Tanya Borg v Mohammed Said Masoud El Zubaidy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 30 November 2021 |
| Neutral Citation | [2021] EWHC 3227 (Fam) |
| Docket Number | Case No: FD17P00043 |
| Court | Family Division |
[2021] EWHC 3227 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Poole
Case No: FD17P00043
Ms Clare Renton (instructed by Charles Strachan Solicitors) for the Applicant
Mr Gary Crawley (instructed by Landmark Legal LLP) for the Defendant
Hearing dates: 17 and 29 November 2021
This judgment is in respect of the court's findings of contempt of court following a hearing on 17 November 2021 and the court's sentence of the Defendant on 29 November 2021.
Previous court orders have sanctioned publicity with a view to locating the children and their identities have already been revealed in articles in national newspapers and in broadcast media. In the circumstances, I make no reporting restrictions order in this case.
On 24 June 2021, Ms Borg, the Applicant, issued an application for the committal of Mr El Zubaidy, the Defendant, for contempt of court. At the outset of the hearing on 17 November 2021 I advised the Defendant, through his Counsel, that he had the right to remain silent and was entitled, but not obliged, to give written and oral evidence. He did not have to answer questions the answers to which may incriminate him. He has been represented by Mr Crawley, Counsel, and has not required the services of an interpreter.
The alleged contempt of court is by breaches of court orders. Those orders were designed to support orders for the return of two of the parties' children from Libya to the jurisdiction of England and Wales where both their parents live. The two children concerned have been in Libya since being retained there by the Defendant in 2015 and are believed to be currently in the care of their paternal grandmother. The High Court first ordered the return of the children from Libya to this jurisdiction on 26 January 2017. There have been numerous subsequent orders for the return of the children with which the Defendant has failed to comply. The Defendant is familiar with committal proceedings. In August 2017 Moor J sentenced him to 12 months imprisonment for breaching court orders made in proceedings concerned with securing the return of the children from Libya. Whilst out on licence following that period of imprisonment he was in breach of further orders for the return of the children. On 26 February 2018 Mostyn J sentenced the Defendant to a further twelve months imprisonment for contempt of court (deferred for one month to allow the Defendant to comply with the order he had breached). Then, on 15 November 2018, Hayden J sentenced the Defendant to two years imprisonment for contempt, again for breaching orders to secure the safe return of his children.
The current application for the Defendant's committal concerns alleged breaches of two court orders. These orders were designed to allow the Applicant mother to go to Libya to secure the return of the children without the presence of the Defendant. On 8 February 2021 at a hearing at which the Defendant was the respondent father, and the Applicant was referred to as “the mother”, Judd J ordered:
“The respondent father shall use his best endeavours to execute, and to serve upon the mother's solicitor, a duly attested consent to the wards travelling from Libya with the mother without him accompanying them by 4pm on 8th March 2021. The document must be signed, dated, and witnessed by an official of the Libyan Embassy/ Consulate in London.”
On 5 May 2021 at a further hearing concerning return of the children, Russell J ordered:
“The respondent father shall continue to use his best endeavours by 4pm on 15 th June 2021 4.00pm to execute, and to serve upon the mother's solicitor, a duly attested consent to the ward travelling from Libya with the mother without him being in attendance; the said document must be signed, dated, and witnessed by an official of the Libyan Embassy/ Consulate in London.”
Penal notices were attached to both orders. The Applicant alleges that the Defendant has breached those orders and that his breaches constitute contempt of court.
