When a parent abducts their child from a jurisdiction in order to avoid the consequences of orders previously made by the court, then that court must obviously do all it can to locate the child and ensure that they are returned.
That was the position in B (A Child) when it came before His Honour Judge Tyzack QC in February and March this year. The child, B, was aged nine years and a ward of court. Her mother had abducted her and taken her out of the country (it seems to Abu Dhabi or Dubai), to avoid the consequences of earlier court orders. In proceedings brought by her father Judge Tyzack decided, as is often the case in such situations, to enlist the help of B’s wider family in finding her and securing her return. Accordingly, on the 27th of February he ordered B’s maternal grandparents and the mother’s partner to provide certain information and to lodge their passports with the court. He also ordered B’s 16 year-old half-brother, L, to provide certain information, to lodge his passport with the court and to attend court on the 28th of March. The order was endorsed with a ‘penal notice’, advising L that if he did not comply with it he would be guilty of contempt of court and may be sent to prison.
At the hearing on the 28th of March Judge Tyzack required L to give evidence, despite the fact that he was still a child. He was not satisfied that L had been ‘fully and completely candid with the court’. He therefore adjourned the application L had made for the return of his passport to a further hearing on the 7th of May and made an order requiring L to:
“produce to the court forthwith all the records of telephone calls to and from his land line telephone and all records of any emails texts or other electronic means of communication [between 1 February 2014 and 7 May 2014].”
The order was again endorsed with a penal notice.
L appealed against the order, putting forward five grounds: that Judge Tyzack was wrong: (1) to order L’s attendance at court on the 7th of May, (2) to order that L’s passport remain lodged with the court, (3) to order disclosure of L’s communications, (4) to attach a penal notice to the orders made against L, and (5) to conclude that L was not being candid in his evidence.
The Court of Appeal allowed the appeal. The leading judgment was given by the President of the Family Division Sir James Munby. After making clear that nothing he was to say was intended to throw any doubt upon the powers of the court when faced with the problem which confronted judge Tyzack, Sir James dealt with the five grounds of appeal, as follows:
(1) The order to attend court: there was nothing in Judge Tyzack’s judgment which showed that he had properly evaluated, as he should have done, where the balance properly lay between, on the one hand, the need to take evidence from L and, on the other hand, L’s welfare interests as a child. The appeal was therefore allowed on this ground.
(2) The passport order: the President found that the court did not have the power to restrict a person’s freedom of movement simply, as was Judge Tyzack’s intention, to induce them to apply their mind to the task of compelling someone else to comply with a court order. The appeal was therefore also allowed on this ground.
(3) The order for disclosure: this ground was also allowed, on the basis that Judge Tyzack had not evaluated whether the order was proportionate. The order was also too wide, in that it specified all types of records, not just those that were relevant to the whereabouts of B and her mother.
(4) The penal notice: was simply wrong, as a child cannot be imprisoned for contempt, so the appeal also succeeded on this ground.
(5) The finding in relation to L’s evidence: here, the President’s mind ‘wavered’, but on balance he allowed the appeal on this ground as well. He accepted the argument by L’s counsel that there had been procedural irregularities in requiring L to attend court and attaching a penal notice to the order (see grounds (1) and (4) above), and that those irregularities made the finding unjust.
Lady Justice Black and Lord Justice Underhill gave concurring judgments.