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Home > Judgments > 2013 archive

Button v Salama [2013] EWHC 2974 (Fam)

High Court application made within Wardship proceedings for Respondent’s committal to prison.

See also: Button and Salama [2013] EWHC 2972 (Fam)

The case concerned a 6 year old girl who, having been taken to Egypt on holiday by both parents in December 2011, was removed from the mother's care and placed with the paternal family by the father. The mother returned to England without her, followed, about a year later, by the father.

The mother started proceedings in which the child was warded and various orders were made (to which a penal notice was attached) including orders requiring the father to return the child to the jurisdiction, to disclose details of her whereabouts and the arrangements for her care and to lodge his passports with the Tipstaff.

The father's non compliance resulted in his committal to prison, where he had remained since January 2012.

In January 2013, Cobb J committed him to prison for a further 6 months and made fresh orders reaffirming the obligations with which the father was to comply.  No compliance having been forthcoming,the case came  before Wood J in July 2013 on the mother's application to show cause.

In considering the matter, Wood J gave himself a Lucas warning and reminded himself that :-

-  he was not trying a child abduction case

-  that the burden of proof lay with the applicant,

- that the standard of proof was that of the criminal jurisdiction (ie beyond reasonable doubt) and that,

- for the purposes of penalty, any breaches found must be new and settled breaches from those previously dealt with.

Having set out in detail the obligations placed on the father by the order of Cobb J, Wood J went on consider the evidence, finding the mother to have been truthful, but the father to have been "shifty, evasive and plainly dishonest". Moreover, the father's defence (that his family had "closed ranks" against him and that the means of compliance were therefore outside his control) was "bogus"  and "designed to mislead the court".

Accordingly, having found that there had been breaches of the orders of Cobb J, he then went on to consider sentencing.

It was argued on behalf of the father (citing Article5 of the ECHR incorporated as Schedule 1 of the Human Rights Act 1998) that the breaches under the current application were (a) repetitions of previous breaches for which punishment had already been meted out and (b) that further punishment for the "same offences" would be disproportionate.

Both parties' counsel referred (inter alia) Re W (Abduction – Committal) [2012] 2FLR 133. Wood J was of the view that the correct approach to follow was that taken that case (in which the trial judges had drawn attention to sentences passed in the criminal jurisdiction as a "cross check" when determining proportionality in sentencing).

Father's counsel urged caution against punishing more than once on the same facts and sought to suggest that the fact that the judgment in Re W contained no reference to Article 5, rendered reliance on that case unsafe.

Rejecting both arguments, Wood J found that he was dealing with "fresh contempts based on a fresh order relating to a different period of time on fresh facts" and that, as he was bound by Re W,  any issue with it (right or wrong) would have to be taken up elsewhere.

Although noting that the father had serve 18 months in prison, he did not consider that it would be disproportionate to sentence him further.

Accordingly, he sentenced the father to four sentences of 6 months each for separate breaches, all to be served concurrently, consecutive to the sentence previously given by Cobb J.

(No separate penalty was imposed for a breach found in relation to failure to surrender his  passports as, despite his "egregious" non compliance, they had been retrieved by other means and an additional penalty would have served no purpose.)

Finally, Wood J made further orders, including directions for the matter to be returned to court before the expiry of the sentence now imposed, with, if necessary, another show cause notice being issued.

Summary by Katy Rensten, barrister, Coram Chambers


________________________


Case No. FD12P00013
Neutral Citation Number: [2013] EWHC 2474 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Date: Tuesday, 2nd July 2013

Before:

MR. JUSTICE RODERIC WOOD
(In Open Court)

B E T W E E N:

BUTTON Applicant

- and - 

SALAMA Respondent
- - - - - - - - - - - - - - - - - - - - -

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel:  020 7831 5627    Fax:  020 7831 7737
info@beverleynunnery.com
- - - - - - - - - - - - - - - - - - - - -

MR. M. JARMAN  appeared on behalf of the Applicant.
MS. G. ALLWOOD
appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T (Approved)
MR. JUSTICE RODERIC WOOD:
 
1. On 15th January this year Cobb J. made an order in wardship proceedings concerning a little girl, Elsa, born on 2nd February 2007 and thus now 6 years of age.  I shall refer below in fuller terms to that order which has now led to the mother of Elsa she being the applicant in wardship proceedings) to issue a notice to show cause dated 20th June this year why the father of Elsa, who is the respondent in the wardship proceedings, should not be committed to prison for alleged breaches of the order. 

