I wrote recently about a committal hearing arising from a breach of orders made in private law proceedings. This is one that relates to public law proceedings. The committal hearing was held in open court, thus it is possible to report the names of those involved.
The background which led to orders being made on these children is very worrying. The Court report it in this way
- This matter concerns two girls, A born on 12th October 1999, who will be 14 years of age tomorrow, and B, born on 22nd November 2001, who is now 11 years of age, nearly 12. The Respondent is the mother and the father has taken no part in the proceedings. The children have an older brother C who is now 16 years of age. There are seven half siblings as a result of the mother’s previous marriage, or relationship.
- Both of these young girls were made the subject of emergency protection orders on 23 September 2013 and interim care orders on 1 October 2013. Both of those orders were accompanied by recovery orders as the girls had gone missing and their location was unknown. Immediately prior to the emergency protection order on 23 September 2013 they had been living with their mother. Neither child has been seen since 23 September 2013. On the application of the Local Authority on 8th October 2013 I made a Collection Order to assist the Local Authority in seeking to locate the whereabouts of the children.
- There is a background to this matter which is carefully set out in the case summary provided by the Local Authority. In summary, there has been involvement between this family and the Local Authority since about October 2012, following A being admitted to hospital with suspected meningitis. Further investigations were undertaken in relation to her medical position. She is currently under treatment for rheumatic fever and requires monthly injections of penicillin. Since May of this year there has been inconsistency in relation to her attendance for these injections. She missed her August injection, was late for her September injection, and, as far as I am aware, has not had her October injection. So the medical position in relation to A is extremely worrying.
- The Local Authority have sought to engage with the mother around issues concerning lack of school attendance and A’s behaviour. Unfortunately, that has not been very fruitful. There have also been issues in relation to domestic violence within the home with the father. He is reported not to live at the home, but attended there in April when there was an incident and he was asked to leave by C. The father damaged the property and left before the police arrived. C has been arrested in relation to a criminal matter concerning a burglary, and has been bailed back to the home.
- The matters that precipitated the issue of these proceedings occurred on 19 September when it is alleged that A was assaulted by being kicked repeatedly and punched by C and her father in the family home. At the time of the incident those present were A, C, the father, the mother, and a five year old niece and young six month old nephew. A reported that the brother and father had called her a prostitute and accused her of sleeping with her uncle. It is alleged that during the argument C specifically put on steel toe capped boots to carry out the assault, and it is alleged that the father punched and kicked her, pulled her hair, and threatened to kill her.
- The mother was noted to be intoxicated by the London Ambulance Service when they attended, and A was observed to be shaking, crying and extremely distressed. There was swelling on her leg, redness to her face and ribs, and she was taken to hospital and kept overnight. It is clear from the examinations that subsequently took place there were a number of injuries on A’s body which are consistent with the account of assault that had been given, including bruising, grazing, and areas of redness in various parts of her body. A was discharged to the home of her cousin K on 20th September.
- The whereabouts of B are unknown. C has been bailed in relation to the assault back to the home address. The question of police protection was discussed. The Local Authority undertook home visits on 20 and 23 September. The mother was not at home, and it had not been possible to contact the mother. On 23 September the EPO and recovery orders were granted without notice.
Over and above the concern then that children whom the Court had determined there was reasonable grounds to believe had suffered significant harm, in the form of both assaults from adults and intoxication of their main carer, there were considerable health reasons why A needed to be found so that her treatment for meningitis could be resumed. It is no great surprise that the Court made what is called a Collection Order (this being one of the powers of the High Court, to authorise an officer of the Court known as the Tipstaff, to conduct investigations as to the whereabouts of a child and to recover them if possible. I like to think, personally, that the Tipstaff looks like the motorcycle cop robot from Terminator 2. I note from a quick search for information on Tipstaffs/Tipstaves that they are the only people permitted to arrest a person within the precincts of the Royal Courts of Justice – which given that there are only two of them and it is a massive, massive building, is slightly unnerving)
In terms of that investigatory/recovery process, the Court said this
- This matter came back before me the following day, 9 October, because the Tipstaff had arrested the mother on the Tuesday evening for alleged breach of the Collection Order. The actual order required her to deliver the children into the charge of the Tipstaff, or inform the Tipstaff of the whereabouts of the children, or in any event inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children.
