Young and Young

JurisdictionEngland & Wales
Judgment Date2012
Date2012
CourtFamily Division

Divorce – Financial provision – Ancillary relief – Non-disclosure – Power to impound passport – Husband being made bankrupt – Wife alleging that bankruptcy fraudulent – Husband being found in contempt of court for breaching orders for disclosure – Husband’s passport being impounded – Husband failing to comply with order for maintenance pending suit – Husband applying for return of passport, allegedly to conduct charity work in Africa – Wife opposing return – Whether appropriate to order continuation of passport’s impoundment – Human Rights Act 1998, Sch 1, Pt I, arts 5, 8.

The wife sought ancillary relief following her divorce from the husband, who claimed to be bankrupt to the tune of tens of millions of pounds. The wife claimed that he had secreted away hundreds of millions of pounds and that the bankruptcy was fraudulent. At one of the hearings, the husband gave evidence to the effect that he continued to live at his London flat, the monthly rent of £4,000, as well as the council tax and utility bills, being paid by his friend. He also admitted to carrying around cash of £300–400 and to having received substantial cash gifts from ‘friends’, citing amounts of £10,000, £7,000 and £5,000. His passport was impounded by the court, and held by the tipstaff, pursuant to a sequence of eight orders beginning in March 2009 and culminating in September 2009. The effect of the orders was to confine the husband to the United Kingdom and the Republic of Ireland. The application for the seventh order had been part and parcel of an overall enforcement application made by the wife referable to the husband’s breach of earlier disclosure orders. On 29 June 2009, the husband had been held in contempt of court for his failure to comply with prior orders for disclosure requiring him to answer in full a supplementary questionnaire dated 25 July 2008. He was sentenced to six months in prison suspended for 92 days, the condition of suspension being that he reply in full to the supplementary questionnaire within that period. The order of committal contained a provision requiring the tipstaff to continue to retain his passport until the next hearing on 28 September 2009. At that hearing, an order was issued which recorded the husband’s undertaking to answer the supplementary questionnaire by 9 November 2009 and to give weekly updates of his endeavours to do so. An order was made by consent impounding his passport ‘until further order’. On 9 November, the husband delivered his reply to the wife’s questionnaire accompanied by 50 files of documents. In an affidavit dated 10 November in support of an application for release of his passport (which was not pursued at that time), the husband

stated ‘I believe I have substantially complied with [the judge’s] order’. The wife’s solicitors wrote to the husband’s solicitors on 19 November making a series of complaints about his disclosure. Although a reply from his solicitors dated 16 December claimed that the husband would use his best endeavours to answer the questions raised, nothing further was forthcoming. On 17 December, another judge determined the wife’s application for maintenance pending suit. She found that the husband had the resources to pay a substantial maintenance to the wife, and ordered that he pay the wife’s rent, school fees for the children and maintenance at £27,500 per month. The husband did not appeal that order, but paid nothing thereunder. At a hearing on 20 January 2012, the husband claimed that he had given the replies to the questionnaire ‘some two years ago’. He stated that he felt that he had fully complied with all requests for information made of him and sought the release of his passport, allegedly so that he could help a friend to set up a charity in Africa. The wife sought a continuation of the impoundment until the final hearing of her claims for financial remedies, which was fixed for November 2012. She submitted that she intended to send a fresh set of highly searching questions to the husband for information and documents, and that the prosecution of her claims would be materially prejudiced were the husband not to be present. An issue arose, inter alia, as to whether arts 5 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) were engaged.

Held – The question of the impoundment of a litigant’s passport pending the final trial of the claims for financial remedies following divorce did not specifically engage art 5 of the Convention. The continuation of the order that was sought by the wife did not engage art 5 as it did not confine the husband to a ‘certain limited place’. It was also clear, at least on the facts of the instant case, that the order sought by the wife did not engage art 8; there had been no suggestion that the passport order restricted the husband’s family life. However, the non-engagement of arts 5 and 8 did not mean that, when considering an application to impound a person’s passport, questions concerning the liberty of the subject did not loom large. Such questions had always been key in deciding whether to grant relief of the instant nature. The power to impound a passport pending the disposal of a financial remedy claim existed in principle in aid of all the court’s procedures leading to the disposal of the proceedings, but it involved a restriction of a subject’s liberty and therefore needed to be exercised with caution. The established authorities emphasised the short-term nature of the restraint; the law favoured liberty. The applicant had to establish a good cause of action for a substantive award, and that there was probable cause for believing that the respondent was about to quit the jurisdiction unless he was restrained. Furthermore, the applicant had to establish that the absence of the respondent from the jurisdiction would materially prejudice her in the prosecution of her action. Provided that those principles were carefully