As can be seen from the history of committal applications, there is a long and involved background to the making of the orders which the Defendant is alleged to have breached. The parties have three children. Two are still under 18, one is over 18 but has been declared by the Court to be a vulnerable adult in whose best interests it was to make orders for her return to the jurisdiction of England and Wales. As shorthand I shall refer to those remaining in Libya as “the children”. The youngest of the children is a ward of court. The adult child in Libya is protected under the inherent jurisdiction of the court. The Defendant retained the children in Libya in 2015. The children have therefore been away from their mother and their home country for six years. The Defendant was not released from prison following his previous committals until 15 November 2019. The Applicant travelled to Libya in 2019 and commenced proceedings against the paternal grandmother. The Applicant was awarded custody of the children by a court in Libya which ordered the paternal grandmother to bring the children to court. The paternal grandmother did not comply and went into hiding with the children. Whilst he was in prison the father executed power of attorney in favour of his mother indicating that he knew where she was and was in communication with her. A series of hearings took place in the High Court, Family Division, in November and December 2019 with the purpose of securing the return of the children from Libya. Further return orders were made. Still the children remain in Libya.
Notwithstanding the award of custody of the children to the Applicant mother in the Libyan court, she cannot remove the children from Libya without the Defendant father's consent. He has previously signed a consent form but the mother has been advised that his consent must be given by way of a document signed and attested at the Libyan Embassy, and the document must be translated into Arabic. The Applicant's solicitors duly prepared the necessary consent documents (in English and Arabic) ready for signing and witnessing. They were sent to the Defendant and to the Libyan Embassy in London on 8 January 2021 together with an explanation to the Defendant of what steps he needed to take, namely, to sign the documents before a member of the Libyan Embassy as a witness, and for the witness to sign and date the documents accordingly. The Defendant did not respond to the Applicant's solicitors. The Applicant applied to the court accordingly. The Defendant appeared before Judd J on 8 February 2021 and she made the order set out above, attaching a penal notice. The order records the Defendant's email address and that he consented to service by email of court documents. A sealed copy of the order of 8 February 2021 was sent by the Applicant's solicitors to the Defendant by email on 11 February 2021.
Although Judd J's order refers to the Defendant being required to use his best endeavours to execute and serve a duly attested consent to the “wards” (plural) travelling from Libya with the mother, and only one of the children is a “ward”, the prepared consent documentation clearly refers to both children by name, and the Defendant cannot have been under any misapprehension about what was required of him. No submission otherwise was made on his behalf.
The Defendant did not respond to the order. The Applicant's solicitors wrote to him to warn him that if he did not comply with the order an application for his committal would follow. The case was restored to court and heard by Russell J on 5 May 2021. The Defendant attended remotely and was represented by Counsel. The order set out above was made with a penal notice attached. The wording of Russell J's order refers to “ward” (singular). I proceed on the basis that this order applied only to the younger of the two children who is a ward of court. The order of Judd J remained extant but the order of Russell J did not, on the face of it, refer to the elder child who is not a ward of court. Again, the Defendant's email address was recorded and service of further court documents was ordered to be served on the Defendant at that address in addition to service upon his solicitors.
The Applicant made an application for committal of the Defendant for contempt of court but on 18 May 2021 Peel J noted that the application did not comply with Part 37 of the Family Procedure Rules 2010 and permitted the Applicant to withdraw the application and to issue a fresh application, compliant with the rules, “to commit the respondent for breach of the order of Mrs Justice Judd dated 8 February 2021” by 4pm on 28 June 2021. That application was to be listed for hearing on 21 July 2021.
The Applicant had used Form 78 “Notice to Show Good Reason why an Order for Your Committal to Prison should not be made” notwithstanding that Part 37 of the Family Procedure Rules 2010 introduced revised procedures on 1 October 2020 which do not include any reference to a Notice to Show Cause form or procedure. Rule 37.3 provides that a contempt application made in existing High Court or family court proceedings is made by an application under Part 18 in those proceedings. Furthermore, r.37.4(2) requires that the contempt application must include statements of all of the information and matters set out at sub-paragraphs (a) to (s) of paragraph (2). I have seen Peel J's order and Counsel's note of his ruling. Peel J identified that neither r.37.3 nor r.37(4)(2) had been complied with. Information required to be included in the application could not be found in the application and was only arguably contained within a variety of other documents, including previous court orders, which was clearly a...
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