- The record in relation to the visit when the mother was arrested states that the police officers attended the address and spoke with the mother. She informed the police that the children were with Paddy and Mary in Manchester and she had no contact details for them. Further, she said that the children may now be with a different unknown family. The suggestion by the mother that she did not understand the terms of the order, and that she may be arrested, is not supported by that account because she must have clearly understood the terms of the order requiring her to give information otherwise she would not have given the information that she did. So as of Tuesday evening that was the information that the mother had given.
- When she attended court on 9 October and was asked by her legal team about the whereabouts of the children she said that they were with her sister-in-law, BC at an address in Edgware. She gave oral evidence on that day when she said she had not seen the girls since 23 September but had “heard” from others that they had been in Manchester with her cousins, Paddy and Mary. She said she had been told by one of her older daughters, called M, that the children had returned to London on Monday of this week and were staying with BC. Her daughter M told her she had seen them there; she had seen them playing outside BC’s home.
- When the police attended on the Tuesday evening the mother agreed she knew what the order required her to do, but she did not disclose this important information as to the whereabouts of the children to the police. I remanded the mother in custody on Wednesday until the following day so that the police could make enquiries at BC’s address to see if the children were there. They attended at BC’s property on three occasions; once at about 9 o’clock on the Wednesday evening, when BC was there but denied that she had the children; again in the early hours of the morning of 10 October, when there was no response to their knocks on the door; and, finally, yesterday afternoon when BC was arrested. BC was going to be brought before me this morning, but I have been told this morning that she had been taken ill overnight and is currently in hospital waiting to be seen by a consultant.
- In her oral evidence given on Wednesday and Thursday the mother accepted that there have been many opportunities when she could have produced the children, but did not do so as she did not want them to come into care. She accepted that at any time she could have got the children back. She maintained she had no address or phone number for Paddy or Mary, who allegedly had the children in Manchester. She further maintained that she did not have A’s mobile telephone number, although she did accept that A had a mobile phone. She revealed that when the police sought to execute the recovery order at BC’s home on about 23 or 24 September, after the EPO was granted, the children had in fact been there but they were hiding; and that is why they were sent to Manchester. The mother said in her oral evidence that she would now co-operate with the Local Authority and that she was concerned about A not receiving her injections.
- When the matter was listed before me this morning counsel for the mother, Mr. Nosworthy, who has been present at all the hearings made an application that I should adjourn this matter until the court could hear from BC. I rejected that application, for the reasons that I have given earlier. Importantly, on his instructions, he said that if the mother is given the opportunity to speak to K (who is the daughter of BC) and gives the instruction for the children to be brought to Social Services they will comply with her instructions. She believes K will be at BC’s accommodation looking after BC’s children. Mr. Nosworthy stated as follows:
“Once the mother relays her permission that the children are to be brought to Social Services whoever has them will do so.”
- That demonstrates to me that this mother has always known where these children are, she has always known that they would be able to be brought back at her command, but for reasons which are known only to her she has chosen not to do that.
The issue then was whether this conduct on the part of the mother amounted to a breach of the Collection Order punishable by committal for contempt.
- I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure. Having seen the mother it is quite clear there are strong emotions felt by her about the orders made by the court regarding the children and she opposes them. Her lack of co-operation with the court process to date in locating the children supports that view. I have made clear to the mother that any orders I make today are not final decisions about the children, those are for another court on another day. It is extremely regrettable that due to the circumstances of this application, and the mother’s behaviour, a hearing set in Willesden County Court for today to consider a contested interim care application cannot take place. The mother has failed to act in the children’s interests by denying them the opportunity to attend that hearing.
- I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from Ms Hall in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC’s house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.
- I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.
- Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children.
