username

password

Alpha BiolabsCoram Chambersimage of 4 Paper Buildings logoHarcourt ChambersFamily Law Week Email Subscriptionsite by Zehuti

Home > Judgments

Egeneonu v Egeneonu & Anor [2018] EWHC 1392 (Fam)

Judgment of Williams J concerning committal proceedings and an application to exclude improperly obtained evidence

The mother brought applications for committal against the father and a third party ("V") and applied for permission to pursue grounds that the father had (i) interfered with the due administration of justice and (ii) had made false statements of truth.

The father applied unsuccessfully to exclude improperly obtained telephone transcripts from the committal proceedings. The transcripts were the only evidence relied on by the mother in support of her application for permission. Williams J found they had been obtained in a manner that was 'regretttable' but not 'malign'. He went on to grant the mother's application for permission.

Admissibility of Evidence
The transcripts upon which the mother sought to rely were of conversations between the father and V, recorded by the prison service. Williams J found that the transcripts had been released as a result of a mistake on both the part of the prison service and the mother's solicitors. A High Court order had been made at the time of the release "which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided".

Williams J considered both the criminal and civil rules of evidence in respect of improperly obtained evidence. The fact that contempt taking the form of an interference with the administration of justice is criminal contempt - Egeneonu-v-Egeneonu [2017] EWHC 43 (Fam), gave rise to the question as to whether the criminal rules of evidence applied or not.
The statutory provision governing the exclusion of evidence in criminal proceedings is section 78 of the Police and Criminal Evidence Act 1984. The admissibility of improperly obtained criminal evidence had been considered in Regina-v-Khan (Sultan) [1997] AC 558, Regina-v-P [2002] 1 AC 146, and Regina-v-SL and Others [2001] EWCA Crim 1829.

In civil proceedings, CPR 32.1 provides that the court may exclude evidence which would otherwise be admissible. Improperly obtained evidence in the civil context was considered in Jones-v-University of Warwick [2003] 1 WLR 954.

Williams J concluded at [15] that whether he applied the criminal or civil approach the result was broadly the same:

"…There is no automatic exclusion unless the circumstances reach such a high level or impropriety as to offend the courts conscience or sense of justice. The court must consider all the circumstances and decide whether relevant evidence should be excluded so as to ensure a fair hearing."

The transcript evidence of the conversations between F and V were admitted for reasons which included that:

i) The transcripts were strong evidence in support of the mother's grounds of committal and without it the grounds could not be pursued;
ii) The transcripts were not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse;
iii) As the father would have the opportunity to challenge the contents of the conversations in his own evidence there was no ambush;
iv) It would be to ignore reality to exclude the evidence.

Permission to pursue committal
Where the ground for committal is that a party is alleged to have made false statements, the test for permission was considered in KJM Superbikes Limited-v-Hinton [2009] 1 WLR 2406 by Moore-Bick LJ.

Williams J extracted the propositions from that judgment at [21]. In determining permission the court must have regard to the public interest alone. Usually it is for public authorities to determine whether to bring legal proceedings in respect of acts which interfere with the course of justice. When deciding whether it is in the public interest to grant permission to a private individual, the court will consider many factors, which include:

i) The strength of the evidence showing not only that the statement was false but that it was known to be so
ii) The circumstances in which it was made,
iii) Its significance having regard to the proceedings in which it was made,
iv) Such evidence as there is as to the maker's state of mind including his understanding of the use to which it would be put and the likely effect, and
v) The use to which it was actually put
vi) The over-riding objective, proportionality, and the question of whether the matter justifies the use of court resources

At [21] (vi), Williams J also derived from Moore-Bick LJ's judgment the proposition that:
"…probably only where there is a strong case that both the statement is untrue and that the maker knew it was untrue when he made it should permission be granted."

The mother was granted permission in respect of her grounds for reasons which Williams J gives at [24]. They included the strength of the evidence against the father and the seriousness of the contempts if proved.
 
