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Joyce v Joyce [2013] EWHC 1353 (Fam)

Finding of contempt of court for father in breach of orders to return children to Ireland. Sentenced to 6 months imprisonment.

Three boys (twins aged 13 and an 11 year-old) had been living in Ireland with their mother and the father was living in England. In November 2012 the mother brought the boys to England for a wedding and sought to take them back to Ireland in December 2012. The father would not agree for them to return to Ireland and the boys have been living with the father since then.

The mother commenced Hague Convention proceedings which the father defended, unsuccessfully, by stating that the children objected to returning to Ireland. The judge ordered that the children be returned to Ireland, Dundalk specifically, by 1st March 2013 and the father was to escort them from London.

The children were not returned to Ireland and the matter returned to court on 4th April 2013 when the previous order was reiterated, save for permission for the parties to come to an agreement regarding return if they felt that they were able to agree a return method which did not involve the father returning the children to Dundalk. There were repeated attempts and repeated failures on the part of the father to return the children.

On 14th April 2013 Wood J made a Collection Order for the Tipstaff to collect the children. When an attempt to execute the order was made it was clear that the children did not wish to go and so the attempt was abandoned.

A Guardian was appointed for the children. The Guardian's recommendations were that the children return to Ireland, despite their protestations as they had been caught in an "emotional whirlpool". Accordingly, the stay on the Collection Order was lifted. However, when an attempt to retrieve the children was made, they were found to be absent from the father's home. The father was picked up by the Tipstaff and brought to court before Bodey J at this hearing.

Bodey J, reminding himself that the test "in this as to whether contempt is proved beyond all reasonable doubt", found:

"...[I]t is really inconceivable that he [the father] does not know where the children are. I am sure he does know where they are, or at least that he knows how they can be contacted and located....I find him to be in contempt in not giving the court the assistance which the court required of him."

The father was imprisoned for 6 months with the opportunity to purge himself at a hearing the following week by apologising to the court and giving the assistance required. Bodey J also made clear that the mother might make an application for a fresh order for the father to return the children to Ireland. If that order was made and the father continued with his non-compliance he could be subject to a further prison sentence.

Summary by Akta Chipalkatty, barrister, Church Court Chambers

No. FD13P00032
Neutral Citation Number: [2013] EWHC 1353 (Fam)


Royal Courts of Justice
Thursday, 16th May 2013


(In Private)
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B E T W E E N :

MARY JOYCE Applicant

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Transcribed by BEVERLEY F. NUNNERY & CO
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MISS PAPAZIAN appeared on behalf of the Applicant.
appeared on behalf of the Respondent.
appeared on behalf of the Guardian.
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1. This hearing concerns three boys, twins who are aged 13 and a half  and the youngest 11 and three-quarters.  There are elder siblings who are not before the court as the subject of the proceedings. 

2. The parties are the parents of the three boys.  For convenience I will refer to them as "the mother" and "the father".  The application arises because the Tipstaff has caused the father to be arrested for being in breach of a Collection Order in relation to the boys, and he has been brought before me this afternoon.

3. There is a small background to the case, in that a time came around the end of 2012 when the mother and the three boys were living in Ireland and the father in England.  The mother brought the three boys over to England in November 2012 for a wedding, but when she sought to take them back to Ireland in December 2012 the father would not agree and they have been living with the father in this country ever since.   The mother started Hague Convention proceedings seeking a summary return of the children from this country to Ireland.  That came for final hearing on 22nd February 2013 before Miss Frances Judd QC.  The father had taken the so-called 'child's objection' defence to their having to be returned to Ireland.  The children were seen by the CAFCASS Officer.  The judge's order was that the children were to be returned to Ireland by 1st March 2013, and more particularly that the father was to take them from London back to Dundalk.  The judge considered the case which the father placed before her regarding the children's objections. It is fair to say that they were strongly objecting to going back, but the judge took that into account in reaching her decision.

4. The father sought permission to appeal that decision but on 26th March 2013 the Court of Appeal refused him permission.

5. The children not having been sent back to Ireland, the case was brought back before Mr. Verdan QC on 4th April 2013.  Having heard the case, he decided that unless the parties agreed some other arrangements, the father was to return the boys to Ireland by 11th April 2013 and again that he was to take them back to Dundalk. He accepted that the parties could negotiate for some alternative arrangements, but that was the order in default.  

6. On 5th April 2013 the father put forward proposals that the mother should collect the children at Stansted.  The mother said 'no'; but she was prepared to collect them from Dublin.  On 9th April 2013 - this is now two days before the father was to take the children back to Dundalk, in the absence of any alternative arrangements - the father's solicitors sent the mother's solicitors tickets for the boys to return from Stansted to Dublin dated 15th April 2013.  That was not compliant with the court's order, in that (a) the flights were four days later than the court had ordered and (b) it should have been the father taking the children back to Dundalk, not the mother coming to fetch them from Stansted.  Be that as it may, the return did not happen and on 12th April 2013 the case came back before Cobb J.   He ordered that the father should hand the children to the mother at Stansted on 14th April 2013 for her to be able to return the children to Ireland with the tickets for the 15th which the father's solicitors had sent to her.  The father did not take the children to Stansted airport on 14th April 2013 as ordered, on the basis that the children would not go.  Therefore, application was made out of hours to Wood J. on 14th April 2013.  That judge made a Collection Order; that is to say requiring the Tipstaff to collect the children.  When the Tipstaff, or more likely the police, went to execute the collection order, it was clear that the children were not prepared to be collected and efforts to collect them were abandoned, such was their opposition. 

