The High Court address a situation in which a woman was unlawfully removed from a plane and arrested as a result of misunderstanding about a location order.
Taukacs v Taukaca 2015
http://www.bailii.org/ew/cases/EWHC/Fam/2015/2365.html
In this case, the Court had made a location order, that would require the production of the child’s passport, revealing information about his location and preventing him from being removed from the country whilst the Court make decisions about the child’s longer term future.
This was served on local police, who went to mother’s home. She provided them with the child’s passport and gave them information. Very specifically, she told them that she had a flight booked for a holiday to Spain, the child would not be going, and asked if she could still go. She was told that yes, the order prevented the child leaving the UK but not her. To double-check, she visited the local police station to ask the same question and was given the same answer. What she was told was quite right.
However, when she got on the plane, this happened
- Having very creditably taken those steps, the mother must have gone with some confidence last Saturday to Birmingham International Airport with her friends in order to fly on Saturday evening to Palma in Spain. She actually boarded the aircraft, but, after she had boarded and before the aircraft took off, she was removed from it. I will now take up the narrative by reading from the short witness statement dated 2nd August 2015 made by a police constable of the West Midlands Police currently stationed at Birmingham Airport Again, it would not be fair in a public judgment to name that police constable. She says:
“On Saturday, 1st August 2015, I saw a woman in the front office area of the police station at Birmingham Airport who I now know to be Ludmila Taukaca. I was made aware by officers that Taukaca had been removed from a Monarch flight departing to Palma, Spain, this was due to her breaching a High Court order which stated that she was not to leave the United Kingdom and that she had to surrender her passport. Taukaca only spoke Latvian and Russian, so in order to communicate with her I used Google translator on my personal mobile telephone. At 23.00 hours I informed her that she was under arrest for breaching the court order. Language Line was then contacted and the facts of arrest explained to her. Taukaca was then transported to Solihull police station where the facts were related to the custody officer and her detention authorised. I had no further dealings with Taukaca.”
- Pausing there, it seems to follow from that that this lady was arrested and then detained in custody for two reasons. First, that she had not surrendered her passport. Second, that she was attempting to leave the United Kingdom. The police at the airport and later at Solihull police station took the view that both of these facts were breaches of the order. The police at her home, and later at West Bromwich police station, had both expressly told her that she could travel and was not required to surrender her passport. Essentially, following that, Mrs Taukaca has been held in custody ever since, as I have said, and was brought here by escorts this afternoon. She was held for a time in the cells here at the Royal Courts of Justice.
- One has only to consider those facts to appreciate that this matter has what I would regard as scandalous elements. This lady did produce her own passport to the police. They looked at it, but did not take it with them and left it with her. This lady did tell the police that she had a booked holiday to Spain a few days later and asked whether she could lawfully go. The police told her that she could. This lady took the extra trouble and precaution, which few people might have done, of going to a police station on Friday, together with her friend, to check whether she could lawfully travel to Spain. She was told that she could. She got as far as being on the aircraft when she was removed. That of itself must have been a degrading and humiliating experience and, probably, very frightening for her; and she has now suffered being detained in custody, as I have said, for something of the order of now 42 hours and two nights, and of course missed her holiday.
She was held in the cells for about 42 hours before the case came before Holman J and it was appreciated that she ought never to have been arrested.
The problem, Holman J identified, was with the standard pro forma order, that the Tipstaff circulates to the police force.
The problem which this case throws up is the language of the standard form location order. Paragraph 2 of the order in this case, which is in standard form, reads as follows:
“The respondent [viz in this case Mrs Taukaca] and/or any other person served with this order must each hand over to the Tipstaff (for safekeeping until the court makes a further order) as many of the following documents as are in his or her possession or control:-
(a) every passport relating to the child, including an adult’s passport by which the child is also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child to leave England and Wales; and
(b) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the defendant to leave England and Wales.”
I have to say that I myself would read (b) in the same way that the officer at the airport read it, that the mother had to surrender any travel document that would allow her to leave England, she had clearly got such items in order to get through airport security, ergo she was in breach of the order. I can quite see why the officer at the airport read it in that way. The problem is the ambiguous use of “defendant” in that standard order – who can it possibly mean other than the mother?
Pausing there, the first source of ambiguity leaps off the page of that part of the prescribed standard form order, although I have to say that it is not an ambiguity that I, myself, have ever spotted or noticed before. The heading of the order describes, in this case Ludmila Taukaca, as “respondent”. The opening words of paragraph 2 require “the respondent” to hand over the specified documents, but, when one gets into the detail of sub-paragraph (b), it will be noticed that it meanders between a reference to “the respondent” and a reference to “the defendant”. So far as I am aware, at any rate in this particular version of this order, it is only within paragraph 2(b) that there is any reference to the words “the defendant”. But at all events, what the person designated as “the respondent”, namely in this case Ludmila Taukaca, had to hand over was any passport relating to herself “which would enable the defendant to leave England and Wales”. It leaves completely unspecified who is meant or intended by the words “the defendant”, but a police officer might reasonably suppose that the reference to “the defendant” was a reference to somebody other than “the respondent” and, perhaps, that it was some further reference to the child concerned.