Summary by Gayan Samarasinghe, pupil, 29 Bedford Row

_______________

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Case No: FD13P002234
Neutral Citation Number: [2018] EWHC 1392 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/06/2018


Before :

MR. JUSTICE WILLIAMS

- - - - - - - - - - - - - - - - - - - - -

Between :

Ijeoma Egeneonu
 Applicant
- and - 
Levi Egeneonu
Victor Egeneonu
Respondent

Committal- Application for Permission - Admission of Improperly Obtained Evidence
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Alistair Perkins. (instructed by Bindmans LLP ) for the Applicant
Mr. Paul Hepher
. (instructed by ?Bindmans LLP) for the Applicant
Mr. Levi Egeneonu
(Respondent) represents himself
Mr. Lue
(instructed by Miles and Partners)  for Mr. Victor Egeneonu

Hearing dates: 21 and 23 March 2018
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
Mr. Justice Williams :

1. I am once again concerned with a committal application made by Ijeoma Egeneonu (M) against her husband Levi Egeneonu (F).  I have also been considering an application for committal made by M against Victor Egeneonu (V). He is either F's brother (M's assertion) or F's son (F's assertion). 

2. M has been represented by Mr Paul Hepher and Mr Alistair Perkins. F has chosen to represent himself. Although he is eligible for criminal legal aid and both I and Mr Justice Holman have made considerable efforts to encourage F to instruct solicitors again he has declined that opportunity. He is currently serving a prison sentence for contempt of court and his release date is 4 May 2018.  He is fully aware of the seriousness of the allegations made. He is aware of the availability of solicitors and counsel to represent him. He has been represented by solicitors and counsel previously, most recently in November 2017.  It is entirely his choice not to be represented now. There is no breach of his Article 6 ECHR rights in relation to these committal proceedings by proceeding without his having legal representation. V has criminal legal aid and is represented by solicitors and by Mr Lue of counsel, that all having been put in place in a matter of a couple of days following his arrest.  

3. This hearing was listed by Holman J on 28 February 2018. That was the day after V was due back from Nigeria. I had made an order that he use his best endeavours to secure the return of the 3 children during a visit he was making there and ordered him to attend court on 28 February 2018. V did not attend that hearing and Holman J issued a warrant for his arrest. On that same day M issued committal applications against both F and V and Holman J (in the event the children were not subsequently returned to England) listed those applications for

i) Consideration of M's applications for permission to pursue grounds of committal against F and V that (a) they had interfered with the due administration of justice and (b) they had made false statements of truth

ii) Timetabling of the committal proceedings against F; the committal notice also includes 3 Grounds on which permission is not required,

iii) The timetabling of the committal proceedings against V,

iv) Whether the court should grant leave to disclose telephone transcripts to the Home Office to investigate immigration irregularities regarding V, and

v) Determination of F's 'application' to dismiss the committal proceedings on the basis that they are fraudulent.

4. The Committal Notices themselves are contained at B600 (F) and B615 (V) in the Bundle. I shall only summarise them here

i) Grounds re F

a) 1.  Breach of an order of Roberts J  of 8 August 2017 to inform V of various matters by failing so to do despite speaking to him on 4 occasions on 8 and 9 August 2017

b) 2. Breach of an order of Cohen J of 10 November 2017 to cause  the return of the children by 15 December 2017 or subsequently by failing to cause their return by that date or subsequently

c) 3. Breach of an order of Williams J of 9 February 2018 to cause their return by 27 February 2018 by failing to cause their return

d) 4. Interfering with the due administration of justice by creating and causing letters to be sent to the court purporting to come from the children with the intention of misleading the court as to the children's wishes and feelings.

This Ground is subject to permission being granted pursuant to FPR 37.13(2)

e)  5. Interfering with the due administration of justice by causing a false statement from a third party to be produced to the court with the intention of interfering with the administration of justice.

