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Y v Z [2016] EWHC 3987 (Fam)

Application by a father for the committal to prison (or other penalty) of a mother for the alleged contempt of a court order requiring her to return two children to England and Wales from India.

The parties lived in the Midlands, were married in 2004 and separated in 2012. Towards the end of 2012, by agreement, the mother took the parties' two children (aged 7 and 4) to India on holiday. She left with return plane tickets and a specified return date, but when this time came did not return herself or the children to the jurisdiction. The father, at the date of the hearing before Bodey J, had not seen the children for some 3 years.

On a without notice application on behalf of the father, Baker J made the children wards of court, declared them to be habitually resident in the jurisdiction and ordered that the mother return the children forthwith. A penal notice was attached to the return order. The mother was emailed the order of Baker J immediately. She subsequently instructed English solicitors, who wrote a week later to confirm that the mother had received "the paperwork" and an adjournment of the return date was agreed. This was evidence that the mother had been served.

Unfortunately, the mother continued to delay and avoid. She issued proceedings to be the children's guardian in India, in the application for which she expressly mentioned the order of Baker J. The father issued a summons to commit the mother to prison, but this was in the wrong form. By the time he had issued the summons in the correct form (6 days later) the mother's solicitors had come off record and the issue of serving the mother with the application and notice of hearing became all the more difficult. It took a further 6 months to come to the hearing before Bodey J. The mother did not attend this hearing and was not represented.

Bodey J had to be sure that the mother had been served with the application and order before he could consider the merits of the application. He was satisfied that the mother had been served by the following (paragraph 15): a FedEx receipt showing the documents had been delivered on a specific date and had been signed for by a "Mrs. X, being the exact name of the mother save for one letter missing from the name". Further, the documents had been emailed to her at the address used to serve the order of Baker J successfully. It is unclear from the judgment whether, had the mother not signed for the documents herself, there would have been sufficient evidence that she had been served simply through recorded international delivery to her stated address in India.

The judge, being satisfied that service had been effected, was left in no doubt as to the merit of the application itself: the mother had not complied with Baker J's return order; a penal notice had been attached; and she had never spoken of any impediment to a return. He considered paragraph 5 of the judgment of Cobb J in Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam) where Cobb J set out a checklist of nine points in respect of which the court needs to be satisfied when dealing with applications in the absence of the respondent.

The father, having previously sought an order for imprisonment, asked that the sentencing be adjourned to give the mother time to reflect on the judgment and mitigate the gravity of the sentence by returning the children. The judge agreed, referring again to the similar decision taken by Cobb J in Sanchez. It was now up to the father to make the mother aware of this order, at an upcoming hearing in India, and to seek to enforce the order of Baker J in that court.

Summary by Thomas Dance, barrister, 1 King's Bench Walk
________________________

Neutral Citation Number: [2015] EWHC 3987 (Fam)
Case No: LE 13 P 01418

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand
London, WC2A 2LL.

Date: Thursday, 10th September 2015

Before:

MR. JUSTICE BODEY

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Between:

Y
 Applicant
- and - 
Z  Respondent
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Digital Transcription by Marten Walsh Cherer Ltd.,
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MR. M. GRATION (instructed by Nelsons Solicitors) appeared for the Applicant father.
The Respondent mother was not present and not represented.
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JUDGMENT
MR. JUSTICE BODEY:

1. This is an application by a father for the committal to prison (or other penalty) of a mother for the alleged contempt of an order of this court.  The alleged contempt concerned is in the mother having failed to return two children to England and Wales from India, as required by a court order made in December 2013. 

2. I shall call the parents "the mother" and "the father".  I will not name the two children: they are aged respectively seven and four.  The father has not seen them since 2013.  Both the parents are Indian but have lived here from at least after their marriage in 2004.  The father is a paediatric registrar in the Midlands and the mother has a Master's degree in pharmacy. 

3. Before embarking on the application I have to be satisfied as to service, both (a) regarding the order in respect of which the breach is said to have taken place and (b) in respect of the notice regarding the hearing being today.  I also have to be satisfied that it is appropriate to proceed in the absence of the respondent mother.  I am satisfied in all three respects and I will deal with that at the end of this judgment. 

4. The facts leading to the unhappy state of affairs giving rise to this application are these.  The parties separated in July 2012, having been married in 2004.  They remained at that time in the matrimonial home.  In December 2012 it was agreed that the mother should go for a holiday with the children to India.  They departed on 13th December 2012 with an apparently agreed date of return as being 10th January 2013.  It appears to be common ground that when they left it was with return tickets. 

