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Category Archives: committal

Committal for harassment

 

In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3136.html

 

This is a judgment given by the President. There are, I think, three interesting aspects to this judgment. Aside from him quoting the very famous remark about freedom of speech not extending to the freedom to shout “fire!” in a crowded theatre.   (which is my favourite joke in Rozencrantz and Guilderstern Are Dead)

 

 

  1. The penal notice should be on the face of the order

 

 

So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:

 

“a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order … , a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

 

Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that “A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order”, the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.

 

Paragraph 13.2 of PD37A provides that “The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.” I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had “previously received legal advice as to the implications of breaching the terms of this Order.” In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.

 

Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.

 

I would have two brief points in relation to this – the first is that the President is making use of the term ‘user-friendly’ in relation to the standardised court orders which bears no relation to any accepted definition of the phrase that I have ever seen used. If ten people in the country (outside the MOJ or designers of the form) can be found who say that these forms are a pleasure to use, then I will cheerfully withdraw my remark. I don’t expect to be taken up on that.

 

The second is that the reason the penal notice doesn’t appear on page one of the order is PRECISELY because the template form doesn’t put it there.

 

Be warned people – if you are drafting an order with a penal notice, screw where the stupid form wants you to put the penal notice and put it on the front page. Everything else can be moved down.

 

  1. Harassment of social workers (although the Judge says that harassment of members of the family was worse)

I turn to ground (ii), the allegation that Mr Newman has been guilty of “harassing” employees of the local authority. The allegation is based on the contents of fourteen emails sent to various of the local authority’s employees (who I will refer to respectively as R, J, K, L and V) between 17 July 2014 and 18 August 2014 inclusive and a message sent on 18 August via facebook to the mother of another of these employees. I set out in the Table annexed to this judgment the dates and recipients of each of these email messages and, in full, the text of each message exactly as sent. The facebook message was sent on 9 August 2014 to the mother of another social worker, Kimberley H. The message read “This is what Kimberley does.” Attached to the message were newspaper articles about social workers who boast about removing children.

 

Mr Newman admits the authorship of each of these messages, and does not dispute that each of the emails was sent to one or more of the class of persons referred to in paragraph 5 of the order of 16 May 2014. The only question is whether Mr Newman’s conduct amounted to “harassing” within the meaning of paragraph 5. Mr Jenkins submits that it did. Mr Newman says that what he did was neither intended to be nor did it in fact amount to harassing.

 

What the word “harassing” means in paragraph 5 of the order of 16 May 2014 is a matter of construction, and therefore a matter of law. Whether, in the light of that meaning, what Mr Newman did amounted to harassing is a matter of fact and degree. I adopt the same approach as commended itself to the Court of Appeal in Vaughan v Vaughan [1973] 1 WLR 1159 when considering, also in the context of committal, the meaning of the word “molesting” when used in an injunction. All three judges had recourse to the dictionary.

 

“Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

 

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Whether emails constitute harassment will, of course, depend upon the circumstances, in particular the number and frequency of the emails, their content and tone, the persons to whom and more generally the context in which they are sent. Here we have fourteen emails sent in a little over four weeks. On one day (9 August 2014) there were three. Initially, R seems to be singled out; then the emails are sent to a wider group of people. There is a pervading tone of menace: the personalised attacks (“How do you sleep at night?”, “If you have kids ask yourself what would you do to keep them”); the threats (“I have everything ready to completely ruin everyone who stands against us”, “people’s names … spread all over the world along with their pictures”, “set things right before they go terribly wrong”, “Soon your tyranny will end”, “Soon all your names will be appearing on a newspaper”, “someone, someday will be held accountable”, “unless you wish to put your career on the line”, “Hope you are looking forward to an early retirement”, “The revolution is coming are you ready”); the threatening count down; and the repeated unwarranted demands that X is returned.

 

In my judgment this was quite plainly harassment, not just pestering but psychological intimidation. It was deliberate. It was intended to achieve, by the making of unwarranted demands accompanied by menaces, the return of X to his parents notwithstanding the orders of the court. It is a bad case.

 

The facebook message sent to Kimberley H’s mother is, from one point of view, even worse. What aggravates the contempt is not so much the actual message, which in comparison with some of the others is comparatively innocuous; it is the fact that it was sent to Kimberley H’s mother. For someone in Mr Newman’s position to extend his campaign to a member of his primary victim’s family, whether partner, child or, as here, parent, is despicable. It is deliberately putting pressure on his victim by attacking their nearest and dearest.

 

 

Accordingly, I am in no doubt at all, I find as a fact, and to the criminal standard of proof, that Mr Newman is in breach of paragraph 5 of the order of 16 May 2014 as alleged by the local authority.

 

 

  1. The President goes back to Re J, and reminds us that whilst he was permissive, even welcoming of people publishing their stories (if not identifying the child) and even been critical of Local Authorities and professionals, there was still a line that people should not cross

 

 

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed constitutional, importance.

 

The first (para 36), was the recognition of “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system.” I added that the same goes, of course, for criticism of local authorities and others.

 

The second (para 38), was the acknowledgement that the “fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar.” I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for “Society is more tolerant today of strong or even offensive language.” I summarised the point (para 80): “an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.”

