Tomas Palacin Cambra v Jennifer Marie Jones and Another
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] EWHC 2264 (Fam) |
| Docket Number | Case No: FD12P02046 |
| Court | Family Division |
| Date | 09 July 2014 |
[2014] EWHC 2264 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby President of the Family Division
Case No: FD12P02046
Mr James Turner QC and Mr Edward Devereux (instructed by Dawson Cornwell) for the applicant
Mr Christopher Hames and Ms Laura Morley (instructed by Miles & Partners) for the first respondent
Mr David Williams QC (instructed by Brethertons LLP) for the second respondent
Hearing dates: 30 April, 1–2 May 2014
Sir James Munby, President of the Family Division:
This is the latest application in a bitterly contested private law (Hague Convention) dispute. It is the fourth judgment I have given. Many judgments have previously been given by other judges, both in this country and in Spain. One to which I need to refer is a judgment given by Theis J on 25 January 2013: Cambra Jones [2013] EWHC 88 (Fam), [2014] 1 FLR 5.
The first two judgments I gave were each delivered on 21 August 2013: The Solicitor General v J M J (Contempt) [2013] EWHC 2579 (Fam), [2014] 1 FLR 852, and Re Jones (No 2) [2013] EWHC 2730 (Fam). In the first of these judgments I explained why I had dismissed an application by Her Majesty's Solicitor General for the committal to prison of the first respondent (the mother) for breach of an order made by Hedley J on 9 October 2012. That order had required the mother, amongst other things, to return the second respondent (Jessica) and her younger brother Tomas (Tomas) to Spain. In the second judgment I explained why I was making a further order requiring the mother to return Jessica and Tomas to Spain.
The time for compliance with that order has expired. Neither Jessica nor Tomas has returned to Spain. The father, by application dated 29 January 2014, sought the committal of the mother for breach of my order. The hearing of the father's application had been listed for hearing on 6 March 2014. Very shortly before, notice was given by solicitors for Jessica that she wished to take part and be represented at the hearing of the committal application. Mr David Williams QC appeared on her behalf to make that application. His application was supported by Mr Christopher Hames on behalf of the mother but resisted by Mr James Turner QC and Mr Edward Devereux on behalf of the father. After hearing argument I decided that Jessica should participate as a party to the committal proceedings: Cambra v Jones [2014] EWHC 913 (Fam). That necessitated an adjournment of the hearing, which was re-fixed for 30 April 2014. At the same time I gave the father permission to amend his application to seek in addition the mother's committal to prison for breach of an order I had made on 20 August 2013 requiring her to bring the children to London next day. Neither child was brought to London.
Jessica was born in January 1998, and was therefore 15 years old in the autumn of 2013; Tomas was born in January 2000, and was therefore 13 years old. Jessica and Tomas had been joined as parties to the Hague proceedings in January 2013. Both were interviewed by the immensely experienced Mr John Mellor. There is a transcript of the evidence that Mr Mellor gave to Theis J on 30 November 2012. His evidence focused upon the wishes and feelings of Jessica and Tomas as expressed to him in interviews the day before. The whole of that transcript requires careful reading. I illustrate the high points by reference to a small number of particularly striking passages.
Mr Mellor recorded that:
"the children chorused emphatically right from the outset that there was no way they were going back to Spain … they were resolute. Each individually in their different ways remained steadfastly so throughout the time I spent with them."
Quoting what he had been told by Tomas, Mr Mellor said:
"He was absolutely insistent he wouldn't co-operate. He said: You'd have to tie me up; you'd have to drug me'."
Jessica is similarly recorded by Mr Mellor as having said to him:
"I don't think anyone in this country is going to drag me kicking and screaming, they're not going to drug me, they're not going to put me in handcuffs. I'm not going to get on that plane. Once I get to Spain, if I'm not legally allowed to live with my mum here in Wales, they won't let me get on a plane to come back home."
