Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed & Ors (Committal: Findings)

This is an application, dated 25 March 2024, brought by the Claimant, by which she seeks the committal to prison of the Defendant.

The Claimant is Omay Ali Elhag Elkndo; she is the maternal aunt of six children who are the subject of wardship proceedings commenced in 2022 by the children’s mother (now deceased) under the High Court’s inherent jurisdiction. The children are Omer Gassmelsyed (a boy aged 6), Abubakr Gassmelsyed (a boy aged 8), Ali Gassmelsyed (a boy aged 10, rising 11), Naysar Gassmelsyed (a girl aged 13 rising 14), and Ludan Gassmelsyed (a girl aged 16). The children have an older brother Mohammed, who is aged 17 who is also now the subject of the wardship proceedings. The children are Respondents to the wardship, but not parties to the committal application.

The Defendant, Elnoaman Gassam Elsyed, is the father of the subject children. He is neither present nor has he been represented at this hearing; he was sent a court link for the hearing via the court clerk and he did not join remotely. I am satisfied that the Claimant’s solicitors have complied with the direction of the court as to service of documentation on the Defendant, including giving him notice of the date of this hearing; although there has been no formal ‘Notice of Hearing’ issued by the Court, the Defendant has been sent an e-mail from the Clerk of the Rules specifically confirming the hearing on today’s date, and notice has further been given to the Defendant, in accordance with the court’s direction, by WhatsApp.

To set a context, the Defendant last directly engaged with the wardship proceedings at a hearing on 15 February 2024 when he attended court; for a short time thereafter he was represented at court hearings, but has not (I believe) provided instructions to his solicitors since 19 February 2024, and has not in fact been represented at any hearing in those proceedings since 29 April 2024.

He has never formally engaged with, or been represented in, these committal proceedings.

For the purposes of determining this application, I have read the bundle of documents filed on behalf of the Claimant. Specifically, the application for committal is supported by affidavits from Sulema Jahangir (28 March 2024), Nina Hunjan (15 May 2024), and Anat Amirthanathan (15 August 2024), all employed by Dawson Cornwell LLP. I have received the able oral and written submissions of Mr Jarman KC and Mr Basi on behalf of the Claimant.

The procedural requirements for the fair hearing of a committal application have been comprehensively codified in the amended (2020) rule 37 of the Family Procedure Rules 2010. It is unnecessary for me to rehearse the formal requirements in this judgment; I propose to focus on compliance with the same in this case.

The contempt application has been supported by a very clear schedule of the alleged breaches, and has been accompanied by statements of evidence from the maternal aunt and from her solicitors. I am satisfied that the contempt application (supported by the written documentation):

As I have indicated above, the FPR 2010 (specifically rule 37.4(o) FPR 2010) make clear that an application for committal for contempt may proceed in the absence of a Defendant. This will always be an unusual course, for the reasons which I set out at [4] in my judgment in Sanchez v Oboz [2015] EWHC 235 (Fam). I do not propose to reproduce that paragraph here, but I reviewed it carefully together with counsel during the hearing, and I have it much in mind.

In acceding to Mr Jarman’s request to proceed in the absence of the Defendant at this hearing, I have specifically considered my comments at [5] in the judgment of Sanchez v Oboz. In that paragraph, I referenced the terms of the 'overriding objective' (rule 1.1 FPR 2010), including the obligation on the court to deal with the case 'justly', including doing so "expeditiously and fairly" (r.1.1(2)), and taking "any … step or make any… order for the purposes of … furthering the overriding objective" (r.4.1(3)(o)). In this case, and with specific reference to the matters set out at [5] in Sanchez v Oboz, I can confirm that:

The background facts, as ascertained from the filed documents, can be summarised thus.

The children were the subjects of care proceedings brought under Part IV of the Children Act 1989 by Birmingham City Council in July 2021. The proceedings had been instituted arising from concerns that they had been subjected to physical abuse by their father (the Defendant). The proceedings concluded on 11 May 2022 with the making of an order under section 8 of the Children Act 1989 that the children remained living with their mother, Wigdan Ali Elhag Elkndo, (“the mother”); the court also made supervision orders. The Defendant was to have supervised contact only.

On 17 July 2022, the children’s mother travelled with the five younger children to Sudan to visit her family. The Defendant followed her there, and allegedly forcibly removed her passport, and the passports of the children, thereby stranding them in that country. The mother managed to instruct solicitors in England (Dawson Cornwell LLP) who issued a wardship application in October 2022. Early in 2023, the children and the mother attempted to flee Sudan but they were prevented from doing so by the authorities. The Defendant allegedly discovered the mothers attempt to leave Sudan; he travelled there, allegedly punished the mother and older children, and then (it is said) took them on an arduous journey to Kenya.

At the end of September 2023, the Defendant returned to England bringing the child, Ludan, with him. A passport order was executed at the airport, and the Defendant’s British and Sudanese passports were seized; these passports remain with the Tipstaff. The mother then, with the assistance of the FCDO, a domestic violence worker, Birmingham City Council, and this Court, secured emergency travel documents with a view to leaving Kenya on 23 December 2023.

However, on the day of the scheduled return to this country, the mother suffered a major heart attack from which she died. The children were taken to a place of safety where they were initially looked after by members of the maternal family. However, the Defendant, unable to travel, allegedly sent his cousin Hassan Mohamed Ali, together with the children's older brother Mohamed, from England to attend the mother's burial on 28 December 2023. The maternal family allowed the paternal cousin and brother to visit the children; it is the maternal family’s case that the children were taken that day by force, and at speed, and without their belongings, and removed back to Sudan.

