Borg v El-Zubaidy

This is an application by Tanya Borg (hereafter “the Mother”) for the committal to prison of Mohammed Said Masoud El Zubaidy (hereafter “the Father”) for breach of various provisions of orders made by other judges of this court between March and May 2017. I will set out the details of the orders and the alleged breaches in due course.

The burden of proof is on the Mother who makes the application. The Father does not have to prove anything. The standard of proof is the criminal standard of proof. This means that I have to be satisfied beyond reasonable doubt before I can find a breach proved. In other words, I have to be sure.

The Father filed a witness statement that he signed on 8^th August 2017. He has not sworn to its truth but it is undoubtedly admissible evidence. As he went into the witness box, I reminded his counsel that the law is that he does not have to give evidence unless he wishes to do so. His interpreter took the oath and he then took the oath. His counsel then asked to speak to her client. As this was a committal, I permitted her to do so although I recognise that this was an unusual way to proceed. When I came back into court, I was told that he had elected not to give evidence after all.

Ms Chokowry, who appears on behalf of the Mother, submitted in her closing submissions, that I am entitled to draw adverse inferences from the Father’s failure to give evidence. She referred me to the case of Khwaja v Popat [2016] EWCA (Civ) 362 as authority for the proposition that I am entitled to do so. The difficulty with that submission is that I did not warn the Father that I would be entitled to draw adverse inferences before he decided not to give oral evidence. I am therefore clear that I cannot do so. I do not do so.

There is no issue in this case as to the procedural aspects. In other words, it is accepted that the Father has been properly served and that the alleged breaches have been properly pleaded.

The history is long and complex. I need only refer to it briefly to give context and background to my decision. The Father was born in Libya although I believe he is now a British Citizen. He currently resides at Flat 3 Acacia House, Church Hall, Douglas Road, Wood Green. The Mother was born in Malta but she is also a British citizen. She lives at 18A Stratton Road, Pewsey, Wiltshire.

They met in Malta and married in June 2000. They have three children. Z El Zubaidy was born in February 2000, so she is aged 17. Y El Zubaidy was born in July 2005, so he is aged 12. X El Zubaidy was born in October 2011, so she is aged 5.

The Mother and Z moved to England in 2002 and the Father joined them here in 2003. In 2012, the Father took the children to Libya having secured the Mother’s agreement based on the ill-health of the paternal grandfather. Unfortunately, the grandfather died before they arrived. The Father remained there with the children. The Mother joined them. She says he did not allow her to bring the children back and she had to return on her own but, in November 2012, the Father returned the children of his own accord.

On 12^th February 2015, the Father took all three children to Tunisia for an agreed visit to see the paternal grandmother. It seems to be common ground that the meeting was intended to be in Tunisia but the Father took the children into Libya. He says the grandmother was unable to cross the border into Tunisia due to the weight of numbers trying to leave Libya. The Mother alleges the Father then refused to return them despite the maternal grandfather even sending flight tickets. The Father says he missed the flight due to problems near the airport.

In October 2016, the Father returned with Y alone. He says it was to sort out problems in the marriage and he brought Y as a “surprise”. Ms Lennox, who appears on behalf of the Father, argues that this demonstrates his bona fides. The Mother removed the passports. Y has lived with the Mother since although it appears that there have been difficulties with his behaviour.

In December 2016, the Mother gave the Father his passport back so he could go to Libya. She says he promised to bring the girls back within three days. He left for Libya on 21^st December 2016. He did not return.

The Mother applied to MacDonald J on 26^th January 2017 and he made Z and X wards of court. He also made a passport order. The Father was not served with this order or the proceedings until after he returned to this country.

The Father returned to this country alone on either 3^rd or 8^th March 2017. The passport order was executed. In an unsigned “position statement” prepared for a hearing on 10^th March 2017, the Father said he did not bring the girls back as he did not want them to go through the same difficulties as Y. He said he would like them returned to this country but he did not want them to be with the Mother if he did so.

On 10^th March 2017, Moylan J recorded a recital in an order that the Father will return Z and X to the jurisdiction.