Summarising matters Mr Mellor said:
"I see no prospect of anyone prevailing upon them at this stage, in their current frame of mind, to comply with the orders that have been made for their return … The resistance shown by these children is exceptional, in my experience."
Coming from someone with Mr Mellor's vast experience, that last observation is striking.
Mr Mellor further assisted Theis J with a written report dated 10 January 2013, recording a further interview with the children on 8 January 2013:
"Both were emphatic; they felt exactly the same, under no circumstances did either wish to return to Spain. Neither could identify anything anyone could do or say that might lead them to change their minds. Both stated their absolute determination to resist any steps to make them go back."
He summarised his reading of the situation as follows:
"I remain of the view that in their present frame of mind, it is extremely unlikely that Jessica and Tomas can be prevailed upon to return to Spain. Though others, notably the father, may have constructive, practical suggestions to make, for my part I cannot identify any means by which their compliance might be secured."
One of the consequences of the children not being brought to London on 21 August 2013 was that Mr Mellor was not able to speak to them again as I had intended.
Much of the responsibility for this unhappy state of affairs undoubtedly rests on the mother, who in very significant part bears responsibility for the children's intransigence and for what Theis J aptly described ( Cambra v Jones [2013] EWHC 88 (Fam), [2014] 1 FLR 5, para 54 (2)) as "this fractured family." Theis J's verdict on the mother was scathing. She said (para 40):
"In my judgment the harsh reality is that both Jessica and Tomas have been fundamentally let down by their mother by her refusal to comply with the court order requiring them to return to Spain. She has put them in an impossible situation which has resulted in them being physically separated from their siblings, with whom they have always lived and clearly have a close relationship with. Her actions have, in my judgment, fractured those significant relationships to the long term detriment of all the children. Despite the orders in place in the Spanish courts and the attempts by this court and the Court of Appeal, together with undertakings offered by the father to ensure the return would take place with no risk to the mother of further proceedings on her return to Spain she has, wholly unreasonably in my view, refused to exercise her parental responsibility in relation to Jessica and Tomas in such a way that would assist and support them to return to Spain and be re-united with their father and siblings."
She added this (para 54(2)):
"The mother is to be deprecated for the position she takes. She has, in my judgment, abdicated her parental responsibility for these children and she will have to answer to them and their siblings in due course. I do not see her position now in isolation, it has been part of a concerted campaign by her over a number of years to thwart and undermine the legitimate orders made regarding the welfare of these children in Spain."
Theis J also recorded the mother's expressed attitude. Referring to a hearing on 9 November 2012 (para 25), "the mother said, in effect, she was not going to accompany Jessica and Tomas back to Spain." Referring to the hearing on 16 January 2013 (para 43), she recorded the mother's instructions to her counsel:
"his instructions are the mother will not return to Spain and will not take any steps to return Jessica and Tomas to Spain … Mr Hames' express instructions are that the mother will not take any steps to comply with any order made requiring her to encourage Jessica and Tomas to return to Spain."
Nothing I have read, seen or heard since I first became involved in this unhappy case has done anything but strengthen my conviction that Theis J was entirely correct in her analysis. I expressly associate myself with what she said in the various passages I have quoted.
The mother denies that she is in contempt. Put very shortly, her case is that it was "impossible" for her to bring Jessica and Tomas to London on 21 August 2013 and that it has been "impossible" for her to compel them to return to Spain. As a matter of law, it is not for her to prove this assertion; it is for the father to disprove it and, moreover, to the criminal standard of proof: see Re A (Abduction: Contempt) [2008] EWCA Civ 1138, [2009] 1 FLR 1, Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2010] EWCA Civ 1253, [2011] 1 FLR 1095, and The Solicitor General v J M J (Contempt) [2013] EWHC 2579 (Fam), [2014] 1 FLR 852.
For present purposes it suffices to repeat what I said in Re L-W, para 34:
"(1) The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law. (2) The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopt Hughes LJ's language [in Re A], Could he do it? Was he able to do it? These are questions of fact. (3) The burden of proof...
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