In these times where every week seems to give family practitioners another raft of guidance to follow, another lecture on how awful we all are for not doing this that and the other and another bout of finger wagging, this case might make some of us happy.
Re J (A child) 2015
In which there was a terrible cock-up, and it wasted a lot of time and money, and was unfair and an apology had to be made. But for once, it was the Court having to say that they got it wrong, rather than wagging fingers at everyone else. Even more sweet because the apology was delivered by the President himself. (Fair play to him, he came out and did it straight)
This was a case where mother was told by Pauffley J to return her child to America forthwith. Mother made an application to appeal. That application came before King LJ as a paperwork request. The mother and her solicitors were told that the application for permission to appeal was refused. A stay had been made to prevent Pauffley J’s order taking effect for 3 weeks, to allow the application for permission to appeal to come before the Court of Appeal for an oral application.
When that 3 week period expired, father applied to the High Court for enforcement of the order (as he was entitled to), because the child had not been returned to America. The case came before the President on 29th May 2015 and the President made a series of orders, including an order to seize mother’s passport.
What the President did not know, and what none of thelawyers knew, was that King LJ had extended the stay to 12th June (at a hearing where mother appeared in person and permission to appeal was refused). Everyone knew that permission to appeal had been refused, but nobody (save the mother and King LJ knew about the stay being extended)
So, at the time that the President was making really serious orders (the tipstaff going out and forcibly taking mother’s passport away from her) on the basis of mother being in breach of Pauffley J’s order, the Court had already granted a stay of that order. The mother was not in breach of the Court order.
Rather embarrassingly, it was the mother who had to notify the Court when she was served with the President’s order, drawn on the basis that she was in breach of Pauffley J’s order that she (and apparently she alone) was in possession of knowledge that King LJ had extended the stay until 12th June and thus she wasn’t in breach.
- So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.
- The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:
“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”
“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”
Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.
- The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:
“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”
The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.
- I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:
“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”
Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.
- Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.
- I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.
- There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.
- The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.
I note that in looking at the reasons why a Court did not know that extremely relevant Court orders on the case had been made which would have transformed the Court’s thinking, it is a shame that the President did not refer to the seminal case of Right Hand versus Left Hand (ex parte Escher) 1854 in which it was held that the Left Hand had no knowledge of what the Right Hand was doing and vice versa.
Perhaps we need a brand new Monopoly card
It is mean of me to gloat. Everyone can make mistakes, even very significant ones like this. We are all human beings, and working under pressure and tight deadlines. The Court, like all of us, is only human.
As Alexander Pope said, “To err is human, to forgive, divine”
So on behalf of those of us who have been getting nothing but lectures and grief from judgments, speeches, Practice Directions and Views about how every tiny thing we do we are doing wrong and the solution is to become more cumbersome, time-consuming and intricate over the last two years, Mr President, we forgive you.