This Ground is subject to permission being granted pursuant to FPR 37.13(2)

f) 6. Making a false statement of truth in statements dated 21 September 2017 and 20 October 2017 by (amongst others) stating the children are in the care of M's siblings, and that he is unable to cause their return; such statements being made without an honest belief in their truth.

This Ground is subject to permission being granted pursuant to FPR 37.16(4)

ii) Grounds re V

a) 1. He gave false testimony to the court on 11 August 2017 and 10 November 2017 intending to interfere with the due administration of justice.

This Ground is subject to permission being granted pursuant to FPR 37.13(2)

b) 2. Causing false evidence as to the children's wishes and feelings to be produced to the court with the intention of interfering with the due administration of justice.

This Ground is subject to permission being granted pursuant to FPR 37.13(2)

c) 3. Interfering with the due administration of justice by causing a false statement from a third party to be produced to the court with the intention of interfering with the administration of justice.

This Ground is subject to permission being granted pursuant to FPR 37.13(2)

d) 4. Failing to file a witness statement by 20 October 2017 in  breach of the order of Holman J dated 25 September 2017.

e) 5. Breach of an order of Williams J dated 9 February 2018 requiring him (amongst other matters) to use his best endeavours to cause the return of the children by failing to use his best endeavours so to do.

They are supported by Affidavits with lengthy exhibits.

5. The evidence in support of Grounds 1,4,5,6 (F) and 1,2,3 (V) is largely the content of the transcripts of conversations between F and V which took place whilst F was in prison and which were recorded by the Prison Service and subsequently disclosed and translated and transcribed into English.

6. The hearing commenced last Wednesday, 21 March with M and F present.  Prior to the commencement of the hearing it became clear that F had not been served with M's Position Statement which set out a detailed exposition of the law relating to permission to bring committal proceedings. As litigant in person he ought to have been served 3 days before the hearing. F himself then produced a number of documents which neither Mr Hepher nor the court had seen before. These facts raise issues which I shall return to in respect of litigants in person and serving prisoners. The documents F produced  included

i) A document which in its effect invited me to recuse myself from hearing the case,

ii) A Position Statement,

iii) A statement to proof fraudulent claim/committal – March 2018

iv) An application to purge his contempt

v) A statement from Chief Ted Ofoduru, a traditional chief in Nigeria which pointed out that this court has no power or right to tell 'us' what to do.

vi) An application inviting me to make provision for the Foreign and Commonwealth Office to assist V who F asserted had been kidnapped in Nigeria and was  (I was told) missing.  

7. After adjourning to enable all parties to digest the documents produced late by the other I commenced hearing the case. I refused F's application to recuse myself and refused his application to dismiss the proceedings on the basis that they were based on fraud.  I gave a judgment on those. I also addressed the question of the disclosure of the telephone transcripts to the Home Office concluding that this was a matter for the court to consider after any committal proceedings against V had concluded.  I had to adjourn the hearing of the permission application and timetabling because F had quite properly raised an objection to any reliance being placed on the transcripts on the grounds that they had been obtained in breach of the terms of a court order and he submitted that evidence improperly or illegally obtained could not found or be admitted into evidence in committal proceedings which are criminal in nature. He asserted that they had been obtained dishonestly and by deceit and that the contents of the transcripts had been deliberately and dishonestly manipulated. Neither Mr Hepher or F had addressed the law on this subject in their documents. Given that the test for permission requires the court to consider the strength of the evidence in support, and the telephone transcripts were the only evidence on which the Grounds rested if it was inadmissible it followed that permission would not be granted.

