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Family Law

The leading authority on all aspects of family law

15 APR 2014

MB v GK [2014] EWHC 1122 (Fam)

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.


Case No: FD14P00124

Neutral Citation Number: [2014] EWHC 1122 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(Sitting at the Manchester Civil Justice Centre)

THE SENIOR COURTS ACT 1981

IN THE MATTER OF M (A Child) (Born 5th July 2012)

Date: 03/04/2014

Before:

The Hon. Ms Justice Russell DBE sitting in Open Court

In the matter of an application to commit the Respondent

Glenden Cesar Khew Tsien Loong for contempt of orders

of the High Court dated 14th, 19th &21st March 2014

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Between:

MB

Applicant

- and -

GK

Respondent

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Mark Jarman (instructed by Landmark Legal ) for the Applicant

The Respondent appeared in person

Hearing date: 3rd April 2014

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JUDGMENT

Ms Justice Russell:

Introduction

[1] The court is concerned with M, born on the 5 July 2012 he is now 21 months old. This case came before me on the 7 March 2014. At the time M was in Singapore having been left there by the applicant and the respondent with the paternal grandparents for a short period of a few months to allow his mother to complete some English studies. M's stay was extended from 3 to 5 months and he was to return to the UK in January of 2014. The father, Mr Khew and his family kept M in Singapore against his mother's wishes. Behind her back he made without notice applications to the courts in Singapore. B, the mother returned to the UK as planned but without her son. She applied to this court. Mr Khew argued that M had acquired habitual residence in Singapore.

[2] On 14 March this court handed down a judgment in which it was determined that M was habitually resident in England and Wales. The court ordered the forthwith return of the child to England and no later than 4pm 18 March 2014. A penal notice was attached to the order.

[3] Mr Khew has since failed to return M in compliance with the order and subsequent orders repeating the same mandatory action, namely the return of the child.

[4] On 19 March the matter was further listed before the court. The father attended in person. He claimed to be without funds. The court warned Mr Khew in the clear and certain terms what the consequences would be if he failed to comply with the order of the court. The father was given a further and final chance to cause M to be returned to this jurisdiction, and the matter further listed on 21 March. He was ordered to return M to England by 8am 21 March. A further penal notice was attached to the order. Mr Khew claimed that his parents would not return M and showed the court e‑tickets for flights that he said were not used. It was made plain on the face of the order that public funding could be granted in committal proceeding as they were similar to criminal proceedings and could lead to imprisonment.

[5] Mr Khew again failed to return M to England after a further order of the court.

[6] On 21 March, Mr Khew again attended in person. He said to the court that he had approached solicitors to represent him and they had requested £2000 which he said he was unable to pay. The court again reminded Mr Khew of the legal aid provisions in committal cases and the right he had to be so represented when his liberty was at stake. I warned the respondent that if he or his parents were attempting to obtain orders in relation to M in Singapore, as appeared to be the case then in order to comply with the order he should take action against his parents to ensure compliance and to prove that he was, as he said, trying in truth to ensure M was returned. To meet the concerns of his parents (whether ill‑founded or otherwise) and to assist Mr Khew in arranging M's return, at the suggestion of counsel for B the court made a further order for the immediate return of M but this time providing that M be placed in his father's rather than his mother's care.

[7] The committal was adjourned to today; 3 April 2014 to enable the father to have proper representation as the likelihood of a term of imprisonment was a real one if M was not returned. Mr Khew was told of this real possibility. He was ordered, again, to return M, or to cause him to be returned, to England by 6pm 28 March 2014. A penal notice was attached to the order and order varied to allow M to stay in the care of the father when he was returned to England. The order also made provision for judicial liaison between London and Singapore.

[8] On 27 March, the day that M should have been travelling if he was to return to England by the 28 March, a solicitor privately instructed by Mr Khew attended before Theis J ex parte. He was represented by a Mr Brookes of Messrs Carters solicitors. The application was to discharge the burden of the order dated 21 March in returning M to England and further to adjourn this court hearing date. The application was made without notice to the mother or her solicitors. It was I find a deliberate attempt to undermine and subvert due process. Moreover that fact that Mr Khew paid lawyers to make this wholly misconceived application gives lie to his claim that he is without funds.

[9] Theis J refused the application and ordered that the application be made to me. Unsurprisingly no such application was made; a copy of the order made by Theis J was not served on the respondent or her solicitors. It can only be presumed that this was a further attempt to take court action against B without notice or service, which had been the favoured modus operandi in Singapore, as is set out in my judgment of the 14 March 2014.

[10] Mr Khew, I found had deliberately planned and contrived to keep M in Singapore with his parents and away from his mother. Without telling his wife Mr Khew had resigned from his job in London and arranged to take up a position with his employer in Singapore. Immediately on his arrival in Singapore in January, and unbeknownst to B, K commenced ex parte custody and divorce proceedings. B was served with the divorce and custody papers as she took lunch with her husband at the hotel where they were staying. He had also applied, without giving her notice, for a court order prohibiting her from removing M from the jurisdiction of Singapore. An attempt to serve this order, which he obtained in the ex parte hearing, took place when K and his Singaporean lawyer threw it at B at the airport as she was leaving the country.

[11] Again M has not been returned to the jurisdiction. Mr Khew has taken no active steps to get his parents to return M to this jurisdiction. I have seen nothing from his parents which would indicate anything other than an active desire to keep M from his mother and on the face of the evidence before this court that it is more likely than not that they have colluded with him in M's retention.

