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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 >> Egeneonu v Egeneonu & Anor [2015] EWHC 954 (Fam) (06 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/954.html Cite as: [2015] EWHC 954 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		6th March 2015

MR. JUSTICE NEWTON:

1. This is an ex tempore judgment in the case of Egeneonu. It is an application to commit both Levi (LE) and Victor Egeneonu (VE) to prison; an application for their committal as a result of proceedings brought before the court in 2013 and 2014.
2. It is unfortunate that the proceedings have taken as long as they have to reach this point. Committal proceedings are meant to be proceedings which are dealt with swiftly for reasons which I need hardly set out. I make absolutely no complaint to counsel before me, both of whom have been extremely helpful in the way in which they have approached what has become rather a complicated case. There have been a number of difficulties during the course of the hearing which are not self-evidently the fault of either of them.
3. The court is essentially concerned with three children; Chidera, born in 2002; Odinakachi, who was born in 2005, and Ifeanyichukwu, otherwise known as "Ifeanyi", born in 2007. The history of the family is that the parents were married in Nigeria. They then migrated to this country in 2002. All three children have been born and reared in this country. On 1^st July 2013 the family, as the mother told Russell J and as is recorded in the judgment, went on holiday to Nigeria. There is, of course, a dispute about that between the parents but I proceed on the basis of the unappealed judgment of Russell J, that this was a holiday. The mother says that, as far as the father, Levi, was concerned, this was part of either a pre-planned or, in any event, an orchestrated plan to get the children to Nigeria and retain them in Nigeria, and effectively for he to take charge of their care. In any event, whatever the truth of it, on 25^th August 2013 the mother vacated the home in Nigeria. On 1^st September 2013 it appears that the family went to live with Professor Madu and, as far as I can work out, on 1^st October 2013, a month later, the father returned to the United Kingdom and I believe that is the last occasion the mother saw her children. It was not until 12^th November 2013 that she was able to garner together the necessary documents, which she then did not have, in order herself to return to this country. She immediately made application to the High Court and an order, the first of very many, was made on 22^nd November 2013 by Ms. Justice Russell.
4. From that time until this, the court has endeavoured to secure the return of the children to this jurisdiction. It is impossible to understand how distressing it must be to the mother to have been separated from her still young children for all this time, but I put that from my mind in looking at the issues that I have to consider, which are the issues of committal.
5. It is necessary to look at the orders made by the court sequentially. Their provisions are important and it is necessary, therefore, before coming to the committal application, to examine what was ordered by the court and against whom and at what time in order to determine whether or not there have been breaches as it is alleged there have.
6. The only historical matter that needs recording in addition is that during the course of the proceedings the father, Levi, having apparently had his passport removed from him, clearly retained or, more likely obtained, other travel documents and on 6^th February (so now over a year ago) returned to Nigeria where he remains.
7. The hearing has taken four days. I have heard evidence from the mother. Levi did not give evidence, for reasons which I will come to in a moment. Victor did not give evidence; these are committal proceedings, and notwithstanding a warning which I gave under s.35 of the Criminal Justice and Public Order Act, he is perfectly entitled, as I make clear, to challenge the mother to prove the case if she can. I did hear, or I endeavoured to hear, from three witnesses in Nigeria. The first Engineer Godwin. The next two witnesses, Professor Madu and an aunt of the children, Caroline, proved quite impossible and I will turn to what conclusions, if any, I come to about their evidence in due course.
