Borg v El Zubaidy

This is my judgment on the applicant’s application to commit the respondent to prison for breach of an order made by Moor J on 10^th August 2017 requiring him to cause the return of three children to the jurisdiction by 24^th August 2017. On that occasion Moor J committed the respondent to prison for one year in total for six separate contempts which he found proved. Moor J gave a very full and clear judgment (neutral citation number [2017] EWFC 58).

The background is set out clearly in paras.6 to 13 which I now recite:

That is the background as described by Moor J. Various orders were made requiring the father to cause the return of the children and to make the children available for internet contact. These were not complied with. In the committal proceedings Moor J found that the breaches were proved and, as I have previously stated, he committed the father to prison for twelve months. The father was taken immediately to HM Prison Pentonville. On his arrival his telephone, an iPhone 4S, was taken from him by the Governor.

He served in accordance with the law six months of the twelve-month sentence and was released on 8^th February 2018 on licence. He is presently on licence. As soon as he was released he was served with the mother’s current application, which is before me, for his committal for his failure to satisfy the new order for return made by Moor J on 10^th August 2017. He was also arrested by the police and has apparently been charged with an offence under the Child Abduction Act 1984 although it is quite difficult to understand what offence he could be said to have committed, bearing in mind, as Moor J has explained, that all three children were consensually taken to Tunisia on 12^th February 2015.

This is a particularly tragic case. Not only has the mother not seen her daughters since 12^th February 2015, that is for more than three years, but for the last 18 months, since October 2016, these girls have not seen their brother and this boy has not seen his sisters. Moreover, and there is no dispute about this, the mother has had no telephone contact with her daughters for a very appreciable period.

It is noteworthy that on 22^nd March 2017 the mother was able to communicate with the father’s brother, Marwan, who lives in Libya with the father’s mother, by Facebook Messenger. She stated on that date, “Marwan, please, I beg you, I would really like to speak to [Z] and [X]. It’s been nearly a month and your mum has turned her phone off. Please, please, please, I beg you,” and then there are emojis of begging hands, “I am so worried about them, I need to hear their voices to hear they’re okay. I just want them home,” and then four more emojis showing home. “I haven’t seen them for two years. I’m torn apart. I can’t believe this is happening to them,” and then four emojis showing begging. “Please I beg you, Marwan,” to which the reply, three days later from Marwan, demonstrating that he has access to Facebook Messenger, was, “Hi, I would, too, but I can’t, I don’t wanna’ be involved in this, sorry,” and then an emoji of a sad face.

After that the mother sent a number of messages, the records of some of which show were received, to Marwan but to no avail. What this demonstrates clearly is that Marwan, like so many people, is a habitué of social media.

On 1^st April 2017, which is just after the message was sent to Marwan, the mother attempted to contact the father’s mother via her Viber account on +218 92506 9042. She sent her a message but there was no response. She attempted to contact her at the same time on her second account on +218 91824 1896 but again received no response, although the activity on the two Viber accounts shows that they are operative. This much is admitted by the father who in the statement that he voluntarily made for these proceedings – indeed he further voluntarily went into the witness box having been told that he was under no obligation to do so – explained in para.11 that in relation to his mother’s telephone numbers, which support the Viber accounts which I have mentioned:

“I have made a number of calls to these numbers during my incarceration, none of which unfortunately have been answered. They (sic) is a dialling tone so the lines are active.”

The question that has to be answered is this: has the father used his best endeavours or indeed any endeavours to comply with the order that was made against him on 10^th August to cause the return of the children to the jurisdiction by 24^th August? The father has said, as I have just explained, that during his incarceration he made a number of calls to these numbers but, beyond that, his case is that he has no knowledge of the whereabouts of either his mother or his daughters. He believes that they are no longer resident at the house in Jakarta Street in Tripoli but he has no knowledge of where they are.

