23.59hrs on 14 February 2014."
vii) By paragraph 5 of the order of 30 January 2014 the father was ordered:
"[to] confirm no later than 12 noon on 7 February 2014 with independent documentary evidence in support that he has booked flights for the children's return to this jurisdiction by midnight on 14 February 2014, together with full details of the flight number, airport and time of arrival."
viii) By paragraph 2 of the order of 26 February 2014 the father was ordered:
"[to] attend the hearing on 5 th March 2014 at 2pm."
ix) By paragraph 3 of the order of 5 March 2014 the father was ordered:
"[to] attend the hearing at 10.30am on 14 March 2014."
x) By paragraph 4 of the order of 14 March 2014 the father was ordered:
"[to] attend the hearing at 10.30am on 20 March 2014."
On 13 May 2014, the mother applied for the father's committal. The application was headed "In the matter of the inherent jurisdiction of the High Court" (why? — see re HJ (A Child) [2013] EWHC 1867 (Fam), para 10) and "In the matter of [names and dates of birth of the children]." The application set out the various orders and undertakings referred to in paragraph 5 above. In paragraph 9 of the application it was alleged that the father "has breached the provisions listed above in that", and the specific allegations were then set out in nine separate sub-paragraphs, each commencing with the words "in breach of" followed by a reference to the specific paragraph of the relevant order.
Except for the allegations of breach of the undertakings of paragraphs (c) and (d) of the order of 17 December 2013, no point arises on the precise wording of the allegations. In relation to the alleged breach of the undertakings, paragraph 9(b) of the application made the following allegations:
"In breach of his undertakings … [the father] contacted the [mother] on 12 March 2014 by telephone on 4 occasions between 7:00am and 8:00am and on 14 March 2014 by telephone on one occasion and in the course of those calls taken both separately and together he acted in an intimidating, harassing and pestering manner and made threats of violence. Specifically:
(i) As a result of one of the 4 calls made by [the father] to the [mother] on 12 March 2014 [he] left [her] one voicemail, in which he instructed her to 'go quietly' and told her that she should 'withdraw the case'. He said that he would continue to call [her] with a private number, and said that the children were in Nigeria and that he would never return them, saying the word 'never' repeatedly. This communication was upsetting and constituted intimidating, harassing and pestering conduct.
(ii) As a result of another of the 4 calls made by [the father] to the [mother] on 12 March 2014, [she] answered the telephone and [he] continued to insult and curse [her]. He said that if the [she] did not withdraw the case he would do 'bad things' to her family. He said that he would keep calling her on a private number. This communication was upsetting and constituted intimidating, harassing, pestering and threatening conduct.
(iii) As a result of the call made by [the father] to the mother] on 14 March 2014, [she] answered the telephone and [he] continued to 'curse' [her] and told her that she must withdraw her case and that whatever she did the children would never come back to the UK. This communication was upsetting and constituted intimidating, harassing and pestering conduct."
In relation to the application, there are three things to be noted. First, although the heading refers to the inherent jurisdiction, it is nowhere said that the children are wards of court. Secondly, each alleged contempt is charged as being a "breach" of the relevant order, and nothing more. Thirdly, it is nowhere said that the result of any of the breaches has been an interference with the administration of justice, let alone that this was intended or was, or should have been, contemplated by the father.
The committal application was heard by Newton J who, on 6 March 2015, found the father guilty of each of the alleged contempts: Egeneonu v Egeneonu [2015] EWHC 954 (Fam). On this occasion the father had appeared in person for part of the hearing by telephone link. The father was sentenced by Newton J, in his absence, on 8 May 2015: Egeneonu v Egeneonu [2015] EWHC 4187 (Fam). On this occasion, it is important to note, the father was neither present nor represented.
Although in his first judgment Newton J referred in passing (para 33) to the fact that these were wardship proceedings, it is clear that, consistently with the way in which the case had been pleaded in the application, Newton J approached the matter, and found the contempts proved, simply on the basis (see, for example, paras 45–48), that the father was in breach of the court's orders. And that was the basis on which he sentenced the father, Egeneonu v Egeneonu [2015] EWHC 4187 (Fam), para 9:
"I am entirely satisfied, so that I am sure, that the father by his conduct has demonstrated that he has a total disregard of the court orders. He has absolutely no intention of complying with any of the court orders. They are contempts of the worst kind. He has not returned the children to the jurisdiction when he could have done at any time, even recently I am told that there had been some communication from him asking what the consequences might be if he returned them, but has not done so. He has deliberately subverted the court orders."
The committal order, dated 8 May 2015 follows the language of the application, reciting that "THE COURT HELD that [the father] has been guilty of contempt of court as follows: … the [father] has breached the provisions listed above in that", and the specific findings were then set out in nine separate sub-paragraphs, each commencing with the words "in breach of" followed by a reference to the specific paragraph of the relevant order.
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