Young v Young

JurisdictionEngland & Wales
CourtFamily Division
JudgeMr Justice Mostyn
Judgment Date03 February 2012
Neutral Citation[2012] EWHC 138 (Fam)
Docket NumberCase No: FD07D02865
Date03 February 2012
Between:
Scot Young
Applicant
and
Michelle Young
Respondent

[2012] EWHC 138 (Fam)

Before:

Mr Justice Mostyn

Case No: FD07D02865

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

The Applicant appeared in person

Mr Edward Fitzgerald QC, Ms Deborah Bangay QC & Mr Joe Middleton (instructed by DWFM Beckman Solicitors) for the Respondent

Hearing date: 27 January 2012

Mr Justice Mostyn
1

Mr Scot Young ("H") applies for the release of his passport which has 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. It is opposed "with the utmost resolve" by Michelle Young ("W") who seeks a continuation of the impoundment until the final hearing of her claims for financial remedies following divorce which will be heard over 10 days on 12 November 2012 before Moor J. The effect of the current order has been, and will be unless discharged, to confine H to the United Kingdom and the Republic of Ireland. A British citizen does not need a passport to travel to the Republic.

2

When the matter first came before me on 20 January 2012 I was concerned that the issues may give rise to a consideration of the engagement or otherwise of Art 5 European Convention on Human Rights 1950 – the Right to Liberty and Security, which is, of course, one of the rights referred to in s1 of and Sch 1 to the Human Rights Act 1998 (" HRA"). I therefore declined Ms Bangay QC's application for a lengthy adjournment of the application to July 2012, but ordered this matter to be heard one week later on 27 January 2012.

3

H acts in person and has put no written argument before the Court. W is represented by Mr Edward Fitzgerald QC, Ms Deborah Bangay QC and Mr Joe Middleton who have submitted a 24 page written argument accompanied by a thick file of authorities.

4

Before turning to the relevant facts I intend to seek to summarise the relevant legal principles.

5

I agree with the submissions of Mr Fitzgerald that the question of the impoundment of a litigant's passport pending the final trial of the claims for financial remedies following divorce does not specifically engage Art 5 of the Convention. There has been a deal of jurisprudence as to what constitutes a deprivation of liberty for the purposes of Art 5. Recently a sizeable quantity has emanated from the Court of Protection. In A Local Authority v A (A Child) & Anor [2010] EWHC 978 (Fam) Munby LJ stated at para 48:

"It was correctly common ground before me that in determining whether there is a 'deprivation of liberty' within the meaning of and engaging the protection of Article 5(1) three conditions must be satisfied (see Storck v Germany (2005) 43 EHRR 96 at paras [74] and [89] and JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, at para [77]; see also now G v E and others [2010] EWHC 621 (Fam) at para [77] and Re MIG and MEG [2010] EWHC 785 (Fam) at para [151]):

i) an objective element of "a person's confinement to a certain limited place for a not negligible length of time";

ii) a subjective element, namely that the person has not "validly consented to the confinement in question"; and

iii) the deprivation of liberty must be one for which the State is responsible."

6

Thus, in SSHD v AP [2011] 2 AC 1 the Supreme Court held that a control order imposing a 16 hour daily curfew attended by various further restrictions would only amount to a deprivation of liberty for article 5 purposes if there were additional restrictions which gave rise to "significant social isolation", and were "unusually destructive of the life the controlee might otherwise have been living". It is true that in B v B (Injunction: Restraint On Leaving Jurisdiction) [1997] 2 FLR 148 at 154F Wilson J (as he then was) stated that "Mr Mostyn suggests that a restraint upon leaving England and Wales is wholly unlike imprisonment. I disagree", but that was decided before the advent of the Human Rights Act 1998 and without consideration of the Strasbourg jurisprudence. I am clear that the continuation of the order that is sought by W does not engage Art 5 as it does not confine H to a "certain limited place". While a small island did amount to such a "limited place" in Guzzardi v Italy (1980) 3 EHRR 333, the same cannot be said of the British Isles.

7

Equally, I am clear, at least on the fact of this case, that the order sought by W does not engage Art 8. There has been no suggestion in this case that the passport order has restricted H's family life. Mr Fitzgerald submits that the notion of private life is a broad one. It is "primarily intended to ensure development, without outside interference, of the personality of each individual in his relations with other human beings" ( Botta v Italy (1998) 26 EHRR 241). The development of relationships with others includes not only personal relationships but also professional and business activities.

