An unusual case from the Court of Appeal was published on BAILII this week, LL v the Lord Chancellor [2017 EWCA Civ 237, in which a High Court judge was criticised for ‘gross and obvious irregularity’ in dealing with a father in a family hearing and, as a result, the Lord Chancellor (i.e. the Ministry of Justice, not Ms Truss personally) may be liable for damages. The case was about a ‘deprivation of liberty’ under Article 5 of the European Convention of Human Rights, A father of a two-year-old boy had been found guilty of contempt of court, and sentenced to 18 months in prison in April 2014, because he had not obeyed High Court orders to return the child to the UK from Singapore.

History of the case

Mr LL (a citizen of Singapore) and Ms CC (a citizen of Mongolia) were married and had a son, M, born in 2012 in London, where LL worked. In 2013 they travelled to Singapore, where LL’s parents live, and left M with the paternal grandparents, returning to the UK. In 2014 they went back to Singapore, where LL told CC he was applying for a divorce, had given up his job in London and was planning to settle with M in Singapore. CC applied, through English solicitors, for an order from the High Court, where M was made a ward of court in January 2014. The judge at that stage, Mr Justice Cobb, ordered LL to bring M back to the UK. CC has remained living in London. Three more hearings took place in March 2014 before Ms Justice Russell, who also ordered LL to return M to the UK. However, LL then claimed he was trying to persuade his parents that M should be returned, but they refused to co-operate. After LL was in breach of three successive orders, CC applied for him to be committed to prison for contempt of court. Ms Justice Russell found him guilty, and sentenced him to a total of 18 months in prison. LL appealed shortly after beginning his sentence; Russell J’s decision was overturned by Lord Justice Maurice Kay, Lord Justice McFarlane and Lord Justice Kitchin in the Court of Appeal and he was freed in June 2014

LL went on to take an action for damages against the Lord Chancellor for breach of his human rights, because of the wrongful imprisonment, but was unsuccessful on that aspect of the case in the High Court  before Mr Justice Foskett. LL then appealed against this decision about his human rights claim and, in March 2017, Lord Justice Jackson (not the same person as the famous family judge, Mr Justice Peter Jackson, for the avoidance of doubt), Lady Justice King and Lord Justice Longmore, in the Court of Appeal, found in his favour. This means that the Ministry of Justice may have to pay monetary damages to LL, in respect of the violation of his human rights by Russell J. We don’t know whether M ever returned to his mother CC (whom we might assume didn’t want LL to go to prison at all, but just to force him into action to bring M home to her.) Earlier judgments show that negotiations were going on with the Singapore authorities. [UPDATE: 13.04.2017 We have been directed to a more recent hearing about M who is now a ward of court, still in Singapore at the date of hearing in November last year, but subject to an order for his return to the UK. Thanks to Jeremy Ford @headofroy for notifying us.]

How can someone be sent to prison by a family court judge?

Although family cases like this one are not part of the criminal justice system, if the judge finds a party is in contempt of court because they have disobeyed a court order, they can be given a prison sentence. A similar situation arose in the Teresa Kirk case, which we wrote about here. Ms Kirk refused to comply with an order in the Court of Protection to bring her brother back to the UK and received a six months’ prison sentence. In the case of LL, Russell J was sentencing him in respect of breach of three orders.

What did the judge do wrong?

We need to look back to the 2014 Court of Appeal case to read the details about Mr LL. Although he produced copies of emails pleading with his parents to bring the child and save him from prison, and making flight arrangements for them to do so, Russell J was unimpressed. She ascertained that he had not taken any action through the Singapore courts to resolve the matter. At the third hearing in front of Russell J, LL applied to the court that she should recuse herself (i.e. hand the case over to new judge) because she was biased against him. She did not agree. There were a number of points at issue about the residence status of parties etc. in this blog post we will focus on the reasons the Lord Chancellor has been found in breach of LL’s human rights.

