Re DAD (application for committal, flawed process)

Hell yeah

Thank you Holman J for the best case name ever. Re DAD.  [Although annoyingly, the case is really about an uncle rather than a dad…]

If you are doing a committal case, either for or against, this case will be worth reading and taking with you. Paragraph 10 of the judgment, as underlined, makes a very difficult argument to overcome, due to the standard orders being flawed.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2655.html

In this case, the father had allegedly abducted his son in breach of a Court order, and the child having been kept away from the mother for over 8 months.  The mother obtained a Collection Order, which compelled the father to return the child, but it had not been possible to locate the father to serve it upon him.

However, the father’s brother was at a known address and an order was made in these terms:-

“(2) If [the father, who is specifically named in the order] and/or any other person served with this order is in a position to do so, he or she must each deliver the child into the charge of the Tipstaff.

(3) If the respondent or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she must each:-

(a) inform the Tipstaff of the whereabouts of the child, 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 child.”

It is important to mention that paragraph 7 of the order later provides that:

“The obligations under paragraphs 2 and 3 above will continue until the Tipstaff takes charge of the child…”

Fairly traditional order, and I have written about a number of these cases where a relative knows where the child is and conceals it and then is committed to prison.

5…on Saturday 27^th June 2015, police officers acting on the instructions and authority of the Tipstaff attended at an address at which Muhammad Nawaz Chaudhry was residing. I mention that, as I understand it, it is not in fact his own home, but he was residing there with a relative of his. Muhammad Nawaz Chaudhry is the brother of the father of the child and, accordingly, the uncle of the child. The police officers introduced themselves to Mr Chaudhry and produced a copy of the Collection Order in Form 2A and asked him for any information he could give as to the whereabouts of the child. In summary, and in effect, he said that he did not know where either the child or his brother, the child’s father, were. The police officers then telephoned the Tipstaff himself. The Tipstaff himself considered that Mr Chaudhry in fact knew more than he was revealing and, accordingly, that he (the Tipstaff) had reasonable cause to believe that Mr Chaudhry was disobeying paragraph 3 of the Collection Order in Form 2A. He therefore instructed the police officers to arrest Mr Chaudhry in obedience by the Tipstaff himself to the provisions which I have mentioned of the Collection Order in Form 2B, which are directed to the Tipstaff. Mr Chaudhry was then conveyed to the local police station in custody and brought before a judge here at the Royal Courts of Justice on the following Monday. He was further remanded in custody by that judge and only finally released from physical custody on Friday 10^th July 2015. In other words, following the evening of his first arrest on Saturday 27^th June 2015 until his first release from actual custody, Mr Chaudhry spent thirteen nights in custody; eleven of them in Pentonville Prison. On Friday 10^th July 2015 he was released on bail subject to certain conditions. There have been subsequent adjournments of the application to commit him to prison and it has come before me (dealing with the matter for the first time) for substantive resolution today.

6. The essence of the case of the mother in support of her application to commit is that there had been considerable communication by text and/or email and/or telephone between the father and Mr Chaudhry before, and in the months following, the actual abduction of the child. Accordingly, even if Mr Chaudhry did not and does not now know the precise whereabouts of the child, he certainly had “matters within his knowledge or understanding which might reasonably assist [the Tipstaff] in locating the child” which he certainly failed to give information about prior to his arrest on 27^th June 2015 and which even now he has not been fully forthcoming about. So it is that the solicitors on behalf of the mother issued a formal application on 7^th July 2015, which was subsequently amended on 16^th July 2015, for Mr Chaudhry to be committed to prison for contempt of court. The formal application notice for committal, as amended, seeks that he be committed to prison for contempt of court “because Mr Chaudhry disobeyed paragraphs 3(a) and (b) of the Collection Order made…on 20^th February 2015…” in ways which were described in supporting statements made by the solicitors for the mother.
7. Pausing there, it thus follows that the matter for which I am asked to commit Mr Chaudhry to prison is very specifically that he has disobeyed those paragraphs of that order

In this case, counsel for uncle, very generously and fairly told the Judge that the best points of the uncle’s argument had been arrived at through hard work of the uncle’s solicitor.

