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Borg v El Zubaidy [2021] EWHC 3227 (Fam)

The application before Poole J was the mother’s application for committal of the defendant father for contempt of court, following breaches of court orders designed to allow the mother to travel to Libya to secure the return of the parties’ children, without the father being present.

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Poole J considered that the father had taken no steps to comply with the orders and held him to be in contempt of court, sentencing him to 12 months' imprisonment. The father had on three previous occasions been sentenced to imprisonment for contempt of court, in relation to his failure to comply with orders for the return of the children.

Poole J noted at the outset of the judgment that previous court orders had sanctioned publicity with a view to locating the children and as such, no reporting restrictions were made.

By way of background, in 2015 the father had retained two of the parties' children in Libya and refused to return them. The mother brought an application before the High Court for the return of the children. The youngest child was made a ward of court. The eldest child was over the age of 18 but was declared by Mostyn J to be a vulnerable adult in whose best interests it was to make orders for her return.

In 2017, the High Court ordered the return of the children from Libya to this jurisdiction, where both parents reside. Numerous subsequent orders were made for the return of the children, with which the father failed to comply. He was made subject to committal proceedings in 2017 and Moor J sentenced him to 12 months' imprisonment for contempt of court. The father went on to breach further such orders and in February 2018, he was sentenced by Mostyn J to another 12 months' imprisonment for contempt. There were further breaches later that same year and in November 2018, the father again was sentenced by Hayden J to two years' imprisonment for contempt.

In 2019, the mother commenced proceedings in Libya against the paternal grandmother who was understood to be caring for the children. The mother was awarded custody of the children by the Libyan courts, however the paternal grandmother then went into hiding with them. Although further orders were made by the High Court in this jurisdiction for the return of the children, they remained in Libya, the position being that the mother was unable to remove them from Libya without the father's consent.

On 8 February 2021, Judd J ordered the father to execute and serve a consent to the children travelling from Libya with the mother, without him accompanying them. The document was to be signed, dated and witnessed by an official of the Libyan Embassy/Consulate in London. On 5 May 2021, Russell J made an order in similar terms, however referring only to the younger child who remained a ward of the court. Penal notices were attached to both orders.

The mother alleged that the father had breached the orders and she issued an application for his committal for contempt of court. The first application failed to comply with Part 37 of the Family Procedure Rules and the mother made a second application.

The father's counsel submitted at the committal hearing that the fresh application still did not comply with FPR r.37.4 and that the application should be dismissed. Poole J considered that the second application was compliant with the rules under Part 37 and that, in any event, any irregularity with the requirements of Part 37 would not necessitate dismissing a committal application where it had caused no prejudice to the defendant. The father's application to dismiss the committal application was thus refused. However, the Judge did note that the second application was not as clear as it might have been and that the information required to be included under r.37.4(2) should not be conflated with evidence in support of the contempt application. 

Poole J went on to find that the father was guilty of contempt of court for breaching the court orders of 8 February 2021 and 5 May 2021. The Judge considered that the father understood that by refusing to take steps to execute the consent form, he was frustrating attempts to give effect to the return orders and the custody order made in Libya and that he had wilfully chosen not to make any attempts to execute the form as ordered.

Sentencing was adjourned for a period of twelve days. The father did not, in the intervening period, take any steps to produce the consent form. At the sentencing hearing, Poole J considering that the father's continued refusal to assist in securing the return of the children was "clearly deliberate" and the father was sentenced to 12 months' imprisonment for each of the two breaches, to run concurrently.

Case summary by Olivia Kirkbride, Barrister, Coram Chambers

For full case, please see BAILII