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Family Law

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18 FEB 2014

CONTEMPT: London Borough of Harrow v Afzal and Others [2014] EWHC 303 (Fam)

(Family Division, Keehan J, 31 January 2014)

Contempt - Removal of young baby - Grandparents withholding information

The full judgment is available below.

The local authority became involved with the parents of a young baby due to concerns that they were both using drugs. The child was permitted to live with the mother at the maternal grandparents' address, where the paternal grandmother also lived, on the basis that they would afford the child some degree of protection.

When the child was 3 months old the mother and father removed her from the address. All three grandparents were ordered to provide all information as to the whereabouts of the child and to take all steps within their control to secure her return. The court gave the grandparents time to comply with the order.

It was clear that the maternal grandparents had transferred money to their daughter who was now in Barcelona and that they had had contact with her by telephone. In sending money the judge was clear that the grandparents were flouting the order because they were not taking all steps within their control to secure the child's return but rather were taking steps to positively support their daughter.

Proceedings in relation to the maternal and paternal grandmothers were adjourned. The maternal grandfather was found to have lied on a number of issues and claimed to be confused about the circumstances of the mother's departure. He was an unreliable and dishonest witness in order to protect the mother. He was withholding highly material evidence from the court and was in contempt. He was sentenced to 28 days' imprisonment. 

A judicially approved version of the judgment with a comprehensive headnote will appear in a forthcoming issue of Family Law Reports.

__________________________________________________________________

Neutral Citation Number: [2014] EWHC 303 (Fam)

 

 

Case No.FD14P00078

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

 

 

Royal Courts of Justice

 

 

31st January 2014

B e f o r e :

MR. JUSTICE KEEHAN
B E T W E E N :

____________________

 

LONDON BOROUGH OF HARROW

Applicant

 

- and -

 

 

AFZAL & Ors.

Respondents

____________________

MR. M. JARMAN appeared on behalf of the Applicant.
MR. HEPHER appeared on behalf of the Maternal Grandparents.
MS. N. AFZAL (the First Respondent) appeared in person.
MS. D. MARSDEN appeared on behalf of the Guardian.

____________________

Crown Copyright ©

Judgment

KEEHAN J:

[1] At three o'clock in the morning on 16th January this year, the child with whom I am concerned, Farah Afzal, who was born on 2 October 2013, was removed from the home of her maternal grandparents by her mother, Zainab Rasul, and her father, Mohammed Afzal. Present in the house at the time were the maternal grandparents, Ali Rasul and Nazma Rasul. Also living at that address was the paternal grandmother, Nasira Afzal.

[2] This matter was before me for a hearing of alleged contempt by those three grandparents on Wednesday of this week, 29 January. On that occasion I heard evidence under oath from the three grandparents. I gave them the clearest warning that if I found them to be in contempt of court, there was a high degree of likelihood that I would impose a custodial sentence because any breach concerning such a young child would be a grave contempt of court.

[3] The Local Authority are involved with the parents and the child. The Local Authority are involved because of concerns they have about the longstanding drug abuse of both parents. The child was permitted to live with her mother at the grandparents' home on the basis that that may afford some degree of protection to the child, and she would not be exposed to drug taking by either one of her parents or that she would not be at risk of harm in their care if and when they were under the influence of drugs.

[4] I adjourned the matter off until today to give the grandparents an opportunity to secure their compliance with the order which was served upon each of them, that being the order of Russell J, dated 24 January of this year. Whilst they were giving their evidence last Wednesday, I went through what they were required to do by that order with each of them, and each of them confirmed that they fully understood their obligations. Part of that obligation was that the grandparents should take all steps within their control to ensure that Farah is returned immediately to the jurisdiction of England and Wales.

[5] Further, that they must immediately on service of this order provide to the London Borough of Harrow Social Services Department all information relating to the whereabouts of the child, Farah, which is presently within his or her knowledge or control.

[6] Further, during the period that this order remains in force, each of them must provide all information relating to the whereabouts of the child to the Local Authority where it comes into his or her possession and control after service of this order as soon as is practicable after receipt of the information.

[7] I decided to further adjourn the issue of the contempt by the maternal grandmother and the paternal grandmother until Wednesday of next week, that is 5 February. On this occasion, the maternal grandparents are represented by counsel, and I have been assisted by and am grateful to Mr. Hepher for the representations he has made on behalf of the maternal grandfather, and his reference to the authority of Re A (Abduction: Contempt) [2008] EWCA Civ 1138. I have read that and I have taken account of the guidance set out by the Court of Appeal in it.