There then followed a plea in mitigation (i.e mother’s lawyer setting out the reasons why this breach should not result in imprisonment, or if it did, that the sentence should be lenient.
- Mr. Nosworthy has very thoughtfully and eloquently made submissions on behalf of the mother in relation to the sentence that this court should impose in relation to the contempts that I have found. He has very properly referred me to the case of Hale v Tanner, reported at  2 FLR 879, and the guidance that is given in that case, in particular at paragraphs 26 and 29, and the summary in the head note in relation to the matters that the court should take into account, and I do take those matters into account.
- In mitigation he says that the mother has a clear sense of remorse, which of course I accept at face value, but I have to take into account that that remorse has not been coupled with any kind of direct action by her to assist in recovering the whereabouts of these children. He also says that the evidence is clear, she has failed to co-operate in the past but now wishes to co-operate. Again, I understand why that submission is made, but there has not been co-operation in relation to locating the whereabouts of these children.
- In relation to the cultural background, whilst of course that is an important consideration that the court has to bear in mind, in particular the concern by this mother that she may be ostracised by her community if she worked together with the Local Authority. Whilst it is a factor it does not give her an entitlement to be able to disobey orders of the court.
- I accept the difficult background this mother has had, as is clear from the papers that I have read, which have included unhappy relationships with her partners, and also difficulties with a number of her children. I also take into account that she has, I think, two other children living with her, C who is 16 years of age, and M, who is 24 years of age. But I look at that in the context of what has been clear in this case, there is a wider family that step in and support where necessary.
- I take into account the mother has spent three days in custody, and also that there may be difficulties in relation to her rental payments and practical matters as regards her living accommodation. However, I am very clear that the message needs to go out loud and clear in relation to court orders relating to the whereabouts of children. It is an extremely serious matter when the court is unable to trace the whereabouts of children, and it is particularly serious when the court is unable to do that because the person who can assist in that will not provide the help to locate the children.
The Court imposed a custodial sentence of 28 days, taking into account the 3 days that the mother had already spent in prison, but reminded her that if she remained in breach of the order (by not providing the details of where the children were) that a further application for committal could be made and that the maximum sentence would be 2 years. The Judge urged the mother to consider her situation, and that she could purge her contempt at any point (comply with the order, apologise, and be released/have her sentence reduced)
It is worth noting that however much you disagree with orders made by the Court, and however much you want to fight those orders, there are significant consequences and risks for taking that challenge or fight out of the Court room and taking things into your own hands.
From which para of which statute does the judge to commit a person to prison for failing to supply information to the court ?????????
I don’t believe any such authority exists and if I am right, then the judge should be in prison not the mother !
You are not right.
If I am not right where is the authority ????????????????
It is a contempt of an order made by the court, which is an imprisonable offence
In those 4 days the child was not taken to a place of safety?? (PPO, EPO) The social worker should be in prison !!
By what authority I repeat can the court make such an order??????????????
Dear Ian, If you want me to do you an advice on contempt of court, let me know and I’ll give you my hourly rates.
If you’d prefer not to pay me to do you an advice [and my advice is that you don’t], the Contempt of Court Act 1981 section 14 is what gives the Court the power to commit for contempt and sentence people for breach of a Court order (which is what this was)
One of the cases cited in the judgment, Hale v Tanner 2000 is a really good place to go, if you want to understand the nuts and bolts of contempt and committal.
There are all sorts of arguments about whether the law is fair or proportionate or should be changed, or whether an individual case has been fairly dealt with or the breach proven, but an assertion that the Court has no power to deal with a breach of orders in this way is just plain wrong, I’m afraid.
I thought lawyers were precise people suespiciousminds.At no time have I queried the power of the court to commit to prison for breach of a lawful order.I have repeatedly asked by what power can they make an order to stifle all discussion etc
I am sure you can distinguish (with a lttle thought) between the power to commit for contempt for breach of a lawful court order,(not disputed) and the power to make that order in the first place (very much disputed) !