The matter was then heard by HHJ Robertshaw on 15^th March 2017. She made the usual requests to the authorities in Libya and Tunisia to take steps to assist in returning the girls. The Father said the girls were residing with the paternal grandmother in Green Square, Tripoli. He gave phone numbers on which he said they could be reached and said there was access to the internet via his brother, Marwan’s phone. He gave his full agreement to them leaving Libya and flying to the UK.

The Judge heard oral evidence from the Father. She made a finding of fact that the Father was not using his best endeavours to achieve the speedy return of the girls to England and that he was frustrating and impeding their return. She said he could do far more but his protestations that he wishes them to return are hollow words. Those findings do not assist me, as they were made to the civil standard of proof, namely the balance of probabilities, not the criminal standard. A number of mandatory orders were made to the Father, supported by a penal notice. Some of these are the subject of this committal application and I will deal with them in due course. The most important, however, was an order that the Father was to bring about the return of the children to this jurisdiction by 29^th March 2017. The Judge also provided that the children would then reside with the Father pending further hearings. The children have not, however, been returned.

The case was subsequently heard by Holman J on 6^th April 2017, MacDonald J on 25^th April 2017 and Hayden J on 24^th May 2017. All three judges made further orders designed to secure the return of the children and to ensure regular telephone contact between the girls and their Mother prior to this occurring. At all times, the Father’s case has been that he wishes the children to return forthwith. It is clear that the Mother has been unable to speak to the girls at all since March 2017 despite orders that she should be able to do so. On 6^th April 2017, the Father told Holman J he had not been able to speak to his family either since 15^th March 2017. He also asserted that, as a matter of Libyan law, the girls could only leave Libya if accompanied by him. He signed a document giving his full consent to the girls returning.

Inevitably, the court ordered a report from an expert on Libyan law as to whether the girls could leave Libya without the Father. Mr Andrew Allen of Outer Temple Chambers provided his expert opinion on 19^th May 2017. He said that Libya is not a fully functioning State and the justice system is unable to function effectively. UK court orders are not recognised as of right in Libya. The Father is considered to be the natural guardian of his children although the Mother would be viewed as the physical custodian. The default position is that a minor child needs the permission of her guardian (the Father) or, in his absence, the nearest male relative, to leave the country. Mr Allen is not aware of any principle that requires the Father to accompany the children physically.

It is right that he then says that he has reached the tentative conclusion that there is no legislation governing this principle and that, in consequence, sharia law applies. He repeats that the father must give permission but is not physically required to accompany them. He adds that, given the parlous state of affairs in Libya, it may be that someone needs to accompany them on a practical level.

On 24^th May 2017, Hayden J made an order that the Father was to cause the children to be returned to the jurisdiction by no later than 31^st May 2017.

The application to commit the Father for breach of the various orders is dated 12^th June 2017. It was listed before Bodey J on 31^st July 2017 but he adjourned for the Father to be granted criminal public funding (legal aid) and adjourned the case to this hearing. A formal N78 application was issued on 4^th August 2017.

I heard oral evidence from the Mother and from the Father’s solicitor, James Netto. The Mother has sworn an Affidavit dated 12^th June 2017. She says that the Father’s case is that he has not spoken to the girls since 3^rd March 2017 and has not spoken to his family since 15^th March 2017. She does not believe him. She says that he asked her why she told the girls that he was going to prison. She says that this proves he has had contact with them. She says he has told her he will go to prison rather than bring them back.

I find that she was an honest witness doing her best to assist me. I accept her evidence in full. In all areas where her evidence conflicts with that of the Father, I accept her evidence in its entirety. She told me that she has attempted to contact the Father’s brother, Marwan, who lives with the paternal grandmother. He responded in March/April, saying he did not want anything to do with this matter. She added that every message she has sent has been seen by him and he saw a message she sent on 21^st July 2017. This is important as, if the Mother can contact him, so can the Father. She said that the last time she spoke to the girls was three days before the Father returned to the UK. I do not believe that is a coincidence. The contact stopped when the Father became aware of these proceedings. She told me that, when the Father went to Libya in December 2016, he told her that he could bring the girls back in three days and that the passport was “all ready”. I accept this evidence. He did not, however, bring them back although it was not contrary to any order when he did not return them in March 2017.