 

I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

 

The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.

 

There is freedom of speech, a right to speak. But this does not mean that the use of words is always protected, whatever the context and whatever the purpose. As Holmes J famously observed in Schenck v United States (1919) 249 US 47, 52:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

 

Freedom of speech no more embraces the right to use words to harass, intimidate or threaten, than it does to permit the uttering of words of menace by a blackmailer or extortionist. Harassment by words is harassment and is no more entitled to protection than harassment by actions, gestures or other non-verbal means. On the contrary, it is the victim of harassment, whether the harassment is by words, actions or gestures, who is entitled to demand, and to whom this court will whenever necessary extend, the protection of the law.

 

I do not wish there to be any room for doubts or misunderstanding. The family courts – the Family Court and the Family Division – will always protect freedom of speech, for all the reasons I explained in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523. But the family courts cannot and will not tolerate harassment, intimidation, threats or menaces, whether targeted at parties to the proceedings before the court, at witnesses or at professionals – judges, lawyers, social workers or others – involved in the proceedings. For such behaviour, whatever else it may constitute, is, at root, an attack on the rule of law.

 

I emphasise, therefore, that Judge Wildblood was perfectly justified in granting the injunction in paragraph 5 of the order of 16 May 2014. Such orders can, should, and no doubt will, be made in future by the family courts when the circumstances warrant. I should add, moreover, that the protection of the law is not confined to the grant in appropriate circumstances of such injunctions. Harassment is both a criminal offence and an actionable civil wrong under the Protection from Harassment Act 1997. And, quite apart from any order of the court, it is a very serious contempt of court to take reprisals after the event against someone who has given evidence in court.

 

I do not want anyone to be left in any doubt as to the very serious view that the court takes of such behaviour. In appropriate cases immediate custodial sentences may be appropriate. And deterrent sentences may be justified. The court must do what it can to protect the proper administration of justice and to ensure that those taking part in the court process can do so without fear.

 

 

 

The Court have not sentenced Mr Newman yet, and it is worth noting that one of the alleged breaches – that he put a mobile phone in his son’s bag was dismissed.

 

I deal first with ground (i), the alleged breach of paragraph 1 of the order of 16 May 2014. This, it will be recalled, forbad Mr Newman from “taking any steps to ascertain the whereabouts of [X] and/or foster placement, including using [his] mobile phone or laptop GPS positioning systems.”

 

The evidence in support of the allegation of breach was two-fold. First, there was evidence from one of the social workers who had supervised contact between Mr Newman and his son on 5 August 2014 that, following this contact, a mobile phone of unknown ownership was found in the bottom of X’s changing bag. Second, there was evidence that, when a key on the phone was touched, it began intermittently sounding what was described as a siren alarm tone and the front screen of the phone displayed the following text:

 

“! Help ! I lost my device! Can you please help me get it back? You can reach me at 000000 newman1985@hotmail.co.uk Blow me fucker, give me my son back”.

 

That is the extent of the factual evidence, though in his affidavit the local authority’s team manager says that “This action could be considered as an attempt to locate X or to intimidate his prospective adopters, carers or involved Children’s Services staff.” Be that as it may, the relevant allegation in relation to this incident is not of intimidation, only of breach of paragraph 1 of the order of 16 May 2014.

 

There was a clear prima face case that Mr Newman had deliberately placed the mobile phone in X’s changing bag, but despite hearing what Mr Jenkins had to say, I remained unpersuaded that there was even a prima facie case against Mr Newman that his actions had, within the meaning of paragraph 1 of the order of 16 May 2014, involved him “taking steps to ascertain the whereabouts of” either X or the foster placement. It was hardly to be imagined that the only people likely to pick up the phone – either a social worker or foster carer – would be so obliging as to contact Mr Newman and volunteer the information. And if the concern, as indeed the order itself would suggest, was that Mr Newman was using the phone itself in such a way (eg as a tracking device) as to reveal the relevant location, then that is not something, in my judgment, that could properly be inferred in the absence of evidence – and there was none – demonstrating how the phone could be used in that way. Absent such evidence there was, in my judgment, not even a prima facie case against Mr Newman.

 

Rhubarb* and custody

 

(*Story contains no rhubarb, but was prepared in an environment where there is a risk that rhubarb, rhubarb pollen (?) or rhubarb dust may have inadvertently contaminated the contents )

 

 

A committal hearing in relation to a grandmother who was using electronic media, including Facebook to protest against the adoption of her granddaughter.

 

 

Staffordshire CC and Beech 2014

 

There are two judgments, one being the committal hearing itself, and the second being the sentencing

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B81.html

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B80.html

 

 

Probably the most important thing is said at the very end

 

I conclude the Judgment by making clear to Mrs. Beech that there is no objection to her criticising the court, criticising the judge, the Social Services Department or the family justice system. She has an entitlement to campaign about these matters. What the court will not tolerate is the use of the name of her grandchild or the photograph of her grandchild in connection with this campaign.

