(Family Division, Holman J, 3 August 2015)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  2 FLR 110
Practice and procedure – Location order – Requirement to hand over mother’s passport – Ambiguous language of standard form order – Failure to discharge duties – Whether the mother’s detention had been wrongfulThe judge found that the mother had been detained in custody on the false basis that she was attempting to breach a location order where the standard form location order was found to be ambiguous and the police officers involved had failed to understand and discharge their duties under the order.
When the Latvian parents separated the mother brought their 13-year-old son to England. The father issued Hague Convention proceedings seeking a return order. A standard Form 1A location order was made requiring the tipstaff to locate the child and retrieve certain documents.
On the same day the order was made police officers attended the mother's home address and served the order on her. She was informed that she needed to surrender her son's passport and other identity documents. She handed over the passport but informed the officers that she did not have any other identity documents with her. The details of her own passport were taken by the police. She informed the officers of her plans to take a holiday in Spain without her son and the police reassured her that the order did not prevent her travelling.
Before travelling she visited her local police station to confirm that she was indeed permitted to fly. On the date of her flight she was permitted to board the aircraft but was subsequently removed by police officers and detained in custody for breach of the order. She had since spent 42 hours in custody.
The issue had arisen in part due to the ambiguous language of the standard form order and the use of the terms 'respondent' and 'defendant' interchangeably and raising the possibility of the order being directed to someone other than the respondent. Furthermore leaving to one side that ambiguity the officers had failed to understand or discharge their duty under the order by permitting the mother to retain her passport. The issue in this case was compounded by the fact that the mother could not speak or read English. The mother had suffered a terrible injustice, indignity and loss of freedom as a result of these ambiguities. She had in no way breached the court order.
The judge ordered the immediate release of the mother and requested the judgment to be sent to the President of the Family Division as a matter of urgency.
Neutral Citation Number:  EWHC 2365 (Fam)
Case No. FD15P00342
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
3rd August 2015
B e f o r e :
MR JUSTICE HOLMAN
(Sitting throughout in Public)
- and -
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London, EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 email@example.com
Mr Nicholas Anderson, counsel, appeared on behalf of the father
The mother appeared in custody and in person
MR JUSTICE HOLMAN
A lady, Mrs Ludmila Taukaca, was arrested at Birmingham International Airport late on the evening of Saturday, 1st August 2015, pursuant to a "location order" directed to the Tipstaff of the High Court. She has been detained in custody ever since then and has been brought before me in custody during the course of this afternoon, Monday, 3rd August 2015. As I speak these words, it is 16.15 in the afternoon. I do not know precisely the number of hours during which she has been in custody, but it is approximately 42 hours and has included two nights, namely, last Saturday and Sunday nights.
The circumstances of this case are, in my view, extremely grave, for I am quite satisfied on the basis of what I will shortly narrate that Mrs Taukaca should not have been arrested or detained in custody at all. I order her immediate release from custody, and hereby unreservedly apologise to her for the very great indignity and inconvenience which she has suffered and experienced, not to mention the loss of a lawful holiday this week with friends in Majorca.
In my view, the facts and circumstances of this case highlight a serious deficiency in the language of standard form location orders in Form 1A. The actual location order in the present case shows on its face that it was last revised in May 2011, so the wording of the present order has been in routine and almost daily use for over four years and is itself, essentially, a continuation of standard form orders that have been in routine use for a considerable number of years.
As the facts and circumstances of this case vividly illustrate, the language of the order is capable of seriously misleading police officers who are routinely asked by the Tipstaff actually to execute these orders. The making of location orders is, frankly, a regular and routine part of the work of High Court judges of the Family Division and, of course, part of the daily work of the Tipstaff and his staff; but it is likely that any given police officer up and down the land may be faced with executing such orders only once, or at the most a very small number of times, during his or her career.
The essential factual background to this case is that Mrs Ludmila Taukaca is a citizen of Latvia and was married for many years to her husband, Mr Andris Taukacs. Their marriage was, in fact, dissolved during 2014. From their marriage they have two children. The elder, Z, is now aged 23 and is, of course, fully adult. He lives somewhere in Northamptonshire in England. The younger, M, was born in September 2001 and so he is now aged 13 and three quarters.