Her evidence was tested quite properly by Ms Lennox in cross-examination but I find that the Mother’s evidence was not undermined in any way. She was asked why she thought that Y was brought back and not the girls. She said that the paternal grandmother probably could not handle Y’s behaviour. That is speculation and I do not find that proved to the criminal standard of proof. She added that it was not true that the Father could only get one child out at a time and I remind myself that this is most certainly not what the Father said at the time.

The Father’s solicitor, James Netto served a statement dated 8^th August 2017. He gave oral evidence to support it. I accept his evidence entirely but it does not advance my knowledge of the case. On the Father’s instructions, Mr Netto sent various messages to the girls, Marwan and the paternal grandmother via various means, including WhatsApp, Instagram, Facebook and Viber. He got no response. Indeed, it appears that none of the messages have got through. If the Father is orchestrating the matter, I am not surprised by this at all. The surprise to me is that there have been no publicly visible posts on Facebook by Z for many months. It is said by the Father that this may be due to power cuts in Libya but this does not stand up to scrutiny. The Mother tells me there have always been power cuts and even on the worst day this summer the electricity was only off for 16 hours, meaning that it was on for 8 hours even then. Moreover, I do not accept that you need electricity to use a mobile phone other than to charge it occasionally. Mr Netto did manage to get hold of a friend of the Father’s named Mohammed in Libya. He told Mr Netto in Arabic, via the Father, that he had been to the Tripoli property three or four days ago and nobody appeared to be at home. I do not know whether this is true or not.

The Father did not give oral evidence but, as is his right, he filed a statement dated 8^th August 2017. He told the court that he desperately wants his daughters returned to England. He makes the fair point that Libya is a war zone but this entirely loses its force when it is remembered that he took them there after the disorder had commenced and without the Mother’s permission as she thought they were staying in Tunisia. He says he has had no contact with them for months. I cannot accept this. It is his case that Libya is a male dominated society such that only he can bring the girls home yet he contends that he does not even know where they are and the paternal grandmother has just disappeared with them without his knowledge. She has not even told him where she has gone. He postulates they have moved to live with one of the Mother’s eight sisters but he does not know any of their addresses. Moreover, he says they all live in the Tripoli area. Given his case that the area where the grandmother was living was safe, it is difficult to see how these other places can be safer. It is nonsense. I reject it in its entirety. Either the girls remain in the grandmother’s property and the reports from his friends are lies or he has deliberately moved the girls to make it more difficult to find them and bring them home. I cannot say to the criminal standard which it is but I can say so that I am sure that he is in complete control of what is going on.

He says he cannot be responsible for the grandmother’s actions if she is deliberately refusing contact but she has no rights over these girls. Their guardian is the Father. She will do what he says and I find she has been doing so, including preventing the Mother even speaking to them which is a wicked thing to do. He ends by saying that he is more than prepared to fly to Libya. Two points arise. First, he says he does not know where they are so it is difficult, on his case, to see the point of that. Second, he has had the chance to bring them back twice and has not done so. I do not believe he would do so now if I was to allow him to go. I reject his written evidence and I make my findings to the criminal standard of proof. It follows that I reject his assertions that he wants these girls returned.

There are six separate grounds. The first is that the Father failed to serve on the Mother’s solicitors a “screenshot” print out of the exact satellite location of the grandmother’s home in Libya:-

There is no doubt that the screenshot was not sent by 16 March 2017. On 7 April 2017, the Father’s then solicitors sent two such screenshots but the first is a general map of Tripoli that shows nothing. The second is virtually unreadable, certainly in my copy. In his most recent statement, he says that he found it extremely difficult to find the exact location and was hampered by only having a small phone. The difficulty with this explanation is that it was not the explanation he gave in his statement on 6^th April 2017 when he said he was “hesitant to provide a screenshot as I fear it will put my daughters at risk.” The only way, however, that it could put his daughters at risk, at least in his eyes, was if it made it easier for the Mother to find them. It follows that I find this allegation proved to the criminal standard although it is not the most serious matter by a long way.

The Father has now provided a proper screenshot, which reinforces the view that he could have done this earlier. The Mother says it is not the right property. I cannot decide this issue to the criminal standard of proof although I am inclined to believe her. In any event, compliance at the last minute goes to mitigation not whether or not the specific allegation of breach of the order at the time is proved.