8

The implications of retaining a passport under article 8 were recently considered by the Administrative Court in R (Atapattu) v SSHD [2011] EWHC 1388 (Admin). In that case, the British High Commission in Sri Lanka had failed to return the claimant's passport, despite repeated requests for its return. The claimant claimed damages inter alia for breach of his right to respect for private life under article 8. His ability to work as a seaman was hampered, but there was no evidence that he was unable to work at all. This was relevant because article 8 does not give a right to choose one's particular occupation. Nor was there any other evidence "that the withholding of his passport had any other particular effects on the ability of Mr. Atapattu to enjoy his private life, on his relations with other human beings or on his personal development" (para. 150). There was accordingly no interference with respect for his private life.

9

In Atapattu the Court further held the retention of the claimant's passport did not amount to a violation of article 1 of Protocol 1 (Right to Protection of Property). This was on the basis that a passport is an intangible object with no marketable or monetary value and accordingly, on the authorities, is not a possession within the meaning of Article 1, Protocol 1 (paras 160–174).

10

Mr Fitzgerald also drew to my attention the right to freedom of movement under article 2 of Protocol 4 of the ECHR and its verbatim reproduction in Article 12 of the International Covenant on Civil and Political Rights. This states that "everyone shall be free to leave any country, including his own." But the UK has not ratified Protocol 4 and none of the rights mentioned there are "Convention rights" under the HRA 1998, s. 1(1). The International Covenant on Civil and Political Rights has not been incorporated into our domestic law.

11

Before parting from the ECHR 1950 I want to make a basic point. Lord Bingham of Cornhill has written that "it would of course be a travesty to suggest that people living in this country enjoyed no rights until 2 October 2000 when the Act came into force throughout the UK" ( Lives of the Law, OUP 2011, p178). It is well known that the draftsman of the Convention sought to express in a straightforward code the rights already largely bestowed on the citizens of this country by common law, statute and Royal Charter. As was said during argument we like to think of ourselves as one of the freest peoples in the world. While our rights and freedoms were not all collected in one place, and were in many instances differently expressed from the language used in the Convention, we had them nonetheless. A high right is the liberty of the subject, which encompasses freedom of movement, and which was historically guaranteed by the judiciary by means of the ancient writ of habeas corpus. So the non-engagement of Arts 5 and 8 does not mean that when considering an application to impound a person's passport, questions concerning the liberty of the subject do not loom large. Far from it. As will be seen this is, and always has been, as key question in deciding whether to grant relief of this nature. As long ago as 1628 Sir Edward Coke declared that "the law favours liberty" (Institutes of the Laws of England, First Part (London, 1628) p124b.

12

Historically a restriction on the right of a citizen to leave the country in order to aid the prosecution of a law suit was effected by means of the issue of the writ ne exeat regno. The history of the writ was explained in a pellucid judgment of Megarry J (as he then was) in Felton v Callis [1969] 1 QC 200. Before 1869 at law a litigant had available the power of arrest and in this way a defendant could be coerced into giving bail. Equity lacked this power and came to adopt and adapt the writ ne exeat regno to achieve the same result. In Ex parte Brunker (1734) 3 P Wms. 312 at pp 314 Lord Talbot LC stated:

"…this writ should be taken out and granted with caution, as it deprives the subjects of their liberty: neither ought it to be made use of, where the demand is entirely at law; for there the plaintiff has bail; and he ought not to have double bail, both at law and in equity"

13

I note the early reference there to the use of the writ depriving a subject of his liberty.

14

In 1869 Parliament restricted the powers of the court to imprison for debt by passing the Debtors Act. The liberty favoured by the law had not extended much in favour of debtors, who were liable to indefinite incarceration in debtors' prisons. A specific...

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  • Re B (A Child) (removal from jurisdiction: removal of family’s passports as coercive measure)
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    • Court of Appeal (Civil Division)
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    ...paid within that period the matter must then be returned before me before any warrant of execution may be issued. 51 In my decision of Young v Young [2012] Fam 170 I attempted to summarise the law in relation to passport impoundment orders. It was implicit in my reasoning that the modern fo......
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    • Family Division
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    • 22 Noviembre 2013
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2 books & journal articles
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    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • 18 Junio 2013
    ...99 O.R. (3d) 695, 311 D.L.R. (4th) 755, [2009] O.J. No. 3689 (S.C.J.) ..................................... 169 Young v. Young, [2012] EWHC 138 (Fam.)........................................................ 132 Youyang Pty. Ltd. v. Minter Ellison (2003), 212 C.L.R. 484 (H.C.A.) ..................
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    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • 18 Noviembre 2023
    ...(2009), 99 OR (3d) 695, 311 DLR (4th) 755, [2009] OJ No 3689 (SCJ) ............................................. 253 Young v Young, [2012] EWHC 138 (Fam) ......................................................... 206 Youyang Pty Ltd v Minter Ellison (2003), 212 CLR 484 (HCA) ......................

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