2. This is not the first time the father has faced such an application.  There have been a number of orders by different judges including, but not limited to, His Honour Judge Mitchell sitting as a Deputy Judge of the division on 20th January last year and 8th February last year and my own order of 7th March last year.  In consequence of the father's persistent breaches of the terms of the orders made from time to time he has now been committed to prison continuously since January 2012. 

3. The background is set out succinctly in the judgments on file of in particular His Honour Judge Mitchell of 11th January last year, 20th January last year, 8th February last year and my own of 7th March last year.  In addition, Cobb J. gave a further succinct judgment on 15th January this year.  I do not, in the light of the availability of those documents, repeat the history in detail.  In short form, both parents took Elsa in December 2011 for a holiday to Egypt, the land of the father's birth, so that Elsa could enjoy some time by the sea with some of her paternal relatives.  Whilst there, it would appear the parents had a serious disagreement.  It is the mother's case that the father removed Elsa from her care in the last days of December 2011.  Elsa was placed by the father with his own family and, in particular, his mother.  Perforce, she says, that this mother had to return to England alone.  She has not seen nor been allowed to speak to Elsa since that time.  It is the father's case that the mother in fact at one point consented to Elsa remaining in Egypt.  I am not, I remind myself, trying a child abduction case. 

4. The father also returned to England in late December or early January 2012 leaving Elsa with his family in Egypt.  There she remains. 

5. Proceedings were commenced by the mother but in the course of them various orders have been made requiring the father, amongst other obligations, to return Elsa or cause her to be returned to his jurisdiction.  He has not done so.  I shall summarise his defence to this agreed failure as well as his defence to other alleged breaches of the order of Cobb J. on 15th January this year for I remind myself that it is only with those alleged breaches of that order with which I am concerned. 

6. Before doing so I should mention some basic principles.  The burden of proving breaches lies on the applicant mother.  The standard of proof is that applied in the criminal jurisdiction, namely that I have to be sure of guilt and/or in this case of course breach.  The civil standard of proof has no part in committal proceedings. 

7. The father gave evidence as indeed did the mother briefly.  When considering their evidence, and when I consider that they or either of them are lying to me, I have given myself what is known in the criminal jurisdiction as a Lucas warning with all that that implies.  In this brief judgment it is unnecessary to spell out that direction in full.  Suffice it to say that I have given myself the same warning in evaluating their evidence if and when I consider it to be untruthful as is given to a jury. 

8. Should breaches be established to the appropriate standard I have reminded myself that they must for the purposes of penalty, if any, be new and settled breaches from those previous breaches of the orders of January, February and March of last year.  I shall return to that subject later. 

9. What were the relevant obligations placed upon the father by the order of Cobb J. on 15th January?  In paragraph 3 of that order the father is required by 4:00 pm on 7th June of this year to file and serve a statement detailing the following:

(i)  Current circumstances of Elsa in Egypt.

(ii)  Current care arrangements of Elsa in Egypt.

(iii)  The financial provision for Elsa whilst in Egypt.

(iv)  The address at which Elsa resides in Egypt.

(v)   The current school at which Elsa attends.

(vi)  The address and contact details of the school detailed in (v) above.

(vii) Details of arrangements and proposals to ensure the safe return of Elsa to this jurisdiction whether by herself or in the company of any other person.

(viii) His compliance or non-compliance with this order. 
In paragraph 4 there is imposed upon him obligation to forthwith and immediately[sic] return or cause the return of the minor child, Elsa, to the jurisdiction of England and Wales.  In paragraph 5 he is subject to an obligation to forthwith and immediately confirm the following information to the mother's solicitor who is then named:

(i)  The current location and address of Elsa.

