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14 December 2018

International Family Law: Court of Appeal considers - twice - the consequences of non-compliance with court orders in family proceedings

7 mins

Coming to agreement on arrangements for children can sometimes be the most difficult and disputed aspect of a relationship breakdown. In some of the most extreme cases, one parent wrongfully denies the other from having any contact with his or her own children by abducting and taking them abroad or retaining them abroad without permission. If the children are taken to a country which has not ratified the 1980 Hague Convention on the Civil Aspect of International Child Abduction (commonly referred to as the Hague Abduction Convention), such cases can be extremely difficult to resolve. Steps can be taken in the English family court system by the ‘left-behind’ parent to secure the children’s return, and in some cases the family court will take very significant steps in an attempt to reunite a family. If an offending parent disobeys orders and thwarts the will of the family court, significant sanctions can be applied – as has been seen in the long-running case of Egeneonu v Egeneonu in which Bindmans has acted for a mother seeking the return of her children.

This case has involved two appeals in the Court of Appeal this year, the judgments from which stand as a warning to those who disobey court orders. 

The background

Mr and Mrs Egeneonu married in Nigeria in 2001. They came to England the following year, where their three sons were born. In 2013, the family went on a holiday to Nigeria (unfortunately not a Hague Convention country), during which the mother was separated from her children by the father who retained them in Nigeria. The mother was unable to get them back in Nigeria, and returned to England to try to seek assistance from the English authorities. Proceedings commenced in the Family Division of the High Court. In 2014, the children were made wards of court by Russell J and the father was ordered to return the children to England. The father initially came to England to engage in proceedings but then left for Nigeria in breach of orders preventing his travel. While there, he called the mother and told her he would never return the children to England, threatened her, and tried to force her to withdraw her application from the court. This and other actions led Newton J to find him to be in contempt of court and sentence him to 12 months in prison in his absence.

In 2017 the father returned to England voluntarily. He was quickly arrested and began to serve his first sentence for contempt. While he was serving his sentence, the mother applied for his further committal. In September 2017, Mr David Williams QC (as he then was) sentenced the father to a further 18 months imprisonment for various new contempts, and then in May 2018 Mr Justice Cohen sentenced the father to another 18 months for yet further new contempts of court.

Meanwhile, Victor Egeneonu, the abducted children’s uncle or older half-brother (his relation to the father being a matter in dispute), was ordered by the court to provide information relating to the children’s whereabouts and to assist with their return to the UK. The mother argued that he disobeyed those court orders and in fact did everything he could to help the father to keep the children in Nigeria. He was himself found to be in contempt of court and was sentenced to a total of 7 months imprisonment by Mr Justice Cobb in October 2018.

The appeals

Both men appealed to the Court of Appeal – the father appealed Cohen J’s decision in its entirety and asserted that he was not guilty of contempt, whereas his brother (or son), Victor Egeneonu, appealed against the length of his sentence. Bindmans represented the mother in both appeals reported as:

Egeneonu v Egeneonu [2018] EWCA Civ 2565

The Court of Appeal dismissed both appeals and the Lords Justices of Appeal condemned both appellants’ actions, demonstrating how seriously the Court approaches the question of contemptuous behaviour towards court orders.

In the father’s appeal, the father argued that since the retention of the children in Nigeria only occurred once, he cannot be punished for not returning children to the UK once his first sentence had been served, as this would amount to double jeopardy. Peter Jackson LJ dealt with this argument by quoting McFarlane LJ’s judgement in Re W (Abduction: Committal) [2001] EWCA Civ 1196:

… [It] must in my view be permissible as a matter of law for the court to make successive mandatory injunctions requiring positive action, such as the disclosure of information, notwithstanding a past failure to comply with an identical request. A failure to comply with any fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment”. (at [37])

Peter Jackson LJ went on to underline that where children become wards of the court, the court can issue any lawful order it deems to be in the children’s best interest. Non-compliance with previous orders cannot prevent the court from pursuing the children’s interests by issuing further orders aiming at coercing the abducting parent to return the children. As such, “the jeopardy in which [the father] finds himself is no more than the direct result of his deliberate decision to disobey the court’s orders”. (at [20])

Finally, the judgment deals with the length of sentences at the court’s disposal in case of disobedience of orders in relation to abducted children. Jackson LJ points out that custodial sentence is the last resort, and a sentence (maximum of two years), is reserved for the most serious and flagrant breaches of court orders. Quoting him, the actions of the father were “such a case”:

It involves the calculated separation of three children from their mother and a contemptuous disregard for court orders.  Those who abduct children in this way must expect lengthy sentences if they are found to be in contempt of court.  As it is, these children are currently without either of their parents.  That is a tragedy, but it is one brought about by Mr Egeneonu and the solution to it lies, as it has always done, in his hands”. (at [22])

Peter Jackson LJ also gave the leading judgment in the appeal made by Victor Egeneonu against the length of his sentence. He observed that:

[Victor’s] contempts were so serious that they required an immediate custodial sentence… Child abduction is so deeply harmful for children and their families that those who assist abductors and place themselves in contempt of court should normally expect nothing less.

Victor Egeneonu argued that in coming to his decision on sentence Cobb J gave insufficient regard to the impact of imprisonment on his own three children. Peter Jackson LJ noted that Cobb J did not ignore these mitigating circumstances. Mr Egeneonu argued that his own children should not be separated from their parent through his incarceration and that this mitigation should have been given more weight, but with regard to the mother and children’s own plight Peter Jackson LJ noted that Cobb J had been “entitled to see the irony of such a plea from a man who had for so long been so careless of the family life of others, particularly where the same plea had been made and accepted in 2015, so that Victor can have had no doubt about the risk that he was running in lying to the court and disobeying its orders.”. Dismissing the appeal, Peter Jackson LJ went on to observe that because of the repetitive nature of Victor Egeneonu’s breaches of court orders, the length of the sentence was perfectly acceptable:

In my view the global sentence was within the range that was properly open to the judge.  Had this been a ‘first offence’ [Victor Egeneonu’s counsel’s] arguments might have had some slight purchase in relation to the length of the sentence, but this was a repeat contempt where the contemnor had simply carried on as before”. (at [11])

The court’s decisions in these two appeals did not achieve the children’s immediate return to their home country and their mother, but do demonstrate that family judges are entitled to take a robust approach in serious cases of contempt of court.

Jamie Niven-Phillips successful acted for the mother, as respondent, in both appeals. 

This article was written by Jamie Niven-Phillips and Adam Krynicki.

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