8. It would be wrong to finish this part of the judgment without at least mentioning the role of the father, Levi. He, of course, has engaged in the proceedings frequently. He has filed many statements, the theme of which is consistent. He wishes to revisit a number of the issues that the court has already decided. He has an uncompromising view of the mother and of the litigation but because these were committal proceedings I permitted, indeed encouraged, him to take part albeit from Nigeria. That led to any number of difficulties. I understand that there is currently no working video-link facility (or none which could be identified) in Nigeria. In any event, the father does not live in the capital, where I am told the four "links" exist.
9. So far as any other link was concerned, a landline appeared to defeat the father, for reasons which are unclear to me, and therefore all the connections took place, as they did on a previous directions hearing and earlier, to his mobile telephone. That was fraught with difficulty, not least because there was considerable interference, and also hindered by the father's somewhat hectoring style which was apparent, even at earlier hearings. The real problem was that the link was itself not particularly good, although I am, and remain, unclear as to why it was that on the first day of the hearing, for example, the link appeared to be broken and it was quite impossible for the court (which has gone to considerable efforts to try and ensure that the father remained part of the process) to get in touch with the father again. That appeared to be after Levi had had, and used, his opportunity to challenge the mother. That was reflected in what transpired when arrangements were made for the father to travel to the local town, and for him to use landline facilities available through a hotel. There seemed to be a little difficulty not just about the father raising money in order to pay for the call, but more fundamentally despite the fact that this hotel, I understand from counsel for Victor, is a large establishment with over 100 bedrooms and the town is small, the father appeared (even with the assistance of a local taxi) quite unable to locate the establishment. Thereafter there remained a rather unsatisfactory system of communication by text message to those who instruct counsel as to the father's progress. I find that the absence of Levi by telephone was entirely deliberate.
10. At all times, and checked by counsel, the spider phone was available for the receipt of calls in this court. Just in case it was suggested that the system did not work, counsel themselves called that phone, it worked perfectly. I can only assume that therefore the father was only prepared to engage in the proceedings as much as he wished to and to make his case to the mother. Indeed, as I say, he remained on the phone so that he had an opportunity of cross-examining his wife, who gave evidence. When she did so it was clear from the way in which he questioned her that far be it from there being random questions, the questions were designed in such a way, and schemed in such a way, as to cause the maximum upset to the mother. Had the call not, in fact, come to a natural end I would have terminated the cross-examination in any event since it seemed to me to be unhelpful, and verging on the offensive. Of course, I am mindful of the fact that one of the complaints made by the mother is that, having regard to orders made by a judge at the end of 2013, that the father is directly in breach of those orders by way of threatening conduct.
11. That is a background of the evidence. I make it clear that I have read all the papers. I am especially grateful to counsel for the very helpful and closely detailed submissions and chronology prepared and delivered to the court. They have been of the utmost assistance.