8. I therefore adjourned the application for permission and case-management part-heard to 27 March 2018. By chance it turned out that V was not as F said he believed, being held in Nigeria. He arrived in the UK by air on Thursday, was arrested on the warrant at the airport and appeared in custody before me as the Urgent Applications Judge. He was represented. I released him (on conditions) and directed that he attend the part-heard hearing; in particular to deal with the issues relating to the admissibility of the transcript evidence.  Mr Lue appeared today and provided me with a very helpful Position Statement on the law relating to the admissibility of the transcript evidence. Mr Perkins who took over from Mr Hepher also produced a very helpful Skeleton Argument on the admissibility of evidence and permission issues. In the meantime given F had put in issue the circumstances in which the transcripts were obtained Ms Bennett, M's solicitor had produced a statement setting out how it came about they were provided.  Mr Perkins Skeleton and Ms Bennett's evidence had been provided to F the day before by means of a legal visit being booked to see F, it not being possible to ensure he received them by post due to delays in post to prisoners being processed.  F also then produced several more documents including a Position Statement, further documents to support his application to purge his contempt, a further document related to the 'fraudulent' argument and a complaint addressed to the President of the Family Division against me. I returned the 'fraudulent' document unread as I had determined that application last week and I passed on the complaint to the President. 

9. Mr Lue submitted that I should adjourn consideration of all matters relating to V because his solicitors had not had time to consider the documents or take V's instructions on them, they only having been in a position to do so on Monday this week.   I had hoped that it would be possible for V's team to at least engage in the case in respect of the admissibility of the transcript evidence but Mr Lue was able to persuade me that V's team had really not had a proper opportunity to prepare. I thus agreed that all aspects of V's committal application would be adjourned as follows

i) To a 1 day hearing on 8 May 2018 before Cohen J to determine issues of admissibility and permission and

ii) To a 2 day hearing on 21 and 22 June 2018 before HHJ Atkinson sitting as a Deputy High Court Judge.

Mr Lue thereafter played a very limited role in the remainder of the hearing.  This judgment in so far as it bears on matters which are also relevant to V may  not therefore be technically 'binding' on him or Cohen J but I anticipate that both in respect of the law and my factual evaluation of the circumstances in which the transcript evidence came to be disclosed and its transcription it will carry some weight.

Admissibility of Evidence
 
10. In Egeneonu-v-Egeneonu [2017] EWHC 43 (Fam) the President confirmed that contempt taking the form of an interference with the administration of justice was criminal contempt.  It is well established in any event that the procedural approach to contempt, even civil contempt, involves the application of principles which are imported from criminal procedure; hence the standard of proof is beyond reasonable doubt.  The fact that the contempt is criminal  as well as the court adopting a quasi-criminal procedure gave rise to the question of whether criminal rules of evidence applied or not.

11. The statutory provision which governs the exclusion of evidence in crime is section 78 Police and Criminal Evidence Act 1984. This permits the court to exclude evidence on which the prosecution intend to rely if it appears to the court having regard to all the circumstances that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.  In the civil field CPR 32.1 provides that the court may exclude evidence which would otherwise be admissible. Mr Perkins and Mr Lue were largely agreed on the relevant law.  The Regulation of Investigatory Powers 2000 restrictions on the admission of intercepted material do not apply as the situation does not fall within s.17(1)(a) or (b).

12. In the criminal field the courts have considered the application of section 78 PACE in relation to improperly obtained evidence in a number of cases

i) Regina-v-Khan (Sultan) [1997] AC 558

ii) Regina-v-P [2002] 1 AC 146

iii) Regina -v-SL and Others [2001] EWCA Crim 1829

13. The following principles emerge from these authorities.

i) The power to exclude evidence under s.78 PACE is at least as wide as the common law power to exclude evidence in the interests of a fair trial.

ii) The principle test for admissibility of evidence is relevance.

iii) Relevant evidence is not excluded simply because it has been unlawfully or improperly obtained, this includes evidence obtained in breach of a persons Article 8 ECHR rights. Illegally or improperly obtained evidence does not amount to a breach of a person's Article 6 ECHR rights.

iv) Unlawfully or improperly obtained relevant evidence may be excluded if it would have such an adverse effect on the fairness of the proceedings. 

v) Fairness includes fairness to the prosecution and to the defendant. Trial by ambush may be unfair.

vi) Evidence obtained by flagrant non-use or misuse of authorised procedures may well provide grounds for exclusion because it will affect the fairness of the trial. In extreme cases where the abuse of process is of such gravity the prosecution may be halted.

vii) The court must consider all the circumstances in determining whether a trial will be fair or unfair.

