London Borough of Southwark v B
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE HIRST,LORD JUSTICE NEILL |
| Judgment Date | 14 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0514-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FAFMI 93/0562F |
| Date | 14 May 1993 |
[1993] EWCA Civ J0514-4
(His Honour Judge Callman Sitting as a Deputy High Court Judge)
Before: Lord Justice Neill Lord Justice Hirst and Lord Justice Waite
FAFMI 93/0562F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
MISS J. RAYSON (instructed by John Ellison & Co., 216 Hoe Street, Walthamstow E17 3AZ) appeared on behalf of the Appellant.
MR N. J. O'BRIEN (instructed by J. B. Wheatley & Co., London, SE5) appeared on behalf of the Respondent Guardian Ad Litem.The London Borough of Southwark and Mother did not appear and were not represented
( )
Friday, 14th May 1993
This is an appeal against a six months sentence of imprisonment, conditionally suspended, passed on a father for failure to comply with an order, made on the application of a local authority in care proceedings, for the return of his child to the jurisdiction. The return order is itself the subject of appeal, as well as the interim care order which the judge made in the same proceedings.
An unusual feature of the case is that the local authority at whose suit the relevant orders were obtained no longer resists the appeal. It asks, on the contrary, for leave to discontinue the entire proceedings on the ground that they have insufficient resources to justify continuing litigation in which, whatever their eventual outcome may be procedurally, the practical prospects of securing the child's return to England are in their view extremely poor. A wholly different attitude has been adopted, however, by the child's Guardian ad Litem, who is also a respondent to the appeal. She takes the view that the child's best interests would be served by resisting the appeal and seeking to uphold the committal order, even though it involves the risk of imprisonment for the father of the child whose interests she is appointed to serve in the proceedings. She also opposes any discontinuance of the care proceedings by the local authority.
The father and the mother (as I shall refer to them) are married and living in this country. She is of British birth: he is Algerian. Their two children are only 20 months and 6 months old: Chafika (a girl) and Djaffar (a boy) were born on 10th September 1991 and 7th November 1992 respectively.
Djaffar was admitted to hospital on two occasions in early January 1993 with injuries suspected of being non-accidental in origin. Proceedings for a care order were started by the London Borough of Southwark ("the Authority") on 17th January 1993, and I shall refer to them hereafter as
"Djaffar's care proceedings". An interim care order was obtained in them on 22nd January 1993, and on 28th January they were ordered to be transferred to the High Court.
On 5th February 1993 the Authority started additional care proceedings in respect of Chafika ("Chafika's care proceedings"). On the same day (but before the proceedings had been served on the parents) Chafika was taken by a relative of the father to Algeria, were he was handed over to the care of his paternal grandparents. It is not suggested that Chafika's removal from the jurisdiction was unlawful, but there is an issue as to whether or not the mother and father were aware of the imminence of Chafika's care proceedings when that move took place. On 11th February a renewed interim care order was made in Djaffar's care proceedings. The Authority's application, notwithstanding that she was no longer in the United Kingdom, for a first interim care order in Chafika's care proceedings (which had by then also been transferred to the High Court) was adjourned.
On 24th February 1993 both proceedings came before Judge Callman (as a Deputy High Court Judge). He renewed the interim care order in Djaffar's care proceedings and granted the adjourned application for an interim care order in Chafika's care proceedings. There was written evidence before him from the mother and father denying any responsibility for the injuries suffered by Djaffar and stating that during the period of the injuries he had been in contact with the father's brother Samir, whose present whereabouts were stated by them to be unknown. The mother and father both declined to give oral evidence before the judge. He was satisfied on the medical and other evidence filed by the Authority that both children were at risk of significant harm. The judge further held that because of the uncertainty as to the present whereabouts and safety of Chafika the case was an appropriate one for the exercise of the jurisdiction under S 100 (3) of the children Act 1989, and he granted leave to the Authority to proceed under that Section. He regarded the case as a suitable one for the making of an order, in that inherent jurisdiction, for the return by the mother and father of Chafika to the jurisdiction. An Order ("the return order") was accordingly made that day directed to both the mother and the father and ordering them forthwith jointly to cause the return of Chafika to the jurisdiction. The return order was indorsed with a penal notice.
Chafika was not returned. Notice of motion to commit the mother and father for breach of the return order was given by the Authority in Chafika's care proceedings on 12th March 1993. The specified ground of committal was that the mother and father had "deliberately disobeyed" the return order. The supporting affidavit similarly charged the parents with a deliberate or contumacious breach of the order.
The Notice to commit came before Judge Callman on 24th March 1993, when he was told that the mother and father had just changed their solicitors, and the committal application was adjourned to 7th April to enable each parent to be separately represented. The interim orders in both proceedings were further renewed that same day.
At the adjourned hearing of the committal application on 7th April the father gave evidence to the effect that he was a defaulter in breach of his duty to report for military service in Algeria, and that if he should return personally to that country he would be arrested and thereafter prevented from leaving Algeria. Expert evidence was adduced on his behalf that under Algerian law he had exclusive parental rights in respect of Chafika and was the only person able to give authorisation for her departure from that country. A letter was produced from his father in Algeria stating that Chafika was well and happy, protesting at any interference by the English Court with her placement in Algeria, and warning that any attempts by the English guardian ad litem to visit his family in Algeria would be resisted. The Authority called a member of the police child protection unit, PC Simpson, who deposed to inquiries he had made of the Algerian Embassy in London eliciting the information that arrangements could be made for Chafika's return to England if the father's authority was transmitted through the embassy. The hearing was also attended by solicitors and counsel instructed by the guardian ad litem who had by then been appointed in both sets of proceedings for the children and had filed a preliminary report on 21st March.
Judge Callman did not feel able, in the light of the evidence of the father's exclusive parental rights under Algerian law, to continue the return order as regards the mother; and the return order and the committal application were both discharged so far they affect her. The committal application (now maintained against the father alone) was adjourned to 21st April upon the following undertakings given to the Court by the father:
(1) That he would apply as legal guardian of Chafika on 8th April 1993 to the Algerian Embassy accompanied by his solicitor for the return of Chafika to the United Kingdom.
(2) That he would give full instructions to his parents to return Chafika forthwith to the United Kingdom.
(3) That he would not communicate with his parents save through his solicitor pending the adjourned hearing on 21st April.
The mother and father took out an application within Chafika's care proceedings on 14th April (returnable on 21st April) for the discharge of the return order.
The judge thus had to deal on 21st April with an application for renewed interim car orders in both Djaffar's and Chafika's care proceedings, with the application to discharge the return order, and with the adjourned notice to commit the father to prison for contempt of court.
The evidence filed for that hearing included an affidavit by the father's solicitor, Mr. Ellison, in which he deposed that he and the father had attended the embassy by appointment and had an interview with the Charge D'Affaires, Mr. Zeghaida, to whom he had written in advance informing him of the return order and stating: "[the father] informs us that he is not in a position at present to return to Algeria personally. However, he instructs us that he wishes to do all he can to obey the Court order made in England". The letter then referred to the impression gained by PC Simpson that an application for the return of Chafika could be made to the London consulate, and continued: "In the hope that this is correct and to comply with a formal undertaking made yesterday by [the father] to the Court we propose to attend the Consulate at approximately 11 am today with [the father] so that he can sign whatever documentation is required to ensure Chafika is returned by suitable person to England from Algeria without the need for [the father] to go personally to Algeria."
Mr. Ellison's affidavit went on to state that he and the father had duly attended that appointment. The gist of the...
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