In February 2015, that is, several months ago, the mother brought M to England from Latvia and he has been normally living with his mother in England ever since at an address in Smethwick near Birmingham.
On 29th July 2015, that is, Wednesday of last week, the father issued an application pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction in which he asks for the summary return of his son, M to Latvia. The father contends that M was wrongfully removed to England and Wales by his mother last February.
As is relatively normal in proceedings under the Hague Convention, the father at once made a without notice application to a High Court judge sitting here at the Royal Courts of Justice for what is called a location order. The reason why such applications are routinely made, and such orders frequently granted, is, effectively, to stabilise a situation and reduce the risk of an abducting parent disappearing again with the child concerned and, maybe, travelling onwards to some other country, including possibly a country which is not itself a contracting party to the Hague Convention.
So it was that last Wednesday, 29th July 2105, Roderick Wood J was asked to make, and did make, a location order in prescribed Form 1A. That order, in summary, requires the Tipstaff to locate the child concerned, and requires delivery up to the Tipstaff of documents, as I will later more fully describe.
I do not know the accurate statistic for the number of location orders made annually, which the Tipstaff, with his very small staff, is required to implement and execute. But, on the basis of my own personal experience and the volume of such applications applied for and made when I happen to be sitting as applications judge, I would be surprised if the total number of such orders did not amount to some hundreds a year. It is, frankly, quite impossible for the Tipstaff, based here in the Royal Courts of Justice, with a very small and incredibly overburdened and hardworking staff, actually to execute and implement such orders personally. So it is that, routinely, these orders tend to be executed by the police throughout the country on the instructions of, and as agent for, the Tipstaff. That is what happened in this case.
Last Wednesday evening, on the very day that the location order had been made, three police officers from the West Midlands Police attended at the home address of the mother in Smethwick. They clearly had copies of the order in their possession. I have before me a pro forma document of the Tipstaff headed "Confirmation of Service of a Court Order in a Child Abduction Case by a Police Officer". It explains that "this document shall be completed by the police officer serving/enforcing the order." I have the actual copy of that pro forma document which was signed by a police constable at Tipton police station in Tipton, which I assume is local to the mother's address in Smethwick. I will not in this public judgment name the police constable concerned, because it would be most unfair if the least criticism appeared to attach to that particular officer, the more so as he or she (I have no idea of the gender) has not had any opportunity of giving his or her account of matters.
This afternoon the deputy Tipstaff, who is holding the fort today in the absence of the Tipstaff himself, has, at my request, made contact with the relevant police station, but has been told that the police constable who executed the order is not working today. The officer will be on duty again during the course of tomorrow, but, patently, I cannot delay resolution of this case to hear his or her account.
I have, however, heard the account of the mother personally, on affirmation, assisted by, if I may say so, the most skilful and expert of interpreters. The mother gave her brief oral evidence this afternoon with complete clarity and intelligence and, for the purposes of my decision today and this judgment, I unreservedly accept what she told me. She told me that three officers attended at her home address in Smethwick. She said that they made available an interpreter over the telephone. That, if I may say so, is very much to the credit of the police. She said that they told her that she needed to surrender the passport and any other identity documents of her son, M. She told them that she did have his passport but did not have any other identity documents for him. He, himself, was not present, for then, as now, he was staying with his adult brother in Northamptonshire. The mother produced M's Latvian passport to the police and, correctly and in obedience to the location order, they took it with them. They promptly forwarded it to the Tipstaff here at the Royal Courts of Justice. It arrived in the post today and it is in my hands as I speak. That passport will, for the time being, be retained by the Tipstaff, pursuant to the location order, and, of course, to prevent any foreign travel by M.
The mother told me that the police also asked her about her own passport. She says that she is a citizen of Latvia alone. She has a Latvian passport. She produced it to the police. They examined it and made a note of details upon it. They then put it back on the table beside her and made no effort, and showed no desire, to take it with them.