 I should mention that appropriately, but generously, Mr Main-Thompson made very clear today that all or most of these points – which are made in his most excellent position statement and skeleton argument, dated 15^th September 2015 – are points which have been generated by the input and researches of his instructing solicitor, Ms Maria Wright. She is a solicitor who is employed by Freemans, who act on behalf of Mr Chaudhry, and who herself has conduct of this matter. There are within that position statement and skeleton argument a number of important points with regard to the lawfulness of the Collection Order in the form in which it was made in this case. There is, in my view, however, one knockout point with which I will deal in a moment. Since I regard that point, even standing on its own, as completely decisive in this case, anything I were to say in relation to the other points would be what lawyers called obiter. It happens that there is very currently a thorough – going review of the form and language of collection orders. In my view, it is undesirable that I should express in judgment any view or comment which would be obiter about these other points

Always  nice when a Judge praises the hard work of a solicitor. Even nicer when he describes one of your points as a knockout one.

Hell to the yeah

What’s the knockout punch?

9. I turn, therefore, to what, in my view, is the decisive point for the purposes of the present application and the one upon which I base my decision and judgment today. The Family Procedure Rules 2010 (as amended) make provision in relation to applications for committal. So far as is material to the present case, the first rule in point is rule 37.4, which provides as follows:
   

   “37.4 Enforcement of Judgment, order or undertaking to do or abstain from doing an act

   (1) If a person –

   (a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

   (b) disobeys a judgment or order not to do an act,

   then, subject to…the provisions of these rules, the judgment or order may be enforced under the court’s powers by an order for committal”

   Pausing there, it is clear from the language of that rule that the power to commit is itself subject to the provisions of those rules. The next relevant rule is rule 37.9. That provides as follows:

   “37.9 Requirement for a penal notice on judgments and orders

   (1) Subject to paragraph (2) [which is not in point in the present case], a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, 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.”

10. Pausing there, I emphasise from that rule the words “prominently displayed” and “on the front of the copy of the judgment or order served”. I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years. The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011. I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them. But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.
11. The standard form of collection order and the one used in this case extends altogether to six sheets of paper, although the third page is largely blank. There is nothing remotely in the nature of a penal notice at all on the first four sheets of the order. The fifth sheet is headed with the following words in capital letters: “Important notice to the respondent and to any other person served with this order”. There are then a series of number paragraphs 1 to 5. These are headed respectively:
    

    (1) Liability to be arrested;

    (2) Liability to be committed to prison;

    (3) Your rights;

    (4) The Tipstaff;

    (5) Interpretation.

    The font or print size used on pages 5 and 6 is exactly the same as that used throughout the whole of the order and there is no particular use of bold type face on pages 5 and 6. Paragraph 2 on page 5 under the heading “Liability to be committed to prison” does contain the following words:

    “Breach of any part of this order would be a contempt of court punishable by imprisonment or fine. Accordingly, whether or not the Tipstaff arrests you, you may be summoned to attend court and, if you are found to be in breach of the order, you are liable to be committed to prison or fined.”

12. In my view the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”. It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, “on the front of the copy of the…order”. It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order…may not be enforced…” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal

The format of the Court orders, which Holman J has previously complained about, now mean that the vital component for a committal, that the front page of the order shows the person what they must do or must not do AND that the consequences for not doing it can be imprisonment.  At the moment, the first page is a lot of dry and dull rambling about who was present in Court that day and the dates of birth of everyone involved and yadda yadda yadda.

The Rules do provide a judicial discretion to proceed with the committal if there’s a flaw in the process but it is satisfied that no injustice would be caused to the defendant.

Here, the Judge considered that this did not apply.