(ii) The person who has the full primary care of Elsa at the present time. 

(iii) A direct contact telephone number for the person with the full time care of Elsa in order that the applicant mother may speak directly to her daughter.

(iv) The current school name, school address and school contact details of Elsa's school in Egypt.

(vi)  The obligation upon the father is to forthwith and immediately arrange for the mother to speak directly by telephone or Skype to Elsa from time to time. 

(vii)  The obligation placed upon him is to forthwith immediately lodge or cause to be lodged with the Tipstaff his English and Egyptian passports by posting them or causing them to be posted by special recorded delivery to the Tipstaff and the address is then given.  A penal notice was attached to those obligations.  There were further directions relating to an obligation on the mother's solicitors by a certain date to file and serve a notice to show cause and directions leading to the hearing which began before me yesterday, and which concludes today, relating to the notice to show cause.

10. The father has not complied with any of these obligations.  His defence is that his family have closed ranks against him and refuse to assist him in complying with any of the above, have now moved homes and changed all telephone numbers and, as far as he is concerned, compliance with any of the obligations placed upon him by this order of Cobb J. is beyond his control.

11. It has been his case that only his younger brother, Umma, who is based in Sharma El Sheikh maintains any sort of contact with him and that Umma is the only possible conduit of information between the father and his wider family, especially his own mother whom he says has the daily care of Elsa.  Even Umma's contacts with the wider family are in jeopardy he says because Umma maintains contact with him to the family's disapproval. 

12. The father asserts that his own family have adopted this position because of their profound disapproval of the mother and her care, or lack of it, of Elsa in this country and in the light of imputations made against her character and morality.  Also he says he is currently not considered by them to have a voice in the affairs of Elsa because he is a serving prisoner.  I shall not report the nature of his allegations against the mother here.  They go, if anything, to welfare considerations irrelevant to this committal application.  He says the family have decided that their view of the welfare of Elsa requires her to be kept in Egypt away from the mother and if that is part of the price of her safety, kept away from her father too.  I emphasise I make no findings at all in respect of these matters, setting them out in summary simply to illustrate his defence.

13. I thought the mother was truthful and dignified in her brief evidence, no part of which needs to be referred to here. 

14. The same cannot be said of the father.  He was, in my judgment, and I am sorry to have to record it, shifty, evasive and plainly dishonest.  He was asked, for example, if he would sign an authorisation to his family to provide the information required of him by paragraphs 3 and 5 of the order of Cobb J.  He seemed to regard the request as potentially fraught with danger for Elsa if the information disclosed fell into the hands of the mother and her legal team of which he has a low opinion or, indeed, Tipstaff and this court.  It was quite clear to me that although his hesitations and body language would not by definition appear on the transcript, that he was weighing up the pros and cons of giving such information all of which he has, I find it, within his power to divulge.  At times I thought that he was almost trying to negotiate with this court as to the terms on which he would divulge that information.  Whilst he ultimately gave a guarded view that he might be able to do so he has not provided any authorisation yet, and has thus been, and continues to be, in breach of those parts of the order of 15th January.

15. He is also in breach of the provision of paragraphs 4 and 6 of that order.  I wholly disbelieved his account when he asserted that compliance was beyond its control.  As to the provisions of his passports, his account was that they, that is both his United Kingdom and Egyptian passports had been posted to his brother Umma in late December 2011 or early January 2012 to help in the registration of Elsa at a school in Cairo, but then held by Umma to his order.  He, so he said, required Umma to send those passports to his friend in England to hold them to his order.  He did not trust the mother's legal team nor, frankly, Tipstaff and the court to hold them, and was, as I understood it, though he was short on the mechanism for this, only prepared to surrender them to the court through his own legal team which, unhappily, he has not had prior to this hearing, although he is now, if I may respectfully say so, ably represented by Miss Allwood of counsel.  What he did not know prior to this hearing was that the passports had been retrieved from his friend, Mr. SM, as I shall refer to him, and taken into the possession of Tipstaff by court order.  I wholly disbelieve the father's account of the history of these documents. 