After all no uk court can order a person to dance naked in Trafalgar square for example or force someone to get married against their will,or force a sane adult with cancer to undergo chemotherapy etc etc .A court’s power is limited .A court may only make orders of a type authorised by statute and section 14 does not of course cover the sort of gagging order that we are discussing.
I shall of course charge you no fee for the legal lesson !
Ian, this case is not about gagging orders in any way shape or form.
To clarify, the court made a Recovery Order pursuant to section 50 of the Children Act 1989 – section 50(3) (c) is the bit we would be particularly interested in, but you may also want to look at s50(11) (the first means that it is mandatory to provide information about the missing child, the second means that one can’t claim the right to silence in relation to s50(3) )
The Court went on to make orders under the Inherent Jurisdiction of the High Court, authorising the tipstaff to become involved, but frankly the s50 order is sufficient for the breach in any event.
50 Recovery of abducted children etc.
(1)Where it appears to the court that there is reason to believe that a child to whom this section applies—
(a)has been unlawfully taken away or is being unlawfully kept away from the responsible person;
(b)has run away or is staying away from the responsible person; or
the court may make an order under this section (“a recovery order”).
(2)This section applies to the same children to whom section 49 applies and in this section “the responsible person” has the same meaning as in section 49.
(3)A recovery order—
(a)operates as a direction to any person who is in a position to do so to produce the child on request to any authorised person;
(b)authorises the removal of the child by any authorised person;
(c)requires any person who has information as to the child’s whereabouts to disclose that information, if asked to do so, to a constable or an officer of the court;
(d)authorises a constable to enter any premises specified in the order and search for the child using reasonable force if necessary.
(4)The court may make a recovery order only on the application of—
(a)any person who has parental responsibility for the child by virtue of a care order or emergency protection order; or
(b)where the child is in police protection, the designated officer.
(5)A recovery order shall name the child and—
(a)any person who has parental responsibility for the child by virtue of a care order or emergency protection order; or
(b)where the child is in police protection, the designated officer.
(6)Premises may only be specified under subsection (3)(d) if it appears to the court that there are reasonable grounds for believing the child to be on them.
(7)In this section—
“an authorised person” means—
(a)any person specified by the court;
(c)any person who is authorised—
(i)after the recovery order is made; and
(ii)by a person who has parental responsibility for the child by virtue of a care order or an emergency protection order,
to exercise any power under a recovery order; and
“the designated officer” means the officer designated for the purposes of section 46.
(8)Where a person is authorised as mentioned in subsection (7)(c)—
(a)the authorisation shall identify the recovery order; and
(b)any person claiming to be so authorised shall, if asked to do so, produce some duly authenticated document showing that he is so authorised.
(9)A person shall be guilty of an offence if he intentionally obstructs an authorised person exercising the power under subsection (3)(b) to remove a child.
(10)A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(11)No person shall be excused from complying with any request made under subsection (3)(c) on the ground that complying with it might incriminate him or his spouse [F1or civil partner]F1 of an offence; but a statement or admission made in complying shall not be admissible in evidence against either of them in proceedings for an offence other than perjury.
^^^ ouch ^^^
If there is no gagging I challenge you to name the persons subject to the order,the local authority,and the social workers involved, on your site !
I also must point out that in (10) the penalty for breach is a fine not prison.!
Ian, the person subject to the order is named in the committal judgment. It is there to be read by anyone (it is in the title of the case, even). If the LA and social workers are named in the judgment, I’ve already linked the judgment for anyone to read – if they are not named in the judgment, then I can’t name them simply because I don’t actually happen to know who they are. I’ve got no real interest in who they are, to be honest.
To be fair, the s50 (10) thing is a little bit weird to a lay person, so I’ll explain. The OFFENCE is the s 50 (9) paragraph, not breach of the order. The penalty for committing the offence set out in s50 (9) is indeed a fine and not imprisonment. s50 (10) applies to that offence, and not to the entireity of s50. [the offence is to intentionally obstruct a person who is authorised to remove the child whilst they are attempting to do so. The mother’s breach here was s50(3) not s50(11).
I’m sorry that I am being tetchy this week – I’m not a big fan of demands as opposed to requests.