Hilary Lennox writes for the Times: 7th September 2017
The law in this area is quite clear and a quick recap might help explain the court’s robust approach in this instance. In this case, the father had instructed Dawson Cornwell solicitors and had defied numerous court orders to disclose his children’s whereabouts and return them to the UK. Contempt of court is an interference with the administration of justice, and in child abduction cases a defendant may be committed to prison for up to two years or receive an unlimited fine for breaches of court orders. Withholding information as to the children’s whereabouts, refusing to return them to the UK, attempting to mislead the court or attempting to place assets beyond the court’s reach commonly amount to non-compliance of court orders and contempt of court. This conduct may further increase the costs of solicitors, who consequently have to chase responses and enforce court orders. If the defendant refuses to return the children, it is open to the applicant to bring another contempt of court application against the child abductor whereby they may receive a new sentence on top of the one already received.
By way of background to this particular case, Libya is a country of unrest and still does not have a stable government in force. In July Islamic State was ejected from Benghazi after three years of fighting. The court ordered an expert report on Libyan law, which stated that Libya is not a fully functioning state and the justice system is unable to function effectively. UK court orders are not recognised as of right in Libya and meanwhile, Sharia law appears to dominate the country. Zubaidy was born in Libya, but he and the mother are British citizens residing in the UK, and are bound by UK law. They have two daughters, aged 17 and five, both of whom live in Tripoli, Libya, with their paternal grandmother. Meanwhile, their 12 year-old son was the only one to be returned to the UK in 2016 by Zubaidy, despite the mother also seeking the return of her daughters.
In Libya a father is considered the natural guardian of his children, and the mother is viewed as only the physical custodian. The default position is that a minor child needs the permission of her guardian (the father) or, in his absence, the nearest male relative, to leave the country. The UK court however, held that “the father has conducted a campaign to exclude the mother from these girls’ lives by instructing the paternal grandmother or his brother to fail to cooperate”. It further found that Zubaidy deliberately concealed his children in Libya since March this year and found all six breaches of court orders proved to the criminal standard of proof. As a result, the court could sentence the father to prison, which they did last month, giving him a 12-month sentence.
Over the past few years, it has become more common to send child abductors to prison. High Court family judges are increasingly taking a robust approach to contempt of court and sending a message to those who believe they are above the law when the child is outside the UK, and who think they do not have to comply with UK orders. Clearly, they do.
Hilary Lennox is a barrister called to the Bar in Ireland, Northern Ireland and England & Wales and has worked in a law firm in New York and the Innocence Project in Wisconsin.
Hilary is a highly experienced family practitioner across three jurisdictions. She covers all areas of family law. She is regularly instructed in international child abduction, child relocation and international jurisdictional issues (habitual residence) before the High Court most recently involving Syria, Libya, South Africa, India, Tanzania and Australia.
Hilary specialises in international family, criminal, extradition and human rights.