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Re Dad application to commit [2015] EWHC 2655 (Fam)

Application for committal of child’s uncle for alleged breach of a Collection Order in child abduction case struck out due to serious procedural defect

This application arose following the wrongful retention of a six year old child (who habitually resided in Poland with his Polish mother) after an agreed visit with his father (who was British of Pakistani heritage). There was no reliable information about the child's whereabouts but, following some evidence that the father and son may have come to England the mother had started High Court proceedings.

A Collection Order was made. It was from this that the application for committal of the Father's brother, who was resident in the UK and who was suspected of having knowledge of the whereabouts of the child, arose.

In his judgment, which centred on procedural matters, Mr Justice Holman set out the two part nature of Collection Orders, comprising Form 2A (the order to be served on the Respondent and named persons) and Form 2 B (the order directed to the Tipstaffs giving them authority to arrest any person served with Form 2A and suspected of being in breach of its terms).

The father's location was unknown but the Form 2A order was served on his brother, in respect  of whom, the relevant provisions (2 & 3) required him to either "deliver the child" or to provide information about his whereabouts and any information that might "reasonably assist" in locating him.

The father's brother (the child's uncle) was served with the order by police. Although he denied having any relevant knowledge, the Tipstaff considered there was reasonable cause to believe he was disobeying paragraph 3 of the order. Accordingly, he was arrested and placed in custody, where he remained (after being remanded on two occasions by a judge at the RCJ) for thirteen nights, until bailed on conditions which remained in place until the substantive hearing before Holman J.

Holman J makes it clear that it was specifically for disobeying paragraphs 3 (a) and (b) of the Collection Order and not for (as alleged) lying to the court in the oral evidence given during the course of the proceedings, that the uncle's committal was sought. On the issue of the uncle's veracity in his sworn evidence, the learned Judge took no position save to note that the mother could refer the matter to the Attorney General or DPP alleging perjury, if she so wished.

The uncle's representatives had provided a skeleton argument (crafted by both counsel and solicitor) which raised preliminary issues as to the lawfulness of the form of the Collection Order itself. The court confined itself to the "knockout point" but, so perspicacious was the skeleton that it was to be forwarded to those who were, coincidentally, currently conducting a review into precisely these matters.

The decisive point was that Rule 37.4 FPR 2010, which provides authority for the enforcement of orders, judgments or undertakings, is qualified by Rule 37.9, which prohibits enforcement unless there is:

 "prominently displayed on the front of the copy of the judgment or order....... a warning to  the person required to do or not do the act in question that disobedience .....would be a   contempt of court punishable by imprisonment, a fine or sequestration of assets."

Having observed that the order used was in the standard form and had been in regular use by the High Court judiciary, Holman J indicated that he had not hitherto appreciated that the form did not comply with the rules in that there was no formal notice on the front page. The penal notice was to be found (not in bold and in the same font used throughout the order) on page five of six. Accordingly, its inclusion did not comply with the requirement for prominent display on the front of the order.

Although the rule was mandatory and gave no discretion to the court, there was some "latitude" in paragraph 13.2 of Rule 37A, which permitted the court to waive any procedural defect if "satisfied that no injustice has been caused by the defect."

Those representing the mother sought to rely on this provision, arguing that no injustice had been caused and that the application should not, therefore, be struck out.

Holman J's analysis of the factual circumstances of the service of the order (based not only on oral evidence but on a video from a police lapel camera) revealed that the police had behaved with impeccable courtesy but that, although he had been handed the order and invited to "have a big old read of that" the uncle had not read it properly nor been appropriately directed to the warning notice. The police had referred to the uncle undergoing a "quick interview" and His Lordship concluded that no one present would have imagined that his arrest would then be followed by a period of thirteen days in custody.

The uncle, who described himself as 'slow at school', was a man of limited education, with little ability to comprehend complex documentation.

Far from concluding (as asserted on behalf of the mother) that there had been no injustice caused, Holman J expressed himself to be "personally clear that a great deal of injustice was caused to him."

Accordingly, the procedural defect could not be waived and however egregious the breach might be, the uncle could not be committed to prison. As a threshold decision, the application must (and therefore would be) struck out.

