Re A (A Child) (Removal from Jurisdiction: Contempt of Court)

JurisdictionEngland & Wales
JudgeLord Justice Hughes,Lord Justice Thomas,Lord Justice Keene
Judgment Date21 August 2008
Neutral Citation[2008] EWCA Civ 1138
Docket NumberCase No: B4/2008/1971
CourtCourt of Appeal (Civil Division)
Date21 August 2008

[2008] EWCA Civ 1138

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION

(MR JUSTICE COLERIDGE)

Royal Courts of Justice

Strand, London, WC2A 2L

Before:

Lord Justice Hughes

Lord Justice Thomas

Lord Justice Keene

Case No: B4/2008/1971

In The Matter of a (A Child)

Mr J Cowen (instructed by Moss Beachley Mullem & Coleman) appeared on behalf of the Appellant.

Mr N Cox (instructed by Law For All) appeared on behalf of the Respondent.

Lord Justice Hughes
1

This is an appeal against an order committing the appellant to prison for contempt of court in a family case. Nothing must be published which might identify the child at the centre of it.

2

The appellant is the father of a 20-month-old boy. The appellant is Syrian. The mother is of Moroccan origin but now a naturalised British citizen. The parents lived together with the boy in London. In the course of the dispute with the mother, father unilaterally abducted the boy to Syria. He flew out with the boy on 17 June, left the boy with his family there, and returned without him the next day to London. There exists on the papers some measure of dispute between the parents as to the state of their relationship immediately before this abduction but it is irrelevant to the present issues. There followed a series of orders that father cause the boy to be returned immediately to this jurisdiction. There is now no challenge to those orders. There was a challenge made but it failed before Hedley J on 14 July. Application to commit the father to prison in contempt of court by reason of his disobedience to those orders came before Coleridge J on 29 July, when the boy had been gone for six weeks. Coleridge J made a suspended committal order of two months in custody, giving the father a further fortnight until 11 August to comply with the orders. Father has not caused the boy to be returned, and it followed that the judge's order took effect on that day 11 August.

3

Father contends that mother did not lay the proper evidential foundation for a finding that he was in contempt of court. He accepts that the boy is in Syria; he accepts that he has not brought about his return. Syria is not a party to any international convention for the return of abducted children. Father's responses to the successive court proceedings may not have been entirely consistent. He asserted himself willing to go to Syria to bring the child back, but, unsurprisingly, that was not acceptable since it was by no means clear that he could be relied upon to return. Secondly, he asserted that he was willing to finance mother to go and fetch the boy; that, equally unsurprisingly, she was unwilling to do. It seems that she feared obstruction and difficulty, for example in travel as an unaccompanied woman, married at least in the eyes of Syrian law. In any event the obligation under the order is for father to effect the boy's return; he does not comply with the order by casting the onus on the mother. Thirdly, father asserted that he had asked his own father, the paternal grandfather of the boy, in Syria, to deliver the child to the British embassy in Damascus. The letter which he had allegedly written to his own father made a request to the grandfather to do that. It seems to have been founded upon the tacit assumption that the embassy authorities would thereupon make themselves responsible for the transport of the child. In any event, father subsequently asserted (a) that the letter giving written authority to the grandfather had not reached Syria, and (b) that grandfather had suddenly been taken into hospital. Whether that is so or not, it is unsurprising to learn that in any event the embassy would not itself take responsibility for the physical custody of the child.

4

The suggestion which was made at a late stage immediately before the hearing before the judge — that grandfather had recently been taken ill — was one about which some doubts had been expressed as to its veracity. We need not say more about that at this stage because we are told that mother's case before the judge was put to him on the basis of an assertion that father could get others and in particular one or more of his siblings to effect the return of the child. The difficulty about that is that mother put in no evidence whatever before the judge except evidence as to the fact of the original abduction. We are told now that before the judge counsel for mother asserted, first, that father has four siblings living in Syria, two male and two female; and, secondly, that it was mother's contention that he could and should arrange for one of those people to travel with the child back to England. The proposition that there were four siblings in Syria was confirmed to Coleridge J by counsel for the father on instructions. Indeed the judge was given the additional information that all four siblings work either for the foreign ministry in Syria or at least for some arm of the government.

5

Put shortly, Mr Cowen's contention on behalf of father is that there was no sufficient evidence of contempt of court and that the approach taken by mother effectively reversed the onus of proof by requiring father to demonstrate that he was unable to effect the return of the child, rather than accepting that it was mother's responsibility to demonstrate that he was in deliberate breach of the order.

6

So far as the law is concerned I for my part accept the following propositions. (1) The contempt which has to be established lies in the disobedience to the order to return rather than in the original abduction. At the time of the abduction there was no court order which forbade the removal of the child from the jurisdiction. That such removal was an appalling mistreatment of both child and mother and, moreover, that it may be the crime of child abduction contrary to section 1 of the Child Abduction Act 1984 do not in either case make the abduction a contempt of court. (2) Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. Whatever the traditional form of notice to show cause may say, the burden of proof lies at all times on the applicant. (3) Contempt of court involves a contumelious, that is to say a deliberate, disobedience to the order. If it be the case that father cannot cause the return of the child he is not in contempt of court, however disgraceful and/or criminal the original abduction may have been. Nor is it enough to suspect recalcitrance, it has to be proved: see LB of Southwark v B [1993] 2 FLR 559. That the onus remains on the applicant throughout is clearly demonstrated by Mubarak v Mubarak [2001] 1 FLR 698.

7

Thus far I, for my part, go with Mr Cowen. I do not,...

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