14. In the civil arena the Court of Appeal considered the admissibility of illegally or improperly obtained evidence in Jones-v-University of Warwick [2003] 1 WLR 954. The Court of Appeal referred to some of the above cases and principles concluding that the approach must be dictated by the  over-riding objective of dealing with a case justly. The court must balance all the circumstances including the relevance of the evidence and the effect of its exclusion.  There may be cases where the behaviour of the person obtaining the evidence was so outrageous that the case based on it should be struck out.  It may be that improper behaviour should have costs consequences whilst the evidence is admitted. 

15. It will be apparent from the foregoing that whether I apply the s.78 PACE criteria or the CPR 1 and 32 approach the approach is broadly the same. There is no automatic exclusion unless the circumstances reach such a high level or impropriety as to offend the courts conscience or sense of justice. The court must consider all the circumstances and decide whether relevant evidence should be excluded so as to ensure a fair hearing.

16. M's position was that

i) The evidence was plainly relevant as the transcripts showed F and V discussing creating evidence or the situation of the children which supported the allegations of contempt

ii) The transcripts were obtained as a result of an innocent circumvention of the order

iii) Their exclusion would lead to gross unfairness to M as the relevant Grounds were incapable of proof without them.

iv) Exclusion would lead the court to deal with the matter on a basis that ignored reality.

v) There was no ambush of F or V; they have had access to the transcripts for a long period of time.

17. F's case focussed on two main points

i) The transcripts were obtained illegally.  The order is clear: M's solicitors were to return to the court to get the recordings or transcripts. The solicitors have acted deliberately and dishonestly to circumvent the order. M went through the backdoor to get them and the court should not sanction this illegality.

ii) There has been manipulation of the transcripts which calls into question both the legality of the M's actions and  whether they can be relied on as containing relevant evidence. The interpreter seems to be a novice. There is a letter that says  not to include the Igbo original so they can say anything they like

18. In order to determine the precise circumstances in which the transcripts came to be disclosed and how they had been transcribed it was necessary for Ms Bennett to give evidence. F objected to her giving evidence because he said he had only had 1 day to consider her evidence. Given that last week he had asked for an hour to cross examine witnesses including Ms Bennett on how the transcripts were obtained I concluded that he would not be in any way at a disadvantage. Ms Bennett therefore gave evidence and was cross-examined by F (with some assistance from me).

19. The evidence and my conclusions on this issue are as follows.

i) On 11 August 2017 Roberts J made an order in the following terms

HM Prison Thameside/HM Prison Service shall…. Provide the following information and documents

(a) Provide the itemised call records in relation to all telephone calls made and recived by [F} from hs incarceration

(b) Confirm whether or not the telephone calls are recorded

(c) Confirm whether or not they would object to an order being made by this Honourable Court that audio copies should be released  and/or a transcript of the calls should be disclosed…..

ii) It is immediately apparent that the order did not require the Prison Service to disclose the recordings or the transcripts.

iii) The sealed order was sent out by the court on 23 August.

iv) Ms Bennett said she had not been at the court hearing as she was on leave. When the order came in she said she did not have a memory of reading it but assumed she would have done.

v) On 23 August 2017 Ms Bennett's para-legal drafted and sent a letter to HMP Thameside enclosing the Court order and accurately setting out the terms of the order in the body of the letter.

vi) On 11 September 2017 HMP Thameside responded providing a list of all calls made and received by F and confirmed that they were recorded. The letter said '…please.. provide me with a list of numbers which you would like the telephone recordings for, I will then ask the Security staff to review these calls and burn them to disc'.  It is clear from this response that the author thought the court order required or authorised the release of the recordings of the calls themselves rather than just the details of the calls.