5. Subsequently the mother asked the father to extend the period of time that she and the children could be in India and he reluctantly extended it until March 2013.  When this time came, however, the mother did not return either herself or the children to this jurisdiction.  From then until December 2013 there were many attempts between the parties to reach some form of compromise about the future of the children involving family members and community leaders; but to no avail. 

6. During the course of this time, on 9th May 2013, the mother applied to a magistrates court in India for financial relief under the Protection of Women and Domestic Violence Act 2005 in that jurisdiction.  I understand from Mr. Gration, on instructions from the father who is present in court today, that that was dismissed in April 2015.  Further referrals were made to mediation in July and November 2013 without success.  On 19th November 2013 the father himself attended at a "MIAM". 

7. On 19th December 2013 counsel on behalf of the father made a without notice application to Baker J to have the children made wards of court and for other consequential orders.  The learned judge acceded to that application and made the children wards.  He declared, on the information presently available to the court, that as at March 2013 and as at December 2013 the children were habitually resident in England and Wales.  By paragraph 2 he required the mother to return or cause the children to be returned to this jurisdiction from India forthwith (i.e. forthwith upon service upon her of the order).  A penal notice was attached informing the mother that if she were to disobey, then she might be held to be in contempt and could be imprisoned, fined or have her assets seized; that penal notice is referred to in bold capitals.  The judge fixed a return date for 16th January 2014 and required the mother to attend, again with a penal notice attaching. 

8. On 3rd January 2014 and subsequently on 13th January 2014 by letter and e mail that order of Baker J was served on the mother in India.  I can say that with confidence for reasons which will appear. 

9. On 15th January 2014 the solicitors for the mother got in touch with the father's solicitors by e mail to say that they had been instructed by her and that she had received "the paperwork", namely on the day when the father's solicitors had e mailed it to her.  The mother's solicitors suggested an adjournment of the return date of the order of Baker J which had been fixed for 16th January 2014; which the father's solicitors sensibly agreed.  It was further agreed that the parties would approach a particular mediation service. 

10. However, on 16th January 2014, the following day, the mother issued a notice of application to a second Magistrates Court in India seeking Guardianship of the children.  In her application she herself refers to the fact that she had had return tickets.  The father cross applied for this application to be dismissed.  Thereafter there were, as I shall explain, a number of adjournments and that Guardianship application in India is currently still pending.  The mediation that had been suggested broke down with the service concerned reporting at the end of January 2014 that the mother was unwilling to participate. 

11. On 13th February 2014 a further consent order was made by agreement between the parties' solicitors in England adjourning the wardship proceedings for another opportunity for mediation; but, again, it was reported by the mediation service in March 2014 that the mother was unwilling to participate. 

12. On 3rd March 2015 the matter came before Moor J.  The father had by now decided that the only course of action as a last resort was to apply for the mother's committal to prison for failing to comply with the order of Baker J dated 19th December 2013, in having failed to return the children to this jurisdiction.  Unfortunately, the application had been set out on the wrong form and the learned judge, or possibly counsel who appeared for the mother, took that point.  It was not, therefore, possible to proceed with the application on that day.  A recital to the order of Moor J placed on record the fact that the mother had been served with the order of Baker J dated 19th December 2013.  Moor J stood the matter over until 17th April 2015. 

13. On 9th March 2015 the father issued his summons to commit the mother to prison on the correct form.  That application came before me on 17th April 2015.  However, on this occasion there was another difficulty.  Although the order of Moor J had provided for "good service" if executed on the mother's solicitors, it transpired that they had gone off the record as acting for the mother on the very day that the court had served Moor J's order (which contained the date of 17th April 2015) on them.  It was therefore equivocal as to whether or not there had been good service, because there would not have been if those solicitors had not been 'on the record' at the time that they received the notification of the hearing date on 17th April 2015. 

14. After some discussion with Mr. Gration I decided, and he very fairly accepted, that the court could not in all justice proceed in that ambiguous situation and so the case was stood over until 3rd June 2015 for reservice.  In fact, through an administrative error, that date could not be effective and the application had to be relisted.  In respect of that, I provided a "paper exercise" order dated 9th June 2015 providing for the case to come back on a date to be fixed. 

15. That date was allocated by the court in due course and on 1st July 2015 the court issued a standard form notice fixing the hearing for today, 10th September 2015.  Service of that notice is proved by a signed statement of service by the individual then in charge of the case at the father's solicitors dated 8th May 2015 at C31.  It shows that on 8th July 2015 the mother was served at her stated address in India (which appears as her address in the Indian proceedings back in January 2014) by "international recorded delivery/registered post" and by e mail.  When I asked Mr. Gration which it was, as between recorded delivery and registered post, he handed me a FedEx receipt showing that it was FedEx who delivered the document, that it had been delivered on 11th July 2015 (three days after dispatch) and it had been signed for by a "Mrs. X", being the exact name of the mother save for one letter missing from the name.  The documents which were thus served, not only by FedEx but also by e mail, were my orders of 17th April 2015 and 9th June 2015 and the court's notice of hearing specifying this day, 10th September 2015, as the day of the hearing. 

