Re L (A Child) Re Oddin
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice Vos,Mrs Justice Theis |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 173 |
| Docket Number | Case No: B4/2016/0314 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2016 |
[2016] EWCA Civ 173
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lord Justice Vos
Mrs Justice Theis
Case No: B4/2016/0314
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Justice KEEHAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Elizabeth Norman (instructed by Mushtaq & Co) for the appellant (Mr Gous Oddin)
Mr Edward Bennett (instructed by the authority's Legal and Democratic Services) for the local authority
Mr Matthew Maynard (instructed by Roberta McDonald) for L's guardian
Hearing date: 3 March 2016
Sir James Munby, President of the Family Division:
This is an appeal by Gous Oddin (sometimes spelled Uddin) from a committal order made by Keehan J on 18 January 2016. Keehan J sentenced Mr Oddin to an immediate sentence of six months' imprisonment for breach of a collection order which had been made, over eleven years previously, by Her Honour Judge Bevington (sitting as a judge of the High Court) on 30 December 2004. Mr Oddin appeals as of right; for permission to appeal is not required where the appeal is from a committal order.
The appellant's notice was filed on 22 January 2016. On 29 January 2016, Master Meacher made an order granting Mr Oddin legal aid in accordance with section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The appeal came on for hearing before us on 3 March 2016. We gave permission for the provisional grounds of appeal attached to the appellant's notice, and prepared before the Transcripts of the proceedings and judgment on 18 January 2016 had been received, to be supplemented by perfected grounds of appeal. We had before us skeleton arguments from Miss Elizabeth Norman, on behalf of Mr Oddin, dated 24 February 2016, from Mr Edward Bennett, on behalf of the local authority, dated 25 February 2016, and from Mr Matthew Maynard, on behalf of L, dated 1 March 2016. At the end of the hearing we announced that the appeal would be allowed, for reasons to be given later. We ordered Mr Oddin's immediate release from prison. We now give our reasons.
The legal context
As will appear in due course, the proceedings before Keehan J involved two different aspects of the inherent jurisdiction of the High Court in relation to children, both currently exercised by the Family Division. It is convenient to describe them before turning to the history of the proceedings.
The legal context: Tipstaff orders
The first is the jurisdiction of the Family Division to make a variety of Tipstaff orders, that is, orders directed to and authorising the Tipstaff to take such steps and do such things as are set out in the order. For present purposes I can focus on location and collection orders. These are orders made in standard form which, although modified from time to time (most recently in September 2015 in response to Holman J's judgments in Taukacs v Taukaca [2015] EWHC 2365 (Fam) and Re DAD [2015] EWHC 2655 (Fam)), have been in force for many years. A location order is an order directed to finding where a missing child is; a collection order goes further and authorises the Tipstaff to take charge of the child and place the child in the care of the person or body referred to in the collection order: see Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, para 3.
The important point for present purposes is that a collection order contains the following provisions (I quote the words in use in 2004 when the collection order in the present case was made). Paragraph 3:
"If the Defendants 1 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 2 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."
Paragraph 4:
"The Defendant 3… must … hand over to the Tipstaff (for safe-keeping until the court makes a further order) as many of the following documents as are in his or her possession or control … (b) every passport relating to the Defendants 4 and every identity card, ticket, travel warrant or other document which would enable the Defendants 5 to leave England and Wales."
Paragraph 5:
"This order or a faxed 6 copy of it must be personally served upon the Defendants 7… PROVIDED THAT, 8 if the Defendants 9… refuses or evades 10 personal service, the court will consider that he or she has been validly served if the effect of the order has been brought to his or her attention."
Paragraph 6:
"The obligations under paragraphs 2 and 3 11 above will continue until the Tipstaff takes charge of 12 the child …"
The collection order also contains a warning that:
"the court has directed the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with this order and has disobeyed any part of it."
The form of collection order in use in 2004 was six pages long. Paragraphs 3, 4 and 6 were on the second page. The penal notice, warning the Defendants of their liability to
be committed to prison for "breach of any part of this order", was on the fifth page: for the implications of this see Holman J's pungent observations and decision in Re DAD [2015] EWHC 2655 (Fam).At the same time as making a collection order the court also gives the Tipstaff a direction in standard form. For present purposes the relevant provisions, which I need not set out, but which are in essentially the same terms today as they were in 2004, direct the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with the collection order and has disobeyed any part of it and to bring him or her before the court as soon as practicable and in any event no later than the working day immediately following the arrest: see Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, para 4.
It will be appreciated that the effect of paragraph 6 of the collection order is that the obligation under paragraph 3 is without limit of time. It continues indefinitely — potentially for years; in the present case, as we have seen, for more than a decade — until the Tipstaff has taken charge of the child. This was thought unsatisfactory, and the form of collection order in use since July 2013 qualifies what is now paragraph 21 (previously paragraph 6) with the words "but if the Tipstaff has not located the child by [ the date 6 months after the making of the order] this order shall lapse in its entirety."
The legal context: seeking information
The second is the jurisdiction of the court to order third parties to provide information which I described in Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, paras 36, 38, in passages approved by this court in In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 14–15:
"[36] 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 Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers — the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination — and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.
…
[38] There are three further aspects of this jurisdiction which it is convenient also to mention. First, that legal professional privilege is no answer to such an order: Burton v Earl of Darnley (1869) LR 8 Eq 576n, Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591. Second, that the court's powers in this kind of case — where it is seeking to locate a missing child — are not subject to the limiting principles of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, [1973] 3 WLR 164. Thus there is no need to establish that the person against whom disclosure is sought has, albeit innocently, been involved in the abducting parent's wrongdoing. The jurisdiction can be exercised against someone who is not merely wholly innocent but also a 'mere witness'. It is enough for the court to exercise jurisdiction that the person from whom information is being sought may have information (however acquired) which may lead to the location of the missing child. 'Possibility' is enough; there need not be probability: Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591 (where the order...
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