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Home > Judgments > 2014 archive

Harrow v Afzal [2014] EWHC 303 (Fam)

Application by local authority in which it was alleged that grandparents were in contempt of court for not providing relevant information and/or securing the return of a baby who had been removed from the jurisdiction

This was an application brought by the London Borough of Harrow for an alleged contempt of court by the maternal grandparents and the paternal grandmother of a child Farah Afzal who was 3 months old at the time of the hearing.

Farah was the subject of local authority involvement because of concerns in respect of long-standing drug abuse by her parents.  An agreement had been reached between the local authority and the parents that Farah would reside with her mother at the maternal grandparent's home. The paternal grandmother also resided at this address. On 16 January 2013 at 3 a.m. Farah was removed from this home by her parents.

An order was granted on 24 January 2014 against the grandparents which ordered them to:-

i) take all steps within their control to ensure that Farah was returned immediately to the jurisdiction of England and Wales; 

ii) provide the local authority with all information relating to Farah's whereabouts, which was presently within their knowledge or control; 

iii) during the period that the order remained in force, provide all information relating to Farah's whereabouts to the Local Authority, where it comes into his or her possession and control after service of the order as soon as is practicable after receipt of the information. 

The local authority alleged that each grandparent was in contempt of that order and Mr Justice Keehan heard evidence from each grandparent on 29 January 2013. Keehan J communicated a clear warning that if any grandparent was found to be in contempt of court then there was a high degree of likelihood that a custodial sentence would be imposed because any breach concerning such a young child would be a grave contempt of court. 

The application returned before Keehan J on 31 January 2014 who heard further evidence from the maternal grandfather. Keehan J took account of the guidance set out the authority of Re A (Abduction:  Contempt) [2008] EWCA (Civ) 1138. He found that the maternal grandfather was an evasive, dishonest and totally unreliable witness. One material example in this regard was that it was discovered that the grandfather had sent £500 by Western Union Transfer to his daughter in Barcelona on 24 and 30 January 2014 but this had not been disclosed by him during his evidence on 29 January or prior to the hearing on 31 January.

The court was satisfied so as to be sure that the grandfather was lying and his motivation was to protect his daughter and to prevent their whereabouts being discovered and to prevent Farah, being returned to this jurisdiction.  Keehan J was also satisfied so as to be sure the grandfather knew the location of the mother, the father and the child and that he was withholding highly material evidence from the court. Keehan J unhesitatingly found him to be in contempt of court. 

(See the linked sentencing remarks of Keehan J at Harrow v Afzal (10 2 14) (sentencing remarks)

Alison Easton barrister, Coram Chambers

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IN THE HIGH COURT OF JUSTICE
No.FD14P00078

FAMILY DIVISION 

[2014] EWHC 303 (Fam)
Royal Courts of Justice
Friday, 31st January 2014

Before:

MR. JUSTICE KEEHAN

B E T W E E N :

LONDON BOROUGH OF HARROW  Applicant

- and -

AFZAL & Ors. Respondents
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MR. M. JARMAN appeared on behalf of the Applicant.
MR. HEPHER appeared on behalf of the Maternal Grandparents.
MS. N. AFZAL (the First Respondent) appeared in person.
MS. D. MARSDEN appeared on behalf of the Guardian.
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J U D G M E N T
(As approved by the Judge)
MR. JUSTICE KEEHAN:
1 At three o'clock in the morning on 16th January this year, the child with whom I am concerned, Farah Afzal, who was born on 2 October 2013, was removed from the home of her maternal grandparents by her mother, Zainab Rasul, and her father, Mohammed Afzal.  Present in the house at the time were the maternal grandparents, Ali Rasul and Nazma Rasul.  Also living at that address was the paternal grandmother, Nasira Afzal. 

2 This matter was before me for a hearing of alleged contempt by those three grandparents on Wednesday of this week, 29 January.  On that occasion I heard evidence under oath from the three grandparents.  I gave them the clearest warning that if I found them to be in contempt of court, there was a high degree of likelihood that I would impose a custodial sentence because any breach concerning such a young child would be a grave contempt of court. 

3 The Local Authority are involved with the parents and the child.  The Local Authority are involved because of concerns they have about the longstanding drug abuse of both parents.  The child was permitted to live with her mother at the grandparents' home on the basis that that may afford some degree of protection to the child, and she would not be exposed to drug taking by either one of her parents or that she would not be at risk of harm in their care if and when they were under the influence of drugs. 

4 I adjourned the matter off until today to give the grandparents an opportunity to secure their compliance with the order which was served upon each of them, that being the order of Russell J, dated 24 January of this year.  Whilst they were giving their evidence last Wednesday, I went through what they were required to do by that order with each of them, and each of them confirmed that they fully understood their obligations.  Part of that obligation was that the grandparents should take all steps within their control to ensure that Farah is returned immediately to the jurisdiction of England and Wales. 

5 Further, that they must immediately on service of this order provide to the London Borough of Harrow Social Services Department all information relating to the whereabouts of the child, Farah, which is presently within his or her knowledge or control. 

