Justice for Families Ltd v Secretary of State for Justice

Hearing date : 14 October 2014

Sir James Munby President of the Family Division:

This is in form a challenge to the refusal by Collins J, sitting in the Administrative Court on 6 November 2013, to issue a writ of habeas corpus. It is in substance a challenge to the decision of Theis J, sitting in the Family Division on 11 October 2013, to commit Margaret Connors to prison for 28 days for contempt of court. Collins J described the application for the writ as being, in the circumstances, "hopeless" and "entirely misconceived". I agree. The challenge to Theis J's decision is equally devoid of merit.

The proceedings before Theis J

The history of the proceedings before Theis J is set out in an extempore judgment she delivered on Friday 11 October 2013 and which, after being transcribed, was placed on BAILII (where it is freely available to all) on 12 November 2013: London Borough of Ealing v Connors[2013] EWHC 3493 (Fam). The background, which I need not repeat, is set out in paragraphs 1–9 of Theis J's judgment.

On Tuesday 8 October 2013 (Theis J, judgment paragraph 9), on an application by the London Borough of Ealing, Theis J made a collection order in standard form in relation to two missing children: A, born in 1999, and B, born in 2001. A and B are the daughters of Margaret Connors.Paragraph 1 of the collection order ordered that the children be placed into the care of the local authority.Paragraph 2 provided that:

"If MARGARET CONNORS … is in a position to do so … she must … deliver the children into the charge of the Tipstaff."

Paragraph 3 provided that, if not in a position to deliver the children into the charge of the Tipstaff, the mother, as I shall refer to her:

"must … (a) inform the Tipstaff of the whereabouts of the children, if such are known to … her; and (b) also in any event inform the Tipstaff of all matters within … her knowledge or understanding which might reasonable assist him in locating the children."

The order contained a warning that:

"the court has directed the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with this order and has disobeyed any part of it."

At the same time as making the collection order, Theis J also gave a direction to the Tipstaff in standard form.Paragraph 1 directed:

"the Tipstaff of the High Court of Justice, whether acting by himself or his deputy or an assistant or a police officer … as soon as practicable to take charge of [A and B] and thereupon to place [them] into the care of the applicant local authority where found."

Paragraph 3 directed:

"the Tipstaff of the High Court of Justice, whether acting by himself or his deputy or an assistant or a police officer …to arrest any person whom he has reasonable cause to believe has been served with the collection order … and has disobeyed any part of it PROVIDED THAT he shall explain to that person the ground for the arrest and shall bring … her before the court as soon as practicable and in any event no later than the working day immediately following the arrest."

Paragraph 4 directed:

"the Tipstaff of the High Court of Justice, whether acting by himself or his deputy or an assistant or a police officer … to cause any person arrested pursuant to paragraph 3 … to be detained until … she is brought before the court PROVIDED THAT, as soon as practicable during any such period of detention, he shall give that person the opportunity to seek legal advice."

The collection order was executed that evening by police officers acting in accordance with the direction given to the Tipstaff. They arrested the mother in pursuance of the power of arrest contained in paragraph 3 of the direction. In accordance with paragraph 3, the mother was brought before the court, Theis J, the following morning, Wednesday 9 October 2013 (judgment, paragraphs 10–13). The mother was represented by counsel. At the end of the hearing, Theis J remanded the mother in custody to HMP Holloway overnight until the next hearing, which she fixed for 9.30am on Thursday 10 October 2014. At the end of the hearing on 10 October 2013 at which the mother had again been represented by counsel (judgment, paragraphs 14–16), Theis J again remanded the mother in custody overnight until the next hearing, which she fixed for 9.30am on 11 October 2013.

At the hearing on Friday 11 October 2013, which, as the order makes clear, was in open court, Theis J refused an application by the mother's counsel for an adjournment (judgment, paragraph 16). She found the mother guilty of contempt of court (judgment, paragraphs 24–27):

"24 I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure …

25 I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from [counsel] in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC's house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.

26 I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.

27 Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8 ^th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children."

Having then heard submissions in mitigation by the mother's counsel (judgment, paragraphs 28–31), Theis J proceeded to sentence (judgment, paragraph 33):

"I take the view that the very least sentence I can impose is one of 28 days imprisonment, which will include the period of time that has been spent remanded in custody. I have considered, as I should consider, the position in relation to suspending that sentence, but I take the view that in the circumstances of this case, where there has been no recent co-operation or reliable information been given to help locate these children, I can see no basis for the sentence being suspended. So it will be an immediate custodial sentence."

In accordance with her judgment, the committal order Theis J made directed that the mother was to be committed to prison "for a period of 28 days from the date of her arrest", that is from 8 October 2013. Contemnors are entitled to remission of one-half of their sentence. The mother, having, so far as I am aware, made no application to purge her contempt in the meantime, was accordingly released from prison on, I assume, 21 October 2013.

The proceedings before Collins J

On 1 November 2013, the appellant, Justice for Families Limited, applied for a writ of habeas corpus ad subjiciendum. The application was supported by a witness statement dated 1 November 2013 by John Hemming, who described himself as a director of the company who had been "appointed to represent the company as a Litigant in Person." In his statement Mr Hemming said:

"it has not been possible for the applicant to identify the name of the prisoner, where she is imprisoned, or the name of the solicitors acting for her. She is, therefore, held effectively incommunicado. I therefore request the issuance of a writ of habeas corpus ad subjiciendum to the prisons minister to identify the name of the prisoner and allow consideration of the lawfulness of her imprisonment."

Mr Hemming produced a letter dated 4 November 2013, and for some reason addressed to the Supreme Court, signed by him confirming "that I will be acting on behalf of the firm as has been agreed by the directors" and making "formal application for permission for me to be heard".

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of...