The second allegation is that the Father failed to file with the court and serve on the Mother’s solicitors printouts of his “Whatsapp”, Skype account (user name “abud—“) and Viber account for the period 1 March 2017 to 8 April 2017:

The Father has never produced any print-outs of his “Whatsapp” or Skype accounts. He says he has not used them for four to five years but the Mother told me she saw him using “Whatsapp” in December 2016 and I accept her evidence. It was then put to her that she had not seen him using them in March or April and she accepted that but said that she only saw him at court during these periods. Moreover, if this was the case, why did he not make this point immediately to Holman J on 18 April 2017?

The Father has now, very belatedly, produced some print-outs for Viber. The Mother says they are not complete as there is nothing for the period from 1 March to 16 March 2017 or for the period from 22 March to 6 April 2017. She also criticises the quality of what was produced. I cannot determine those issues to the criminal standard of proof. I do not know what is contained on a printout. Nevertheless, the Father cannot say he was not in breach of the order as he did not provide this Viber information by the due dates. He blames his previous solicitors saying he sent the documents to them. I have not seen a letter from the solicitors confirming it was their error but, in any event, this again is mitigation.

On the balance of probabilities, I find that he has deliberately withheld the Whatsapp and Skype accounts but that is not good enough for a committal. I find to the criminal standard of proof that he did not produce his Viber account details at the right time. This was another example of him deliberately thwarting legitimate court orders that he did not appeal.

The third allegation is that he failed by 4pm on 18 April 2017 to file with the court and serve on the Mother’s solicitors official copies of his Vodafone telephone records in respect of his phones from 1 March 2017 to 8 April 2017, in breach of Paragraph 23(i) of the Order of Holman J dated 6 April 2017. Again, there can be no contest that he did not comply so his defence merely goes to mitigation. There is no doubt that an order had to be made direct against Vodafone. He says that this was because Vodafone required such an order but I have not seen this in writing. If he wishes me to take this into account as mitigation, he can produce the letter from Vodafone. This is not to place a burden of proof on him as it is merely asking him to satisfy me of his mitigation. In any event, the allegation is proved.

The fourth to sixth allegations are by far and away the most serious. The fourth is that the Father has failed to send to the mother a telephone number or Skype/Facebook account (or such like service) which she could call/utilise in order to speak with Z and X:-

The Father’s defence is simple. He says he has provided all the numbers that he has but it is abundantly clear that he has only given the Mother the numbers that she already had and they have completely stopped working. I am satisfied so that I am sure that this is a deliberate failure to provide her with proper contact numbers to ensure that contact between the Mother and her daughters does not take place. I cannot accept that these numbers have stopped working immediately this litigation is commenced and I am entirely satisfied that the grandmother would not do this of her own initiative. I find to the criminal standard that the Father has deliberately thwarted this communication by failing to comply with the court orders. The allegation is proved and is serious.

The fifth allegation is that the Father has failed to instruct his mother or his brother to make Z and X available for daily contact with their Mother:-

For the reasons given above in relation to the fourth allegation, I find the fifth allegation also proved to the criminal standard of proof. I am sure the Father has conducted a campaign to exclude the Mother from these girls’ lives by instructing the paternal grandmother or his brother Marwan to fail to cooperate and to ensure the Mother cannot and does not speak to the girls. Again, this is a serious finding.

The final allegation is the most serious and it is that the Father has failed to bring about the return of Z and X to the jurisdiction of England and Wales:-

I have to be satisfied to the criminal standard of proof that the Father is in breach. The Father says that the children can only return in his presence and he has been unable to go to Libya to collect them. The height of his case in this regard is the opinion of Mr Allen at Paragraph 27.1 where Mr Allen says that his conclusion that there is no legislation in Libya governing this question is only “tentative”.

I am, however, quite satisfied that this does not give the Father a defence for reasons I will explain. The order of Holman J was in the following terms:-

“In so far as it is lawful and possible under the law of Libya for any person other than the Father to accompany the children…, the Father must use his best endeavours to procure and promote that (the children) leave Libya forthwith and in any event by no later than 4pm on 21^st April 2017”.