6 Further, during the period that this order remains in force, each of them must provide all information relating to the whereabouts of the child to the Local Authority where it comes into his or her possession and control after service of this order as soon as is practicable after receipt of the information. 

7 I decided to further adjourn the issue of the contempt by the maternal grandmother and the paternal grandmother until Wednesday of next week, that is 5 February.  On this occasion, the maternal grandparents are represented by counsel, and I have been assisted by and am grateful to Mr. Hepher for the representations he has made on behalf of the maternal grandfather, and his reference to the authority of Re A (Abduction:  Contempt) [2008] EWCA (Civ) 1138.  I have read that and I have taken account of the guidance set out by the Court of Appeal in it. 

8 When the maternal grandfather gave evidence before me last Wednesday, he told me that he was awake at three o'clock in the morning, that he became aware that his daughter was leaving the family home.  He saw a car.  He became aware that his son-in-law was in that car.  He asked his daughter where she was going, and she told him that she was going to meet with the social workers.  He said he presumed that his granddaughter was in the car with her father.  What has now come to light, and what he did not tell me, was that on Friday 24 January, he arranged, by Western Union money transfer, to send the sum of £500 to his daughter in Barcelona in Spain.  I was further told today that yesterday, the day after the hearing last before me, the maternal grandmother sent a further sum of £500 to their daughter in Barcelona.  The grandfather told me in evidence today that not only did he see his daughter leaving the house, he helped her fold the child's buggy so that it could be placed in the taxi.  He did not tell me that on Wednesday.  He did not, in the account that he gave to me today, tell me initially that his daughter had told him that they were going to see the social worker.  He only gave that account when reminded of it by me.  What he told me today was that his daughter told him:  "Everything has been sorted and we're going".  He did not tell me that on Wednesday. 

9 He claims not to have seen any luggage or suitcases being taken from the house and loaded into the car.  He told me on Wednesday, and maintained it today, that at no time did he see his granddaughter, he just presumed she was in the taxi with her father.  But when I asked him when did he discover the child was not at home, he could not answer and said he did not know - this being the child that he had, on Wednesday and today, described as their precious gift.  I simply cannot believe and do not accept that if the grandfather did not know the child was in the car, the first thing he would have done on returning to the house was to look to see where the baby was - their precious gift. 

10 The grandfather told me that the money was sent to pay for the rent of the accommodation that the parents presumably have in Barcelona and to provide for the baby.  I take the view that in sending that money, especially yesterday, the grandparents are flouting the order that was made by Russell J on 24 January, because they are not taking all steps they can to secure the return, they are taking steps positively to support their daughter and son-in-law and granddaughter live in Barcelona. 

11 The grandfather said he had a telephone conversation with his daughter yesterday, as he has on a number of occasions, on his mobile phone.  Yet when pressed by Mr. Jarman, counsel for the Local Authority, repeatedly he said he could not remember what he spoke to his daughter about just yesterday.  He was evasive and defensive in his answers and I do not believe him.  He claimed that the maternal grandmother was in an adjoining room during the course of this conversation.  He did not tell her their daughter was on the telephone.  He did not think he needed to, he said.  Again, I do not believe him and he is lying. 

12 The idea that this grandfather would be told by his daughter that they were visiting social workers at three o'clock in the morning is utterly absurd and totally incredible, and I conclude that the grandfather is lying.  I asked him why, when given that alleged explanation, he did not ask his daughter why they were taking the baby with them at three o'clock in the morning.  He could not answer, despite being given repeated opportunities to do so. 

13 Mr. Hepher, on behalf of the maternal grandparents, told me at the start of this hearing that the grandfather now regrets his actions that night and realises he should have taken some steps to try and stop them, and what they had done was "suspicious", and that they are now willing to do what they can to assist the authorities in tracing their granddaughter.  I was told, both by the grandfather on Wednesday and today, and by the grandmother on Wednesday, that they and the paternal grandmother have regular conversations with their daughter and their son-in-law by Skype.  They spoke with them by Skype last night.  They will speak to them by Skype this evening.  They are content for the Local Authority and others to be present during that Skype conversation.  That is all well and good, and I trust it takes place with the social worker and/or other professionals present. 

14 I have found the grandfather to lie on many material aspects.  He claims not to recall, or be confused about, the events of 16 January and other occasions.  Again, I do not believe him.  I do not believe that this grandfather would not clearly remember the events of 16 January.  Given my findings in respect of the grandfather and his evidence, I consider him to be a totally unreliable witness and to be a dishonest one.  He has lied to me repeatedly on serious matters.  I ask myself rhetorically:  what reasons might he have for lying?  There is, in my judgment, only one reason why he is lying, and that is to protect his daughter and to prevent their whereabouts being discovered and, most importantly of all, the baby, Farah, being returned to this jurisdiction.  I am satisfied so that I am sure that the grandfather is lying.  I am satisfied so that I am sure that he knows the location of the mother, the father and the child.  I am satisfied so that I am sure that he is withholding highly material evidence from this court.  Accordingly, I have not the slightest hesitation in finding him to be in contempt of court.  That is my judgment.

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