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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Y v Najmudin [2015] EWHC 3924 (Fam) (15 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html Cite as: [2015] EWHC 3924 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		15th December 2015

MR. JUSTICE KEEHAN:

Introduction

1. I have before me today an application of committal dated 14 May 2015, whereby the applicant, Y, seeks the committal for serial breaches of court orders of Rosemin Najmudin. They are the parents of a boy named X, who was born on 13 March 2002 and so he is 13 years of age. This judgment should be read with the judgment that I gave in this matter in relation to child arrangements in May 2013 and, in particular, with the order that I made consequent upon that judgment on 3 May, and sealed on 13 May.
2. The material parts of the order are:

"To the applicant mother, Dr. Rosemin Najmudin, you must obey para.6 of this order. If you do not, you will be in contempt of this court and you may be sent to prison, fined, or your assets seized.

It is ordered that:

1. The mother's application for a residence order dated 19^th March 2012 is dismissed.

2. X shall reside with the father.

3. The father should make X available for supervised contact with the mother on the following terms:

(i) Contact shall take place on the third Sunday in January, March, April, June, September, November and December between the hours of 2.00 p.m. and 4.00 p.m.

(ii) The venue will be the NRS Child Contact Centre, 340 Lewisham High Street, London and a professional supervisor shall supervise contact.

(iii) The mother shall pay for the supervised contact sessions in January, April and November. The father shall pay for the supervised contact sessions in March, June, September and December.

4. The mother may send emails to X no more than once a month on the following terms:

(i) The emails are sent to the following email address" -- and there is then an email for X.

"(ii) The father shall read the emails before allowing X to do so in order to ensure the contact is appropriate.

(iii) The mother shall not write directly to X.

5. The mother may send an appropriate gift to X on his birthday and at the occasion of significant religious festivals.

6. The mother, whether by herself or instructing or encouraging any other person to do so, is forbidden to:

(i) Remove X from the care of the father or any person in whose care he may be from time to time.

(ii) Remove X from England and Wales.

(iii) Apply for any passport, visa, identity card or travel document for X of whatsoever nature.

(iv) Contact X's school.

(v) Approach within a 1 mile radius of X's home or school.

(vi) Exercise her parental responsibility for X without prior leave of the court.

(vii) Save as provided in paras.3 to 5 above, make any direct or indirect contact with X without the prior written agreement of the father."

3. There are then matters relating to a transcript of a judgment and the order continues:

"10. The children's guardian may disclose a copy of the transcript of this judgment to the NRS Child Contact Centre.

11. The mother shall not, without leave of the court, make any application under s.8 of the Children Act 1989 until 3^rd March 2018.

12. All further applications should be in writing and reserved to me if available."

4. The father has filed and served two statements, one dated 21 May 2015 and the other 22 October 2015. In addition, he has helpfully and precisely set out the schedules of the findings sought in relation to the alleged breaches of the order of 3 May 2013 dated 26 November 2015. In response, the mother has filed two statements, one dated 27 September 2015, the other dated 7 December 2015.
5. In the course of this committal application, I heard evidence from the father and from the mother, and I read a short email sent by the mother's partner, Mr. Z. I remind myself that the burden of proof throughout is upon the applicant, Mr. Y. I further remind myself that the standard of proof is the criminal standard that I must be satisfied beyond all reasonable doubt in respect of each and every alleged breach of the order.

Background

6. This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X's life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.
7. Having heard evidence over a number of days both from the parties, from the children's guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.
8. Contact did proceed as ordered in a contact centre up until roughly March 2014. Thereafter the mother unfortunately suffered an accident in which she suffered head injuries and she was, she tells me, unable to attend contact. That persisted throughout the remainder of 2014. However, she was well enough by December of 2014 to attend a contact centre to have contact with X. In fact, it is agreed between the parties, that from December 2014 there has been no contact at a contact centre when the mother has seen X. That is not, I am satisfied, because the father was unwilling to arrange it. It was because the mother no longer wished to see X at a contact centre and it is from that date in December 2014 that she began to see X, in breach of my order of May 2013.
9. She admits in evidence that she has seen X on numerous occasions since December 2014 after he has left school. Latterly that has been on a Friday after school. She last saw him on 11 December this year, again, after school, when she spoke to him about this hearing. She put to X that she had not met him at the school gate but had met with him somewhere between him leaving school and arriving at home.

Evidence

10. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
11. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court's order and to ignore it.
12. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
13. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
14. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father's home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
15. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o'clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found. I shall adjourn until 2 o'clock.
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