observed, a passport impounding order would represent a proportionate public policy based restraint on freedom of movement founded on the personal conduct of the respondent. In the instant case, the husband remained in contempt of court. He was grossly in contempt in relation to his maintenance obligations and it was not an excuse for him to rely on his bankruptcy. The finding of the previous judge that the husband was in contempt of court in relation to his disclosure obligations remained extant. It was for him to show that he had fully complied with his disclosure obligations, and not for the wife to show that he had not. A mantra that ‘I believe I have complied’ did not amount to a clear demonstration of compliance. In the circumstances, it was clear that the wife had established a good cause of action for a substantive award. The husband was plainly about to quit the jurisdiction; his asserted intention to travel to Africa to engage in charity work was highly implausible, and there had to be some ulterior reason for his wish to leave the country. Were the husband to depart, the wife would be materially prejudiced in the prosecution of her claim for financial remedies. The only concern was whether a restraint for a further nine months until the final trial could comfortably sit with the emphasis on the short-term nature of the restraint referred to in the authorities. Such a period of time was at the extremities of the court’s powers, but on the exceptional facts of the case it was justified, provided that it was accompanied by a liberty to the husband to again apply for a discharge. The husband’s application would, accordingly, be dismissed (see [5]–[7], [11], [26], [30]–[34], below).

Cases referred to in judgment

A, Re (Equity and Human Rights Commission intervening)[2010] EWHC 978 (Fam), [2010] 2 FLR 1363.

B v B (injunction: restraint on leaving jurisdiction) [1997] 3 All ER 258, [1998] 1 WLR 329, [1997] 2 FLR 148.

Bayer AG v Winter [1986] 1 All ER 733, [1986] 1 WLR 497, CA.

Botta v Italy (1998) 4 BHRC 81, ECt HR.

Brunker, Ex p (1734) 3 P Wms 312.

Colverson v Bloomfield (1885) 29 Ch D 341, CA.

Felton v Callis [1968] 3 All ER 673, [1969] 1 QB 200, [1968] 3 WLR 951.

G v E[2010] EWHC 621 (Fam), [2010] 2 FLR 294.

Guzzardi v Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, ECt HR.

JE v DE (by the official solicitor)[2006] EWHC 3459 (Fam), [2007] 2 FLR 1150.

MIG, Re[2010] EWHC 785 (Fam).

Ministerul Administratiei si Internelor–Directia Generala de Pasapoarte Bucuresti v Jipa Case C-33/07 [2008] ECR I-5157, ECJ.

R (on the application of Atapattu) v Secretary of State for the Home Dept [2011] EWHC 1388 (Admin), [2011] All ER (D) 20 (Jun).

S v S (ancillary relief: preliminary hearing of oral evidence)[2004] EWHC 2376 (Fam), [2005] 1 FCR 494, [2005] 1 FLR 675.

Secretary of State for the Home Dept v AP[2010] UKSC 24, [2010] 4 All ER 245, [2011] 2 AC 1, [2010] 3 WLR 51.

Storck v Germany (2005) 43 EHRR 96, [2005] ECHR 61603/00, ECt HR.

Thaha v Thaha [1987] 2 FLR 142.

Application

Scot Young applied for the release of his passport which had been impounded by the court, and held by the tipstaff, pursuant to a sequence of eight orders which started with an order of Hogg J dated 12 March 2009 and culminated in a consent order made by Parker J on 28 September 2009. The application was opposed by Michelle Young. The facts are set out in the judgment of Mostyn J.

The husband appeared in...

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4 cases
  • Re B (A Child) (removal from jurisdiction: removal of family’s passports as coercive measure)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 June 2014
    ...[1987] 2 FLR 142, Re J (a minor) (wardship) [1988] 1 FLR 65, Re S (financial provision: non-resident)[1996] 1 FCR 148 and Young v Young[2012] 2 FCR 83 considered; dicta of Wilson J in B v B (injunction: restraint on leaving jurisdiction) [1997] 3 All ER 258, dicta of Munby J in Re A, A v A[......
  • Smruti Dharmesh Bhura v Dharmesh Dwarkada Bhura
    • United Kingdom
    • Family Division
    • 17 December 2012
    ...EWCA Civ 1379, [2012] 3 FCR 491, [2013] 1 FLR 1121. Mubarak v Mubarak [2001] 1 FLR 698, CA. Young v Young[2012] EWHC 138 (Fam), [2012] 2 FCR 83, [2012] Fam 198, [2012] 3 WLR 266, [2012] 2 FLR ApplicationOn 31 August 2011, Judge Kristina Blum, sitting in the Superior Court of Gwinnett County......
  • Michelle Danique Young v Scot Gordon Young
    • United Kingdom
    • Family Division
    • 22 November 2013
    ...by Mostyn J on 27 January 2012. On 3 February 2012, he refused the application. His judgment is to be found at [2012] EWHC 138 (Fam), [2012] 2 FCR 83, [2012] Fam 198. He did so, in part, on the basis that the final hearing of the case was to take place in October of that year. He did, howev......
  • M (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 14 February 2017
    ...Re [1994] 2 FLR 479. L (a child), Re, Oddin, Re[2016] EWCA Civ 173 (22 March 2016, unreported). Young v Young[2012] EWHC 138 (Fam), [2012] 2 FCR 83, [2012] Fam 198, [2012] 3 WLR 266, [2012] 2 FLR The father appealed, pursuant to permission granted by McFarlane LJ on 25 November 2016, from a......

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