K (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice McFarlane,Lord Justice Maurice Kay |
| Judgment Date | 15 July 2014 |
| Neutral Citation | [2014] EWCA Civ 905 |
| Docket Number | Case No: B4/2014/1314/1314(A)/1048/1056 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2014 |
[2014] EWCA Civ 905
Lord Justice Maurice Kay
Lord Justice McFarlane
and
Lord Justice Kitchin
Case No: B4/2014/1314/1314(A)/1048/1056
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Ms Justice Russell
FD14P00124
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr G Armstrong (instructed by Hodge Jones & Allen LLP) for the Appellant
Mr M Jarman (instructed by Landmark Legal) for the Respondent
Hearing date: 4 June 2014
Introduction
These are appeals by a father against orders made by Russell J in wardship proceedings concerning M, a young boy who was born on 5 July 2012 and is currently in Singapore where he is being cared for by his paternal grandparents.
The first appeal, for which the father needs permission, is against an order of 14 March 2014 by which the judge declared that M is habitually resident in this jurisdiction, required the father to return or cause the return of M to this jurisdiction by 18 March 2014 and directed that until M had been returned the father's passport should remain with the Tipstaff. The judge ordered the father to pay to the mother her costs which she summarily assessed in the sum of £51,800.28.
The second appeal, for which the father also needs permission, is against an order of 21 March 2014 by which the judge required the father to return or cause the return of M to this jurisdiction by 28 March 2014. The order contained the following recital:
"E. AND UPON the court repeating to [the father] that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the Respondent Father to make applications to the Singaporean court to ensure [M] is returned to this jurisdiction pursuant to this Court's Order."
The third appeal is against an order of 3 April 2014 by which the judge refused an application that she should recuse herself from the proceedings and sentenced the father to an immediate term of imprisonment for a total period of eighteen months for his breaches of the orders of 14 March and 21 March 2014 and another order which she had made on 19 March 2014, in each case for failing to return or cause the return of M to this jurisdiction. More specifically, the judge imposed a term of imprisonment of six months for the father's breach of the order of 14 March 2014, a term of imprisonment of twelve months for his breach of the order of 19 March 2014 to be served consecutively to the term of six months for his breach of the order of 14 March 2014, and a term of imprisonment of twelve months for breach of the order of 21 March 2014 to be served concurrently with the other two terms.
We heard full argument on all three appeals on 4 June 2014 and I would therefore grant the father permission to appeal against the orders of 14 and 21 March 2014. At the conclusion of the hearing we formed the clear view that we must allow the appeal against the order committing the father to prison and we therefore set that order aside and directed that he be released from custody forthwith. We indicated that we would provide our reasons for so deciding and our decision in relation to all other issues before us in writing. That I now do.
The background
The mother, a Mongolian citizen, and the father, a Singaporean citizen, met in Singapore in late 2010. The mother was at that time studying English in that country and the father was working there as a banker. They began a relationship and in June 2011 they were married. By the time of the marriage the father had begun to work for J P Morgan in London.
In October 2011 the mother secured a United Kingdom visa which allowed her to join the father in London. She moved into a flat which he had bought in Westbourne Terrace and she has lived there ever since. Some nine months later M was born. The father was working full time and the mother was M's primary carer.
Difficulties in the marriage emerged soon after M's birth and in 2013 the relationship deteriorated still further. The mother contacted the police in February 2013 and alleged that she had been the victim of domestic violence. This led to the father's arrest but he was later released without charge. This was followed by an assessment by Westminster social services who reported that the mother and father had indicated that they intended to remain in the United Kingdom.
In July 2013 the mother and father travelled to Singapore with M for a holiday and with the intention of leaving M in the care of the paternal grandparents. It was the mother's case that it was clearly understood and agreed by the father and the paternal grandparents that this arrangement would only be for a few months and would allow the mother to study full time for some exams she wished to take in the autumn of that year. It was the father's case that the mother agreed that M would live with the paternal grandparents for at least a year, if not indefinitely.
The mother and father duly returned to the United Kingdom without M. The mother began to study full time and in the autumn sat and passed the exams for which she had enrolled. The father continued to work at J P Morgan. The mother said in evidence that in November 2013 she told the father she wished to return to Singapore to collect M and bring him back to the United Kingdom. The father disputed this account but he accepted that he booked and paid for two tickets for himself and the mother to fly to Singapore on 17 January 2014 and three tickets which would allow them to return with M to the United Kingdom on 25 January 2014.
The mother and father travelled to Singapore on 17 January 2014 as they had arranged. However, on 22 January 2014 and without any prior notice, the mother was served with divorce and custody proceedings which the father had issued in the High Court of Singapore some two days earlier. The father also told the mother that he had resigned from his job in London and had arranged to take up a position in Singapore, and that he would therefore not be returning with her to the United Kingdom.
The mother responded to these events by instructing English solicitors who made an emergency application in the Family Division of the High Court in London. The matter came before Cobb J on 24 January 2014 and on that day he made two orders. The first required the father to surrender his passport to the Tipstaff. The second directed that M should be and remain a ward of this court until further order and required the father to return or cause the return of M to this jurisdiction on 25 January 2014 as, on the mother's case, had been planned. He also directed that the application should be listed for further hearing on 30 January 2014. The orders were communicated to the father by email that evening.
Despite the orders of Cobb J, the father did not return to London with M on 25 January 2014 or arrange for M to be returned to the care of the mother. Accordingly M travelled alone. As she was leaving, an attempt was made to serve her with an order made by a Deputy Registrar of the Subordinate Court of Singapore prohibiting her from removing M from Singapore. Then, on her arrival in London, she found that the locks to the flat in Westbourne Terrace had been changed and that she could no longer access her joint account with the father.
On 30 January 2014 the proceedings came on for hearing before Bodey J. The father, who had by this time returned to the United Kingdom, appeared in person, assisted by a Singapore lawyer. It became clear there was a live issue between the parties as to M's habitual residence, the mother maintaining that he was habitually resident in this jurisdiction and the father that he was habitually resident in Singapore. The judge also noted the existence of the concurrent proceedings in Singapore but, upon the father agreeing not to take any further steps in those proceedings so far as they concerned M, the judge gave directions for the hearing of the habitual residence issue.
The effective hearing of that issue eventually took place before Russell J on 7 March 2014. Both parties were represented by counsel and they had each made witness statements upon which they were cross-examined. The judge handed down her reserved judgment one week later on 14 March 2014 and made the first order against which the father now appeals. The order requiring the father to return M to the jurisdiction was endorsed with a penal notice.
The father failed to return or secure the return of M to this jurisdiction by 18 March 2014 and so the matter was listed before Russell J for the following day, Wednesday 19 March 2014. The father now appeared in person and it was by this time apparent that he had booked tickets for the grandparents to travel with M to London on Monday 17 March 2014 but that they had missed their flight. The father had then booked the grandparents on to another flight leaving on the following day and arriving early in the morning of 19 March 2014. But they had missed that flight too.
On the morning of the hearing the father disclosed a series of emails in which he had emphasised to the grandparents how important it was that they should bring M to the United Kingdom. In particular, on Friday 14 March 2014 he wrote informing the grandparents of the judge's decision and then continued:
"I want both of you to bring [M] back to the UK as soon as possible. This is very urgent because the judge will THROW ME IN JAIL if [M] is not back in the UK by that time [Tuesday 18 March 2014]. Please I need your support in order to do this."
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