14.  I do have a discretion under paragraph 13.2, but I can only exercise it “if satisfied that no injustice has been caused”. In support of her submission that no injustice has been caused, Ms. Chaudhry invited me to watch and listen to the video that the police officer made contemporaneously whilst visiting Mr Chaudhry and arresting him. As I understand it, this is a video made from some form of camera attached to the clothing of the police officer. I mention that, as that video forms part of the evidence or material upon which I base my decision in this case, I have ensured that it was available to be seen by the accredited journalist who is in the courtroom and the journalist has seen it. I would indeed have ensured that it was able to be seen by any member of the public who had shown any interest in this case and had been present at any stage during the hearing, although in fact there has been none. The whole duration of the visit by the police lasted about twenty minutes. I wish to stress that the two police officers appear to have handled this whole matter with the utmost courtesy and lightness of touch. From start to finish, there was nothing remotely heavy handed by either of them. Rather, they treated Mr Chaudhry with the utmost courtesy, respect and indeed patience, whilst ultimately arresting him with minimum formality. He went with them in the car, but at no stage was he placed in a handcuff nor handled physically in any way by the police. After being admitted to the house, the officers went into the front room immediately adjacent to the front door. They were holding two copies of the collection order and, therefore, a number of sheets of paper. They handed several sheets of paper, which I assume to be one copy of the six page collection order, to Mr Chaudhry, and the officer said “Have a big old read of that. There’s quite a lot there”. Mr Chaudhry sat down in an armchair and did for the next ten minutes or more hold the sheets of paper in his hand, but he hardly glanced at them at all. There is one moment in the video when he can be seen to be turning through the sheets of paper, but, even in that moment, he does not appear to have reached page 5, upon which such warning notice as this order contains is printed. At no stage, so far as I could discern, did either officer specifically draw the attention of Mr Chaudhry to that warning notice, nor indeed talk him through the language of the order at all. I do not say that necessarily critically of the officers; I merely record the fact that his attention was not specifically drawn to any particular part of the order and certainly not to such warning notice as appears on page 5. After the officers spoke on the telephone to the Tipstaff, they informed Mr Chaudhry that they must arrest him. They allowed him time to go upstairs and into the kitchen; and, as I have said, the whole process was gentle, orderly and sympathetic. As the two officers and Mr Chaudhry finally left the front door of the house, one officer said: “You can take the paper if you like so you can read it”. As Mr Chaudhry got into the back seat of the police car one can see that he did still have pieces of paper (which I assume are the order) in his hand, but there is no sign, at any rate at that stage, of his actually reading it. Before leaving the content of that video recording of the whole process, I mention that at one stage the officer said to Mr Chaudhry that “someone from the court will do a quick interview” with him. Frankly, I do not think that either Mr Chaudhry or either of the officers imagined for one moment, when they arrested him and took him away in the police car that night, that he was about to spend no less than thirteen nights continuously in custody. The picture and impression that was conveyed was that he would have to go to the police station under arrest and no doubt in custody perhaps for that night, but that he would then be visited and interviewed by “someone from the court” and probably released soon thereafter.

15. The essential submission of Ms Chaudhry is that the officers did hand the order to Mr Chaudhry that day. The officer did say “Have a big old read of that” and an opportunity to read the order was undoubtedly afforded. Thus Mr Chaudhry might have been able to say to the officers “Please sit patiently while I now read through this whole order”. I have no doubt that if he had said that they would have permitted him to do so, but that is not in fact what happened. Further, Mr Main-Thompson has drawn my attention to paragraph 5 of the affidavit sworn by Mr Chaudhry on 12^th August 2015. In that he says that he left school at fifteen before taking any exams:
    

    “I don’t have any academic qualifications. I was slow at school. I was always in the bottom set and I had extra classes, one to one with a teacher. Despite this I did not complete my secondary education. I need to read things, particularly official documents, many times before I can understand them fully. My spelling is not good…”

    The picture there is, therefore, of somebody with relatively little and unsuccessful education and no great ability to comprehend complex documents such as this order.

16. Ms Chaudhry submits that I can, and should, be satisfied that no injustice has been caused to Mr Chaudhry by the defect that a penal notice in the required language was not prominently displayed on the front page of this order. Far from being satisfied that no injustice has been caused to him, I am personally quite clear that a great deal of injustice was caused to him. Rule 37.9 exists for a purpose. The purpose clearly is so that somebody in the position of Mr Chaudhry can see prominently and at once, the moment a lengthy order of this kind is given to him, what the gravity of the situation is and that he is at risk not merely of being arrested at the time, but of being committed to prison as a punishment for contempt of court.
17. In my view, therefore, this is not a situation where I can waive the procedural defect. All applications to commit require proper adherence to the requirements of any enactment and rule of court. In the present case there is a serious defect in the order upon which the application to commit is based. I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious. In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application. For those reasons, the application issued on 7^th July 2015 to commit Muhammad Nawaz Chaudhry to prison for contempt of court is struck out.

You may be reading this and think that it is potentially applicable to any order drawn up in the standard way, where the warning does not appear until page 5 of the order. And yes, it is certainly arguable.  Less so of course when the person is given substantial time to read the order before being in breach of it, and much less so if the person is present in court and represented when it was made and the Judge gives the warning about the consequences of breach. But yes, expect to see Re Dad being photocopied and handed out a LOT in committal cases until the standard orders get fixed.

And if you are drafting, until the orders get fixed, make sure you put the wording that’s normally on page 5 on the first page, in the biggest and boldest type that you can get away with.

Because at the moment, Re DAD is a

Don’t push your luck in asking for the £200 though