In a series of hearings before Henke J which followed in early 2024, the maternal aunt replaced the children’s mother as the applicant in the wardship proceedings; she has continued to seek the return of the children. She has also attempted, through information obtained via third party disclosure orders, to build a better picture of what has happened to the children. The Defendant attended hearings on 3 January 2024 (in person without representation), 12 and 23 January 2024 (with representation). At the hearing on 23 January 2024 it is recorded (on the face of the order) that the Defendant advised the court that:

At the hearing on 15 February 2024 the Defendant again attended court; he gave evidence to Henke J, and promised in his sworn testimony that if he were to travel to Sudan to see the children he would return them to this jurisdiction. The court ordered that the children be returned to this jurisdiction by 21 February 2024. The children were not returned.

At a hearing on 22 February, the Defendant failed to attend (the Defendant’s solicitors indicated that they had been without instructions since 19 February 2024) and a warrant was issued for his arrest; further hearings took place on 23 and 29 February 2024. Again the Defendant did not attend on either occasion, though he was represented by counsel.

At the last welfare hearing before Henke J in the wardship (on 7 March 2024), the Defendant again did not attend; it was believed that he himself was now in Sudan. The court gave him a final chance to comply with its order to return the children to the jurisdiction. The order made on that day is explicit that in the event of the Defendant 's failure to return the children, the maternal aunt will apply to the court to have the Defendant committed to prison. The Defendant was legally represented at that hearing by counsel. Given the Defendant’s absence from Court, and his possible flight to Sudan, Henke J ruled on 7 March 2024 that service on the Defendant by WhatsApp and/or e-mail would be deemed to be good service.

The children were not returned. Indeed, they remain, as far as is known, in Sudan where it is reasonable to suppose that they are in real and immediate danger.

On 29 April 2024, the committal application was listed before Williams J. The Defendant did not attend, and his lawyers (instructed in the wardship, and mistakenly attending the hearing believing that it was a wardship hearing) confirmed that he was now in Sudan. The hearing was in fact ineffective given the absence of transcripts of hearing of 15 February 2024 before Henke J.; Williams J adjourned the case for further hearing on 7 June 2024. The order recited the rights of the Defendant to non-means non-merit tested legal aid for representation, and explicitly reflected his Article 6 ECHR rights to a fair trial on any application to commit him. The order explicitly confirmed that if the Defendant did not attend the hearing on 7 June 2024, “the court can and will proceed in his absence”.

At the hearing on 7 June 2024, the Defendant again did not attend though he was again represented by counsel (appearing under the same misapprehension as to the focus of the hearing). The transcripts were still unavailable, and the case was re-listed for a committal hearing on 5 July 2024. Williams J ordered that the transcripts of the earlier hearing (15 February 2024) be provided by 30 June 2024; this direction was finally complied with. The Defendant was directed to attend the next hearing on 5 July 2024.

It transpires (so the subsequent order of 5 July reveals) that the Defendant’s wardship solicitors had served the order of the 7 June 2024 on the Defendant (albeit only on 3 July). The solicitors for the Claimant had served the hearing bundle for the 5 July hearing but only on 1 July 2024. The order of 7 June 2024 had required the Defendant to attend the 5 July hearing but he did not attend and was not represented.

As I have mentioned above (§23) at the hearing on 5 July 2024 (before Sir Jonathan Cohen), the Defendant did not attend. The application for committal could again not proceed because there were issues over service of the documents on the Defendant in a timely way (again see §23). The hearing was adjourned to 1 August 2024. In the event, it was not possible to proceed with the committal application on that date due to lack of judicial availability. The application was relisted before me for hearing today, 22 August 2024.

The following Grounds are advanced for the Defendant’s committal:

It is apparent that at the hearing on 29 April 2024 before Williams J leading counsel then acting for the Claimant (not Mr Jarman) conceded that they would “seek to prove” the Defendant’s contempt on the basis of only two of the alleged breaches: namely the alleged breach of the 3 May order (Ground 7 above) and alleged breach of the 15 February 2024 order (Ground 2 above). At the hearing before me, Mr Jarman wished to distance himself from this concession and argued that this concession is not binding on the Court, and specifically that:

Not without a little hesitation, I am satisfied that I can proceed to determine the application on the full set of grounds:

The evidence in support of the alleged breaches of the Court’s orders could hardly be clearer; indeed it is largely incontrovertible. In reaching my findings, I have done so by reference to the criminal standard of proof and my findings are reached beyond reasonable doubt.

In each case I find that the Defendant knew what was required of him by court order, and he has chosen to defy or ignore the requirements imposed on him. Henke J has case managed the wardship with considerable diligence and fairness; the wardship has benefited by the judicial continuity which she has scrupulously maintained, doubtless at times by fitting in hearings to an otherwise congested list. Her orders could not have been more clear. On the evidence presented to me, I find:

For the avoidance of doubt,

I propose to list a further hearing at which I will consider the penalty for the proven contempts in seven days’ time, namely on 29 August 2024 at 9.30am at the Royal Courts of Justice. The Defendant must attend that hearing in person.

I take this opportunity to remind the Defendant of his right to have the benefit of a publicly funded lawyer. It is not too late for him to receive legal advice, and as appropriate, representation at the next hearing.

This order and judgment shall be served on the Defendant by e-mail and by WhatsApp using the currently held details. They shall also be sent to the Defendant’s solicitors (instructed in the wardship) for information.

Although this is a public judgment, Mr Jarman has invited me to permit his solicitors specifically to circulate it with the court order to a number of the paternal family members, via email, and to notify them of the sentencing hearing listed 29^th August 2024. Although the wardship proceedings are private, this application has been conducted in public; indeed the names of the Claimant, Defendant and children are now in the public domain. It seems to me appropriate that the family members named in the court order should be made specifically aware of the findings of this court, and the imminent risk which the Defendant now faces of a custodial sentence in the event of his return to England.

That is my judgment.