Samira Addou v Sidali Bennabi

Hearing date: 16 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 25 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

I shall refer to the child who is the subject of this bitter litigation as Z, and to his parents as M (his mother) and F (his father).

On 2 December 2022, Francis J made what is described at para 3 of his order as a “suspended order for committal” for a period of 18 months, having found F in breach of various orders requiring him to procure the return of Z from Algeria to England.

M applies to me today for activation of the order so that F shall be committed to prison forthwith to serve the said term.

At previous hearings before me (on 24 September 2024 and 3 October 2024), I expressed concern about whether the wording of the order of Francis J is sufficiently clear to enable me to activate it.

M has accordingly made a further committal application arising out of alleged breaches of other orders made by judges of the Division since 2 December 2022 requiring F to return Z to this jurisdiction.

Thus, the issues before me today are:

i) Whether to activate the order of Francis J and/or;

ii) Whether to make further committal orders.

Both parties were represented. I am particularly grateful to solicitors and counsel for F who acted pro bono pending determination of a public funding application.

The background

Z, who was born in this country in 2020, is 4 years old. His parents are both of Algerian origin. F came to England in 1996. He and M met in 2017 and married in Algeria in 2018. M joined F in this country on a spousal visa in 2019. On 30 November 2021, F left Z and M stranded (the word used by Moor J in a written judgment after a contested hearing in July 2022) in Algeria at the end of a visit there while he returned to England. He retained the passports of Z and M. He issued divorce proceedings in Algeria. M, with the assistance of the British Embassy in Algeria, returned to this country on 1 February 2022, but was unable to bring Z with her. It appears that ever since, Z has been looked after in Algeria by F's family.

On 9 May 2022, Z was made a ward of this court by Sir Jonathan Cohen. On 6 July 2022, after a contested two day hearing which F attended, and at which he was represented, Moor J made an order for F to return Z to this jurisdiction by 15 July 2022. That order was not appealed. F did not comply. Further return orders were made by judges of the Division on 15 July 2022 (Moor J), 28 July 2022 (Ms R Henke QC as she then was), 12 August 2022 (Theis J) and 13 October 2022 (Hayden J). F did not comply with any of them.

In circumstances which are unclear, and despite various Tipstaff Orders being in place, F was able clandestinely to leave this jurisdiction on 16 September 2022 to Algeria, where he remained until September 2024. Francis J concluded at the committal hearing on 2 December 2022 that F had probably obtained alternative travel documents under a different name.

In due course, M applied for the committal of F. The application was heard by Francis J in the absence of F on 2 December 2022. The judge was satisfied that F had been properly served with the application and was aware of the hearing date. He decided not to adjourn to give F a further opportunity to participate (the application having already been adjourned on one previous occasion).

Counsel for F before me at this hearing submits that Francis J was wrong to find that F had notice of the committal hearing but it seems to me that (i) the judge made express findings to that effect in his judgment, as incorporated in his order and it is not for me to act as an appellate court, (ii) F was indeed notified of the hearing as an email thread between 24 November 2022 and 1 December 2022 shown to me at court demonstrates, (iii) F was served with the committal order, and (iv) F did not appeal or apply to set aside the committal order of 2 December 2022.

Counsel for F further submits that Francis J did not consider whether F had the power to compel the return of Z to this country given that he was living in Algeria with his paternal grandparents. As far as I am aware, at no time in the proceedings which started as long ago as May 2022, has F suggested he could not (as opposed to would not) effect a return until it was raised before me today. Moor J, after a two day final hearing in May 2022, must have concluded that F could do so, because he went on to make a return order against which F did not pursue an appeal. There is nothing in his judgment to suggest that F argued he could not return Z, for whatever reason. Likewise, Francis J made a committal order and must have been amply satisfied that F had wantonly disobeyed orders which he was able to comply with. In any event, F did not appeal the committal order. I do not accept F's submission on this point.

Francis J was satisfied that F had breached the return orders identified above (five in total). He said at para 26 of his judgment that F “has little, if any, regard for the judicial and legal process in this jurisdiction” and described the impact on both Z and M of F's actions.

It is important to set out certain paragraphs of the order which incorporate his findings of breach, and conclusions as to sentencing.

Recitals

i) Para 3:

“This is a suspended order for committal to prison”.

ii) Para 7:

“The court held that the respondent guilty [sic] in failing to comply with the return orders as pleaded in the grounds for committal and further set out in the ex temporary [sic] judgment (which shall also be set out in the written judgment upon the transcript being obtained).

iii) Para 8:

“But the court in the exercise of its discretion decided that the order for committal should be suspended on the condition specified below”.

Orders

iv) Para 9:

“Subject to the following paragraphs, the respondent SIDALI BENNABI [also known as Sid Ali Benabi] shall be committed to H.M. Prison Pentonville for a period of 18 months, suspended for a period of 24 months, commencing on 02 ^nd December 2022.”

v) Para 10:

“This order will not be put into force if the respondent returns [Z] to the jurisdiction of England and Wales by 23.59pm on 16 December 2022.”

vi) Para 11:

“Any application by the applicant for activation of paragraph 5 above, alleging non compliance with paragraph 6 above, must be made on notice to the respondent”.

vii) Para 12:

“SIDALI BENNABI [also known as Sid Ali Benabi] has permission to apply to the court, on notice to the applicant mother's solicitor, to clear his contempt and to seek an order for discharge of the above order for committal”.

The order made by Francis J on 2 December 2022 was served on F by email, as provided for in the order. A later order of Mr Alex Verdan KC, sitting as a s9 judge on 20 January 2023, records at para 3 that “The mother's solicitors confirmed that the father has accessed the documents for the purposes of this hearing as well as the orders from the committal hearing but has not contacted them or filed any further evidence”. I have been provided with a service bundle which demonstrates to my satisfaction that on 16 December 2022 F accessed an email from M's solicitors and downloaded the attached documents which included the committal order of 2 December 2022. Further, they sent to F by email a copy of the judge's judgment on 9 February 2023 which was accessed that day and the document downloaded, and to his solicitors (who were at the time on the record) on 10 January 2024. Moreover, although F was represented at a subsequent hearing before Francis J on 8 March 2024, his legal team did not dispute service of the committal order. I am satisfied that F was served with, and aware of, the committal order.

It was with breathtaking insouciance that F, without notice to M, on 22 November 2023 persuaded a Master in the King's Bench Division to register, purportedly pursuant to the 2005 Hague Convention on Choice of Court Agreements, an order of the Algerian court granting him custody of Z. It is apparent that F, despite being legally represented, did not provide the Master with the relevant history, including (i) the fact that Z was a ward of court, (ii) the existence of the various return orders and (iii) the committal order. Nor was the Master informed that Algeria was not a signatory to the 2005 Hague Convention and that the said Convention does not apply to family law matters. M was not made aware of these events until 5 January 2024. In the circumstances it is unsurprising that the Master's order was set aside by Francis J on 8 March 2024 at a hearing at which F was legally represented. Francis J described F's behaviour as “astonishing”.

Various welfare orders, and further return orders, were made in respect of Z after the committal order of 2 December 2022; on 20 January 2023 (Mr A Verdan QC), 28 February 2023 (Judd J), 11 May 2023 (Sir Jonathan Cohen), 8 March 2024 (Francis J) and 9 May 2024 (Moor J). In addition, a sequestration order was made against him on 11 May 2023 (Sir Jonathan Cohen).

All orders throughout the proceedings have been sent to by email to a designated email address used by F.

F did not engage with hearings or comply with any orders, save in respect of the Registration of Order proceedings before the Master and Francis J at which he was represented (but did not personally attend).

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