Manchester City Council v Maryan Yusef
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 11 May 2023 |
| Neutral Citation | [2023] EWHC 1248 (Fam) |
| Court | Family Division |
| Docket Number | Case No: MA22P02300 |
[2023] EWHC 1248 (Fam)
THE HONOURABLE Mr Justice MacDonald
(Sitting in Public)
Case No: MA22P02300
IN THE HIGH COURT OF JUSTICE
PRESTON DISTRICT REGISTRY
Sessions House,
Lancaster Road,
Preston, PR1 2PD
Ms S Mann appeared for the Applicant
Ms Edwards appeared for the First Respondent
THE SEDOND RESPONDENT did not appear and was not represented
Mr Walker appeared for the Children's Guardian
This matter again comes before the court on the application of the Local Authority to commit Mr Farad Abdi to prison for breach of orders made by this court, with which it is alleged that Mr Abdi has again failed to comply. That application is dated 13 April 2023. The substantive proceedings in this matter concern Mr Abdi's four children. The substantive application before the court is an application by Manchester City Council for wardship orders in respect of the children and an order for summary return to this jurisdiction from the jurisdiction of Somalia, issued on 13 October 2022. The children currently remain outside the jurisdiction, and their whereabouts are unknown, however they are believed to remain in Somalia. The anniversary of their removal from this jurisdiction passed on 18 March 2023.
Manchester City Council is represented by Ms Mann of counsel. The mother is represented by Ms Edwards of Counsel. The children are represented by Mr Walker of counsel. The father has not attended court today. This morning, upon enquiries being made by my Clerk, the court received an email from HMP Kirkham, where the father is currently detained serving a sentence for contempt, the details of which I shall come to. That email reads as follows:
“I am on duty at HMP Kirkham this morning as orderly officer. It has been brought to my attention that Mr Abdi, A2724DA, has been scheduled to attend a court hearing. I have been made aware that transport has been booked, which is yet to arrive, but prior to its arrival I have instructed staff to advise Mr Abdi of the move. Mr Abdi's response to this was that he is refusing to attend, and he has stated it is a civil matter, and so he believes he has a right to refuse.”
That position reflects the position taken by the father at the last hearing of this application on 3 May 2023. On that occasion the prison informed the court that the father had refused to get onto the prison van. His stated grounds for refusing to attend court on that occasion were that these were civil proceedings, and therefore there was no obligation for him to be produced. The court has been informed that the father later told the prison officer that he required four weeks to prepare for the hearing. On 3 May 2023, I in any event adjourned the case for hearing today. My reason for doing so was that I was satisfied that the father had been given proper notice of this application, that notice having been given only one day before the Bank Holiday weekend, with the case listed for final hearing on the first court day after the Bank Holiday weekend.
The father was served with the notice of this adjourned hearing on 4 May 2023, at prison by a prison officer. The father refused to leave his cell to attend a prison appointment to effect personal service, but the prison officer served the father in his cell. The notice of adjourned hearing was accompanied by a letter explaining that the matter had been adjourned to today. The notice was also accompanied by a list of solicitors, directed by the court and who the father could seek to instruct.
In addition to his refusal to attend, the father is not represented at this hearing. The father has been given a number of opportunities to seek legal representation. Prior to this matter last coming before me in December of last year, on the Local Authority's first application to commit the father, the father was granted Legal Aid by the court. On that occasion counsel representing the father however had to withdraw on the grounds that she was professionally embarrassed, which application the court granted. On 19 January 2023 HHJ Singleton KC adjourned a further application to commit the father, to enable him to secure representation by leading counsel. Further adjournments were granted by HJJ Singleton on 1 February 2023 and 2 February 2023, to again permit the father to secure legal representation. Following HHJ Singleton finding the father in contempt of court, she adjourned the sentencing hearing on 9 February 2023 to allow the father to be represented. The father at that point secured the services of counsel and a solicitor, but both were required to withdraw on 16 February 2023. On 3 May 2023 I reiterated the grant of Legal Aid to the father, and ensured that the father was again provided with a number of solicitors' names by both the Local Authority and the children's solicitor.