7. On 15th April 2013 the matter therefore came before Hogg J.  She directed that the father was to bring the children to a meeting with the children's Guardian on 16th April and the matter was relisted for that day.  On that day, 16th April 2013,  Cobb J. heard oral evidence from the children's Guardian, who saw the boys and reported to him that the children were still very resistant to going back to Ireland.  He appointed her to be the children's Guardian and joined them as parties to these proceedings.  He stayed Wood J's Collection Order and adjourned the case to 26th April 2013, for the mother to consider what, if any, means of enforcement she wished to invite the court to undertake.

8. On 26th April 2013 his Honour Judge Tyzack QC directed that there be contact with the mother over the weekend just gone, which duly took place, and he adjourned the hearing to this Monday, the 13th.  The matter came before Wood J. again on 13th May 2013.  He required the father to attend, bringing the boys,  on Tuesday the 14th before the applications judge, which is myself this week.  The father did attend on the Tuesday, 2 days ago, but without the boys.  I heard submissions from all three parties - that is to say counsel for the mother, the solicitor for the father and the solicitor for the Choldren's Guardian.  He (the solicitor for the Guardian) spoke of the 'emotional whirlpool' in which the boys are caught up and told me that the Children's Guardian supports the need for the children to be returned to Ireland.

9. Having heard those submissions I lifted the stay on the Collection Order made on the 14 April 2103.  In pursuance of that Collection Order, the police attended yesterday afternoon at the site where the boys live with the father and where there are a number of caravans situated. But the boys were not there.  The Tipstaff did not accept the father's saying that he did not know where they were, and caused the father to be arrested and brought to court today, as I indicated at the outset.

10. The father and his elder daughter, Christina, have been cross-examined this afternoon.  I only need to deal with what the father himself told me. He said he had last seen the boys on Wednesday morning (that is yesterday morning) at about 11.30.  He said that they had not been to school yesterday;  that they were out and about during the day.  He himself had had to go to East London and on his way back he was telephoned by Christina to say that the police were there.  Virtually as soon as he got back, he was handcuffed and taken off to the police station.   He said the children usually come in about 4 o'clock but they may go out again after that.  They generally have a few quid on them, about £10.  He was expecting them to come back home yesterday.  When he was asked why he thought they had not gone home last night (as Christina said they had not done) he told me that he did not know and said initially "…maybe they were kidnapped".  Asked if he knew where they were, he said he did not know.  He said he 'did not know who was sheltering them, off hand'.  Asked where he thought they might be, he told me that they are street-wise boys and that he did not actually think they had been kidnapped.  Asked whether he was worried that they are missing, he said that he was not unduly worried and was hoping they would be found.  He denied having arranged for them to be somewhere else.  He said that when he went back to tell them the outcome of the case on Tuesday (when the stay on the Collection Order was lifted) he had asked them whether they would like the bad news or the good news, and that he had told them that the bad news was 'that they were going back to Ireland'.  Asked whether he is strongly wanting them to remain here, he said in effect that he is not, and that he lets them make up their own minds.

11. I have to remind myself that the test in this matter, given that the submission made on behalf of the mother that the father is in contempt of court, is as to whether contempt is proved beyond all reasonable doubt.  Having seen the father and Christina and got a certain sense of the case, it is quite clear that it is a case that has raised strong emotions and that the father is very opposed to the children returning to the mother in Ireland;  further that his cooperation with the court process has been partial, leaving it really up to the boys to say "no", and standing behind that.  What has to be understood, when children are sent back to jurisdictions from which they have been wrongly removed, is that proceedings can still take place in that other court whereby, if it is in their interests, the children can be given permission to depart from that jurisdiction and go to a different jurisdiction and carer.  That is all this case is about.  It is not making a final decision as to where they should live.  It is just deciding which court should take the decision.  I have observed the father carefully in court.  I have formed the view that it is really inconceivable that he does not know where the children are.  I am sure he does know where they are, or at least that he knows how they can be contacted and located.  I did at the end of his evidence specifically direct that he tell me where they are and I find him to be in contempt in not giving the court the assistance which the court has required of him.

LATER, after mitigation by Mr Itsagwede:
12. Mr. Joyce, it is a serious matter when the court is unable to trace the whereabouts of children.  It is a very serious matter when those from whom the court needs help to find those children do not proffer that help.  I take the view that the least sentence that I can impose on you is one of six months' imprisonment.  There will be an opportunity at any time for you to return to this court to purge your contempt, which means to apologise and to give the court the assistance that it needs in finding your three children.  I shall direct that the case comes back for half an hour on Monday of next week for you to have a further opportunity to consider your position, and I shall request the Prison Governor to give you reasonable facilities to contact people on the outside.    If  Miss Papazian wishes a fresh order to start running which requires Mr. Joyce to take all steps to return the children to Ireland, then I will hear submissions on that.  If that order is made and not complied with, then it will be a continuing breach capable of leading to a further prison sentence.