 

 

The Court did find that the grandmother had breached the orders preventing her from naming her grandchild and using photographs of her grandchild within the campaign. Part of that had been to ask a wide network on Facebook to circulate the photograph of her grandchild with a view to tracking her down in the adoptive placement and find out where she was.

 

Allegation number 1. Mrs. Beech has a group Facebook page entitled “Stop social services” which has about 7,000 members. This page was compiled before my Injunction Order was granted. The page has photographs of the child and a slogan including her name. The page contains the assertion that the child has been stolen by Staffordshire County Council Social Services. On 24th January 2014 the Injunction Order was served on Mrs. Beech. On that very day she posted additional words on her group Facebook page in terms which represent a flagrant breach of the court order. I read from the relevant posting which is exhibit 5 in my papers: “I have just had court papers handed me. I have been gagged until (the child’s name) is 18 years old. How can this be? They steal my granddaughter, then gag me. Fuck off. You have no chance. I am still fighting for her, you idiots. You cannot bully this nana. The truth hurts and no one will shut me up. I will go to war for my family, you idiots. Please spread the word”. These words were posted alongside photographs of the child and other words and slogans which had been posted long before the Injunction Order was granted. However, I find that by posting these additional words on 24th January 2014 alongside the photograph Mrs. Beech was republishing the old photograph and slogans and so her breach extends not only to the new words but to the old words and the old photograph.

 

Allegation number 2. On 28th January 2014 the B.B.C. website reported my Injunction Order in an article carefully drawn to avoid breaching the terms of the order itself. However, Mrs. Beech on her Facebook page posted a link to the B.B.C. report together with a short extract from it. She accompanied this posting with additional words of her own which constituted a flagrant breach of the Injunction Order. She posted “Just to let you know this is me, Amanda Jane Beech. It’s about my granddaughter (named). Staffordshire Social Services think they can bully me. The truth will be heard.”

 

Allegation number 3. On her Facebook page Mrs. Beech posted more words of flagrant breach, this time accompanied by a photograph. Mrs. Beech claims that the photograph could have been put up by someone else. She says that the photograph was already present on her Facebook page. She says that if another person clicked on the Facebook page to indicate they liked the contents the consequence would be that the photograph came up on this profile page automatically without any intervention on her part. The Facebook page does show that people had clicked the page to show that they liked it. Mrs. Beech raised the same point in relation to allegations 5, 9 and 11, saying in relation to these other allegations that the intervention of others explains the entire posting, not just the posting of the photograph, as she says it does for allegation 3. I have looked closely at these pages. No other name appears. On each occasion the posting appears under Mrs. Beech’s own name. With the exception of allegation number 5 each photograph follows a different form of words for which it is obvious to me that the grandmother, Mrs. Beech, is responsible.

 

She gave me rather inconsistent evidence about these allegations. She said that she did from time to time re-post material on the Facebook page in order to encourage her campaign. In this context she accepted that some of the postings might be her responsibility but some might be the responsibility of supporters. In the course of her evidence she said that the accompanying words appeared automatically from what she had already recorded herself on other parts of the page. However, on analysis the form of words is different for each of these postings, so I reject this explanation from Mrs. Beech. One of these allegations, allegation number 5, has no accompanying words and comprises just a photograph. However, this posting appears under Mrs. Beech’s name, just like the rest. I have heard her account. I am sure that she posted this and the other postings to encourage others to support her continuing campaign.

 

Allegation number 4. This allegation comprises clear words of breach which Mrs. Beech accepts that she posted on her Facebook page. There was no photograph with this posting.

 

Allegation number 5. I have dealt with allegation number 5 above.

 

Allegation number 6. This allegation comprises clear words of breach which Mrs. Beech accepts she posted on her Facebook page. Again, there is no photograph involved in this breach,

 

Allegation number 7 caused me a moment’s hesitation. This is Mrs. Beech’s Facebook group page. She accepts that she posted on this page a link to a YouTube recording. The new words do not constitute a breach of the terms of the injunction. However, these new words must be considered with the existing words to which they were linked so the effect is a re-publication of the words previously posted. Read together the words refer to the removal of Mrs. Beech’s grandchild into care which constitutes a breach of the injunction.

 

Allegation number 8. Mrs. Beech accepts that she posted the words and photograph which constitute this breach. She makes the point that the photograph was already on the web as part of an online petition that she started long before the Injunction Order was imposed. The local authority accept that the photograph is not new, but on this occasion by posting the link Mrs. Beech brought the old picture back onto her Facebook page again which constitutes a re-publication of the old picture in breach of the Injunction Order.

 

Allegation number 9. I have dealt with allegation 9 above when dealing with allegation number 3.

 

Allegation 10. Mrs. Beech accepts that she posted these words which clearly breached the terms of the Injunction Order. The reference to her partner, Mr. Rogers, is accepted by Mrs. Beech as a mistake. This was a publication to a closed group without a photograph.

 

Allegation number 11 has already been dealt with above when I was dealing with allegation number 3.

 

Overall then, all 11 allegations made by the local authority have been proved so that I am sure of the truth of the allegation and the fact that it infringes the terms of the injunction

 

 

It then adjourned, to give the grandmother the chance to reflect on this, and to get legal advice before the sentencing hearing.