In the circumstances, this court must first decide as a preliminary issue whether to proceed with this final hearing of the committal application where the father has failed to attend the hearing, notwithstanding he has had proper notice of the same, and is not represented. The father was personally served with the committal application itself, and notice of the hearing on 3 May 2023, on 27 April 2023. In the circumstances I have described, and as I have noted, he was personally served with notice of this adjourned hearing on 4 May 2023. The production order requiring that the father be produced at court was made on 3 May 2023 and served on 4 May 2023. As I have noted, the prison has attempted to produce the father in accordance with the production order, but the father has failed to comply.
The relevant legal principles governing whether the court can proceed with a committal hearing in the absence of the respondent father were summarised by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam) namely:
i) Whether a respondent has been served with the relevant documents, including the notice of the hearing.
ii) Whether the respondent has had sufficient notice to enable him to prepare for the hearing.
iii) Whether any reason has been advanced for the respondent's non-appearance.
iv) Whether by reference to the nature and circumstances of the respondent's behaviour they have waived their right to be present, i.e. is it reasonable to conclude that the respondent knew of or was indifferent to the consequences of the case proceeding in their absence.
v) Whether an adjournment would be likely to secure the attendance of the respondent or at least facilitate their representation.
vi) The extent of the disadvantage to the respondent in not being able to present his 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 were to proceed in the absence of the respondent.
ix) The terms of the overriding objective to deal with cases justly, expeditiously and fairly.
In considering these factors, the court must bear in mind that committal proceedings are essentially criminal in nature, and that the court should proceed in the absence of the accused with great caution, that findings of fact are required before any penalty can be imposed, that the presumption of innocence applies to penalties of imprisonment for breach of order and that such penalty is one of the most significant powers of a judge exercising the civil or family jurisdiction. Finally, the court must have regard to the fact that Arts 6(1) and 6(3) of the European Convention on Human Rights are engaged, entitling the father to, inter alia, a fair public hearing, and to have adequate time and facilities for preparation of his defence.
Having given careful consideration to the factors articulated in Sanchez v Oboz, I am satisfied it is appropriate to proceed with the final hearing of the committal application in the absence of the father.
The father has, as I have noted, had proper notice of these proceedings, and has had proper notice of this adjourned hearing. Within that context, I am satisfied that the father has had sufficient notice to enable him to prepare for this final hearing. Indeed, the court adjourned the hearing on 3 May 2023 to today precisely to ensure that the father had adequate time to instruct his lawyers and to prepare for this hearing.
There is no credible reason being advanced for the father's failure to appear today. The father is currently incarcerated, and therefore had transport to this court made available to him from prison this morning pursuant to the production order issued by this court. Absent any explanation, for example a medical condition, the father's refusal to get on the prison transport to the hearing amounts in my judgment to a wilful refusal to attend the hearing. Further, in circumstances where the father has made a conscious choice not to attend a hearing, of which he has been given notice and is aware may result in his committal to prison, I am satisfied that the father's actions constitute a waiver of his right to be present. It is reasonable in the circumstances I have described for this court to conclude that the father knows of, or is indifferent to, the consequences of the case proceeding in his absence. Within that context, I have very little confidence that a further adjournment would be likely to secure the father's attendance in circumstances where his failure to attend today derives from the conscious decision on his part that I have described.
With respect to the extent of the disadvantage to the father in not being able to present...
To continue reading
Request your trial
-
Fahad Abdi v Manchester City Council
...No: CA-2023-001221 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION MR JUSTICE MACDONALD [2023] EWHC 1248 (Fam) Royal Courts of Justice Strand, London, WC2A 2LL The appellant appeared in person Sara Mann (instructed by Manchester City Council) for......