Re B (Child Abduction: Wardship: Power to Detain)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE KENNEDY |
| Judgment Date | 20 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0520-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 1994 |
[1994] EWCA Civ J0520-8
IN THE SUPREME COURT OF JUDICATURE
Pro Forma
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Order of Singer J)
Before: Lord Justice Butler-Sloss Lord Justice Kennedy Lord Justice Hobhouse
MR. J. POSNANSKY QC and MISS C. DAVIDSON (instructed by Messrs. Batchelors, London WC2R 1BG) appeared on behalf of the Appellant.
MR. R. HAYWARD-SMITH QC and MR. D. EVANS (instructed by Messrs. Powell Spencer & Partners, London NW6) appeared on behalf of the Respondent.
Friday 20th May 1994
This is an appeal by a father from the order of Singer J on the 19th April 1994 in respect of the retention of two children, twins of 4, in Algeria. The father was arrested and detained under a bench warrant on a seek and find order and Singer J ordered his continued detention pending the return of the twins to England. The appeal came to this court the same evening as a matter of great urgency, since it concerned the liberty of the subject. After hearing argument for the father, the mother and on behalf of the children, by the Official Solicitor, we released the father on the 20th April without giving any reasons and accepted a number of undertakings from him. We now give our reasons for our decision to release him.
The parents were married on the 14th August 1989. The mother is English and the father Algerian. The twins, a boy and a girl, were born on the 30th January 1990. The family lived in London which has always been the children`s home. They paid one visit to Algeria in 1991. In early February 1994 the mother went to Tunisia on holiday alone, despite the objections of the father. The father then decided to add the children to his passport and took them to visit his parents in Algeria while the mother was still away. She neither knew nor consented to the removal of the twins from the jurisdiction. The father bought return tickets for himself and the twins and booked a return flight on the 6th March which they did not take. The mother returned to England in mid February. She issued wardship proceedings on the 14th March 1994 and on the same day Cazalet J made an ex parte order confirming the wardship, granting care and control to the mother, ordering the father to return the children to this jurisdiction and to the care of the mother and thereafter not to remove them. The mother was in touch with the father in Algeria by telephone and he gave her a number of different explanations why he had not brought the children back to England. She deliberately did not inform him of the wardship proceedings. The father continued to telephone her and in April she formed the view that he was now in England, although he did not tell her so. In fact he came to England without the children on the 8th April. On the 15th April Kirkwood J. issued a seek and find order with a bench warrant to apprehend the father if he did not hand over the children to the Tipstaff. The father was served on Saturday 16th April with the order of the 15th April with which he was unable immediately to comply and was arrested at 3.00 pm. The children were, and as far as we know remain, in the care of the paternal grandparents some two hours drive from Algiers.
The father was kept in custody in a police cell until Monday morning when he attended before the Applications Judge, Singer J. He obtained a solicitor and later in the day, Counsel. The mother appeared with Counsel. On the Monday evening the judge invited the Official Solicitor to act as guardian ad litem of the twins. The father remained in custody on Monday night while the case was part-heard.
The judge formed the view that the father`s explanation that he had lost his passport and had come to England to obtain a new passport from the Algerian Embassy was a cloak for his concealed intention to leave the children in Algeria. During the week before his arrest he had made no effort to obtain passports or travel documents. Arrangements were made with the British Embassy in Algiers to receive the children from the grandparents and to send the children to England. The grandfather went to the Embassy but did not take the children with him. The judge concluded that the father had sought deliberately to keep the children out of the jurisdiction for reasons unconnected with their welfare and doubted that the children would be returned voluntarily to this country. It was agreed however that the father was not in contempt of court. The judge ordered that the father be detained by the Tipstaff until the children were taken to the British Embassy in Algiers, the case to be frequently reviewed by the court.
Since the release by this court, the father has breached the undertakings entered into before us; has failed to report to the police station or attend before the Applications` Judge and is believed to have left the jurisdiction. The facts subsequent to our order releasing the father demonstrate the worrying lack of teeth available to the court, in the absence of a finding of contempt, to compel the carrying out of orders in international child abduction cases.
The court nonetheless, despite these facts, has to consider whether the Judge was justified in detaining the father at all or justified in detaining him for the purpose of compelling the return of the children to the jurisdiction. I entirely understand the motives of the Judge in making the order to try to bring these little children back to their mother and to England where the father has repeatedly said to the Judge and to this court that they ought to be. His scepticism over the account given by the father for his movements has been amply and tragically proved correct. But the short issue is whether the court in the wardship jurisdiction has the power to detain any person appearing before it. The father was arrested and detained pursuant to the seek and find order of the 15th April. That order directed the Tipstaff to seek and find the minors; to receive them into his custody and deliver them to the mother or her representative. It required the father to hand over the minors and passports or travel documents into the custody of the Tipstaff. It further ordered that:-
"in the event of the said (father) failing to comply with the handing-over order herein, these are therefore to command you, the said Tipstaff and others in Her Majesty`s name forthwith to apprehend the said (father) and bring him before one of the Justices of the Family Division of the High Court at the Royal Courts of Justice, Strand, London as soon as possible after his apprehension."
The seek and find order, supported by a bench warrant, is a useful method of bringing to court a parent, other relative or friend who is believed to have the children or know of their whereabouts and to be party to their removal or retention. It is a widely used practice in the Family Division over many years, made under the inherent jurisdiction of the High Court. Orders are also made requiring solicitors to disclose the whereabouts of a child even though such information is privileged, (see Ramsbotham v Senior (1869) LR 8 Eq 575). The issue of a bench warrant is to secure the attendance at court of the person arrested and detained and is a direction ancillary to the investigation by the court of the relevant issues before it. The person arrested and brought before the court may be found to have been in contempt of court, but the exercise of the jurisdiction is not based upon contempt of court but upon ensuring compliance with the directions of the court. Recognition of this procedure is to be found in Rule 5:2 of the Family Proceedings Rules 1991, which states:-
"The power of the High Court to secure, through an officer attending upon the court, compliance with any direction relating to a ward of court may be exercised by an order addressed to the tipstaff."
The Family Law Act 1986, (sections 33 and 34) provides similar powers to the courts exercising the family jurisdiction but the wardship court can provide immediate and more effective relief.
There has been no argument addressed to this court directly challenging the jurisdiction of Kirkwood J to issue a bench warrant with the seek and find order. The issue arises plainly at the door of the court when the person arrested and detained under the seek and find order is first brought before the judge. Simply put, is the effect of the bench warrant exhausted or may a court continue to detain until the completion of the hearing or until further order?
Singer J held that in the inherent jurisdiction of the court in wardship proceedings a person brought before the court, on a bench warrant might be further detained if such detention was necessary for the welfare of the children. He relied upon the use of a bench warrant in wardship as an exercise of the inherent jurisdiction of the court so that the further detention was an extension of an existing procedure where the liberty of the subject takes second place to the welfare of the children. The judge recognised that the whereabouts of the children were known and that they were in the de facto care of the grandfather, but that, while the father was in detention, he was nonetheless able to exert pressure upon the grandfather to hand over the children. The judge said that it was an exceptional course to take but the present facts and the likely complicity of the father in the continued retention of the children in Algeria justified continuing to detain him to provide the incentive for his parents to take the children to the British Embassy in Algiers. There was some argument before us as to whether there was enough evidence for the...
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