I am sure that the Father has not complied with that order. He has done absolutely nothing to procure or promote their return. Indeed, I am sure he has done the opposite. I have made a finding of fact that the Father has deliberately ensured the children have had no contact with their Mother. Indeed, I find that he has instructed the grandmother either to disappear or to become uncontactable. It follows that, far from “procuring and promoting that the children leave Libya forthwith”, he has done the opposite. The allegation that he has breached the order of Holman J is therefore proved to the criminal standard of proof.

The order of HHJ Robertshaw directs him to bring about the return of the children. MacDonald J’s order repeats that provision. The order of Hayden J directs him to cause the children to be returned. I am quite satisfied that he has done nothing at all to bring about the return of the children or to cause them to be returned.

I am also satisfied that it is wrong to place weight on Mr Allen’s use of the word “tentative”. In fact, Mr Allen’s report is clear. He says that the default position under sharia law is that a minor child needs the permission of her guardian (usually the Father but in his absence his father or nearest male relative). He is not aware of any sharia principle that requires the father to accompany the children physically. I am satisfied that Mr Allen would be aware of such a fundamental requirement if it existed. Indeed, in Libya today it would be quite impractical. Many adult fathers have been killed or displaced. The Father’s own evidence was that there were very lengthy queues of people at the border wishing to leave Libya. I simply cannot accept that all children present in those queues had their fathers with them. The requirement is one of permission from the child’s guardian which in this case is the Father. The Father has given his permission. Moreover, the closest relative present is Marwan and he can clearly accompany them to Tunisia.

My view as to this is supported by the actions of the Father himself. If his case was correct, he would not have had to hide the children and refuse to cooperate with just about every order made against him. I find to the criminal standard that this Father has failed to comply with not just the order of Holman J but the other three orders as well.

It follows that I find all six breaches proved to the criminal standard of proof. I will now hear any mitigation on which he wishes to rely.

Please stand Mr El Zubaidy.

I have listened very carefully to everything that has been said by your counsel on your behalf. I have been referred to cases such as Re W and Young v Young as to sentence. I accept that you are a man of good character prior to this litigation.

I accept that you have now, belatedly provided the screenshot of what you say is the home in Tripoli. You have provided Viber print outs and I did not find the allegation proved to the criminal standard in relation to the “Whatsapp” and Skype accounts. The Vodafone records have been produced. There will be no separate penalty on these three counts of contempt given the penalties I intend to impose on the other three proved breaches.

The other three counts of contempt are, however, very serious. They are so serious that I am entirely satisfied that only a custodial sentence will do. I am equally satisfied that it is not appropriate to suspend the sentence given the wilful and sustained contempt and the deliberate concealment of the children since March. If it had not been for that, I would have been minded to suspend the sentence to give you a last chance to comply but you have taken the opposite course, namely one of deliberate concealment of the children. It would be quite inappropriate to merely prevent you applying to have contact to Y in accordance with the case of Hadkinson. A fine would not be appropriate.

In relation to the failure to send the Mother a telephone number or Skype/Facebook account (or such like service) by which she can contact the children, you will go to prison for 1 month.

The failure to instruct your mother and brother to make the girls available for daily telephone contact is particularly serious because it is part of the campaign to hide the children from her and this court. You will go to prison for 2 months for this contempt to run consecutively to the previous sentence.

The final count of contempt, namely failure to bring about the return of the children to the jurisdiction, is the most serious. You will go to prison for 9 months again to run consecutively to the two previous sentences. This makes a total sentence of 12 months.

You will serve half of that sentence at which point you will be released. Although you are entitled to credit for any time you have already served in custody, there is no such period in this case of which I am aware.

You are entitled at any time to apply to me to purge your contempt. Whilst part of this sentence is punitive, in that it is to punish you for your flagrant contempt of court, part of it is coercive, in other words to make you now comply. If you comply and the children are returned to this country as required, I will be very sympathetic to an application to release you from a significant part of the sentence I have passed. If you do not comply, it may well be that there will be a further application made for your committal for continuing refusal to comply with the order.

Finally, I make another order that you cause the return of the children to this jurisdiction by 4pm on 24^th August 2017.