Case No. MA22P02300

‘What will I see? What will I see?’ Male: ‘Tell him that he tells other people’s secrets. Information about him has been passed on.’ Female: ‘What will I see?’ Male: ‘If you don’t misbehaving you never see those children.’Female: ‘How am I misbehaving? You are’ Male: ‘Listen carefully, stop misbehaving. You have been misbehaving from day one. And you are still misbehaving. You are still misbehaving Maryan.’ Female: ‘It is you who is misbehaving. It is you who is not letting me see my children.’ Male: ‘So now you want to remain in this situation? Misbehaving?’ Female: ‘In what situation am I in?’Male: ‘This is your choice.’ Female: ‘What is my choice? To not let me see my children?’ Male: ‘Will you stop misbehaving?’ Female: ‘So you don’t let me see my children?’Male: ‘Maryan’Female: ‘Is that my choice?’Male: ‘Maryan’Female: ‘Yes.’Male: ‘Will you misbehave or not? That is all I am asking.’Female: ‘Will you let me see my children or not?’Male: ‘I want one final answer’Female: ‘Will you let me see my children or not.’Male: ‘I will not let you see you children unless you behave well. You will not see and you will not talk to or see the children.’Female: ‘How would you like be to behave?’Male: ‘Going back and forth and being cunning is not going to help. The stupidity of going to the house without telling me.’Female: ‘Okay what do you want’Male: ‘The stupidity of going to the house without telling me and to try to take children so they can go with you to England, and you are doing all that.’Female: ‘I just wanted to see the children.’”23.Within the foregoing context, the police visited the father in England on the 16 of August 2022. The police reported the father as being very disruptive and not complaint. The father was visited again by the police on the 18 of August 2022 at his place of work. The father alleged that he didn’t know where the family were and had not been with them since April 2022. He claimed to be under the impression that the mother and the children were still in Turkey. The father further claimed to be working hard to save money so that eventually they could all move to America as a family. The father alleged that the mother was “manipulative and nasty” towards him and was “getting inside his head”. He claimed that he was under the impression that the mother and the children were going for a holiday and they went off “galivanting” while he stayed at home working hard. He claimed not to be concerned when they had not returned to the jurisdiction as the mother was “always doing this”. The father further claimed he had no means of contacting the mother.24.The following day officers again attended the father’s home. On this occasion, the father claimed that he had rung his family in the United Kingdom to try and ascertain whether there were members of his family in Somalia that could help look for the children. The father went on to claim that he has no immediate family in Somalia and does not know of anyone that he could speak to in that jurisdiction, albeit that there may be distant relatives that could help. The father had made no mention of Somalia when speaking to the police the day before. The father is recorded as having broken down in tears and stated that he was worried for his children and did not know where they are and that he would do anything to help the authorities find them. 25.The mother arrived back in the United Kingdom from Somalia on 10 September 2022. The mother contends that she thereafter provided information to the Manchester police regarding her knowledge with respect to the whereabouts of the children. Now exhibited to the mother’s statement is an email confirming that the mother was in communication with the police in this regard. The email exchange makes it clear that the mother forwarded to the police details of the paternal uncle who it is alleged met her and the children at the airport in Somalia, Said Abdulqadir, including his phone number, and the voice note recording of the father allegedly telling the mother in Somali that she would not see the children again, which I have already detailed. The mother would not disclose her own location. On 9 October 2022, the police reported these matters to the local authority suggesting that the children are currently in Somalia under the control of the father or his family. However, for reasons that remain unclear, the police did not translate the documents and voice note provided by the mother, and took no steps to interrogate the parents mobile telephones.26.The children remain out of the jurisdiction and there whereabouts remain unknown. As I have noted, and very belatedly, on 13 October 2022 Manchester City Council issued proceedings in wardship in respect of the children. On 14 November 2022 HHJ Singleton KC sitting as a judge of the High Court warded the children, made an order under the inherent jurisdiction requiring the parents to return the children to the jurisdiction of England and Wales and made location orders in the following terms:“8.Maryam Yusef and Farad Abdi (described below as the respondents) must each immediately:(a) Inform the Tipstaff of the whereabouts of the children S, E, D and H.(b) Also in any event inform the Tipstaff of all matters within their knowledge or understanding which might reasonably assist him in locating the children.(c) if it is requested by the Tipstaff, the address at which that person will be living in England and Wales and (if practicable) a telephone number and email address at which that person can be contacted.9.The applicant's solicitors Manchester City Council must forthwith inform the Tipstaff in writing in the event that the applicant should independently of the Tipstaff locate the children or if there is no further need for the Tipstaff's services.10.The respondent(s) and any other person served with this order must each hand over to the Tipstaff (for safe-keeping 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 children, including an adult's passport by which the child/ren are also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child/ren to leave England and Wales; and(b) every passport relating to the respondents Maryam Yusef and Farad Abdi and every identity card, ticket, travel warrant or other document which would enable the respondent to leave England and Wales.11.The respondent(s) and any person served with this order must not (i) remove, or (ii) knowingly permit the removal of, the child from the jurisdiction of England and Wales.”27.The location order was executed in respect of the father on 18 November 2022. The father was arrested on that date for failing to provide the information required by the terms of the location order. The father also refused to surrender his passport, stating that it had been reported as stolen or lost