The mother informed the police officers that about a month ago, she and two friends had booked to go on a holiday to Spain, flying out the following Saturday, namely, last Saturday, 1st August 2015. She did not have her ticket or any travel documents with her, because one of her friends had made the booking and still had the tickets. But she says, and I accept, that she told the police about this proposed travel and asked them whether she was still allowed, herself, to fly to Spain. There was no travel booking in relation to her son, M, and no plan whatsoever for him to travel to Spain or anywhere else. Rather, he was going to continue staying with his elder brother in Northamptonshire, as I have described.
According to Mrs Taukaca, the police said to her words to the effect that, "Yes, you can travel to Spain. This order is nothing to do with you. You cannot take your son abroad, but you can travel to Spain." The police then left, taking the son's passport with them, but leaving the mother's passport with her.
The mother has explained this afternoon that she was still concerned and anxious about the lawfulness of her travelling to Spain. So last Friday, by now 31st July, she went with her friend, who had made the booking, to the police station, taking now the ticket and other relevant documents with her, in order to ask the police whether she was, indeed, allowed to fly to Spain. She went first to her local police station, but that was shut, so she then took a taxi with her friend to the larger West Bromwich police station, which she says that she attended at about 9 pm last Friday. She says that she showed to the police officer at the desk the documents and asked whether she was allowed to fly to Spain. She told me that she wanted to be 100 per cent sure that she was not breaking any court order by personally flying to Spain. She told me that the police officer to whom she spoke told her that there was no problem for her to fly abroad. It was only her son who was not allowed to leave the United Kingdom.
Having very creditably taken those steps, the mother must have gone with some confidence last Saturday to Birmingham International Airport with her friends in order to fly on Saturday evening to Palma in Spain. She actually boarded the aircraft, but, after she had boarded and before the aircraft took off, she was removed from it. I will now take up the narrative by reading from the short witness statement dated 2nd August 2015 made by a police constable of the West Midlands Police currently stationed at Birmingham Airport Again, it would not be fair in a public judgment to name that police constable. She says:
"On Saturday, 1st August 2015, I saw a woman in the front office area of the police station at Birmingham Airport who I now know to be Ludmila Taukaca. I was made aware by officers that Taukaca had been removed from a Monarch flight departing to Palma, Spain, this was due to her breaching a High Court order which stated that she was not to leave the United Kingdom and that she had to surrender her passport. Taukaca only spoke Latvian and Russian, so in order to communicate with her I used Google translator on my personal mobile telephone. At 23.00 hours I informed her that she was under arrest for breaching the court order. Language Line was then contacted and the facts of arrest explained to her. Taukaca was then transported to Solihull police station where the facts were related to the custody officer and her detention authorised. I had no further dealings with Taukaca."
Pausing there, it seems to follow from that that this lady was arrested and then detained in custody for two reasons. First, that she had not surrendered her passport. Second, that she was attempting to leave the United Kingdom. The police at the airport and later at Solihull police station took the view that both of these facts were breaches of the order. The police at her home, and later at West Bromwich police station, had both expressly told her that she could travel and was not required to surrender her passport. Essentially, following that, Mrs Taukaca has been held in custody ever since, as I have said, and was brought here by escorts this afternoon. She was held for a time in the cells here at the Royal Courts of Justice.
One has only to consider those facts to appreciate that this matter has what I would regard as scandalous elements. This lady did produce her own passport to the police. They looked at it, but did not take it with them and left it with her. This lady did tell the police that she had a booked holiday to Spain a few days later and asked whether she could lawfully go. The police told her that she could. This lady took the extra trouble and precaution, which few people might have done, of going to a police station on Friday, together with her friend, to check whether she could lawfully travel to Spain. She was told that she could. She got as far as being on the aircraft when she was removed. That of itself must have been a degrading and humiliating experience and, probably, very frightening for her; and she has now suffered being detained in custody, as I have said, for something of the order of now 42 hours and two nights, and of course missed her holiday.
The problem which this case throws up is the language of the standard form location order. Paragraph 2 of the order in this case, which is in standard form, reads as follows:
"The respondent [viz in this case Mrs Taukaca] and/or any other person served with this order must each hand over to the Tipstaff (for safekeeping until the court makes a further order) as many of the following documents as are in his or her possession or control:-
(a) every passport relating to the child, including an adult's passport by which the child is also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child to leave England and Wales; and
(b) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the defendant to leave England and Wales."