16. In coming to my conclusions on this subject I took account of his friend, Mr. SM's evidence.  That witness has provided a statement to the court and attended and gave evidence contradictory to that of the father, particularly but not exclusively as to the period in which he had held those passports to the father's orders.  Mr. SM told me, and I accept, that he had been asked by the father to take custody of some of his records and possessions and that when the father's friend with whom he had previously shared a house in Southampton delivered the bags to Mr. SM containing documents in about March 2012 Mr. SM found a folder within the contents, amongst other things, containing the father's two passports and bank cards etc.  Mr. SM also told me that he had a telephone conversation with the father, and the father sought his help in enquiring of the Egyptian embassy if the father could renew his now expired Egyptian passport.  There were other conversations he told me about when, because the father knew that telephone calls from prison were recorded, they spoke in code about the father's passports and bank cards, referring to them by colour and in the case of the passports, the Egyptian one being green and in the case of the United Kingdom one red.  They also referred to bank cards with separate banks which were also in colours of red and green, but that when the father was discussing passport issues it was very clear to Mr. SM that he was so doing and that he, Mr. SM, was not confused about this issue.  I accept that evidence as truthful, as mostly did the father.  However, the father baulked with the idea that they discussed passports in code, and asserted that they only ever spoke of his bank cards by colour and that Mr. SM must be innocently mistaken in holding the views he appears to have.  I repeat, I accept Mr. SM's evidence on this subject, especially that concerning the passports and when they came into his possession, namely in March last year.  That being established, how it did he account for a passage in a letter the father wrote to his mother and brother, Umma, dated 17th December 2012 exhibited to the statement he made in January this year in which he asked them to send his passports back to England.  He also told me that he had asked his brother again this year to send the passports back, but that it was only last night over the adjournment when he had telephoned his brother in Egypt to ask why that brother had not informed him in March 2012, or subsequently, that he had sent the passports back already that his brother, Ari, said that he had not mentioned so doing because it would make no difference.  I disbelieved that account of the father.  The clear inference is that the father was not going to hand over his passports voluntarily and was doing all he could to secrete them from the court for future use.  I add that knowing that he had legal representation yesterday and today, if he was correct in asserting that he was simply waiting for the appropriate opportunity to hand them into the court, it is puzzling that he did not invite Mr. SM to attend court bearing them on the first day of the hearing.  Even on his own account he would not have handed them to the court save through a legal team.  I find this to be a deliberate breach of the relevant paragraph of Cobb J.'s order.  I have also considered as part of my evaluation of the evidence a statement produced by the father yesterday morning just a few days late after the obligation to file such a document imposed by the order of Cobb J.  In fact the statement does little more than repeat his defence and matters already set out in earlier statements filed by him in these proceedings, but fails to answer any of the relevant questions.  I have no doubt that he could cause the return of Elsa and/or provide the information required and or arrange for the mother and Elsa to talk on Skype should he so wish.  He refuses to do so.  I disbelieve his evidence in relation to the family closing ranks against him. 

17. Returning to the Lucas warning I earlier gave myself, I consider the whole of his defence to his failure to comply with the order of 15th January to be bogus and designed to mislead this court into believing that he has no power to comply with its order or orders.  For the avoidance of doubt, I repeat, he does have such powers but deliberately refuses to exercise them.

18. Having found that, I am sure that the father has deliberately breached the obligations placed upon him by Cobb J's order.  I turn to consider sentence. 

19. Miss Allwood raises an issue as to whether or not the court could or should apply a further penalty of imprisonment for contempt given that, she says, the breaches the subject of the application to commit are in effect repetitions of breaches already punished and, secondly, if I am against her in her first proposition that further punishment for what she submits are really the same offences is to disproportionate. 

