The Queen (on the Application of Nicolaou) v Redbridge Magistrates' Court The Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Lord Justice Richards |
| Judgment Date | 20 June 2012 |
| Neutral Citation | [2012] EWHC 1647 (Admin) |
| Docket Number | Case No: CO/12018/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2012 |
and
[2012] EWHC 1647 (Admin)
Lord Justice Richards
and
Mr Justice Collins
Case No: CO/12018/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alper Riza QC (instructed by Clive Sutton, Solicitor) for the Claimant
Miss Adina Ezekiel (instructed by the Crown Prosecution Service) for the Interested Party
This case raises a short point on the construction of section 1 of the Child Abduction Act 1984 (“the 1984 Act”), whereby a person connected with a child under the age of sixteen commits an offence “if he takes or sends the child out of the United Kingdom without the appropriate consent”. Is an offence committed if the appropriate consent is given for the child to be removed from the United Kingdom for a defined period but the child is kept out of the United Kingdom after the period has expired and the appropriate consent no longer exists?
The facts
The claimant is Mr Nicholas Nicolaou. He and his wife have a son who was born in England in January 2000 and is therefore now 12 years of age. The family originally lived together in England but at some point the claimant went to live in Cyprus, where he was periodically visited by his wife and son. At Christmas 2005, the claimant and his wife separated and the wife returned to live in England with the son. The claimant remained in Cyprus.
The issues of residence and contact were subsequently resolved by a consent order in the Ilford County Court in October 2006. Upon the claimant providing an undertaking to his wife as to the return of the son from any staying contact out of the jurisdiction, it was ordered that the son was to reside with her but that the claimant was to be granted reasonable access, to include staying contact with him in Cyprus. The order also made provision for the first such staying contact, a period of two weeks in October 2006. The first staying contact took place without problem, as did a second, in April 2007.
Provision for a third staying contact was made by an order of the Ilford County Court dated 13 July 2007, as varied by an order dated 24 July 2007. Those orders were further varied by an order dated 10 August 2007 so as to provide that the mother was to make the son available for contact between 10 and 31 August for the purposes of a visit to Cyprus. In accordance with that order, the son travelled to Cyprus to stay with the claimant. He was accompanied on the journey by his paternal grandfather.
The problems arise out of the fact that the son was not then returned to the United Kingdom by the end of the period of staying contact permitted by the court order, and indeed has been kept out of the country since that time. The claimant says that the son did not want to return, but it is not relevant to go into the reasons for the failure to return him, which have been examined in some detail already in separate proceedings in Cyprus and this country.
In October 2007, in Hague Convention proceedings, the Larnaca Family Court found that the son had been unlawfully retained by the claimant and ordered him to be returned immediately. That order was upheld by the Supreme Court of Cyprus in December 2008. It seems that its enforcement was prevented by the claimant taking the son into Northern Cyprus or going into hiding.
In January 2009 the son was made a ward of the English High Court; and in February 2009 Macur J ordered him to be returned forthwith. In July 2009 the claimant sought formal assurances that if he returned with the son to this country, the son would not be separated from him pending a CAFCASS assessment and a first court hearing. That issue was considered by Holman J at a hearing in October 2009. A police officer who attended the hearing indicated that there was a likelihood that if the claimant entered the United Kingdom he would be arrested and charged with an offence under the 1984 Act. The judge adjourned the case so to allow for the possibility of negotiations aimed at securing an indemnity against sanctions if the claimant brought the son back to the United Kingdom.
Evidently, however, nothing came of that possibility. On 17 November 2009 the police obtained from Redbridge Magistrates' Court a warrant for the claimant's arrest. The claimant has been unable to obtain a copy of the warrant and those representing the CPS were unable to produce one for our inspection. The whole case has proceeded, however, on the basis that the claimant's arrest was sought in connection with an offence under section 1 of the 1984 Act arising out of the matters summarised at paras [4]-[5] above. On the basis of the domestic warrant, an international arrest warrant was subsequently taken out.
The claimant's contention is that the domestic warrant should not have been issued, on the ground that no offence under section 1 of the 1984 Act is disclosed by the matters summarised above: the son was taken out of the United Kingdom with the appropriate consent, and the section does not bite on the failure to return him thereafter. The matter came before District Judge Woolard, sitting at Redbridge Magistrates' Court, on 14 September 2011. He treated it as the hearing of an application to withdraw the warrant, noting that the claimant had not had an opportunity to be heard at the time when the warrant was issued. But he declined to withdraw the warrant, being satisfied that the situation was capable of falling within section 1 of the 1984 Act.
The claimant now applies for judicial review of that decision. Permission was granted by Irwin J on the papers. We are told that an application was also made to the magistrates' court, on a precautionary basis, to state a case to this court. Nothing came of that application. But the issue raised on the claimant's behalf can be dealt with satisfactorily by way of judicial review and there is no procedural objection to the way the matter has come before us.
The statute
The material provisions of the 1984 Act in its current form (as amended in particular by the Children Act 1989 and the Adoption and Children Act 2002) are these:
“ Offence of abduction of child by parent, etc.
1.(1) Subject to subsections (5) and (8) below, a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.
(2) A person is connected with a child for the purposes of this section if –
(a) he is a parent of the child ….
(3) In this section ‘the appropriate consent’, in relation to a child, means –
(a) the consent of each of the following – (i) the child's mother; (ii) the child's father, if he has parental responsibility for him; (iii) any guardian of the child; (iv) any person in whose favour a residence order is in force with respect to the child; (v) any person who has custody of the child; or
(b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989 ….
(4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if –
(a) he is a person in whose favour there is a residence order in force with respect to the child, and he takes of sends him out of the United Kingdom for a period of less than one month; or
(b) he is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months.
(4A) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989.
…
Offence of abduction of child by other persons
2.(1) Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below, commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen –
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.
(2) The persons are –
(a) where the father and mother of the child in question were married to each other at the time of his birth, the child's father and mother ….
Construction of reference to taking, sending and detaining
3. For the purposes of this Part of this Act –
(a) a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken;
(b) a person shall be regarded as sending a child if he causes the child to be sent;
(c) a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person ….”
We enquired at the hearing whether there existed any background information that might assist in relation to the legislative policy behind section 1. In response to that enquiry, Miss Ezekiel (who appeared on behalf of the CPS before us, as she did...
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R v Diana Bercuci
...a period of less than one month. However, as the case of The Queen (on the Application of Nicolaou) v Redbridge Magistrates' Court [2012] EWHC 1647 (Admin) makes clear at paragraph 24, the way in which the statute operates is that an offence is prima facie committed when the child is remov......