C of A Decision for Return of Abducted Children

26 June 2014 - COURT OF APPEAL decision concerning the Court’s power to compel third parties to take steps to secure the return of abducted children and the role of non-subject children in such proceedings

Simon Musannif, Partner, 
recently acted for a child in Family Proceedings before the High Court.  He successfully appealed a decision which raised issues of general public importance in respect of the powers the court has to compel third parties without parental responsibility to take steps to secure the return of an abducted child and the role of non-subject children in such proceedings.

The facts of the case were as follows: A ward of the court (B), aged 9, had been removed from the jurisdiction by her mother in order to avoid the consequences of orders previously made by the court. The Judge needed to enlist the assistance of the mother's wider family in locating B. The Judge ordered B's elder half-brother (L), aged 16, to provide certain information, to lodge his passport with the court and to attend court and give evidence. A penal notice was attached to the order. L attended court and gave evidence and the Judge made findings as to his candour.  The Judge further ordered that L’s passport should oremain with the court adjourning this issue to a further hearing and ordering L to attend that hearing and imposing a penal notice to that order.  The court further directed that L disclose to the court e-mail and telephone logs.  The Court of Appeal acknowledged situations where a court might make passport orders. However in this case the judge made the passport order to induce the extended family and L to "apply their minds to the essential task of putting persuasion / influence / pressure on the mother to return to the jurisdiction." The court found that this was not a permissible basis upon which to make a passport order. The judge was also wrong to apply a penal notice to the order in respect of L as he was 16 and could therefore not be imprisoned or detained for contempt. The court found that the judge erred in ordering L's attendance at court to give evidence. There was nothing in either the transcript of the proceedings or the judgment to suggest that the judge applied his mind to the matters he was required to consider. The finding that L had not been candid in his evidence could not stand as the order compelling his attendance had been a serious procedural irregularity which made the finding unjust.

We have a specialist team of lawyers with vast experience in our family department who would be happy to discuss any queries or concerns .  For more information, please contact us on 01392 258451.