In this case, the police who first attended asked to see the mother’s passport and she showed it to them, but they did not ask her to hand it over, as their reading of the order was that they were to take any documents that would prevent the child from being taken abroad.
The fact that two different sets of police officers read the order entirely differently is more the fault of the order than the police.
- Assuming, however, that paragraph 2(b) did not contain that ambiguity, then it is a clear direction to hand over to the Tipstaff, or in a case like this to the police officer executing the order, every passport, etc., “relating to the respondent”. If and when the police officers last Wednesday looked at Mrs Taukaca’s own passport, which she had handed to them, but then placed it back on the table and left it with her, when they left her home, it was the officers who were failing to understand or failing to discharge their duty under this order. It was not Mrs Ludmila Taukaca, who, it will be remembered, cannot speak or read English.
- One then reads on to paragraph 4 of the order. That provides as follows:
“The respondent and/or any other person served with this order must not knowingly cause or permit the child:-
(a) to be present overnight at any place other than the place where the child was staying at the time of service of this order; or
(b) to be removed from the jurisdiction of England and Wales.”
- So far as paragraph 4(a) was concerned, this particular child, M, was staying, at the time when the order was served upon the mother in Smethwick, at the address of his brother in Northamptonshire. As I understand it, M has continued to stay at the address of his brother in Northamptonshire seamlessly between last Wednesday and now, so the mother has not been, and is not, in breach in any way whatsoever of paragraph 4(a).
- Quite clearly, the whole of paragraph 4 is directed to the whereabouts of “the child” concerned, and a prohibition on causing or permitting the child concerned to be removed from the jurisdiction of England and Wales. Here is the ambiguity and tension in this standard form of order which seems to me to have led to what I have described as a scandalous situation in the present case.
- Paragraph 2(b) does require the handing over of passports and similar documents “relating to the respondent”. If they are handed over, then the effect and intention would be to prevent the respondent from travelling out of England and Wales. I have, however, already pointed out ambiguities within paragraph 2(b). The focus of paragraph 4 is a clear and express embargo on removing the child from England and Wales, but neither paragraph 4 nor any other part of the order expressly prohibits the respondent parent from leaving England and Wales. Indeed, it may require very careful consideration whether there should be any restriction on the parent, as an individual and free person, from leaving England and Wales, provided only that the child, who is the subject of the application, is not able to leave England and Wales.
- At all events, it seems to me that the way that the police officers, who attended last Wednesday, interpreted this order was that it required them to remove the child’s passport, which they did, and contained an embargo upon the child leaving England and Wales, but no embargo upon the mother herself leaving England and Wales. So it was that, as the mother herself describes, the police said to her words to the effect that, “Yes, you can travel to Spain. It is nothing to do with you, but you cannot take your son abroad.” The same ambiguity seems to have influenced the police officer whom the mother saw and from whom she received advice and reassurance when she attended at West Bromwich police station on Friday.
- It seems, therefore, that, as a result of ambiguities in a standard form of order, which judges of this Division have been making now for many years, a terrible injustice was done to this lady. I have explained all this at some length in this public judgment. I have ordered that a transcript of this judgment must be made as a matter of extreme urgency. I personally am last sitting on Wednesday of this week before I go for several weeks of holiday. I intend to ensure that the official approved transcript of this judgment is placed upon the BAILII website before I go. It must be very urgently drawn to the attention of the President of the Family Division. It must, of course, be very urgently and seriously considered by the Tipstaff. It seems to me vital that very urgent steps indeed are taken to clarify and improve the wording of this standard form of order so as to avoid that any other person suffers the injustice and indignity and loss of freedom which this lady has suffered.
- I wish to stress very clearly indeed that, so far as I am concerned, Mrs Taukaca has not in any way whatsoever broken any court order. This is not a situation in which she has “purged her contempt”. Rather, she was never in contempt of court at all. She should never have been arrested, still less, detained, and I order her immediate release, repeating as I do a very sincere and unreserved apology on behalf of the legal system. But I wish to stress also that I do not intend in anything that I have said any criticism whatsoever of any of the police officers who were engaged in this case. Frankly, the fault lies with the language of the order and for that, ultimately, the judges must take responsibility.
It is remarkable that a standard form of order, that has been used for around four years, and has been regularly seen by the very brightest High Court Judges and counsel who are capable of dealing with international law cases (who tend to be bright people) has had these ambiguities within it for all that time.
And as a result, this lady has had the indignity of being removed from a plane and arrested, missed her holiday, and spent 42 hours in a cell. As a result of a poorly drafted clause in a standard order. Where’s Christopher Booker when you need him?
The transcript at the end makes a very sad case even sadder – it was really clear that this woman had no possessions, them having been confiscated, and absolutely no idea how to get across London to Euston station so that she could go home to Smethwick. You don’t often read Court transcripts that make you want to give someone a hug (and I have delivered precisely six hugs* in my entire life to people I wasn’t in relationships with, so I’m no hugger ) but this one did.
[*Half of those were a mistake, with the benefit of hindsight. I saw the trailer for the film “The Martian” last weekend, where Matt Damon gets accidentally stranded on Mars and will be entirely alone for years until a rescue mission comes and I believe that I actually sighed wistfully / with jealousy]
suesspiciousminds 