I have to say that on watching him very closely in the witness box I was struck by his seeming lack of concern for the fate of his children and, indeed, his mother. His lack of concern struck me as bordering on the unnatural. He was content to accept, when it was put to him by me, that he had no knowledge whether something terrible had befallen his children. If that really were the truth, then I would expect him to have moved heaven and earth both while he was in prison to the best of his ability to do so and, most particularly, since his release on 8^th February to discover the whereabouts of his children and whether their welfare needs were being met. As far as I can judge, he has done virtually nothing. He says in his statement that he has approached the Libyan Embassy here who have written a cryptic response. I asked him, “What is the Libyan Embassy’s role? What is their responsibility?" but I received no satisfactory reply. Why is he not taking active steps to discover the whereabouts of his children and to bring them back to this country as he says is his most fervent wish? Again, I have received no satisfactory reply.

He has stated that since his release from prison he has not been reunited with his telephone. The story in relation to this is a little unfortunate. In a hearing before Roberts J in the autumn of last year, done without notice to the father and the terms of which have never been communicated to him, it was ordered that his telephone could be taken from the Governor of HM Prison Pentonville and interrogated by the solicitors instructed by the mother. Pursuant to that order, the telephone was delivered up to a representative of the mother’s solicitors in December 2017. The father knew about this because he was given a receipt or some other paper work which demonstrated that this step had been taken.

The telephone was taken to the mother’s solicitor’s offices and there lay, as counsel put it, in a filing cabinet, but interrogation of it was not possible because the solicitors did not have available to them the PIN number which would have enabled access. That was indeed an unfortunate position for them to have taken for if they had read the transcript of the evidence given by the father at a hearing before Her Honour Judge Robertshaw on 15^th March 2017 they would have seen on page 9 of that transcript that the father gave the PIN number, 3570, for his telephone. The significance of this is that the father has placed considerable reliance on his non-access to his telephone for he says that were he to have access to the telephone he would be able to retrieve from it the telephone number of his friend in Libya, Mohammed Assur, who would be able perhaps to tell him where his mother and children were located, he (Mr Assur) having previously told the father before he was sent to prison that they had left the house in Jakarta Street.

But it goes further than that because as his counsel, Miss Wilson, rightly states, once access to the phone has been achieved, if there has been Viber traffic to that telephone from the father’s mother, then that would become apparent on opening up the telephone because the messages would immediately pop up. It does seem to me that given that the object of this exercise is predominantly coercive to secure the return of the children, it is most unfortunate that in circumstances where telephone was in the possession of the mother’s solicitors between December and February this step was not taken. At all events, following the release of the father from prison and following his arrest for offences under the Child Abduction Act 1984 the mother’s solicitors were asked by the police to deliver up the telephone to them. It is interesting that at his interview on 8^th February 2018 the father stated to the police (and this is in the record of interview), “Mr El Zubaidy says he can’t remember the PIN number to the phone and, as such, it was issued with an encryption notice which he signed.”

I am going to make an order that arrangements should be made for the telephone, now that we have the PIN number to hand, to be interrogated; for the father to be provided with the telephone number of his friend; and for both sets of solicitors to be provided with the details of any Viber traffic or other social media traffic that has materialised on the telephone since it was taken from him when he was sentenced on 10^th August last year.

Having considered the matter carefully, I have to decide whether the father has taken all steps available to him to cause the return of the children. I am completely satisfied so that I am sure that he has not. Indeed, I am satisfied that his inaction remains part of his policy to deprive this mother of contact to her daughters and, as such, it is worthy of condemnation in the strongest terms. I do not accept his evidence that he has done everything within his power to procure the return of these girls to the United Kingdom; indeed, I am satisfied that he has done only the bare minimum which would enable him plausibly to argue that he should not be found once again to be in breach of the court’s order. Those protestations ring very hollow indeed. I am satisfied that he is in breach of the order of 10^th August and I will now proceed to hear submissions on behalf of the father in mitigation, and, I suppose it might be said, in aggravation on behalf of the mother.