The Court Orders

12. First, on 22^nd November 2013, a standard Tipstaff passport order. It is clearly necessary to have some regard to what it said. The order provided that the application should be listed on 5^th December, as it was before a Deputy, and that the father should be served swiftly. Paragraph 2 of the order reads: "The respondent must not make any application for, obtain, seek to obtain or knowing cause, permit, encourage or support any steps being taken to apply for or obtain any passport, identity card, travel warrant or other document which will enable the respondent to leave England and Wales", a standard term.
13. The matter came before Judge Cahill sitting as a Deputy on 5^th December 2013. She recorded that Levi maintained that he could not return the children to the jurisdiction because they were under the care of High Chief Samuel Osuji, and indicated that the passport order in fact was to be executed. I make it clear also that the judge noted the dispute as to appropriate forum.
14. The case then next came before Moylan J on 17^th December. The parents apparently agreed that the children would travel to England for the purposes of spending time with their parents, and complicated arrangements were clearly negotiated between counsel as to how that was to be achieved. The provisions are set out extensively in the order itself (the order appears at p.33 onwards in the bundle). The significance as far as that is concerned is that the father, Levi, was to make arrangements for the children to travel, to be placed in the care of an aunt and, indeed, the father was to cause the children to return to this jurisdiction by 27^th December. The judge also sought and granted protective relief in relation to the mother, in that the father undertook to the court that he would not intimidate, harass or pester the mother, either by himself or through agents, and would not use or threaten violence to her either through himself or by anybody else.
15. On 8^th January 2014 the matter came before Judge Richards, also sitting as a deputy. The father made clear, as indeed he has continued to, his challenge of the court's jurisdiction. I notice that the issue of committal proceedings was then flagged up at that early stage. That order reiterated the provision that neither of the parents should leave the jurisdiction.
16. The matter next came, and was listed for substantive hearing, before Russell J on 30^th January 2014. She heard evidence. She found both habitual residence and jurisdiction. She found that the father had control of, and knowledge of, the whereabouts of the children. She ordered that the father shall arrange (that is directively) the transfer of the children and the return of the children by 14^th February. In addition, she made non-molestation injunctions. Those findings, and the judgment, were not appealed.
17. The children were not returned as ordered. The father left the country on 6^th February 2014. He was, and remains, less than complimentary about Russell J and has made a number of applications for her to recuse herself from the proceedings which have been refused and with which I am not concerned.
18. On 19^th February the matter came back before Russell J. The father, of course, did not attend, he being in Nigeria. It is recorded that the father was not absent, it was at this point that the first of many orders were made in relation to Victor. There is an issue about whether Victor is the father's brother or son, I will return to that in a moment. In any event, the express order against Victor Egeneonu was that he should attend the Royal Courts of Justice on 26^th February to provide the court with any, and all, information in his knowledge or control as to the whereabouts of the respondent, Levi Egeneonu, and to give such evidence as may be directed. In addition, he was ordered to attend court and bring with him his passport and travel documents. He was additionally ordered to forthwith, upon service of the order upon him, provide all information in his knowledge or control as to the current whereabouts of the respondent, Levi Egeneonu, to include sight of his passport and travel documents. There was an effective "let-out" clause in that if he disclosed such information to the satisfaction of the applicant's solicitors, and upon written confirmation, his attendance would be dispensed with. That did not happen.
19. On 26^th February 2014 there was an important hearing in relation to Victor. He attended; the judge was keen to elicit information from him. What is evident, both on that and on subsequent occasions, is that much reliance is placed on what was said to the judge on oath on that occasion by Victor Egeneonu. It is said that he both lied and perjured himself.
20. The matter came back again before Russell J on 5^th March. On this occasion Victor Egeneonu gave evidence again. It appears that he gave evidence on no less than four occasions. A repeat effectively was that he was ordered to use his best endeavours to achieve certain events. A great issue is taken in relation to that by those who represent him. I shall in due course revert to the detail of what was said during those hearings.
21. On 20^th March, again before Russell J, Victor Egeneonu gave evidence for a third time. He gave some detail about what he said he had or had not been able to achieve, and it was on that occasion, as I understand it, that an order was made that again he was subjected to an order, again prefaced by the use of his best endeavours, to ensure the immediate return of the children, again a matter about which significant complaint is made.
22. On 21^st March Ms. Justice Russell heard one of the father's other friends, or cohorts, he having been arrested by way of bench warrant, and on 15^th April 2014 the judge heard evidence from again Mr. Nwafor and Innocent Ezemba and Victor Egeneonu for the fourth and final time.
23. The notices to show cause in relation to Levi Egeneonu can be found at B186 and in relation to Victor Egeneonu B250 onwards.

The Law

24. There is no real debate at the Bar as far as that is concerned. Both counsel have referred to the leading case of Re L-W [2011] 1 FLR 1095, a decision at which Lord Justice Munby (as he then was) gave the lead judgment. It is a curious thing that law which has been well-established in the criminal courts has taken so very long to establish itself as a matter of principle in the civil courts, but I emphasise that that is the way in which I approach it. Lord Justice Munby said as follows:

"There is no need for any elaborate analysis of the law. It suffices for present purposes to refer to two recent decisions of this court."