Four reasons were given by Kitchin LJ for setting aside the decision that LL had been in contempt:

1. He had falied to obey the orders, but this failure was not contumelious (defying the court) because the reasons were outside his control
2. The judge had disregarded the fact that LL could not leave the UK himself, and evidence of the emails and the purchased flight tickets
3. She attached too much weight to another application he had unsuccessfully made to another judge, Mrs Justice Theis
4. She had made assumptions about the process and likely outcomes of proceedings in Singapore.

Additionally, with regard to the sentence:

1. She had not given LL time to try to get a lawyer, or make any representations in mitigation, between finding him guilty of contempt, and deciding on the sentence (legal aid is available for this sort of matter)
2. She sentenced LL on the basis that the contempt was serious, without giving him an opportunity to make any representations about this.

McFarlane LJ added that where a judge (as often happens) has to make very strongly worded orders about returning a child, and the consequences of a breach, it is often inappropriate for the same judge to deal with sentence, if there is a subsequent breach.

How the Human Rights Act helped the father in this case

Mr LL had won his appeal against conviction and been released. It was pointed out by Kitchin LJ that under Article 6 of the European Convention of Human Rights, the burden of proof was on CC to prove that LL should be committed, and there was no obligation on him to give evidence. However he had been asked to give evidence on which he was cross examined by the judge and CC’s barrister.

In 2015, Mr LL began proceedings against the Lord Chancellor under the Human Rights Act 1998 because he had been unlawfully deprived of his liberty, in contravention of Article 5 of the European Convention. His application was dismissed by Foskett J in the High Court because the Lord Chancellor could only be liable for breach of ECHR Article 5 if the judge’s conduct amounted to a ‘gross and obvious irregularity’. That is a very high threshold, and the errors made by Russell J, although serious, did not cross that high threshold. Again, LL went to on to the Court of Appeal, where it was conceded by the barrister for the Lord Chancellor that the following mistakes made by Russell J were serious ones:

1. Including the following recital (list of facts) in the 19th March order: “And upon the court repeating to Mr LL that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the respondent father to make application to the Singaporean court to ensure M is returned to this jurisdiction pursuant to this Court Order”.
2. Failure to recuse herself on the grounds of apparent pre-determination.
3. Requiring LL to give evidence, instead of warning him that he need not give evidence; then plunging straight in to cross-examination without permitting any evidence-in-chief.
4. Conflating non-compliance with the orders of 14, 19 and 21 March with deliberate non-compliance; relying upon LL’s failure to secure M’s return to the UK by 28 March by means of proceedings in the Singapore courts, when that was not possible.
5. Giving LL no opportunity to make submissions in mitigation before the judge passed sentence.

However, a series of cases in the UK and in the European Court of Human Rights have established that court action can be taken against a judge only when they have acted beyond their powers in a way that is ‘a gross and obvious irregularity’. Foskett J had not thought the way LL had been dealt with fitted this description but in the Court of Appeal, Jackson LJ disagreed and said:

“For a judge to include a veiled instruction within a recital, which cannot be complied with, and then to commit the respondent to prison for non-compliance is a “gross irregularity”. All the more so, when one takes into account the other linked errors. The word “obvious” in this context means obvious to anyone familiar with normal court procedure. In that sense all five errors enumerated above were obvious.”

He added:

“Although I regret the need to make such a finding about any High Court judge, I consider that Russell J’s errors did amount to “gross and obvious irregularity”.

Comment

This sequence of unfortunate events highlights some of the risks and pitfalls in complex international cases. A matter of great concern to the Court of Appeal was the ‘recital’ of a ‘fact’ that was in essence trying to coerce Mr LL into taking action in a foreign court, where the English courts have no reach. Russell J viewed Mr LL as atypically obdurate. However, globalisation means that these sorts of disputes are sadly not uncommon.

Feature Pic by Lefteris Heretakis on flickr – thanks!