Re B (A Child) (removal from jurisdiction: removal of family’s passports as coercive measure)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Black,Lord Justice Underhill |
| Judgment Date | 20 June 2014 |
| Neutral Citation | [2014] EWCA Civ 843 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/1217 |
| Date | 20 June 2014 |
[2014] EWCA Civ 843
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
EXETER DISTRICT REGISTRY
His Honour Judge Tyzack QC (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Underhill
Case No: B4/2014/1217
Mr David Williams QC and Mr Alistair Perkins (instructed by Crosse + Crosse Solicitors LLP) for the Appellant
Mr Paul Storey QC and Mr Anthony Ward (instructed by Cartridges) filed a skeleton argument on behalf of B
Hearing date: 6 May 2014
Sir James Munby, President of the Family Division:
This is an appeal by a child against an order made by His Honour Judge Tyzack QC, sitting as a judge of the High Court in the Exeter District Registry on 28 March 2014. It raises what are properly described as issues of general public importance in respect of two matters: first, the powers of the court to compel third parties without parental responsibility (or any other form of power or control over the child) to take steps to secure the return of an abducted child; and, second, the role of non-subject children in such proceedings, the powers of the court in relation to them, and the basis on which orders can properly be made against them having regard to Article 3.1 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention.
The background
The background facts can be very shortly summarised. Judge Tyzack was concerned with a ward of court, a nine year old girl called B, who had been abducted by her mother and removed from the jurisdiction in order to avoid the consequences of orders previously made by the court. In the course of proceedings begun by B's father, it became appropriate for Judge Tyzack to enlist the assistance of the mother's wider family in locating B and her mother and ensuring B's return to the jurisdiction.
On 27 February 2014 Judge Tyzack made an order, endorsed with a penal notice, which, so far as material, ordered the maternal grandparents (Mr and Mrs S) and the mother's partner to provide certain information and to lodge their passports with the court, and ordered B's elder half-brother, L, born in May 1997 and therefore not yet 17 years old, to provide certain information, to lodge his passport with the court and to attend court on 28 March 2014.
The hearing before Judge Tyzack
On 28 March 2014, L attended court. He was represented by experienced family solicitors. In the position statement filed on his behalf, his solicitors said:
"The court is reminded of the guidelines issued by the Family Justice Council in 2011 concerning children giving evidence in family proceedings. In deciding whether a child should give evidence, the court's principal objective should be achieving a fair trial. With that objective in mind the court should carry out a balancing exercise between, on the one part any possible advantages of the child's evidence and secondly any possible damage to the child's welfare of giving the evidence itself."
Despite that, Judge Tyzack required L to give evidence. In the extempore judgment which he gave at the end of the hearing he said of L's evidence:
"I am not satisfied that he was fully and completely candid with the court … I would remind the family that if the court ever finds a serious lack of candour it could amount to a contempt of court, and contempt in this jurisdiction is punishable by a maximum of two years' imprisonment. That is why the court requires absolute candour from everyone".
Judge Tyzack then made the order under appeal. So far as material, it ordered that the passports of the maternal grandmother, the mother's partner and L were to remain lodged with the court, that the applications by the maternal grandmother and L for the return of their passports were adjourned until 7 May 2014, that L was to attend court on 7 May 2014, and that L was to:
"produce to the court forthwith all the records of telephone calls to and from his land line telephone and all records of any emails texts or other electronic means of communication [between 1 February 2014 and 7 May 2014]."
The order was endorsed with a penal notice which, in the same terms as that endorsed on the previous order, stated that:
"You have a right to ask the court to change or cancel the order but you must obey it unless the court does change or cancel it. You must obey the instructions contained in this order. If you do not, you will be guilty of contempt and may be sent to prison."