Summary by Katy Rensten, barrister, Coram Chambers

________________________

No. FD15P00015
Neutral Citation Number: [2015] EWHC 2655 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Wednesday, 15th September 2015


Before:

MR JUSTICE HOLMAN

(sitting throughout in public)
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B E T W E E N :

Re: DAD
Application to commit  MUHAMMAD NAWAZ CHAUDHRY to prison

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Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
5 Chancery Lane, London EC4A 1BL
Tel:  020 7831 5627     Fax:  020 7831 7737
info@beverleynunnery.com
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MS M. CHAUDHRY (instructed by Dawson Cornwell) appeared on behalf of the applicant/mother.
MR D. MAIN-THOMPSON (of counsel) appeared on behalf of the Muhammad Nawaz Chaudhry.
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J U D G M E N T
MR JUSTICE HOLMAN:

1. There is before me an application to commit a man known as Muhammad Nawaz Chaudhry to prison for contempt of court.  Any such application is a grave and serious one since it impacts upon personal liberty.  I wish to stress at once, however, that the factual context in which this application is made is also one of the utmost gravity and seriousness.  It involves the abduction of a child from his mother with whom he was living, apparently by his father.  That abduction took place on or about 6th January 2015.  As I understand it, there has been no face to face contact at all between the child and his mother since then, now over eight months ago; and, indeed, the mother does not even have any reliable information as to where in the world her child is. 

2. An abduction and retention of a child in those circumstances involves abhorrent cruelty both to the parent from whom the child has been abducted (in this case, his mother) and also to the child himself.  So, although in this judgment I must take a firm line with regard to the procedural defects in this case, I wish to emphasise from the outset that I do not in any way whatsoever underestimate or minimise the gravity of this case from the perspective of the applicant mother, or in its likely impact upon the child who is the ultimate subject of these proceedings. 

3. For the purposes of this judgment I can summarise the essential factual background extremely shortly.  The parents of the child concerned are married to each other.  The mother is Polish.  The father is British, but of Pakistani descent.  The child was born during July 2008.  In January 2015 he was accordingly aged six.  He is now aged seven.  For some time he had been living lawfully with his mother in Poland and appears clearly to have been habitually resident there with her.  She was at that time his primary carer.  Late in 2014 the mother agreed to their son spending a period of time staying with his father, but on the clear basis that he would be returned by the father to the mother not later than 6th January 2015 in order to resume at his school in Poland, and to resume his normal daily residence with his mother.  The father failed to return the son to the mother and effectively disappeared with him.  There is apparently some evidence that the father and son rapidly travelled between Germany, Belgium and France, and may then have entered England.  As a result, proceedings were commenced here in England on 15th January 2015 under the Child Abduction and Custody Act 1985 and the Hague Convention on the civil aspects of international child abduction.  Whether or not the father or child are currently in England or indeed anywhere in the United Kingdom is, frankly, much more speculative.  The father has said in electronic communications that they are in fact in Pakistan. 

4. On 20th February 2015 the mother obtained from this court what is known as a Collection Order.  A Collection Order is made in two parts.   One part, in Form 2B, is an order or direction specifically to the Tipstaff of the High Court of Justice.  In brief summary, that part of the order, which is not served upon anyone else, directs the Tipstaff (who almost invariably has to act through the police) to take charge of the child concerned and to arrest any person whom he, the Tipstaff, has reasonable cause to believe has been served with the Collection Order in Form 2A and has disobeyed any part of it.  If the Tipstaff does arrest or cause someone to be arrested, then he is directed to bring him before the court as soon as practicable.  The other part of the Collection Order, in Form 2A, is directed to any named respondents and also to other persons.  In this case the named respondent was the father of the child concerned.  So far as is material, paragraphs 2 and 3 of the Collection Order in Form 2A provide as follows:

"(2) If [the father, who is specifically named in the order] and/or any other person served with this order is in a position to do so, he or she must each deliver the child into the charge of the Tipstaff.

(3) If the respondent or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she must each:-

(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child."

It is important to mention that paragraph 7 of the order later provides that:

"The obligations under paragraphs 2 and 3 above will continue until the Tipstaff takes charge of the child…"

It has never been possible to serve that order upon the father, who is the named respondent, for it remains the case that at no time has the Tipstaff or the mother of the child known the whereabouts of the father. 