He referred to Re A [2008] EWCA Civ 1138, where a father was committed for contempt, he having not returned a child to this jurisdiction. He appealed successfully on the basis that there was no sufficient evidence of contempt of court. The significant principles in that case are set out in the leading judgment of Lord Justice Hughes:

"(1) The contempt which has to be established lies in the disobedience to the order to return rather than in the original abduction … (2) Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. Whatever the traditional form of notice to show cause may say, the burden of proof lies at all times on the applicant. (3) Contempt of court involves a contumelious, that is to say a deliberate, disobedience to the order. If it be the case that the father cannot cause the return of the child he is not in contempt of court, however disgraceful and/or criminal the original abduction may have been. Nor is it enough to suspect recalcitrance, it has to be proved …".

Lord Justice Hughes relied on the well-known case, now some years old, of Mubarak. The reason why that appeal succeeded was because:

"There was in the course of the judge's ruling no finding that the father was able to achieve return. Without that finding it seems to me that it was not justified to hold him in contempt of court. I have asked myself with some anxiety whether such a finding is implicit in what the judge said given that he would undoubtedly have been extremely familiar with both the onus and the standard of proof in a case of contempt of court, but it seems to me that in the absence of any evidence whatever from the mother it is simply not safe to assume a finding which has not plainly been made. In a case of imprisonment for contempt of court it is necessary that there be a clear finding to the criminal standard of proof of what it is that the alleged contemnor has done that he should not have done or in this case what it is that he has failed to do when he had the ability to do it. There must, as it seems to me, be a clear finding not only of breach of the order but that the breach was deliberate."

Reference is also made to the judgment of Lord Justice Wall in Re S-C [2010] EWCA Civ 21:

"if … the order … was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing".

So what Lord Justice Munby derived from those authorities was as follows:

"(1) The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law.

(2) The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopt Hughes LJ's language, Could he do it? Was he able to do it? These are questions of fact.

(3) The burden of proof lies throughout on the applicant: it is for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it.

(4) The standard of proof is the criminal standard, so that before finding the defendant guilty of contempt the judge must be sure (a) that the defendant has not done what he was required to do and (b) that it was within the power of the defendant to do it.

(5) If the judge finds the defendant guilty the judgment must set out plainly and clearly (a) the judge's finding of what it is that the defendant has failed to do and (b) the judge's finding that he had the ability to do it."

I apply those clear principles to this case.

25. Re L v W (supra) has of course been followed. Both counsel rely on Cambra v Jones [2014] EWHC 2264. Its particular relevance is as to the impossibility or otherwise of "best endeavours". At para.13 the President (as he became) says this:

"I add that the question of impossibility has to be determined by reference to the state of affairs as at the date fixed by the order for compliance. So the question is whether, on that date, it was or was not within the power of the defendant to do what the order required. As I explained in Re L-W, para 84:

'if the answer is that it was not (or, to be more precise, that it has not been proved that it was within his power) then that is the end of the allegation, and it matters not at all that [he] may by his own acts (or omissions) on previous occasions have brought about the state of affairs upon which he now relies by way of defence.'

That is particularly important in the present case where, as I have said, the mother in very significant part bears responsibility for the children's intransigence."

That is picked up later, in para.21, during the course of submissions, where it becomes clear:

"So her attitude has impeded the court's process and – no doubt intentionally – made it that much more difficult for the father to prove what he has to prove if his application is to succeed.

There is, in my judgment, very considerable force in Mr Turner's submissions. I was left by the end of the evidence with the very distinct impression that the mother had really done very little either to persuade the children to come to London, let alone to return to Spain. I was left with the very distinct impression that what little she did was indeed not much more than going through the motions. I accept Mr Turner's characterisation of her efforts as superficial, minimal and utterly inadequate. …

The question, however, as I have explained, is not whether the mother used her best efforts, or, indeed, whether she did everything she lawfully could to ensure compliance with the court's orders. The question is whether the father has proved to the criminal standard, so that I am sure, that the mother had it in her power, in the one case on 20-21 August 2013 and in the other case in September 2013, to do what the orders required. Could she do it? Was she able to do it?