 

At that sentencing hearing the grandmother accepted that she would comply with the injunction, take down those postings and not put up things of that sort in the future.

 

As a result, the Judge gave her a suspended sentence of 56 days, meaning that Ms Beech would not go to prison for her breaches unless she were to breach the order again (in which case the sentence of 56 days would take effect)

 

 

It does raise difficult questions, which I raised in part at the original report of the injunction. If a person campaigns on Facebook without naming their granddaughter, the step to indirect identification is a very short one. It is likely that within the rest of the grandmother’s facebook page are pictures and names of her family, and one could deduce fairly swiftly by the appearance of say “Rebecca” on those photos up until a year ago and then no more photos that it is “Rebecca” who was the child who was removed.

 

The provisions about directly identifying and indirectly identifying a child make decent sense for mainstream press – a newspaper reporting about a child and calling them “Child X” doesn’t identify the child.

 

Moreover, newspapers have editors, and lawyers. They can pause and consider whether they might be in breach of the law by any element of their story.

 

But we are now in a world where anyone with a mobile telephone can become their own publisher, and put things on the internet for all to see. It’s a whole new ball-game, and the law hasn’t quite caught up yet.

 

 

Ms Beech putting on Facebook “My granddaughter, who I can’t name, was stolen by social services” doesn’t directly identify the child, but it must be arguable that it indirectly identifies the child, because you can see that that the author of the post (who is named) is related to the child in question, and probably find on that page other photographs of the child. In a situation like that, proving whether someone made that indirect identification deliberately or by accident or lack of thought is very difficult, especially to the criminal standard of proof required.

 

 

 

 

[The original injunction judgment is here

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

and my post at the time about it is here

 

http://suesspiciousminds.com/2014/01/24/transparency-and-facebook/   ]

 

 

 

 

 

 

Three months imprisonment for seeing your grand-daughter

 

Apologies for the Tabloid-esque heading, but it is a fairly succinct way of expressing the outcome of Derbyshire County Council v Kathleen Danby 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B22.html

 

I know that for many of my regular contributors, the issue of commitals to prison for breaches of Court order are an emotive topic, and one can’t help but compare this sort of sentence with the sheets of criminal antecedents I regularly see where repeat offenders have convictions for burglary, theft, assaults, breaches of the peace, etc stretching to seven pages without spending any time at HerMajesty’s Pleasure.  On the other hand, if a Court makes an order to safeguard a vulnerable person and that order is breached, something has to happen to the person who breached the order, otherwise why bother making it.

I don’t have a solution here, but I have to wonder whether the sentences that are given for breaches of Court orders are somewhat out of kilter with sentences given for criminal  offences against children  (the grandmother in this case received a 3 month sentence for breaching a court order not to contact her granddaughter, and if she had instead been convicted of neglecting her the sentence would have been similar, when the latter would appear to most people to be the more serious issue)

 

I am mindful also that this is a sentence for an illicit contact in breach of a Court order, and the sentence is 3 months, in comparison to the six months that Mr Quasim Shah got for what seems to me to have been a much more serious (and possibly abusive) situation.  http://suesspiciousminds.com/2014/03/14/contempt-adult-breaching-a-recovery-order/    I would think that the general public, thinking about these two cases would have expected Mr Shah to have got a sentence much greater than twice what Ms Danby got for their relative transgressions.

 

Anyway, on with the case

 

The young person B, is 18 and has a learning disability. She had been the subject of care proceedings and is now the subject of Court of Protection proceedings. Within the latter set of proceedings, an order was made setting out things that her grandmother, Ms Danby, is prohibited from doing

 

“The Second Respondent Kathleen Danby is forbidden to do any of the following, either by herself or by instructing or encouraging another person to do so.

“(a) From approaching or attempting to approach B personally or through instructing and/or encouraging any other person so to do.

“(b) from communicating with B in any way whatsoever, whether in writing or by post, telephone, fax, text messaging, e-mail or any other form of telecommunication or information technology, including internet, video calling (i.e. Skype), whether directly or indirectly through another, save that she may receive a single telecommunication call from B on a loudspeaker and supervised by the local authority their servants and/or agents to take place on the first Wednesday of each calendar month between the hours seven o’clock p.m. and eight o’clock p.m. only in strict compliance with the declarations on the face and the schedule of the order of Her Honour Judge …” (it says “Taylor”) that should be “… Thomas of even date (annexed hereto).

“(c) For attending at, entering or attempting to enter or go within J town (the town in which B’s placement is situated) either personally or through instructing and/or encouraging any other person to do so.

“(d) From attending at, entering or attempting to enter or go within 100 metres of XCollege, either personally or through instructing and/or encouraging any other person to do so.

“(e) From loitering within a radius of 100 metres of Y placementeither personally or through instructing and/or encouraging any other person to do so.

“(f) From loitering within a radius of 100 metres X College, either personally or through instructing and/or encouraging any other person to do so.”

Ms Danby did not attend the committal hearing. She would have been entitled to do so, and entitled to free legal representation. I do not know why she did not attend and it would be wrong to speculate.