5. However, on Saturday 27th June 2015, police officers acting on the instructions and authority of the Tipstaff attended at an address at which Muhammad Nawaz Chaudhry was residing.  I mention that, as I understand it, it is not in fact his own home, but he was residing there with a relative of his.  Muhammad Nawaz Chaudhry is the brother of the father of the child and, accordingly, the uncle of the child.  The police officers introduced themselves to Mr Chaudhry and produced a copy of the Collection Order in Form 2A and asked him for any information he could give as to the whereabouts of the child.  In summary, and in effect, he said that he did not know where either the child or his brother, the child's father, were.  The police officers then telephoned the Tipstaff himself.  The Tipstaff himself considered that Mr Chaudhry in fact knew more than he was revealing and, accordingly, that he (the Tipstaff) had reasonable cause to believe that Mr Chaudhry was disobeying paragraph 3 of the Collection Order in Form 2A.  He therefore instructed the police officers to arrest Mr Chaudhry in obedience by the Tipstaff himself to the provisions which I have mentioned of the Collection Order in Form 2B, which are directed to the Tipstaff.  Mr Chaudhry was then conveyed to the local police station in custody and brought before a judge here at the Royal Courts of Justice on the following Monday.  He was further remanded in custody by that judge and only finally released from physical custody on Friday 10th July 2015.  In other words, following the evening of his first arrest on Saturday 27th June 2015 until his first release from actual custody, Mr Chaudhry spent thirteen nights in custody; eleven of them in Pentonville Prison.   On Friday 10th July 2015 he was released on bail subject to certain conditions.  There have been subsequent adjournments of the application to commit him to prison and it has come before me (dealing with the matter for the first time) for substantive resolution today. 

6. The essence of the case of the mother in support of her application to commit is that there had been considerable communication by text and/or email and/or telephone between the father and Mr Chaudhry before, and in the months following, the actual abduction of the child.   Accordingly, even if Mr Chaudhry did not and does not now know the precise whereabouts of the child, he certainly had "matters within his knowledge or understanding which might reasonably assist [the Tipstaff] in locating the child" which he certainly failed to give information about prior to his arrest on 27th June 2015 and which even now he has not been fully forthcoming about.  So it is that the solicitors on behalf of the mother issued a formal application on 7th July 2015, which was subsequently amended on 16th July 2015, for Mr Chaudhry to be committed to prison for contempt of court.  The formal application notice for committal, as amended, seeks that he be committed to prison for contempt of court "because Mr Chaudhry disobeyed paragraphs 3(a) and (b) of the Collection Order made…on 20th February 2015…" in ways which were described in supporting statements made by the solicitors for the mother. 

7. Pausing there, it thus follows that the matter for which I am asked to commit Mr Chaudhry to prison is very specifically that he has disobeyed those paragraphs of that order.  It has been said today by Miss Mehvish Chaudhry on behalf of the mother that, when Mr Chaudhry gave oral evidence on oath to the judge on Monday 29th June 2015, he told lies, and in particular continued not to reveal all the information which in truth he knows with regard to the whereabouts of the father or the child.  I, today, have no position at all, one way or the other, on whether or not in that sworn evidence Mr Chaudhry told lies.  If he did tell lies, then it may be that he committed the crime of perjury.  If the mother believes that he committed the crime of perjury, then she is at liberty to give information to the Attorney General or the Director of Public  Prosecutions for them to take such action, if any, as they think fit.  But it is important to stress that I am not being asked today to commit him to prison for committing perjury on 29th June 2015, if indeed he did so.  Rather, I am being asked to commit him to prison for his alleged underlying disobedience to the specified paragraphs of the Collection Order itself. 

8. Mr Chaudhry has made a long affidavit in which he deals at length with the assertion that he is in contempt of court, and in effect denies with a great deal of particularity that there is any information within his knowledge or understanding that he has not now revealed.  So, if this application was determined upon the evidence and the merits, the position of Mr Chaudhry would clearly be that he is not in contempt of court.  However, before that stage is reached Mr Dermot Main-Thompson, who appears today on behalf of Mr Chaudhry, has in effect taken certain preliminary points with regard to procedural deficiencies in this case.  I should mention that appropriately, but generously, Mr Main-Thompson made very clear today that all or most of these points - which are made in his most excellent position statement and skeleton argument, dated 15th September 2015 - are points which have been generated by the input and researches of his instructing solicitor, Ms Maria Wright.  She is a solicitor who is employed by Freemans, who act on behalf of Mr Chaudhry, and who herself has conduct of this matter.  There are within that position statement and skeleton argument a number of important points with regard to the lawfulness of the Collection Order in the form in which it was made in this case.  There is, in my view, however, one knockout point with which I will deal in a moment.  Since I regard that point, even standing on its own, as completely decisive in this case, anything I were to say in relation to the other points would be what lawyers called obiter.  It happens that there is very currently a thorough - going review of the form and language of collection orders.  In my view, it is undesirable that I should express in judgment any view or comment which would be obiter about these other points.  Rather, I have already arranged, with the permission of Mr Main-Thompson, that a copy of his position statement and skeleton argument be provided to those who are undertaking that review so that those points can be considered.  

