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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (A Child), Re [2002] EWCA Civ 1313 (29 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1313.html Cite as: [2002] EWCA Civ 1313

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Her Honour Judge Darwall-Smith)

		The Royal Courts of Justice Strand London WC2 Monday 29th July, 2002

1. LORD JUSTICE THORPE: At the heart of this appeal lies a little boy aged three, named D. His parents married in April 1998, but separated in July after only a few months of marriage. Following the separation contact was arranged between D and his father, not without difficulty, but arrangements were made through contact centres, ultimately the Thomas Coram Contact Centre.
2. However, without the father's consent and effectively stymying the contact order, mother removed D to her homeland of Nigeria on 27th July 2000. What has happened to him over the course of the last 2 years is by no means clear, but there is some evidence to suggest that he is living with his maternal grandfather, Chief O, who has residences both in Lagos and also in Ibadan.
3. Obviously D should have returned with his mother at the very latest when she arrived here on 27th September 2000: but he did not. Since then every effort has been made to secure his return. The court has been heavily involved in these efforts, and D was made a ward on 13th February 2002. There were a number of hearings before Hogg J, particularly on 8th, 19th and 25th March 2002. Very firm orders were made on these occasions requiring the return of D, and the clearest warnings were given to the mother that if she did not comply she would be imprisoned and for a considerable time.
4. The warnings were not heeded and the case was relisted on 19th April 2002 in front of an extremely experienced Circuit Judge, Her Honour Judge Darwall-Smith, sitting as a judge of the Family Division here in London. She had to consider what sentence was appropriate for the breach which the mother admitted, but sought to mitigate by asserting that she did not have the means to pay for the cost of D's return.
5. The judgment of the court was that the case plainly demanded an immediate custodial sentence. In the exercise of her discretion the judge fixed the duration of the sentence at ten months, explaining to the mother that she would in all probability only served five. The judge, in conclusion, pointed out that it was always open to the mother to apply to purge her contempt. No application to purge has been made, but an appeal was lodged with this court. Miss Oxlade, who appeared below, this morning advocates the appeal. She has very helpfully furnished us with her note of the chronology and relevant events. She has equally helpfully indicated that she does not pursue either grounds two or three of the skeleton argument which she settled on the 9th May. That leaves ground one, which is that the length of sentence was manifestly excessive, and ground four, that the judge made findings of fact about the financial position of the maternal grandfather and wrongly took them into account.
6. There is, in my judgment, a simple key to the outcome of this appeal, and the key is the clear findings of the judge as to the credibility and integrity of the appellant. At page 3 of her judgment, the judge said:

"Having heard the mother today, I did not find her to be a truthful witness ..."

7. The judge gave instances of her untruth. One was comparatively trivial, but still indicative to the judge. The mother had given false evidence as to her father's age. The judge was extremely critical of the mother's evidence in relation to her financial circumstances. The judge said:

"... this mother has produced wholly inadequate information as to her financial circumstances."

8. In considering what evidence she did produce, the judge said that she did not accept the mother's evidence as to her spending, and that the bank statements which she had produced were plainly inadequate. The judge further said that, in relation to her case that she was trying to earn:

"She, in my judgment, has made no effort to obtain full-time employment."

9. Then, finally and most pertinently, the judge said, in relation to her dealings with the Nat West Bank, to whom she had applied for loan facilities:

"In my judgment, that is another example of the mother failing to make any efforts whatsoever to bring this child back within the country".

10. That sets the case in its proper context. This is a mother who in a deliberate attempt to frustrate contact arrangements ordered by the court removed the child from the court's reach and also removed the child from relationship with his father. When subjected to due process she effectively played games with the court. She made no effort whatsoever to comply with the clearest orders backed by penal notice. When she came to try and explain herself away, she gave false evidence. How in those circumstances can it be said that ten months' imprisonment is manifestly excessive? In my opinion it was plainly within the broad ambit of the judge's discretion.
11. Finally, I add a word in response to Miss Oxlade's submissions as to ground four. Chief O had made some statement which was before the judge which we have not seen. We see that he has also sworn an affidavit in front of a Commissioner in the High Magistrate Court registry in Lagos in which he briefly describes himself and his residences, and says that he knows of the father's family and that the father's family knows where to find him.
12. What the judge relied upon was little indications. She knew she was dealing with a maternal grandfather who was a Chief. She knew that he was a barrister called by the Inner Temple. She knew that he used headed writing paper. She knew that he issued an elaborate invitation to guests to attend a family celebration. From those little signs she was entitled to draw an inference. The only inference she drew was that she was not dealing with a family which is in any way penniless. I simply do not see how that modest inference is open to any criticism.
13. For all those reasons, despite Miss Oxlade's excellent submissions, I would dismiss this appeal.
14. LORD JUSTICE CLARKE: I agree.
15. MR JUSTICE FERRIS: I also agree.
ORDER: Appeal dismissed. (Order not part of approved judgment)