Re Dad and Another

There is before me an application to commit a man known as Muhammad Nawaz Chaudhry to prison for contempt of court. Any such application is a grave and serious one since it impacts upon personal liberty. I wish to stress at once, however, that the factual context in which this application is made is also one of the utmost gravity and seriousness. It involves the abduction of a child from his mother with whom he was living, apparently by his father. That abduction took place on or about 6 ^th January 2015. As I understand it, there has been no face to face contact at all between the child and his mother since then, now over eight months ago; and, indeed, the mother does not even have any reliable information as to where in the world her child is.

An abduction and retention of a child in those circumstances involves abhorrent cruelty both to the parent from whom the child has been abducted (in this case, his mother) and also to the child himself. So, although in this judgment I must take a firm line with regard to the procedural defects in this case, I wish to emphasise from the outset that I do not in any way whatsoever underestimate or minimise the gravity of this case from the perspective of the applicant mother, or in its likely impact upon the child who is the ultimate subject of these proceedings.

For the purposes of this judgment I can summarise the essential factual background extremely shortly. The parents of the child concerned are married to each other. The mother is Polish. The father is British, but of Pakistani descent. The child was born during July 2008. In January 2015 he was accordingly aged six. He is now aged seven. For some time he had been living lawfully with his mother in Poland and appears clearly to have been habitually resident there with her. She was at that time his primary carer. Late in 2014 the mother agreed to their son spending a period of time staying with his father, but on the clear basis that he would be returned by the father to the mother not later than 6 ^th January 2015 in order to resume at his school in Poland, and to resume his normal daily residence with his mother. The father failed to return the son to the mother and effectively disappeared with him. There is apparently some evidence that the father and son rapidly travelled between Germany, Belgium and France, and may then have entered England. As a result, proceedings were commenced here in England on 15 ^th January 2015 under the Child Abduction and Custody Act 1985 and the Hague Convention on the civil aspects of international child abduction. Whether or not the father or child are currently in England or indeed anywhere in the United Kingdom is, frankly, much more speculative. The father has said in electronic communications that they are in fact in Pakistan.

On 20 ^th February 2015 the mother obtained from this court what is known as a Collection Order. A Collection Order is made in two parts. One part, in Form 2B, is an order or direction specifically to the Tipstaff of the High Court of Justice. In brief summary, that part of the order, which is not served upon anyone else, directs the Tipstaff (who almost invariably has to act through the police) to take charge of the child concerned and to arrest any person whom he, the Tipstaff, has reasonable cause to believe has been served with the Collection Order in Form 2A and has disobeyed any part of it. If the Tipstaff does arrest or cause someone to be arrested, then he is directed to bring him before the court as soon as practicable. The other part of the Collection Order, in Form 2A, is directed to any named respondents and also to other persons. In this case the named respondent was the father of the child concerned. So far as is material, paragraphs 2 and 3 of the Collection Order in Form 2A provide as follows:

"(2) If [the father, who is specifically named in the order] and/or any other person served with this order is in a position to do so, he or she must each deliver the child into the charge of the Tipstaff.

(3) If the respondent or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she must each:-

(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child."

It is important to mention that paragraph 7 of the order later provides that:

"The obligations under paragraphs 2 and 3 above will continue until the Tipstaff takes charge of the child…"

It has never been possible to serve that order upon the father, who is the named respondent, for it remains the case that at no time has the Tipstaff or the mother of the child known the whereabouts of the father.

However, on Saturday 27 ^th June 2015, police officers acting on the instructions and authority of the Tipstaff attended at an address at which Muhammad Nawaz Chaudhry was residing. I mention that, as I understand it, it is not in fact his own home, but he was residing there with a relative of his. Muhammad Nawaz Chaudhry is the brother of the father of the child and, accordingly, the uncle of the child. The police officers introduced themselves to Mr Chaudhry and produced a copy of the Collection Order in Form 2A and asked him for any information he could give as to the whereabouts of the child. In summary, and in effect, he said that he did not know where either the child or his brother, the child's father, were. The police officers then telephoned the Tipstaff himself. The Tipstaff himself considered that Mr Chaudhry in fact knew more than he was revealing and, accordingly, that he (the Tipstaff) had reasonable cause to believe that Mr Chaudhry was disobeying paragraph 3 of the Collection Order in Form 2A. He therefore instructed the police officers to arrest Mr Chaudhry in obedience by the Tipstaff himself to the provisions which I have mentioned of the Collection Order in Form 2B, which are directed to the Tipstaff. Mr Chaudhry was then conveyed to the local police station in custody and brought before a judge here at the Royal Courts of Justice on the following Monday. He was further remanded in custody by that judge and only finally released from physical custody on Friday 10 ^th July 2015. In other words, following the evening of his first arrest on Saturday 27 ^th June 2015 until his first release from actual custody, Mr Chaudhry spent thirteen nights in custody; eleven of them in Pentonville Prison. On Friday 10 ^th July 2015 he was released on bail subject to certain conditions. There have been subsequent adjournments of the application to commit him to prison and it has come before me (dealing with the matter for the first time) for substantive resolution today.

The essence of the case of the mother in support of her application to commit is that there had been considerable communication by text and/or email and/or telephone between the father and Mr Chaudhry before, and in the months following, the actual abduction of the child. Accordingly, even if Mr Chaudhry did not and does not now know the precise whereabouts of the child, he certainly had "matters within his knowledge or understanding which might reasonably assist [the Tipstaff] in locating the child" which he certainly failed to give information about prior to his arrest on 27 ^th June 2015 and which even now he has not been fully forthcoming about. So it is that the solicitors on behalf of the mother issued a formal application on 7 ^th July 2015, which was subsequently amended on 16 ^th July 2015, for Mr Chaudhry to be committed to prison for contempt of court. The formal application notice for committal, as amended, seeks that he be committed to prison for contempt of court "because Mr Chaudhry disobeyed paragraphs 3(a) and (b) of the Collection Order made…on 20 ^th February 2015…" in ways which were described in supporting statements made by the solicitors for the mother.

Pausing there, it thus follows that the matter for which I am asked to commit Mr Chaudhry to prison is very specifically that he has disobeyed those paragraphs of that order. It has been said today by Miss Mehvish Chaudhry on behalf of the mother that, when Mr Chaudhry gave oral evidence on oath to the judge on Monday 29 ^th June 2015, he told lies, and in particular continued not to reveal all the information which in truth he knows with regard to the whereabouts of the father or the child. I, today, have no position at all, one way or the other, on whether or not in that sworn evidence Mr Chaudhry told lies. If he did tell lies, then it may be that he committed the crime of perjury. If the mother believes that he committed the crime of perjury, then she is at liberty to give information to the Attorney General or the Director of...