This is the second phase of these committal proceedings where I must decide the penalty to be imposed. It is established by authority of the Court of Appeal in Wilkinson v Anjum [2012] 1 WLR 1036 that it is not illegitimate or contrary to principle for a father who has already served a sentence for breach of an order requiring him to cause the return of children to the jurisdiction to be re-committed for breach of a later order seeking the same end, namely, the return of the children to the jurisdiction. To re-commit on a newer order does not involve a breach of the principle of double jeopardy; however, a time arises, as McFarlane LJ and Hughes LJ (as he then was) point out, when the court will eventually say that enough is enough.

However, it is to be noted that in the case of Button v Salama [2013] EWHC 2972 (Fam) and [2013] EWHC 4152 (Fam), the father, who was the very acme of obstinacy in refusing to comply with orders requiring him to return his children to the jurisdiction, actually served on repeated re-committals a total of 42 months in prison, before the court declared that the end of the line had been reached and that enough was enough. 42 months - three and a half years - is the equivalent of a seven-year prison sentence which is in fact the maximum prison sentence that can be imposed for the statutory offence of child abduction under the Act of 1984. There is thus no legal impediment to sentencing the father for breach of the order which I have found proved. Indeed, it might be said that for him, having served a sentence of imprisonment, enduring six months’ incarceration, to have committed the same offence again does constitute a factor of aggravation.

In my first judgment, I explained that the father had been arrested for an offence under the 1984 Act although, as I stated, it is hard to see how an offence could have been committed given that the children were taken from the jurisdiction consensually. However, notwithstanding that it is unlikely, so it seems to me, to be a situation where the father's acts amount to a criminal offence, the words of the Lord Chief Justice in the case of R v Kayani [2011] EWCA crim 2871, [2012] 1 WLR 1927 apply equally to these civil proceedings where it falls to me to sentence the father for a civil contempt. In para.54 the Lord Chief Justice stated:

“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.”

Then at para.55 he stated:

“These are offences of great seriousness, with the additional complexity arising just because the abducting parent is the person best able to provide the children with a home.”

That factual feature does not apply in this case but what does apply is the description of these offences as being “of great seriousness.”

However, it has to be recognised that when the matter is being dealt with in civil contempt proceedings the exercise, if not wholly, then certainly is largely intended to be coercive. This is why the law permits a process, which does not exist in the criminal sphere, of allowing a contemnor who has been sentenced to imprisonment at any stage to apply to the court to purge his contempt. It is for this reason that I have decided that the prison sentence that I will impose will be deferred. The start date of the sentence of imprisonment which I will impose will be deferred until the end of next month, namely 31^st March, to give the father one final opportunity to do what he should have done, and what he says he would wish to be achieved, namely, to procure the return of these children.

In that period the father is to be given access to his telephone and an order will be made providing for the telephone to be interrogated, as I said in my principal judgment, so as to reveal not only the telephone number that he says he needs but also to reveal the full extent of any Viber or other social media communications between him and his mother or him and his brother or him and anybody else in Libya and also for him to do more than the tokenistic steps that he has taken so far to procure the return of the children. If the children are returned by 31^st March 2018 then the matter is to be immediately restored to the court for the court to consider the father’s application to purge his contempt before the start date of his prison sentence.

What should that prison sentence be? I agree with Mr Dance that this being a second offence, so to speak, the situation is quite seriously aggravated compared to that which Moor J dealt with. On the last occasion for the particular contempt of failing to procure the return of the children, the penalty was nine months’ imprisonment. On this occasion I am satisfied that the sentence should be increased and the sentence I award is twelve months’ imprisonment. As I say, that will take effect on 31^st March 2018. On that day, if the children have not been returned, the father is to attend at the Tipstaff’s office to be taken to prison to commence his sentence, of which he will serve six months inside prison before being released to serve the next six months on licence.