9. I turn, therefore, to what, in my view, is the decisive point for the purposes of the present application and the one upon which I base my decision and judgment today.  The Family Procedure Rules 2010 (as amended) make provision in relation to applications for committal.  So far as is material to the present case, the first rule in point is rule 37.4, which provides as follows:

"37.4 Enforcement of Judgment, order or undertaking to do or abstain from doing an act

(1) If a person -

(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or
  
(b) disobeys a judgment or order not to do an act,
then, subject to…the provisions of these rules, the judgment or order may be enforced under the court's powers by an order for committal"

Pausing there, it is clear from the language of that rule that the power to commit is itself subject to the provisions of those rules.  The next relevant rule is rule 37.9.  That provides as follows:

"37.9  Requirement for a penal notice on judgments and orders

(1) Subject to paragraph (2) [which is not in point in the present case], a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets."

10. Pausing there, I emphasise from that rule the words "prominently displayed" and "on the front of the copy of the judgment or order served".  I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years.  The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011.  I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them.  But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine. 

11. The standard form of collection order and the one used in this case extends altogether to six sheets of paper, although the third page is largely blank.  There is nothing remotely in the nature of a penal notice at all on the first four sheets of the order.  The fifth sheet is headed with the following words in capital letters: "Important notice to the respondent and to any other person served with this order".  There are then a series of number paragraphs 1 to 5.  These are headed respectively:

(1) Liability to be arrested;

(2) Liability to be committed to prison;

(3) Your rights;

(4) The Tipstaff;

(5) Interpretation.

The font or print size used on pages 5 and 6 is exactly the same as that used throughout the whole of the order and there is no particular use of bold type face on pages 5 and 6.  Paragraph 2 on page 5 under the heading "Liability to be committed to prison" does contain the following words: 

"Breach of any part of this order would be a contempt of court punishable by imprisonment or fine.  Accordingly, whether or not the Tipstaff arrests you, you may be summoned to attend court and, if you are found to be in breach of the order, you are liable to be committed to prison or fined."

12. In my view the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1).  In the first place, the warning cannot be said to be "prominently displayed".  It is merely a part of several pages of somewhat indigestible text.  In the second place, it most certainly does not appear, as the rule requires, "on the front of the copy of the…order".  It will be recalled that rule 37.9 is emphatic and prohibitive in its terms.  Unless the penal notice is prominently displayed on the front of the copy of the order, "a judgment or order…may not be enforced…"  In my view, the words "may not be enforced" where they appear in that rule do not import a discretion in the court.   Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal. 

13. There is, however, some discretionary latitude as provided for in the Practice Direction 37A, which is attached to, and forms part of, the rules.  That is headed "Applications and proceedings in relation to contempt of court".  Paragraph 13 provides as follows:

"Striking out, procedural defects and discontinuance
13.1 On application by the respondent [viz to the committal application] or on its own initiative, the court may strike out a committal application if it appears to the court -

(1) …;

(2) …; or

(3) that there has been a failure to comply with a rule, practice direction or court order.

13.2 The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."

So the effect of that Practice Direction is that if there has been a failure to comply with a rule - which, in my view, there clearly has been in this case - then the court may "strike out" the committal application.  However, understandably, Ms Chaudhry on behalf of the mother relies very strongly on the discretionary provision of paragraph 13.2.  She says that at most there has been a "procedural defect" in this case, which the court may waive "if satisfied that no injustice has been caused to the respondent by the defect".  She submits very strongly that I should be satisfied that no injustice has been caused to Mr Chaudhry, and submits strongly that there are powerful reasons why I should exercise a discretion to waive the defect.  As she has said with great eloquence, this is a very grave matter, and from the perspective of the mother coercive pressure upon Mr Chaudhry may be her last and only chance of ever locating her child. 