Committal Proceedings

[12] Mr Khew is in breach of 3 separate orders, those of 14, 19 and 21 March in relation to the return of M. The first two are dealt with the committal application brought by the applicant and set out in the document contained in the court bundle. The third is a matter for the court as it is not contained in any application to commit.

[13] Mr Khew has asked me to recuse myself. I refused to do so and gave a short oral judgment. I refused his application to appeal that decision and to stay these committal proceedings as I do not consider that there are grounds for appeal or that Mr Khew has been dealt with unfairly or in a biased or injudicious manner throughout these proceedings. As set out in this judgment he has been given several opportunities to avail himself of representation and has chosen not to do so except on one occasion where he made an ex‑parte application. I do not accept the validity of his arguments regarding the cultural difference upon which he seeks to rely. Not only were they not raised previously they do not disclose any reason why Mr Khew could not have raised with the court in Singapore the difficulties he now faces.

[14] Mr Khew has given more than one reason to the court for being unrepresented. The first is that the lawyers he used on the 27 March last week would not do as he ‘made a hash' of the application before Theis J The second was that he was not in funds. The third was that he did not qualify for public funding as it was means tested, which would indicate that he was in funds. He has apparently chosen not to pursue non‑means tested public funding. It would appear that he has had some support in developing legal arguments which he put before the court. His reliance on the Spanish case that was before the President in 2013 is misconceived as it deals with a reversed burden of proof which does not apply here.

[15] B's previous solicitors issued a C2 application for a committal Order with the breaches of the orders dated 14 and 19 March pleaded at A24. The application was served on the father by email on 20 March which was specifically permitted by para 6 of the order dated 19 March. He had been present in court and was fully aware of the import of the breaches alleged; namely his failure to cause M's return to the jurisdiction. The court had advised Mr Khew of the right to public funding to ensure that he was represented. The court had advised him that active steps, including against his parents and in the court in Singapore had to be taken by him to ensure that M was returned.

[16] Of course the court was unaware that Mr Khew was in funds, as he had said he was not, and was equally unaware that he was planning to attempt to have the order of the High Court set aside by applying without notice to a different High Court Judge. This application was made on the 27 March before Theis J Not only did he instruct solicitors to do so (thus proving he was in funds at the time) he failed to bring to the notice of the court relevant documents and evidence and would appear to have attempted to mislead the court on that occasion as the order applied for was an attempt revoke the orders of the 21 March and the previous two orders of this court and remove any obligations or restrictions placed on Mr Khew, particularly that of returning M to the jurisdiction.

[17] It was a blatant attempt to overturn an order of the court and to subvert the court's jurisdiction, specifically the enforcement of court orders. Not only did Mr Khew seek to have these committal proceedings adjourned he failed to disclose he was doing so by not identifying this hearing as a committal on the face of the draft order he sought to put before Theis J (para 1 c) and d) of that draft order).

[18] Paragraph 3 of the order dated 21 March specifically sets out that this court shall consider the father's compliance with the order dated 21 March 2014 as well as the previous two orders of the 14 and 19 of March 2014.

[19] The court has determined today that Glenden Cesar Khew Tsien Loong is in contempt of court for the breaches of all three of the court's orders as M has not been returned to the jurisdiction of this court. There is no doubt about this, the contempt alleged is therefore proved to the necessary standard of proof that is to say beyond all reasonable doubt. Before I turn to sentence I shall add that the steps taken by Mr Khew to have the orders effectively set aside amount to a determined and organised course of conduct which is contemptuous of the jurisdiction of this court. Moreover he has continued to lie to the court particularly regarding his financial situation.

Sentence

[20] When it comes to the question of sentence I have considered the case‑law and the contempt for which I am sentencing. I have considered in particular the 2011 case of Re W (Abduction: Committal) [2011] EWCA 1196. The court of Appeal held that it was legally permissible for the court took make successive mandatory injunctions, as I have done here, ordering the return of M to the jurisdiction, notwithstanding a past failure to comply with identical orders. The reason that there have been successive orders is that I have given Mr Khew further opportunities to comply and to get legal representation; thus I have taken a proportionate and step by step approach to these committal proceedings and have given Mr Khew more than one opportunity to comply.

[21] The contempt is a very serious one. Mr Khew with the apparent connivance of his parents has breached the clear order of the court to return M to the jurisdiction of this court. I have considered the case of Kayani and Solliman which were appeals to the Criminal Division of the Court of Appeal heard in 2011 ([2011] EWCA Crim 2871) in child abduction cases. The Court of Appeal (CD) upheld sentences of 5 and 3 years respectively. The behaviour and duplicitous behaviour since judgment was given on the 14 of March disclose flagrant and deliberate breaches of three court orders in a concentrated effort to keep M from his mother. I quote again from the Lord Chief Justice's words in that case:

[54] The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

Those comments apply squarely to the human rights arguments made by Mr Khew in his own defence.

[22] I sentence Glenden Cesar Khew Tsien Loong to a total term of imprisonment of 18 months for the breach of the orders of the 14 19 and 21 of March. Six months for the breach of the first order consecutively to two 12 month concurrent sentences for the breach of the orders of the 19 and 21 March 2014.

Judicial liaison

[23] The relevant orders together with the approved judgment of the court have now been forwarded by Ms Penelope Langdon, Legal Secretary to the Head of Judicial Office for International Family Justice for England and Wales, on the approval of Black LJ, to the liaison judge in Singapore. A response is awaited.

[24] The grandparents' application for temporary custody of M is listed before the Singaporean court on 15 April. The court there will be aware of the judgment of the court and this judgment will also be disclosed to it.

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