[8] When the maternal grandfather gave evidence before me last Wednesday, he told me that he was awake at three o'clock in the morning, that he became aware that his daughter was leaving the family home. He saw a car. He became aware that his son-in-law was in that car. He asked his daughter where she was going, and she told him that she was going to meet with the social workers. He said he presumed that his granddaughter was in the car with her father. What has now come to light, and what he did not tell me, was that on Friday 24 January, he arranged, by Western Union money transfer, to send the sum of £500 to his daughter in Barcelona in Spain. I was further told today that yesterday, the day after the hearing last before me, the maternal grandmother sent a further sum of £500 to their daughter in Barcelona. The grandfather told me in evidence today that not only did he see his daughter leaving the house, he helped her fold the child's buggy so that it could be placed in the taxi. He did not tell me that on Wednesday. He did not, in the account that he gave to me today, tell me initially that his daughter had told him that they were going to see the social worker. He only gave that account when reminded of it by me. What he told me today was that his daughter told him: "Everything has been sorted and we're going". He did not tell me that on Wednesday.

[9] He claims not to have seen any luggage or suitcases being taken from the house and loaded into the car. He told me on Wednesday, and maintained it today, that at no time did he see his granddaughter, he just presumed she was in the taxi with her father. But when I asked him when did he discover the child was not at home, he could not answer and said he did not know - this being the child that he had, on Wednesday and today, described as their precious gift. I simply cannot believe and do not accept that if the grandfather did not know the child was in the car, the first thing he would have done on returning to the house was to look to see where the baby was - their precious gift.

[10] The grandfather told me that the money was sent to pay for the rent of the accommodation that the parents presumably have in Barcelona and to provide for the baby. I take the view that in sending that money, especially yesterday, the grandparents are flouting the order that was made by Russell J on 24 January, because they are not taking all steps they can to secure the return, they are taking steps positively to support their daughter and son-in-law and granddaughter live in Barcelona.

[11] The grandfather said he had a telephone conversation with his daughter yesterday, as he has on a number of occasions, on his mobile phone. Yet when pressed by Mr. Jarman, counsel for the Local Authority, repeatedly he said he could not remember what he spoke to his daughter about just yesterday. He was evasive and defensive in his answers and I do not believe him. He claimed that the maternal grandmother was in an adjoining room during the course of this conversation. He did not tell her their daughter was on the telephone. He did not think he needed to, he said. Again, I do not believe him and he is lying.

[12] The idea that this grandfather would be told by his daughter that they were visiting social workers at three o'clock in the morning is utterly absurd and totally incredible, and I conclude that the grandfather is lying. I asked him why, when given that alleged explanation, he did not ask his daughter why they were taking the baby with them at three o'clock in the morning. He could not answer, despite being given repeated opportunities to do so.

[13] Mr. Hepher, on behalf of the maternal grandparents, told me at the start of this hearing that the grandfather now regrets his actions that night and realises he should have taken some steps to try and stop them, and what they had done was "suspicious", and that they are now willing to do what they can to assist the authorities in tracing their granddaughter. I was told, both by the grandfather on Wednesday and today, and by the grandmother on Wednesday, that they and the paternal grandmother have regular conversations with their daughter and their son-in-law by Skype. They spoke with them by Skype last night. They will speak to them by Skype this evening. They are content for the Local Authority and others to be present during that Skype conversation. That is all well and good, and I trust it takes place with the social worker and/or other professionals present.

[14] I have found the grandfather to lie on many material aspects. He claims not to recall, or be confused about, the events of 16 January and other occasions. Again, I do not believe him. I do not believe that this grandfather would not clearly remember the events of 16 January. Given my findings in respect of the grandfather and his evidence, I consider him to be a totally unreliable witness and to be a dishonest one. He has lied to me repeatedly on serious matters. I ask myself rhetorically: what reasons might he have for lying? There is, in my judgment, only one reason why he is lying, and that is to protect his daughter and to prevent their whereabouts being discovered and, most importantly of all, the baby, Farah, being returned to this jurisdiction. I am satisfied so that I am sure that the grandfather is lying. I am satisfied so that I am sure that he knows the location of the mother, the father and the child. I am satisfied so that I am sure that he is withholding highly material evidence from this court. Accordingly, I have not the slightest hesitation in finding him to be in contempt of court. That is my judgment.

 _________

 SENTENCING REMARKS

KEEHAN J:

Mr. Rasul, on 31 January of this year I found you to be in contempt of this court. I described those contempts to be serious, and I remain of the view that they were serious contempts. I found that you had lied in your evidence about your involvement with your young granddaughter wrongly being taken out of this jurisdiction to Spain.

I indicated at the time that I considered a sentence of 28 days' imprisonment to be appropriate. I have, as invited by your counsel, reconsidered that period of time in light of your good character, your age, your health and your current financial circumstances. However, given the nature of your contempt and the seriousness of it, I am satisfied that 28 days' imprisonment is the absolute minimum sentence that would be appropriate for me to pass.

In light of all the matters relied on by your counsel in mitigation, I have considered whether it would be appropriate to suspend that sentence for a period of time. Again, given the serious nature of the breach, I am satisfied it would not be appropriate to suspend that period of imprisonment.

Accordingly, I sentence you to 28 days' imprisonment. You will serve one half of that sentence, namely 14 days.

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