by him. He then claimed that he had found it, but that it had been cancelled by the Home Office. A statement has been provided from DC Williams, the arresting officer who also attended the fathers address on 18 November 2022 and seized some documentation pursuant to the location order. As I have noted, that documentation included a boarding pass for a flight to Addis Ababa, Ethiopia on 6 May 2022. The police also seised a confirmation of citizenship ceremony for the father from his home on 18 November 2022. The police have produced a record of the answers given by the father in response to questions as to the children’s whereabouts when he was arrested:“I Fahad Abdi am making this statement following being served with a High Court Warrant Location Order by Detective Constable Gary Williams. I was asked to provide the full address of where my four children S, E, D & H. I have no idea where they are accept that they are with their mother. However, I have no idea where their mother is. I do not even know what country she is in. The last I knew was in March when she took them to Turkey on holiday. I have not had any contact with my children in person or by any other means since then including phone calls, messages or social media. I have no way whatsoever of contacting my children. I do not have any travel documents for my children whatsoever.”28.The location order was executed in respect of the mother on 21 November 2022. On that date the mother was also arrested for failing to provide the information required by the location order and for failing to hand over her passport. A statement from DS Redford sets out the mother’s responses to being questioned and arrested pursuant to the location order. I will come to that evidence in more detail later.29.The parents were brought before HHJ Woodward sitting as a Judge of the High Court on 21 November 2022. On that date, the local authority sought the committal of the parents for contempt of court on the grounds that each were in breach of the location orders, which orders were endorsed with a penal notice. HHJ Woodward remanded the parents in custody overnight, relying on the decision of Butler-Sloss P in Re B (Child Abduction: Power to Detain) [1994] 2 FLR 479 in which the former President held that:“The purpose of a bench warrant is to bring the person detained to court and its purpose is effected as soon as he appears before the judge. At that moment he may or may not be in contempt of a court order. If he is not in contempt then in my view there is no power to detain him further. The direction of the court has been complied with and there is nothing before the court to enable the further power of detention to be invoked. If the person is prima facie guilty of contempt but the proceedings are part heard and are continuing, I can see no reason, in certain circumstances, not to detain him pending the conclusion of the case if the court is satisfied that he will not voluntarily attend on the next hearing day. The purpose is to secure the attendance of the alleged contemnor for the next court hearing.”30.When the parents came before HHJ Singleton KC on 22 November 2022 she further remanded them in custody to be produced before this court on 29 November 2022. It is of note that before HHJ Singleton KC the father agreed to provide any travel documents in his possession to the local authority. To that end the father provided his keys to his legal representatives with a view to them visiting his home to retrieve the travel documents. 31.On 29 November 2022 I directed the release of the mother in circumstances where she had by then surrendered her passport and travel documents, had provided a statement detailing her knowledge concerning the whereabouts of the children and gave undertakings regarding her place of residence pending a final hearing of the local authority’s committal application. The father had still not surrendered his travel documents as at the hearing on 29 November 2022. He again claimed at various points during the hearing that the documents had either been mislaid or stolen and then found at his home but then cancelled. When it was pointed out to the father that on 22 November 2021 he had agreed to provide any travel documents and provided his keys to his legal representatives with a view to them visiting his home to retrieve the documents, the father claimed that he had provided his keys but his solicitor had since failed to contact him. Whilst the father was represented by counsel at the hearing on 29 November 2022, as I have noted counsel sought permission to withdraw by reason of professional embarrassment, which application was granted by the court. On 29 November 2022 I further remanded the father in custody pending today’s hearing on the grounds that he constituted a clear flight risk and that there was a real risk he would not attend this hearing if released. I further directed that the statements and documents provided by the police in relation to the arrests of the parents on 18 and 21 November 2021 respectively in execution of the location order dated 14 November 2022, and relied on by the local authority in support of its applications to commit, be served on the parents and that such documents should form part of the court bundle. That has been done.32.The local authority’s applications to commit the mother and the father for breach of the terms of the location order are each dated 22 November 2022 and have been served on each of the parents. Each application form pleads the contempt as (i) the parents failed to comply with the passport and location orders made on 14 November 2022 and (ii) the parents breached the return order made on 14 November 2022 requiring them to return the children forthwith to the jurisdiction of England and Wales. The summary of facts alleged to constitute the contempt is set out as follows in each Form N600:“1.The Defendant has failed to comply with Passport and Location Orders dated 14.11.2022 in respect of his children …and has failed to comply with an order of the same date to return the children to the Jurisdiction of England and Wales. 2.The Defendant was ordered to immediately: (a) Inform the Tipstaff of the whereabouts of the children S, E, D and H. (b) Also in any event inform the Tipstaff of all matters within their knowledge or understanding which might reasonably assist him in locating the children. 3.The Defendant was ordered to hand over to the Tipstaff (for safe-keeping 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 children, including an adult's passport by which the child/ren are also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child/ren to leave England and Wales; and (b) every passport relating to the respondents Maryam Yusef and Farad Abdi and every identity card, ticket, travel warrant or other document which would enable the respondent to leave England and Wales. 