20.  I have been referred to and taken account of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 incorporated in Schedule 1 to the Human Rights Act 1998 in our domestic law.  I have also considered the following authorities drawn to my attention by both Miss Allwood and Mr. Jarman, counsel who appears on behalf of the mother.  They include:

(i)  Re A (Abduction - Contempt) [2009] 1FLR p.1 and

(ii) Re W (Abduction - Committal) [2012] 2FLR 133 and especially paragraphs 37-43 and 50-54, plus other authorities relating to criminal charges of child abduction under the Child Abduction and Custody Act 1985.  These latter authorities have to be approached with caution since they relate to sentences passed in the criminal jurisdiction under a statutory regime which this father has not on the face of it been charged with and there is no finding extant as to the circumstances of the original events in December 2011 in Egypt.  So it is difficult to draw exact parallels, though of course I accept that Macfarlane LJ and Hughes LJ in Re W draw the attention of trial judges in this division to this feature of the landscape as perhaps a cross-check to determine proportionality in sentencing. 

21. It seems to me that the correct approach to this case is the one adopted by the Court of Appeal in Re W if I may respectfully say so.  (See the citation above)  Summarised accurately in the headnote to that printed authority and fully supported by the paragraphs to which I have already referred.

22. I specifically remind myself in this case and state for the avoidance of doubt that I am not punishing the father for the unlawful retention, if such it was, in Egypt in December 2011 for there was no order in place preventing that step whatever other view may be taken.  I am considering only those breaches of the order of Cobb J. of 15th January which is well within the power of the father to comply with.

23. Miss Allwood in both her skeleton argument and closing submissions invites, understandably, attention to the danger of punishing more than one time for breaches or breaches based essentially on the same facts.  Whilst I understand a well made point reliant as it is in part on paragraph 51 of the judgments in Re W I find that I am dealing with fresh contempts based on a fresh order relating to a different period of time on fresh facts.

24. She also invites me to consider the omission of reference to Article 5 of the Convention, if I may so call it, fully referred to above when determining Re W and to comment that this of itself renders the judgment of that court unsafe.  I respectfully reject that submission as jejune.  The Convention has been applied purposively by the Courts of England and Wales since 1950 even though it was not incorporated into United Kingdom law until 1998 as I have earlier set out it.  Even subsequently it cannot surely be the case that a Court of Appeal constituted, as this one was, with its depth of experience, did not have it fully in mind.  Further, in any event, I am bound by the decision, right or wrong, and her quarrel with Re W, having laid her ground, is to take up the issue elsewhere.

25. I note that the father has already served the best part of 18 months in custody.  That is the equivalent of a sentence of three years.  It is now disproportionate, Miss Allwood asserts, to sentence him to a further period.  In that submission, I consider her to be wrong.  The point has not yet been reached when the warning sounded by the Hughes LJ at the end of paragraph 51 of Re W suggests otherwise on these facts. 

26. The appropriate sentence in respect of these breaches is as follows in my view. 

(i)  In respect of paragraphs 3 of that order, six months immediate custody.

(ii) In respect of paragraph 4 and the failure to cause the return of Elsa to the jurisdiction, six months immediate imprisonment concurrent with the six months in (i).

(iii) In respect of the obligations in paragraph 5 of the order, immediate imprisonment of six months concurrent with the terms imposed above.

(iv) In respect of the obligations in paragraph 6 of the order, six months imprisonment immediate concurrent with the terms imposed above. 

(v) In respect of the obligations imposed by paragraph 7 of the order, no separate penalty.  Although the father failed to comply egregiously with the order to surrender his passports they have, after all, been retrieved and in my view no useful purpose will be served by an additional penalty on that breach.

(vi)  The sentences of immediate imprisonment imposed above, all concurrent with each other, shall be consecutive to the sentence imposed by Cobb J. on 15th January of this year.

27. These breaches, so punished, are in respect of the new and separate breaches not breaches already punished by earlier orders.  It follows from the above that there will need to be consequential directions to find an adjourned date to return this case to court prior to the expiry of the imposed terms of imprisonment with consequential obligations on the mother's certificate, if needed, to issue a notice to show cause.  For my part, I echo the words of another authority.  The egregious acts for this father are cruel beyond imagining.  I hope for his sake, but more particularly Elsa's and the mother's, that he finds it in his heart, when examining it, to purge his contempt and bring about the return of Elsa to this jurisdiction.  His behaviour has been appalling and it continues to be so. 

That is my Judgment
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