The Court heard evidence about three alleged breaches of that order

 

 

“In breach of paragraph 1(b) of the injunction order on or before 28th February 2014 Kathleen Danby through herself and/or instructed or encouraged another person contacted and/or communicated with B to arrange to meet her 28th February 2014 at or about 17.27 hours outside the Z public house, next door to Y Placement (the placement). 

“2. In breach of paragraph 1(a) of the injunction order on or about 28th February 2014 at or about 17.27 hours Kathleen Danby met with B at or about 17.27 hours outside the Z public house, which is adjacent to the driveway of B’s placement, and passed to B a package, who immediately concealed it about her person.

“3. In breach of paragraph 1(e) on or about 28th February 2014 at or about 17.23 hours loitered within 100 metres of Y placement with the intention of meeting of B.”

 

The Court heard, in relation to those matters, evidence that B had effectively given her carers the slip on 28th February and that CCTV footage showed her meeting with and talking to an elderly lady, identified by people who know her as being Kathleen Danby.  B returned to her carers very animated and talking about having seen her grandmother, and her behaviour was later adversely affected, including attempts to self-harm.

 

 

  • on 28th of February. On that day I am persuaded, not on a balance of probabilities but because I am certain, that B had a meeting with her grandmother. P.C. Hamilton has seized CCTV footage from the X public house which shows the road from the pub which is next to the driveway to Y Placement where B lives and he sets out what can be seen very clearly in his written evidence. He says this:

 

 

“I viewed the footage in a private office inside the pub. The footage shows a lady, who I can describe as being white, approximately sixty-five-years, approximately five foot four inches in height and had prominent white hair that is collar length. She enters the pub by the front door at 17.21 and camera 13. The footage then shows the lady walked to the rear of the pub and going to the toilets. The lady is then seen leave the pub by the front entrance at 17.23 and stand towards the edge of the camera footage close to the pub car park. At 17.27 B is then seen running towards the lady with arms open wide and immediately hugs the lady who is seen reciprocating. They then stand in the same position for a few minutes during which a car parks, pulling up, parking across the road. The lady and B then walk back up towards the pub entrance and some items are passed between the two.” [In fact I think it is one item that I saw]. “The lady is lastly seen handing something to B. The pair split up with B walking over to the car and the lady walked past the entrance to the pub, past the entrance to Y placement.”

 

  • He himself says he never had seen the original picture of Mrs. Danby, so he cannot personally identify her, but for reasons I shall come to it is clear that it is she.

 

 

 

  • What is also clear from that CCTV footage alone is that the lady concerned was loitering, as is complained of by the local authority, in the area nearby to the Y placement, so that of itself is of course partly a breach of the injunction.

 

 

 

  • I have said that this lady is the grandmother of B is absolutely clear. It is clear not just from the intimate way in which the two greeted each other and the passing of items, but because it is clear that B went on to describe the meeting to Mr A as being with her grandmother. For that night she was due to go out to another care home. She had been having difficulties with her co-resident and Mr. A was taking her to a different home for the evening to have time to cool down. He was waiting for a taxi to take them and at 5.30, approximately, he saw B speaking to an elderly woman. When the taxi came he called to her, but she did not initially come. He got in the taxi, it moved slightly along the road, then he shouted for her to come over and eventually she did and she came over to the taxi and got in.

 

 

 

  • He noted that for the rest of the evening that B was “hyper”, to use his word, but she said this to him: “I bet you’d like to know who that is.” And he said he didn’t. “No, that was my grandmother.” “Which grandmother?” “The one from Scotland.” “She’s come all that way?” “She came to see me.” It was thereafter for the rest of the night that B kept discussing both her grandmother and her father in considerable detail. Indeed, she had with her that night a DVD that her grandmother had previously supplied to her of her life going to school when she was a young girl.

 

 

 

  • So it would seem that B knew whom she was going to meet and knew precisely what was going to happen and so it is clear, in my judgment, that there had been a pre-arranged meeting. It is beyond mere coincidence that B should be in the street at the very same time as her grandmother from Scotland was in the area waiting too as if there was an appointment to meet. It must have been pre-arranged; it could not be a mere accident.

 

 

 

  • There is further corroboration for it being the grandmother in the evidence of Mr H for he says this on discussing matters with B on 4th of March.

 

 

“I then asked B about her meeting on 28th of February with her grandmother. B said her grandmother had come to see if she was okay and safe as F had told her grandmother she had previously absconded and been missing. I asked her if her grandmother had given her anything. She said she had not. I said the police had CCTV footage of the meeting and the police have stated that Mrs. Danby handed B an envelope/package which B then concealed in her top/jacket. She said the police were lying about this. She then became agitated and appears to be low in mood. She stated she did not want to talk further.”

 

  • P.C. Hamilton spoke to B on 1st of March. She denied seeing her grandmother then, though it is plain from what she said both the evening before and to Mr. H that she did. He noted that B’s behaviour has been deteriorating, even though, as the local beat bobby, he has noticed that she has become more settled generally whilst at Y Placement– in other words, it was the events of late February of this year that have made her more volatile and unpredictable.