14. I do have a discretion under paragraph 13.2, but I can only exercise it "if satisfied that no injustice has been caused".  In support of her submission that no injustice has been caused, Ms. Chaudhry invited me to watch and listen to the video that the police officer made contemporaneously whilst visiting Mr Chaudhry and arresting him.  As I understand it, this is a video made from some form of camera attached to the clothing of the police officer.  I mention that, as that video forms part of the evidence or material upon which I base my decision in this case, I have ensured that it was available to be seen by the accredited journalist who is in the courtroom and the journalist has seen it.  I would indeed have ensured that it was able to be seen by any member of the public who had shown any interest in this case and had been present at any stage during the hearing, although in fact there has been none.  The whole duration of the visit by the police lasted about twenty minutes.  I wish to stress that the two police officers appear to have handled this whole matter with the utmost courtesy and lightness of touch.  From start to finish, there was nothing remotely heavy handed by either of them.  Rather, they treated Mr Chaudhry with the utmost courtesy, respect and indeed patience, whilst ultimately arresting him with minimum formality.  He went with them in the car, but at no stage was he placed in a handcuff nor handled physically in any way by the police.  After being admitted to the house, the officers went into the front room immediately adjacent to the front door.  They were holding two copies of the collection order and, therefore, a number of sheets of paper.  They handed several sheets of paper, which I assume to be one copy of the six page collection order, to Mr Chaudhry, and the officer said "Have a big old read of that.  There's quite a lot there".  Mr Chaudhry sat down in an armchair and did for the next ten minutes or more hold the sheets of paper in his hand, but he hardly glanced at them at all.  There is one moment in the video when he can be seen to be turning through the sheets of paper, but, even in that moment, he does not appear to have reached page 5, upon which such warning notice as this order contains is printed.  At no stage, so far as I could discern, did either officer specifically draw the attention of Mr Chaudhry to that warning notice, nor indeed talk him through the language of the order at all.  I do not say that necessarily critically of the officers; I merely record the fact that his attention was not specifically drawn to any particular part of the order and certainly not to such warning notice as appears on page 5.  After the officers spoke on the telephone to the Tipstaff, they informed Mr Chaudhry that they must arrest him.  They allowed him time to go upstairs and into the kitchen; and, as I have said, the whole process was gentle, orderly and sympathetic.  As the two officers and Mr Chaudhry finally left the front door of the house, one officer said: "You can take the paper if you like so you can read it".  As Mr Chaudhry got into the back seat of the police car one can see that he did still have pieces of paper (which I assume are the order) in his hand, but there is no sign, at any rate at that stage, of his actually reading it.  Before leaving the content of that video recording of the whole process, I mention that at one stage the officer said to Mr Chaudhry that "someone from the court will do a quick interview" with him.  Frankly, I do not think that either Mr Chaudhry or either of the officers imagined for one moment, when they arrested him and took him away in the police car that night, that he was about to spend no less than thirteen nights continuously in custody.  The picture and impression that was conveyed was that he would have to go to the police station under arrest and no doubt in custody perhaps for that night, but that he would then be visited and interviewed by "someone from the court" and probably released soon thereafter. 

15. The essential submission of Ms Chaudhry is that the officers did hand the order to Mr Chaudhry that day.  The officer did say "Have a big old read of that" and an opportunity to read the order was undoubtedly afforded.  Thus Mr Chaudhry might have been able to say to the officers "Please sit patiently while I now read through this whole order".  I have no doubt that if he had said that they would have permitted him to do so, but that is not in fact what happened.  Further, Mr Main-Thompson has drawn my attention to paragraph 5 of the affidavit sworn by Mr Chaudhry on 12th August 2015.  In that he says that he left school at fifteen before taking any exams:

"I don't have any academic qualifications.  I was slow at school.  I was always in the bottom set and I had extra classes, one to one with a teacher.  Despite this I did not complete my secondary education.  I need to read things, particularly official documents, many times before I can understand them fully.  My spelling is not good…"

The picture there is, therefore, of somebody with relatively little and unsuccessful education and no great ability to comprehend complex documents such as this order.
 
16.  Ms Chaudhry submits that I can, and should, be satisfied that no injustice has been caused to Mr Chaudhry by the defect that a penal notice in the required language was not prominently displayed on the front page of this order.  Far from being satisfied that no injustice has been caused to him, I am personally quite clear that a great deal of injustice was caused to him.  Rule 37.9 exists for a purpose.  The purpose clearly is so that somebody in the position of Mr Chaudhry can see prominently and at once, the moment a lengthy order of this kind is given to him, what the gravity of the situation is and that he is at risk not merely of being arrested at the time, but of being committed to prison as a punishment for contempt of court. 

17. In my view, therefore, this is not a situation where I can waive the procedural   defect.  All applications to commit require proper adherence to the requirements of any enactment and rule of court.  In the present case there is a serious defect in the order upon which the application to commit is based.  I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious.  In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application.  For those reasons, the application issued on 7th July 2015 to commit Muhammad Nawaz Chaudhry to prison for contempt of court is struck out.