vii) On 15 September 2017 Bindmans responded saying 'We have highlighted the calls we want recordings from. Please see attached.' The author of the e-mail was a para-legal. Ms Bennetts evidence was that when she discussed the response with the para-legal she was working on the assumption that the order authorised the release of the transcripts. She said she did not go back to the order to check its precise wording but assumed because the prison had said they could have the recordings that that was what the order authorised. She accepted in evidence that she was mistaken in her belief about what the order provided for. She said she did not realise the transcripts had been provided not in compliance with the order until F's solicitors pointed it out on 13 December 2017.

viii) She was pressed hard by F and by me on how it can be that an officer of the court could have authorised the sending of an e-mail which furthered the release of material which was not in compliance with the terms of a High Court order which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided. Ms Bennett accepted that it was a failure on her part. She appeared, rightly, somewhat embarrassed that this had happened on her watch. F put it to her that it was a deliberate attempt to mislead the prison and to get evidence by improper means. She denied this and pointed out that there was nothing to be gained in doing so as the court would almost certainly have approved the obtaining of the recordings that had been sought.

ix) Having regard to all the circumstances I accept that this was a mistake rather than a deliberate act. The letters sent between Bindmans and the prison,  her explanations and the absence of any motive to have deliberately mislead the court persuade me that a combination of matters led to a situation where both the prison service and Bindmans mistakenly assumed the order provided for the release of the recordings themselves.

x) Given the context of these applications, namely contempt of court and in particular interference with the administration of justice this is regrettable but it is not malign.

xi) Ms Bennett also explained how the recordings came to be interpreted and transcribed. It is clear that the following is the case

a) The transcripts were prepared by an NRPSI (National Register of Public Service Interpreters, an independent voluntary regulator)  interpreter in Igbo/English, Charles Chinedu Mottoh.

b) In a series of witness statements dating from 24 October 2017 to 11 January 2018 he produces the transcripts of 222 clips of recordings which he identifies by Exhibit No and by their File Name.

c) The clips themselves are identifiable by a code (File Name) which appears on the list provided by HMP Thamside. Thus 146203 01 07 2017 10_38_18 refers to a call recorded on 1st July 2017 at 10.38 and 18 seconds in the morning. The first 6 digits seems to be a code applied by the prison service to the individual.

d) Each transcript produced by Mr Mottoh bears the File name and so each is readily identifiable by date and time.

e) Each transcript contains only the English translation of what was said not the Igbo original.   

xii) I am satisfied that the transcripts are readily identifiable as relating to F, that their dates and times are ascertainable and that the contents are a bona fide interpretation of what Mr Mottoh heard. It may be that F or V would be able to identify errors or mistakes in the transcripts but I am satisfied they represent a sufficiently reliable record of what passed between F and V for the purposes of this application. If F or V produce alternative transcripts then the interpreters may need to give evidence but that is a matter for another day. F says Mr Mottoh's interpretation of certain Igbo phrases is either wrong or too definitive and that some words can bear more than one meaning.  F will no doubt identify any errors in the critical transcripts M relies on. 

20. My conclusions on the admissibility point are that the transcripts are not to be excluded for the following reasons;

i) The transcripts appear to be a proper interpretation into English of Igbo conversations between F and V.  The interpreter is qualified and has provided statements of truth with appropriate records evidencing the recordings he has interpreted. 

ii) The evidence is relevant to the Grounds of Committal against F and V. As I will explain below, in respect of F (I have not looked in detail at V's position) it is strong evidence and without it the Grounds could not be pursued. That would be unfair to M.

iii) It was not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse so as to fall into a category where the court might contemplate its exclusion on the basis that its obtaining and deployment was itself an abuse of process and offensive to justice.

iv) F will have the opportunity to challenge the contents of the conversations in his own evidence; there is no ambush.

v) It would be to ignore reality to exclude the evidence.