 

 

 

  • Ms C tells me of further events on 2nd of March. B absconded again on that date and on 6th of March she absconded from a holiday in Rhyl in North Wales. She describes the recent behaviour of B as deteriorating and out of character. Evidence that is corroborated further by Mr. H and by Ms B.

 

 

 

  • So it is that in my view I can be satisfied beyond doubt, I am satisfied to the criminal standard of proof, that the breaches of injunction complained of by the local authority are all made out.

 

 

 

The Court satisfied itself to the criminal standard of proof that there had been a breach of the Court order, and went on to consider sentence

 

 

  • The evidence, as I observed at the final hearing of her future residence and care plans, pointed unequivocally for the need for her to have a period of peace from intervention in her life from her grandmother and her father, hence the final orders that I made.

 

 

 

  • I am sure, too, that the deterioration in her behaviour results from these meetings with her grandmother. Her behaviour has deteriorated; she has self-harmed; she has assaulted staff; she has threatened her co-resident and she has run away. Not in a sense that she disappears by being an hour late, which she does from time to time as is perhaps typical late teenage behaviour, but because she literally runs away and has to be found with the help of the police.

 

 

 

  • Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has.

 

 

 

  • I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment.

 

 

 

  • Miss Cavanagh has reminded me of the options available to me – although of course the local authority has not had the temerity to tell me what to do. I could impose a custodial sentence and then order the case to be listed before me for review. So, I could issue a warrant and then if this lady is arrested or on the review date, as the case maybe, the sentence can be reviewed and it can be reviewed downwards if I have a wrong impression of this lady’s attitude and approach.

 

 

 

  • In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months’ imprisonment concurrently.

 

Ms Danby would have the opportunity to come before the Court to ‘purge her contempt’  that is, to give an apology for her behaviour and an explanation for it, in the hope of the Court ending her sentence or reducing it. That may be more likely in this case because she did not attend.

 

What’s app Doc Crippen?

 

This is going to be a bit of a meander, I’m afraid.

What’s App, if you don’t know, is a communication device – it basically allows a subscriber to send many many messages to other users for a small annual fee (much much cheaper than text messaging). It has become very popular very fast, and as is traditional, Facebook has now swooped in to buy it for an obscene amount of money (even though the money they are willing to pay to own it would not be recouped on the current business model until the year 2525).  

The case of London Borough of Tower Hamlets v Alli and Others  

 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/845.html&query=whatsapp&method=boolean

turns on the evidence having been obtained through Whatsapp.

That in turn, reminded me of the role that Dr Crippen played in the development of wireless telegraphy, hence the meander.

Marconi was the driving force behind the popularity of wireless telegraphy, although many said that his role in inventing it was rather less than his publicity would have you believe, that he had stolen significant elements from other inventors. That was what led Marconi to be the first example of hacking, well before Anonymous and Lulz-Sec and even well before Matthew Broderick in Wargames.

Marconi was holding a lecture at the Royal Institution in London, a centrepiece of which would be his receipt of a wireless telegraphy message from the Marconi station in Cornwall. Things didn’t go quite to plan, as the message that actually came through was a rude couplet about Marconi

There was a young fellow from Italy

Who diddled the public quite prettily

 

Sent by a magician named Maskelyne, who had been hired by the cable telegraphy companies (who obviously had a vested interest in embarassing or discrediting Marconi’s rival model) and he had set up a radio mast nearby and found the wave length that Marconi would be using.

What really popularised wireless telegraphy was the famous murder case, where Dr Crippen murdered his wife and before the body was found had fled on a transatlantic boat to Canada, with his mistress Ethel Le Neve ( a name which manages to be simultaneously glamourous and dowdy, but was at the time probably just purely glamorous). The Captain of the ship suspected that two of his passengers (Ethel dressed as a boy) were the suspects in the murder case and managed to send wireless telegraphs to that effect.

 

Because of the slow journey time in crossing the Atlantic, the public were able, on both sides of the Atlantic, to follow the story in the press, and knew that on disembarkation the lovers would be arrested, due to the wonders of wireless telegraphy.

 

Okay, back to the case

 

This was a committal application (we seem to be getting a lot of them) arising from the mother in care proceedings disappearing with two children, who were the subjects of Interim Supervision Orders and living at home with her. There was to be a five day final hearing in the case, and the parents were both legally represented.

 

 

  • A final hearing of the local authority’s application for orders in relation to the children has been listed for a date in May 2014 with a time estimate of five court days. I wish to emphasise that at that hearing both parents will have, or have had, the fullest opportunity to contest the local authority’s application and call evidence of their own. They are entitled to public funding so as to ensure that they are represented by family lawyers. Indeed, I note from the court bundle before me that they are so represented. I should also indicate that at the parents’ request within those proceedings a number of family members have been assessed as potential future carers for the children in the event that the court concludes that the parents cannot continue to care safely for the children.

 

 

 

 

  • I do not propose to rehearse the background history of the public law case. It is sufficient for me to record in this judgment that the local authority has significant concerns about the safety and wellbeing of these two children in the care of these parents or either of them individually. The mother is said to be, or have been, a heroin addict; the father has also been dependent on non-prescribed drugs. That said, the social workers have been attempting to work with the parents in order to maximise the prospects of the children being raised within their own family.

