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Family Law

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04 APR 2016

Re L (A Child); Re Oddin [2016] EWCA Civ 173

Re L (A Child); Re Oddin [2016] EWCA Civ 173
(Court of Appeal, Sir James Munby P, Vos LJ and Theis J, 22 March 2016)

Enforcement – Committal – Procedure – Child’s uncle sentenced to 6 months’ imprisonment 11 years after a collection order was made – Uncle unrepresented and compelled to attend court and give evidence – Appeal


The father’s appeal from a committal order sentencing him to 6 months’ imprisonment was allowed.


In 2004 care and freeing orders were made in respect of the young child. By the end of that year she had disappeared and had seemingly been abducted by her parents. Collection and passport orders were made under the inherent jurisdiction of the High Court and ten individuals were named as defendants, including the child's uncle. The child was made a ward of court. The orders remained in place for 11 years.

In 2015 the uncle was summoned to court to provide all the information he had as to the child's whereabouts. He was unrepresented at that hearing. When the judge expressed his dissatisfaction at the evidence given by the uncle he scheduled a committal hearing. The uncle was granted legal aid and was represented. He was found guilty of contempt and sentenced to 6 months' imprisonment. He now appealed.

It has been a serious and irremediable procedural error for the judge to use the evidence given by the uncle under compulsion at the first hearing. He was denied the safeguards which anyone facing committal proceedings was entitled to, in particular the right to remain silent and the right to refuse to go into the witness box.

It had also never been proved that the uncle had been served with the original collection order. A further defect was that the penal notice was not prominently displayed on the front of the order.

It had been wholly wrong in principle to leave the collection order in place for 11 years and it was undesirable to leave such an order in place which was not compliant with FPR 37.9. Finally, the perpetuation of a passport order beyond a comparatively short period of time essentially for purposes of coercion was wrong in principle and fundamentally objectionable.

The appeal was allowed, and his immediate release from prison was ordered. The collection order was discharged and a direction was given for the immediate return of the passports being held.

Theis J provided a useful checklist of the matters to be considered before embarking upon hearing a committal application.

Case No: B4/2016/0314
Neutral Citation Number: [2016] EWCA Civ 173

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Justice KEEHAN

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 22 March 2016

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE VOS
and
MRS JUSTICE THEIS

- - - - - - - - - - - - - - - - - - - - -

In the matter of L (A Child)
In the matter of GOUS ODDIN

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Miss Elizabeth Norman (instructed by Mushtaq & Co) for the appellant (Mr Gous Oddin)
Mr Edward Bennett (instructed by the authority’s Legal and Democratic Services) for the local authority
Mr Matthew Maynard (instructed by Roberta McDonald) for L’s guardian

Hearing date : 3 March 2016

- - - - - - - - - - - - - - - - - - - - -

Re L (a child) Re Oddin [2016] EWCA Civ 173


Judgment
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