Judge Tyzack's judgment
Judge Tyzack explained his reasons for making these orders in the following passages in his judgment, which require to be set out at length:
"[Counsel], understandably, has applied for Mr and Mrs S's passports to be returned to them. It is said that they are caught in the middle, which I suppose in a sense they are. It is said that to retain their passports in court would be to punish them, which I suppose in a sense it does. They have a cruise booked, I think in May. They would like to go abroad to Ireland and to visit battlefields and cemeteries in France and Belgium. Those things are normal, pleasurable activities which everybody in this country can, if they can afford it, obviously reasonably enjoy. But Mr and Mrs S, I am sorry to say, are caught up in a very unfortunate dispute and the court is not satisfied that they have fully and wholeheartedly co-operated in the court's endeavour to ensure that B is returned to the jurisdiction of England and Wales. I am going to adjourn the application for Mr and Mrs S's passports to be returned because I would like to see, the court would like to see the extent to which Mrs S will now apply her mind, and maybe her husband's, to the essential task of putting persuasion / influence / pressure on [the mother] to return B to the jurisdiction of England and Wales. It is said by [Counsel], in effect, "What is the point of doing that because the mother has made up her mind and it is clear that she has made up her mind to stay where she is in Abu Dhabi or Dubai?" That may be so. But that, in my judgment, should not prevent the court from seeking to rely upon, as the court is entitled to, to rely upon Mr and Mrs S to put pressure and influence on their daughter to return B to the jurisdiction. So far, that has not been tried, and in my judgment the time has come for it to be attempted. Their passports will remain in court.
Similar considerations apply to L. I appreciate that I am dealing with a 16-year-old boy even more tragically caught up in this mess. But I was very disappointed to hear the evidence which he gave …
I am not satisfied that the court has so far received absolute candour from the wider family and absolute assistance and co-operation from them to influence their daughter or mother respectively to return. L's passport must remain in court. I adjourn his application until a later date, again, to see whether any appropriate pressure can be brought to bear upon this mother to act lawfully."
The appeal
On 15 April 2014, L filed an appellant's notice. The grounds of appeal, settled by Leading Counsel, were that Judge Tyzack was wrong (1) to order L's attendance at court on 7 May 2014, (2) to order that L's passport remain lodged with the court, (3) to order disclosure of L's communications, (4) to attach a penal notice to the orders made against L, and (5) to conclude that L was not being candid in his evidence.
The application for permission to appeal came before Black LJ as a paper application. On 16 April 2014 Black LJ gave L permission to appeal and directed a stay of the orders that he attend court on 7 May 2014 and produce records.
The appeal came on before us for hearing on 6 May 2014. L was represented by Mr David Williams QC and Mr Alistair Perkins. B's rule 16.4 guardian had filed a skeleton argument prepared by Mr Paul Storey QC and Mr Anthony Ward. As their skeleton argument was largely supportive of the appeal, I made a direction at their request on 2 May 2014 dispensing with their attendance at the hearing. The mother was, unsurprisingly, neither present nor represented, nor was the mother's partner. The maternal grandparents were present but not represented.
The father also was neither present nor represented, but had written a letter to the court dated 22 April 2014 saying that he did not take a voice in the legal argument and was going to leave it to the court to decide what to do. He added, "Overall I think that the Judge is doing his best in the interests of returning my daughter … back to this jurisdiction … My interest is for the safe return of my daughter". I can well understand that the father should have adopted this stance.
At the end of the hearing we announced that we were allowing the appeal in relation to ground 2 – the retention of L's passport – while reserving our decision in relation to the other grounds of appeal.
Some general matters
Before addressing the various points raised by Mr Williams it is important to realise that nothing in this appeal puts in issue, and nothing we say is intended to throw any doubt on, the generality of the well established powers of the court when faced with the problem which confronted Judge Tyzack.
In Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, para 36, I said this:
"It has long been recognised that, quite apart from any statutory jurisdiction (for example under s 33 of the Family Law Act 1986 or s 50 of the Children Act 1989), the Family...
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