 

The Court made orders under the inherent jurisdiction for the location of the children. Part of that order was that anyone who knew of their whereabouts was to provide the information.

By the terms of that order any person served with the order – and I pause here to observe that the mother and the father were both named specifically in the order – must (a) inform the tipstaff of the whereabouts of the children if such are known to him or her, and (b) also in any event inform the tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the children. Later on the 11th March the father telephoned Social Services to say that he had received a telephone call from, he believed, the mother, and had heard one of the children in the background.

 

On the 12th March, in the morning, two Police officers acting on the instructions, and as agents, of the High Court tipstaff, attended at the parents’ address. After a short delay the father answered the door, indeed on their account only opening the door when they announced that they were Police officers. The officers asked where the mother was. The father claimed not to know. He told the Police officers that the children were “with their mother“. He told the officers that he had last seen the children and the mother on Sunday, the 9th March, and that his wife had taken them to school on the morning of the 10th March, though he had not in fact seen them leave. There is a discrepancy between the Police officers as to whether the father had actually said that he had seen his wife and the children on Monday, the 10th. I do not find it necessary to make a determination on that discrepancy. When challenged by the officers with the fact that the children were missing he said, “They are not missing, they are with their mother“. He told the officers that he had been separated from the mother for two weeks. He said that although he had known that they were missing for, by now, 48 hours, he had not reported them missing to the Police. He said that he had telephoned family members to inquire specifically naming two brothers, but could not provide the relevant phone numbers of those brothers. I interpolate here to say that the father’s brother told me this morning on sworn oral evidence that he had not in fact spoken with the father on the telephone in this period. There was evidence of the children being in the flat, coats on coat hooks in the hallway, children’s toothbrushes in the bathroom. The father handed the Police officers his mobile phone. It is reported by the officers that the father generally appeared evasive. The officers contend that they had reasonable cause to believe that the father was in fact withholding information about the mother’s and children’s whereabouts. After a telephone call to the High Court tipstaff they arrested the father. The property was searched but the children’s passports were nowhere to be seen. The father said that he did not know where they were (this was of course different from the information he had given the social worker). When the father was arrested he is reported to have asked how long he would be in custody, “because I am supposed to be going on holiday“.

 

Now the What’s App stuff

 

 

  • he father was brought to court on the 13th March, the following day, and at that hearing Russell J remanded the father in custody to today’s hearing. She made further orders requiring the attendance at court today of other family members. Pursuant to her order, the notice of committal was issued later that day and served on the father, as I have said, on the following day. This notice contains the following alleged breach of the location order:

 

 

 

“That the Respondent father has knowledge or information pertaining to the whereabouts of the children. He has given differing accounts to the local authority and tipstaff.”

 

 

  • At the outset of the hearing today I was advised that the father’s mobile telephone, seized by the Police on the 12th March, as indicated above, contained a number of ‘whatsapp’ or text messages in Bangladeshi or Sylheti and in English, and a recently sent photograph of Samira. The dates of the text messages appear to span a number of weeks. I put the case back so that an interpreter could be located to translate the text messages for the court.

 

 

 

 

  • In the meantime I heard brief sworn oral evidence from the father’s brother. He told me that he had a “feeling” that the mother and children were in Bangladesh but advised me that this was not because he had been told this but simply that the mother had travelled there in the past.

 

 

 

 

  • The evidence laid before the court by the local authority now reveals the following, that mobile telephone text messages or ‘whatsapps’ had passed between the father and his nephew, a man called Shahed, in Bangladesh in a period which spans about six weeks. It now transpires that the father believes that the mother is having a relationship with Shahed. In that period it appears that on one occasion the father had sought to send Shahed some information or documents by email or text but had not been able to do so. On the 18th February a number of pictures with typed text on them, possibly court orders, were exchanged by text. On the 8th March, that is Saturday of last weekend, the father received a ‘whatsapp’ message from Shahed which reads:

 

 

 

 

“On the way Dacca … need more 6 hour.” 

 

There is then a selection of photographs one of which is of Shahed in a car. On the following day, the 9th March, the father sent a message to his nephew, Shahed, which includes this phrase, “Anyway, tell my sister-in-law [the word in Sylhet was Babi, and the father told me that he could not say that it was not a reference to his wife] to enjoy the sex I could not give“.

 

 

  • The father on the 11th March at 0736 received three photographs from the mobile telephone of Shahed in Bangladesh. Two of those photographs are photographs of Samira. The local authority asserts, with considerable justification, that these text messages very strongly indicate that by the morning of Tuesday, the 11th March, not only was Samira in Bangladesh but the father must have known that.