PERMISSION TO PURSUE COMMITTAL
21. For reasons which I have not explored the Committal Notices refer to the contempt requiring permission as being contempt in the face of the court.  They are also referred to in the Notice as  contempt which fall either under the category of 'Interference with the due administration of justice' or 'making a false statement of truth'. Each of those categories require the permission of the court to pursue. The procedure is set out in FPR 37.15. In respect of making a false statement FPR 37.17(4) enables the court to refer the matter to the Attorney-General with a request that he consider whether to bring committal proceedings. The test for granting permission (in the context of false statements) was considered by the Court of Appeal in KJM Superbikes Limited-v-Hinton [2009] 1 WLR 2406. The following propositions can be derived from the judgment of Moore-Bick LJ.

i) In determining whether to give permission the court must have regard to the public interest alone. Usually it is for public authorities to determine whether to pursue acts which tend to interfere with the course of justice but a private individual directly affected may bring the proceedings.

ii) In determining whether it is in the public interest to grant permission to a private individual there are many factors to consider, foremost among them are,

a) The strength of the evidence showing not only that the statement was false but that it was known to be so,

b) The circumstances in which it was made,

c) Its significance having regard to the proceedings in which it was made,

d) Such evidence as there is as to the maker's state of mind including his understanding of the use to which it would be put and the likely effect, and

e) The use to which it was actually put.

iii) Such factors are likely to indicate whether the matter is sufficiently grave for there to be a public interest in proceedings being taken.

iv) The court should also consider whether it justifies the use of the resources that will be devoted.

v) Will the proceedings further the over-riding objective?

vi) The court should not exercise the discretion too freely as vindictive litigants might harass others.  Great caution should be exercised – probably only where there is a strong case that both the statement is untrue and that the maker knew it was untrue when he made it should permission be granted.

vii) In granting permission the court should give reasons but being careful not to prejudice the outcome of the substantive proceedings.

22. M submitted that

i) The evidence was strong in respect of each of the grounds in showing both that the act had been done with the intention of misleading the court or that it was known that the statement was false and the intention was to mislead the court

ii) Committal proceedings are justified both in furtherance of the return of the children but also to punish such behaviour and ensure that F and V do not behave thus again.

iii) These are very serious examples of contempt if proved.

23. F submitted that

i) It is not in the best interests of the children to pursue the proceedings. It will not secure their return; in fact it will impede their return as the family and community in Nigeria have been greatly vexed by the attitude of M and this court. It is counter-productive.

ii) Whilst he is in prison he cannot secure the children's return. At present he has no chance. If released and allowed to return he would have as 70% chance of getting the children to England for a visit.

iii) It is inappropriate given the views of the Nigerian family

iv) The evidence is not strong but is misleading.

v) These are a threat. M says she will not pursue them if I return the children. This is improper.

24. I consider it appropriate to grant permission

i) The evidence is strong both that the acts were committed and they were done knowingly. As examples

a) The transcript at Exhibit 28 (p.491) appears to show F dictating to V the words of a letter purporting to be from the children which appears in almost identical words at Exhibit 29(p.524) and which was submitted to the court.

b) The transcript at Exhibit 32 (p.539) appears to show a conversation between F and V on 25 August 2018 about creating a witness statement from Ola Ajibola which subsequently was produced to the court dated 24 August 2018.

c) The transcript of 27 July 2017 at Exhibit 22 (p.354) and 28 July 2017 at 360 appear to show conversations between F and V in which the whereabouts of the children are discussed as are arrangements for moving them around. The subsequent statements in which F denies any control or knowledge over their whereabouts are plainly inconsistent.  I disbelieved his evidence but the transcripts arguably provide a very clear and different reality.

ii) I am unable to ascertain the children's best interests. I have appointed Cafcass as their guardian in an attempt to make some progress in looking at ways in which their current best interests might be ascertained.

