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Tipstaff Orders

Sarah Jennings, barrister of 3PB Chambers, examines the purpose of and procedure for obtaining tipstaff orders.

Sarah Jennings, barrister, 3PB

Sarah Jennings, barrister, 3PB

Tipstaff orders have recently been in the news because of the publicity given to the search for Ethan Williams, aged 3.  His parents, Rebecca Minnock and Roger Williams, separated in February 2013.  During lengthy proceedings the mother made serious allegations against the father.  All of the allegations were rejected by the district judge and a finding was made that the mother was fabricating allegations to frustrate contact.  Ultimately, the district judge ordered that Ethan should live with his father and spend time with his mother.  Shortly prior to the final hearing the mother had left her property with Ethan and her whereabouts were not known.  She failed to attend the final hearing.  The judgments made in that case are here.

HHJ Wildblood QC , sitting as a High Court judge, made various tipstaff orders to locate Ethan and utilised the media to assist with the search.  Rather than an academic discussion of tipstaff orders, this article shall focus upon the nature of such orders and the procedures for obtaining them.

Thankfully this is a relatively unusual situation for us lawyers to deal with. However, time is of the essence in these cases so it is important that we are aware of the necessary procedure to obtain these orders.  It is hoped that this article will provide a helpful guide to anybody needing to seek the assistance of the tipstaff in the future. 

Available orders
The tipstaff is the enforcement officer for all orders made in the High Court.  There is only one tipstaff but he is assisted by two assistants as well as the police and court bailiffs when appropriate. 

Although some of these orders are enshrined in statute the majority of tipstaff orders are made using the High Court's inherent jurisdiction. 

There are various types of tipstaff orders available to the court:

Location order:  The location order, as you may expect, allows the tipstaff to locate the Child.  The tipstaff can arrange for the location order to be served on any person or organisation who he reasonably believes may know the child's whereabouts.  That person is then under a legal duty to disclose any information that could lead to the identification of the child's whereabouts. 

The remit of a location order was very concisely explained by Lord Justice Munby as he was then, in Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam):

"It has long been recognised that….the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter." (paragraph 36)

Lord Justice Munby goes on to clarify that this power to obtain information from a third party does not require that person to be complicit in the abduction and can apply to a "mere witness" who may assist (paragraph 38). 

A location order may specify that the tipstaff seize and retain travel documentations including the child's passport.  The tipstaff will retain these travel documents until the location order is discharged or until further order.

Collection order: This is used in situations where the child's whereabouts are known but the respondent will not return the child to the applicant in breach of an order to do so.  The tipstaff will collect the child and place him or her in the care of the applicant, another named individual or the local authority.

Passport order: Where abduction is feared, the order allows the tipstaff to seize passports and travel documents for the child and relevant adults.  This type of order is also of assistance if an abducted child is returning to the UK as it allows the tipstaff to meet with the child and abductor on re-entry to the UK and to seize passports to prevent further or continued abduction. 
A passport order may require that the tipstaff seize passports of potential abductors but the court must be clear that this is necessary to locate the child rather than it being used as a means of exerting pressure on the adults in the situation.  In the case of Re B (a child) (removal from jurisdiction: removal of family's passports as coercive measure) [2014] EWCA Civ 843), the judge at first instance removed maternal family members' passports to induce them to "apply [their] mind[s]… to the essential task of putting persuasion/influence/pressure on [the mother] to return [the child] to the jurisdiction".  The Court of Appeal was clear that this is an entirely inappropriate use of a passport order. 

The court can also make an order requiring the surrender of existing passports or preventing the issuing of a new/replacement British passports.  The court may also make an order for the surrender of a foreign passport (Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FCR 563). 

For obvious reasons, the British courts are not able to prevent foreign passports being issued but it is possible to request, via the relevant embassy, that a replacement passport is not issued.  

Port alert: The location order and collection order automatically contain a port alert.   Although commonly referred to as one of the tipstaff orders, a port alert is actually implemented by the police rather than the tipstaff himself.  It is not necessary for a court to order a port alert for a child under the age of 16 as the police can initiate this process independently where they are satisfied that the threat of removal is both "real" and "imminent".  (A court order would be required for a child aged 16-18.)  Once the police have been informed of an alleged attempted abduction, a port alert is issued notifying all other police forces and immigration officers of the child's details.  The child's details are placed on the Child Abduction Warning List for an initial period of 28 days. 

If a child subject to a port alert is booked on to a flight, the tipstaff should be notified by the carrier 24 hours in advance of takeoff.  However, as the authorities do not maintain a comprehensive database of people leaving the UK by other means, this is not as effective as it may at first seem. 

The procedure for applying for a free-standing port alert is set out in Practice Direction (Children: removal from Jurisdiction) [1986] 1 All ER 983.  If a port alert forms part of a location order or a collection order the tipstaff will often alert the authorities.  If a port alert is sought without a court order then contact should be made with the National Ports Office based at Heathrow Airport (0207 230 4800). 

As mentioned above, all tipstaff orders are made using the High Court's inherent jurisdiction and therefore any applications must be listed before a High Court judge. 

The procedure for obtaining these tipstaff orders is largely contained within:

It is important that the tipstaff is immediately informed of any potential applications as the court will liaise with the tipstaff about appropriate orders and may even request the tipstaff's attendance at court.  The court staff will have the necessary details. 

Obviously, wherever possible applications should be made within court hours.  The court will always endeavour to accommodate genuinely urgent applications.

If out of hours, contact should be made with the security office at the Royal Courts of Justice (0207 947 6000 or 0207 947 6260).  The security officer will take some very brief details and you will be contacted by one of the associates of the family court.  If necessary, applications can be dealt with by telephone.

Tipstaff orders have a very specific wording and the draft orders are directly provided to the court by the tipstaff.  Please note that it is not possible to obtain draft versions of these orders as they change with great regularity. 

As with all orders, it is important that the provisions for service are complied with.  The President has recently highlighted that if the order provides for service by the tipstaff it is not sufficient for the documents to be sent by the solicitor in the post: see Olaribiro v Shoyemi [2014] EWHC 3365 (Fam). 

Finally, a warning about the importance of ensuring that any tipstaff orders are clearly worded.  This issue has recently come to light in a case before Mr Justice Holman called Taukacs v Taukaca [2015] EWHC 2365 where a mother wrongly suffered the "degrading and humiliating experience" of being removed from a flight to Spain and held in custody for approximately 42 hours because of a misunderstanding by the police implementing a tipstaff order.  This case highlights the importance of ensuring that any tipstaff orders are clear and concise so that such difficulties are avoided in the future.  The issue has been referred to the President of the Family Division for further consideration and we await his views on these matters.