Pausing there, the first source of ambiguity leaps off the page of that part of the prescribed standard form order, although I have to say that it is not an ambiguity that I, myself, have ever spotted or noticed before. The heading of the order describes, in this case Ludmila Taukaca, as "respondent". The opening words of paragraph 2 require "the respondent" to hand over the specified documents, but, when one gets into the detail of sub-paragraph (b), it will be noticed that it meanders between a reference to "the respondent" and a reference to "the defendant". So far as I am aware, at any rate in this particular version of this order, it is only within paragraph 2(b) that there is any reference to the words "the defendant". But at all events, what the person designated as "the respondent", namely in this case Ludmila Taukaca, had to hand over was any passport relating to herself "which would enable the defendant to leave England and Wales". It leaves completely unspecified who is meant or intended by the words "the defendant", but a police officer might reasonably suppose that the reference to "the defendant" was a reference to somebody other than "the respondent" and, perhaps, that it was some further reference to the child concerned.
Assuming, however, that paragraph 2(b) did not contain that ambiguity, then it is a clear direction to hand over to the Tipstaff, or in a case like this to the police officer executing the order, every passport, etc., "relating to the respondent". If and when the police officers last Wednesday looked at Mrs Taukaca's own passport, which she had handed to them, but then placed it back on the table and left it with her, when they left her home, it was the officers who were failing to understand or failing to discharge their duty under this order. It was not Mrs Ludmila Taukaca, who, it will be remembered, cannot speak or read English.
One then reads on to paragraph 4 of the order. That provides as follows:
"The respondent and/or any other person served with this order must not knowingly cause or permit the child:-
(a) to be present overnight at any place other than the place where the child was staying at the time of service of this order; or
(b) to be removed from the jurisdiction of England and Wales."
So far as paragraph 4(a) was concerned, this particular child, M, was staying, at the time when the order was served upon the mother in Smethwick, at the address of his brother in Northamptonshire. As I understand it, M has continued to stay at the address of his brother in Northamptonshire seamlessly between last Wednesday and now, so the mother has not been, and is not, in breach in any way whatsoever of paragraph 4(a).
Quite clearly, the whole of paragraph 4 is directed to the whereabouts of "the child" concerned, and a prohibition on causing or permitting the child concerned to be removed from the jurisdiction of England and Wales. Here is the ambiguity and tension in this standard form of order which seems to me to have led to what I have described as a scandalous situation in the present case.
Paragraph 2(b) does require the handing over of passports and similar documents "relating to the respondent". If they are handed over, then the effect and intention would be to prevent the respondent from travelling out of England and Wales. I have, however, already pointed out ambiguities within paragraph 2(b). The focus of paragraph 4 is a clear and express embargo on removing the child from England and Wales, but neither paragraph 4 nor any other part of the order expressly prohibits the respondent parent from leaving England and Wales. Indeed, it may require very careful consideration whether there should be any restriction on the parent, as an individual and free person, from leaving England and Wales, provided only that the child, who is the subject of the application, is not able to leave England and Wales.
At all events, it seems to me that the way that the police officers, who attended last Wednesday, interpreted this order was that it required them to remove the child's passport, which they did, and contained an embargo upon the child leaving England and Wales, but no embargo upon the mother herself leaving England and Wales. So it was that, as the mother herself describes, the police said to her words to the effect that, "Yes, you can travel to Spain. It is nothing to do with you, but you cannot take your son abroad." The same ambiguity seems to have influenced the police officer whom the mother saw and from whom she received advice and reassurance when she attended at West Bromwich police station on Friday.
It seems, therefore, that, as a result of ambiguities in a standard form of order, which judges of this Division have been making now for many years, a terrible injustice was done to this lady. I have explained all this at some length in this public judgment. I have ordered that a transcript of this judgment must be made as a matter of extreme urgency. I personally am last sitting on Wednesday of this week before I go for several weeks of holiday. I intend to ensure that the official approved transcript of this judgment is placed upon the BAILII website before I go. It must be very urgently drawn to the attention of the President of the Family Division. It must, of course, be very urgently and seriously considered by the Tipstaff. It seems to me vital that very urgent steps indeed are taken to clarify and improve the wording of this standard form of order so as to avoid that any other person suffers the injustice and indignity and loss of freedom which this lady has suffered.
