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From Russia, with love

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

4 responses

  1. “The standard that must be met by the prosecution’s evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.”
    The legal dictionary defines above the standard of proof needed in criminal cases and when prison is contemplated that should be the standard of proof in civil or contempt cases.

    In all the recent cases where parents or relatives denied knowing where the children were situated there was the perfectly logical explanation that they could be telling the truth !Prison was therefore WRONG; I often help pregnant women to escape the UK to avoid forced adoption and I strongly advise them never to reveal to their relatives where they intend to go and to make contact later only by email and never by phone or letter .These relatives should then be able quite truthfully to say that they do not know where that mother or her children have gone ;hopefully thus (sometimes in vain) avoiding prison for failing to reveal information they never had in the first place !

    Of course Court Orders should be obeyed and contact should be enforced by penal measures if necessary.The court however should NEVER issue “no contact orders” that are as inhumane as they are illegal.There exists no statute or delegated legislation that empowers a judge to forbid a mother (or father) who has committed no crime against children, from contacting her child even by email or phone and such orders breach both human rights and the UN convention as well as being without any legal foundation !

    “Non molestation orders” are of course quite legal but were clearly designed to protect one person from harassment or violence from another person.The word “molest” is defined in the Oxford Dictionary as “to intentionally annoy” and only those perverse old men in wigs calling themselves judges could interpret the word in such a way as to prevent a mother and daughter having any contact whatever !Prison for sending a birthday card for example because they claim that is “molestation”!Twisting the Enlish language to enable themselves to vent their own spleen !That is what happened to Vicky Haigh who was actually sentenced to three years prison for saying hello to her daughter at what could only have been an accidental meeting when the father drove in to fill up and had his daughter in the car.

    [IAN, I have removed the bits which are legally problematic. I would rather we stopped talking about the fine details of Vicky’s case in light of the judgments that have been given. If you want to write about her case on your own website, that’s fine. On the case in question, of course the reason for the relatives not giving information could have been that they didn’t have it, but that is manifestly not the case here – Suesspicious Minds]

  2. Perhaps top of the multiplicity of causes for this lamentable state of affairs lies JUDICIAL BIAS, which until correctly identified and remedied,,will fuel the status quo, thus contributing to perpetuating children’s misery instead of alleviating it, even ruining lives instead of helping them.

    Given the Judge in the family court is duty-bound to uphold the intention of Parliament by applying the Children Act fairly, he/she must be scrupulous in staying out of the arena in his/her role as honest umpire and arbiter of fair play – yet this isn’t always happening – often parents are subject to little more than a lottery in terms of judicial fairness over something as beholden as the fabric of their own flesh and blood – their own family life.

    That valid concerns,backed up with cogent documentary evidence are, in effect, routinely abbreviated to nothing and dismissed whilst simultaneously merely hyped-up concerns from the other party are often accepted is more indicative of judicial bias than objectivity, which ultimately harms the very family unit the court is beholden to respect not abuse through its interventions.

    Why are the odds stacked so unfavourably?

    When the norm is that parental roles continue towards offspring in spite of relationship breakdown between the spouses, any slapdash approach indicates a radical departure from ANY normative view of family law practice yet until there is universally standard anonymised reporting, bad practice will sadly continue to be the norm rather than the exception.

    Family law is arguably as emotive and sensitive a legal subject as there can be – we really should be doing much better than this, especially in this day and age. Bring on root and branch reform in order to leave the stone age well behind us!

    If Brittania once ruled the waves how ironic that family court judges can still so easily waive the rules?

    | Why do judges in our family courts ignore the law? http://wp.me/p1xXtb-3aZ
    Why do judges in our family courts ignore the law? ~ Christopher Booker, The Telegraph.

    “It is a basic principle of British justice that no one should be sent to prison except in open court, so that their name can be known and why they have been jailed. But this has long been one of those basic principles that are routinely ignored in our ultra-secretive family courts.

    In a parliamentary answer given by Harriet Harman in 2006, she said that some 200 people had been jailed in secret by the family courts in 2005, and that her government now wanted to open up the courts to ensure that this scandal did not continue. Last May and July, following publicity given to a case in which a woman was secretly sentenced to 12 months in prison for rescuing her father from a care home, where he was being mistreated, the new head of the Family Division of the High Court, Sir James Munby, issued guidelines reminding his fellow judges that this was against the law, as clearly restated in the Rules of the Supreme Court as long ago as 1965.”

  3. I oppose commital in secret. When it comes to contempt of court there is a need for the power of commital to be available. When it should be used is a different issue.

    You might find my inherent jurisdiction case interesting. See my weblog. There has now been a second hearing in public. The first was in public.

    • That’s a very fair distinction John, and thank you for pointing it out. I would be entirely with you on an opposition to committal in secret. Will look out for the inherent jurisdiction case (as you may have picked up, I am slightly apprehensive about the width of that power)

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