4.The Defendant has not complied with these orders and the whereabouts of the children is unknown.”33.The mother contends that she continues not to know where the children are. She believes they are somewhere in Somalia and that they are with the paternal uncle Said Abdulqadir. She does not accept that she is in contempt of court, contending that she was unaware of the location order until the 21 November 2002 and that she was not given any chance to comply with the location order. In any event, the mother points to the fact that she has now surrendered her passport and has provided all of the details she has regarding the current whereabouts of the children. It is accepted by the mother that she should have done more to inform the authorities of what had happened in April, and of the risk to the children at that time. She points to the fact that she did eventually contact the authorities and sought to assist them in locating the children, having herself travelled to Somalia to that end. 34.The father likewise insists that he does not know where his children are and contends that they were last known to be with the mother earlier this year. He repeats before the court today that his travel documents were lost, and then found, but by the time they had been found they had been cancelled. The father did not seek to call witnesses nor to cross examine the evidence of the local authority.LAW35.With respect to the law and procedure the court must apply, the process of committal for contempt is technical in nature and of some little complexity. Within this context it is important, in circumstances where the liberty of the citizen is at stake, to recall the strict procedural requirements of a properly constituted committal hearing that have to be complied with in respect of the local authority’s applications to commit the parents for contempt. I have in particular borne in mind the following requirements: i)The committal application must be dealt with at a discrete hearing and not alongside other applications.ii)The alleged contempt must be set out clearly in a notice of application or document, the summons or notice identifying separately and numerically each alleged act of contempt.iii)The application notice or document setting out separately each alleged contempt must be proved to have been served on the Respondent in accordance with the rules. iv)The Respondent must be given the opportunity to secure legal representation as he or she is entitled to.v)The committal hearing must be listed publicly in accordance with the Lord Chief Justice’s Practice Direction: Committal / Contempt of Court – Open Court of 26 March 2015 (and as amended on 20 August 2020) and should ordinarily be held in open court. vi)Consideration must be given to whether the allocated judge should hear the committal or whether the committal application should be allocated to another judge.vii)The burden of proving the alleged contempt lies on the person or authority alleging the contempt. viii)The Respondent is entitled, subject to the case management powers of the court, to cross-examine witnesses, to call evidence and to make a submission of no case to answer.ix)The alleged contempt must be proved to the criminal standard of proof, i.e. beyond reasonable doubt. x)The Respondent must be advised of his or her right to remain silent and informed that he or she is not obliged to give evidence in his or her own defence. xi)Where a contempt is found proved on the criminal standard the committal order must set out the findings made by the court that establish the contempt.xii)Sentencing should proceed as a separate and discrete exercise, with a break between the committal decision and the sentencing of the contemnor. The contemnor must be allowed to address the court by way of mitigation or to purge his or her contempt.xiii)The court can order imprisonment (immediate or suspended) and/or a fine, or adjourn consideration of penalty for a fixed period or enlarge the injunction. xiv)In sentencing the contemnor, the disposal must be proportionate to the seriousness of the contempt, reflect the court’s disapproval and be designed to secure compliance in the future. Committal to prison is appropriate only where no reasonable alternative exists. Where the sentence is suspended or adjourned the period of suspension or adjournment and the precise terms for activation must be specified.xv)The court should briefly explain its reasons for the disposal it decides to impose if it finds the contempt proved.36.In this case, I am satisfied that each of the aforesaid procedural imperatives has been met ahead of and during this hearing.DISCUSSIONContempt37.The location order made by HHJ Singleton KC on 14 November 2022 was clear in its terms. It required each parents to inform the Tipstaff immediately of the whereabouts of the children S, E, D and H Abdi and, in any event, inform the Tipstaff of all matters within their knowledge or understanding which might reasonably assist him in locating the children. The location order further ordered the parents immediately to hand over to the Tipstaff every passport relating to the children, including an adult's passport by which the child/ren are also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child/ren to leave England and Wales and every passport relating to the parents and every identity card, ticket, travel warrant or other document which would enable them to leave England and Wales.38.Dealing first with the mother, having regard to the evidence, I am satisfied that at the time the location order was executed the mother was aware that the children were likely to be in Somalia. As at 21 November 2022 the mother had had, effectively, confirmation of this from the father by way of the voice note. She had herself travelled to Somalia in an effort to locate the children. On her return from that jurisdiction, she informed the police that she suspected that the children were in Somalia. 39.As Mr Lord points out, it is important in this context to note that at the time she was arrested on 21 November 2022 the mother had already provided to the police the voice note from the father, the documents obtained through her efforts to locate the children in Somalia and an account of her belief that the children were in Somalia. Within this context, had the arresting officer on 21 November 2022 sought to cross-reference the matter he would have discovered that the mother had, on the topic of the children’s whereabouts, already given extensive information to the police and provided the message and documents to which I have referred.40.Within that important context, upon her arrest the Police officer recorded the conversation with the mother as follows:“