iii) I do not accept that the committal proceedings are counter-productive. F did not secure the return of the children during the 3 years he was at liberty in Nigeria. I do not know whether what F says about the position of the family and community in Nigeria are correct. I am not able to rely without independent verification on material produced by F. He has still not produced the later order he asserts has been made by a Nigerian court.

iv) M is pursuing committals for breaches of orders and it is more proportionate for these proceedings to be dealt with at the same time rather than a public authority pursuing them

v) The nature of the contempts if proved are very serious indeed and would represent a concerted effort to create false evidence to deliberately mislead the court.

vi)  It is in the public interest to determine these serious allegations. I do not consider it appropriate to make a request to the Attorney-General given the other aspects of committal which would be proceedings in this court in any event.

25. I also dealt with F's application to purge his contempt. His argument was that  if he was released he would be better able to secure the return of the children to the jurisdiction at least for a visit whilst in prison he was powerless. He also said his imprisonment was inflaming the situation and making it less likely the children would return. For the reasons set out at para 24(iii) above I do not accept there is any veracity in this assertion. F's track record in absconding and then in not returning the children during the 3 years he was in Nigeria are directly counter to the contention that his release would enable him to make efforts to secure their return.  Only by securing their return now is he likely to be able to purge his contempt. Ensuring that Cafcass have access to the children to speak to them or enabling a representative in Nigeria to do so might provide some foundation. I therefore refuse F's application to purge his contempt.

26. A number of issues related to service or provision of documents caused delay in the proceedings which I feel I should address.

i) Firstly F had not been provided with M's Position Statement well in advance of the hearing. Mr Justice Peter Jackson (as he then was) emphasised in Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) the need for Litigants in person to be provided with documents in good time in order to ensure a fair hearing. This seems to give rise to particular difficulties where the Litigant is a serving prisoner as I was told that post can be delayed by several days for screening and that only by booking a legal visit can documents be provided. This seems to be a considerable waste of funds and I intend to explore this issue further through the Family Justice Council and the FPR Rules Committee.  For the future good management of this case though M's solicitors should take steps to ensure that F has the relevant documents in good time for hearing even if this means booking legal visits to deliver them. Until a different and equally effective way is devised of getting  the documents to him adopting this approach will allow that to happen.

ii) Secondly F himself produced his documents at court when produced from the cells. Again it seems to me that a more effective mechanism for ensuring that a serving prisoner Litigant in person – of whom there are a significant number – is able to provide documents in advance is needed. It may be that M's team will also need to collect F's documents from him the day before the hearing or it may be possible for a direction to be made to the prison to ensure that F is able to have his document transmitted to M and the Court the day prior to the hearing.

iii) Thirdly F produced a significant number of documents which could be characterised as applications, witness statements (from himself and others) position statements and other species of documents.  In Barton v Wright Hassall LLP [2018] UKSC 12 Lord Sumption stated that a LIP's: "…lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to [LiPs] a lower standard of compliance with rules or orders of the court… The rules do not in any relevant respect distinguish between represented and unrepresented parties."  Lord Sumption further confirmed (in his majority view) that "Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a [LiP] to familiarise himself with the rules which apply to any step which he is about to take."   Although said in the context of the CPR the logic applies as much to the FPR. If F wishes to make an application in future I doubt that the court will indulge him to the extent it has so far. Any applications made by F should be made on the correct forms and issued out of the court office in compliance with the FPR. Evidence should be filed and served in accordance with orders made. Fairness to the parties' cuts both ways; M should know in advance and be able to instruct her team on applications made by F or evidence produced him.

iv) In order to assist LiP's to understand the obligations that for instance PD27A places on them it may be worthwhile for further consideration to be given in the appropriate forum on whether any further guidance (perhaps in the form of templates)  could be given when Notices of Hearing are sent out to LiP's directing them to the form and content of Bundles and the best form and content of Position Statement.

END