 

 

 

 

  • The father gave evidence before me this afternoon. He told me that he could not now recall when he had last seen the children. Possibly it was Saturday 8th, or possibly Sunday 9th March. He ascribed his loss of memory either to a 2008 head operation or alternatively the after-effects of a tooth operation which had been conducted some time on the 4th March. He was now confused, he told me, whether the mother had taken the children to school on the Monday morning. If she had done so it would, on his case, have been during a time when he and the mother were in fact separated and she was living away from the home (though he did not know where). He believed that his wife and Shahed, his nephew living in Sylhet, Bangladesh, are engaged in a relationship. He had in the past seen messages from Shahed to his wife and had confronted Shahed and his wife about this in the past. She, Mrs. Khatun, had denied it, but the father went on to tell me that the mother had been to Bangladesh twice on her own to stay with Shahed, once in April 2012 and again in September 2012. Significantly, he told me that he first suspected that the mother and children had in fact fled abroad to Bangladesh sometime on Tuesday, the 11th. He told me because he was calling her and when he called her mobile phone he heard a different ring tone. He told me that when she did not pick up the phone he sent her texts. These texts have been read to the court. In the early hours of the 11th March he sent a text to the mother which includes these terms:

 

 

 

 

I’m so stupid and naïve that everything was happening in front of my eyes but did not see. Anyway, I hope you are getting enough now because you have a lot of load to offload if you get my drift. Anyway, enjoy the passionate making out and don’t worry you get pregnant because I’ve taken the long-term precaution … Love you still. 

 

He goes on:

 

 

Good luck with your new good looking husband and please don’t bullshit me that it was just a phase because I know that you got married to this guy. 

 

In the early hours of the following morning, the 12th March, about eight or nine hours or so before the Police went to the father’s property, the father texted the mother again.

 

 

I can’t believe you forgot. I went out begging for money because we didn’t have any after doing all this for you. You still deceive me. I hope it was worth it … 

 

And then two minutes later:

 

 

Sorry for all the trouble I’ve caused you so forgive me, my love.” 

 

 

  • As is apparent from my earlier account of the history, the father did not tell the Police on the 12th March that he knew or suspected that the mother was with Shahed in Bangladesh. He told me that he did not tell anyone, he does not know why he did tell anyone, but he thought he may be able to sort it out. In relation to the text from his nephew, “On the way to Dacca“, the father unconvincingly told me that, “I thought he was on a trip or something“. The father told me that he did not see the 11th March message from his nephew with the photographs of Samira even though these had been received by his phone for 24 hours or more before the Police went to his property and I know, as the father has accepted, that he used his phone and the ‘whatsapp’ facility on it to communicate with his wife at least twice since the arrival of those photographs.

 

 

With all that in mind, the evidence against father was damning. The Judge made his decision

 

 

  • Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that when served with the location order on the 12th March the father had knowledge which might reasonably assist the tipstaff in locating the children. I so find for the following reasons:

 

 

 

 

(a) first, that the father has himself admitted to believing that the children and the mother were abroad in Bangladesh as early as Tuesday, the 11th March. His text messages to the mother are clear evidence of this. 

(b) In fact I find that the father, beyond reasonable doubt, suspected that they were in Bangladesh before that time.

(c) I further find that the father had received and seen the photograph of Samira (taken in Bangladesh) on the 11th March shortly after it had arrived, certainly well before the Police attended at his home.

(d) I find that the father deliberately misled the Police in declining to assist in disclosing what was a high probability in his own mind that the children and the mother were in Bangladesh at the time that they questioned him about it.

 

The only issue that remained was what sentence would be passed

 

  • Mr. Ali, will you stand, please. Mr. Ali, it appears almost certain that your wife has left this country with your two children who are the subject of court proceedings. I suspect, but do not find, that if she has done so it has been to frustrate the due process of the law and specifically to avoid participation in the court hearing at which the Family Court would be considering the local authority’s concerns about the wellbeing of the children. You have said yourself you believe that the mother is a heroin addict yet you have failed, as I have found, to assist the court in attempting to locate these children, allowing the children to remain in the care of their heroin addict mother without supervision by authority.

 

 

 

 

  • On the 11th March, Mr. Ali, I made orders designed to trace and locate these children, and once located to restrict their movement while decisions were made about their immediate futures. As you will have just heard, I did not make orders at that time permitting their immediate removal into foster care. However, you, Mr. Ali, have deliberately withheld and, in my judgment, continue to withhold information which could lead to the whereabouts of the children. You have obstructed the Police, you have obstructed Social Services, and you have obstructed this court in our joint endeavour to trace your missing children. It is your obstruction of the court order which provokes this application for committal.

 

 

 

 

  • Mr. Ali, untold damage is done to children who are spirited away from one home to another, let alone from one continent to another, without warning or preparation. Disruption to their routines, the predictability of their lives, their family relationships and social relationships and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot, and should not, go unpunished. Parents who seek to protect those who remove children in these circumstances, who deliberately obstruct the due administration of justice, and knowingly breach court orders should also expect to be punished appropriately by the court.

 

 

 

 

  • I accept, Mr. Ali, that there is no evidence of your involvement in any preplanning of this trip to Bangladesh, but you have, in my finding, deliberately obstructed the due administration of justice and, by your lies to the court today, continue to do so.

 

 

 

 

  • I have taken into account your home circumstances, that you presently assist in caring for your elderly mother, but the sentence which I impose has to be a custodial sentence to reflect the gravity of your breach.

 

 

 

 

  • The sentence I impose is one of four months imprisonment. You will serve one-half of that sentence.

 

 

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