I wish to stress very clearly indeed that, so far as I am concerned, Mrs Taukaca has not in any way whatsoever broken any court order. This is not a situation in which she has "purged her contempt". Rather, she was never in contempt of court at all. She should never have been arrested, still less, detained, and I order her immediate release, repeating as I do a very sincere and unreserved apology on behalf of the legal system. But I wish to stress also that I do not intend in anything that I have said any criticism whatsoever of any of the police officers who were engaged in this case. Frankly, the fault lies with the language of the order and for that, ultimately, the judges must take responsibility.
MR JUSTICE HOLMAN: Is there any other matter that now arises?
Very well. I will keep these documents in order to correct references and so on in the transcript. The passport goes back to the Tipstaff, along with that form. One of the escorts handed in, I think, the original of the statement made by the police constable (name given). You keep that as part of the papers. You lent it to me, but you keep it and do whatever you are supposed to do with it. This lady is now, of course, completely released. You may have to go with them if they have any of your possessions to get your possessions, but you are completely free.But, please, do not forget, Madam, that you have to see a lawyer very soon. You have to put in evidence of whatever defence that you may have to this application for your son to go back to Latvia by the date that I mention, and you must come to court again on Monday, 17th August. You will be sent to your address a sealed copy of this order once it is ready, but it will not be ready, probably, until tomorrow.Is there anything else, Mr Anderson, you want to raise or say?
MR ANDERSON: My Lord, I think only this. Just to clarify, is it my Lord's intention that, when the transcript of this judgment is produced, that the full names of the parties' two children, one a minor and one not a minor, are used or should the transcriber use initials----
MR JUSTICE HOLMAN: I may reduce the name of the child concerned to initials, but the full name of the mother must be, because this is about her liberty.
MR ANDERSON: Absolutely.
MR JUSTICE HOLMAN: I will probably make it say "M" but it will not be very difficult to relate it to that person.
MR ANDERSON: I take that point.
MR JUSTICE HOLMAN: Is there anything else, Mr Anderson?
MR ANDERSON: My Lord, no.
MR JUSTICE HOLMAN: Is there anything else, Madam, that you wish to ask me about?
MRS TAUKACA: I have not a clue how I can get home, all my possessions, I do not know where, who will bring me home.
MR JUSTICE HOLMAN: I am afraid that I do not have a clue either. Your possessions I think will be here. When she went from wherever she was detained last night -- Her possessions these people will have, so she goes with them. She is completely free. You go with them and they will give you all your possessions. I am afraid that I do not know how you get home nor who pays. If someone is brought in custody and should not be in custody and is released, who pays for them to get home?
AN ESCORT: I will give her a train warrant to whichever train station to get her home.
MR JUSTICE HOLMAN: Thank you so much for coming at that moment. She gets provided with a free train warrant to travel back from London to ----
AN ESCORT: To whichever train station is closest to the home that she has requested to reside at.
MR JUSTICE HOLMAN: Her home is in West Bromwich. Madam, this lady will give you a warrant, that is effectively a free ticket, to travel by train from London to the station nearest to your home. How does she get to the London station?
AN ESCORT: Charing Cross is, I believe, a ten or 15-minute walk away.
MR JUSTICE HOLMAN: But you do not travel to West Bromwich from Charing Cross. It will be somewhere like Euston.
AN ESCORT: I am sorry, unfortunately I am not au fait with the London----
MR JUSTICE HOLMAN: Is it a warrant only for the rail journey or does she get something like the underground or a bus pass?
AN ESCORT: It will cover the entire journey, from London to wherever she needs to go, on any form of transport, whether that be tube, DLR or whatever.
MR JUSTICE HOLMAN: You can explain to her, anyway.
AN ESCORT: I will.
MR JUSTICE HOLMAN: Madam, Deputy Tipstaff, is there any question that you have arising out of this?
THE DEPUTY TIPSTAFF: No.
MR JUSTICE HOLMAN: Obviously, something went badly wrong. I am not critical of anybody. As I said, it is, ultimately, the judges who have to take responsibility for these orders. This must never ever happen again. Thank you all very much indeed.
Thank you, Madam Interpreter.