16. On 14th August 2015 there was a hearing in the relevant magistrates court in India of the mother's guardianship application dated 16th January 2014.  This had already been into court on six previous occasions in 2014 and early 2015, but on each such occasion had been adjourned mostly by consent but once for lack of an available judge and once because of very bad weather. 

17. On 14th August 2015 the court in India adjourned the matter again to 27th August 2015, when it was further adjourned until 18th September 2015, when it remains pending as of today.  Mr. Gration tells me that the father had been hoping to enforce Baker J's order of December 2013 in India, but has not had success to date.  It is not clear what precise steps have been taken and Mr. Gration was unable to shed light on that.  It may be (and this of course is up to the father and his Indian lawyers) that his application by way of enforcement of this court's order will be heard together with the mother's application for a guardianship order in India on 18th September 2015. 

18. As ever the burden of proof in a committal rests on the applicant, here on the father, and the standard is the criminal starred of the court being sure.  The court has to be satisfied that there was a penal notice on the order in respect of which the breach is said to have taken place and that requirement is satisfied.  Here there is no doubt whatsoever that the mother has not complied with Baker J's order.  Further, she has accepted in the Indian proceedings, as mentioned, that she has had return tickets in her possession; she has never spoken of any sort of impediment, whether legal or practical, to her returning.  She has had opportunities to give evidence, if she so wished (although without obligation given that these are committal proceedings), or to attend by video link; but she has not availed herself of these opportunities. 

19. My order of 17th April 2015 made these options very clear to her: including paragraph 4, about the possibility of filing evidence without being a requirement; and paragraph 5, about appearing by video link if she wished.  My order also contained a preamble in which I "emphasised to the mother her entitlement to have legal representation in these committal proceedings within which her liberty is at stake". 

20. So, she has had ample opportunity to put her side of this and give any explanations as to why she has not complied with the order; but, as Mr. Gration puts it, she has chosen not to do so, when she could have done so.  He has reminded me of the decision of Cobb J in Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam), dated 6th February 2015.  There Cobb J set out, at paragraph 5, a checklist of nine points in respect of which the court needs to be satisfied when dealing with applications in the absence of the respondent.  If I may respectfully say so, it is an extremely useful summary in situations like this.  Having been through it paragraph by paragraph I am satisfied that all those considerations have been satisfied.  I have no hesitation too in saying that the father has made out his case beyond all reasonable doubt.  This is not a situation in which any further adjournment looks to have any reasonable prospect of securing the mother's attendance or, indeed, participation. 

21. I have to bear in mind that this is a three year old order now and nothing whatever is happening to it.  There has been no application for it to be set aside, notwithstanding the fact that the mother had solicitors, as I have explained, from January 2014 until about March 2015 continuing and that she appeared by counsel before Moor J in March 2015. 

22. In all these circumstances, I find that the mother is in contempt of court. 

23. On the question of sentence, the father's first thought was to invite the court to impose a sentence of imprisonment today.  However, he has reflected on that and his submission (although this of course is a matter for the court) is that it would be preferable to adjourn the question of sentence.  This would have the advantage of giving the mother a period of reflection to consider her position and it might also serve as an incentive to her; of course, it might not, but one has to wait and see.  I observe that Cobb J, who dealt with the matter of Sanchez in the absence of the respondents, took this course.  He said that: 

"...at that hearing the respondent may make representations and present any mitigation relevant to penalty.  If he has returned or caused the return of [the child] to this country by that date, this will obviously be taken into consideration in the determination of any penalty imposed." 

Therefore, I shall adjourn the question of sentence; it will give the mother a time for reflection and time to mitigate, should she wish to do so. 

24. I revert finally to the question of service.  As I have said, it is quite clear that she received the order of Baker J of December 2013; she refers to it in her Indian proceedings and Moor J recorded that she had been served with it when he dealt with the case in March 2015.  As to service of the notice regarding today, as I have already mentioned, the date was notified to the parties by the court on a standard form notice of 1st July 2015 and that was served on the mother in good time on 8th July 2015, as per the statement of service by the father's solicitors' representative dated 18th August 2015. 

25. I also refer again to the FedEx documentation, accordingly it is quite clear that the mother has had notice of today's hearing and that it is proper for the court to proceed today in her absence.