…

Mr Turner rightly disavowed any suggestion that the mother should have had recourse to brute force or sedation. The question ultimately, therefore, comes down to this. Has the father managed to prove, so that I am sure on the totality of the evidence I have read and heard, that the mother could, whether by argument, persuasion, cajolement, blandishments, inducements, sanctions or threats falling short of brute force, or by a combination of them, have ensured compliance with the orders?"

In that case he had not.

26. In addition I bear in mind Victor Egeneonu did not, as he is not required to, give evidence -- both relying on Practice Direction 39 P2 and s.35 of the Criminal Justice and Public Order Act. In fact I gave what has always struck me as a slightly curious direction to counsel, asking counsel directly whether she had given certain advice and pointing out, if I thought it was fair in all the circumstances, I could draw an adverse inference.
27. I reiterate that the burden and standard of proof rests, and remains at all times, on the applicant; that the defendant has to prove nothing, but that that is not, of course, to say I am not able to take into account anything which emanates from the defendant (either Levi or Victor in their respective cases; one absent and the other who did not give evidence), but nonetheless the remaining principles are untouched.
28. I also take into account Re K, which is relied on; there is no argument at the Bar about that, and in particular para.62 of the judgment. It is a reminder that contempt of court involves a contumelious, that is to say deliberate, failure to comply with an order of the court. A re-statement of Re A but, as a matter of common sense, the order must be one with which the alleged contemnor had the ability to apply.
29. So far as the direct evidence is concerned, I can deal with it quite shortly. The mother gave evidence and was cross-examined. I put out of my mind the serious allegations which the mother makes against the father directly, that it was he who was responsible for an arson attack on the family home and, indeed, that her father died as a result of a murderous assault committed by either him or his confederates. But I do take into account what the mother did say in relation to the father generally. She described him as diabolical, evil and ruthless, and confirmed, when pushed, that she was not sure (or that is to say could not say) what more Victor could have done in relation to the charges only of using his best endeavours either to secure the attendance of Levi or secure the return of the children to this jurisdiction.
30. The mother was cross-examined by the father also. That questioning seemed to me to be entirely off the point and was entirely in accordance with the way in which he has directed his very many documents which have been filed before the court.
31. I have had no oral evidence from Levi Egeneonu. I have concluded that is entirely of his own volition. He did at one stage indicate that he was going to return to this jurisdiction and his passports were returned to him for that very purpose. But it is said that his health intervened, although, as I understand it, he is now back at home. In any event, he did not appear and did not make any arrangements, indeed, as far as I can tell, had done little or nothing to try and make sure that I would have the benefit of his evidence both in chief and by cross-examination. That was unfortunate for a number of reasons, not least because self-evidently it would have been a great advantage to Victor Egeneonu, I have no doubt, and also to the mother, to have been in a position, from different perspectives, to question him. I bear that in mind, particularly in relation to the case against Victor.
32. Victor Egeneonu did not give evidence. I gave a directive warning, as I have already indicated, pursuant to s.35, that he is under no obligation to give evidence at all and, having regard to the serious allegations, in particular of perjury, which are made, no doubt that may have been thought to have been wise counsel. He has, of course, given evidence on oath on four occasions before Judge Russell. He has lived in this country now for many years and has had the assistance from time to time of an interpreter, but there is no evidence before me as to his ability or otherwise to understand English. I bear in mind the points made by Miss Ramsahoye, in particular having regard to the way in which he was questioned over four occasions, now a year ago, but my overall impression is that it is evident that he could understand English sufficiently at least to answer some of the questions and the questions which are of seminal importance are ones which are entirely straightforward ones. Indeed there were occasions when he indicated he did not understand and the matter was looked at differently. I of course take into account the evidence filed on his (Victor's) behalf.
33. He endeavoured to call three witnesses, they all being in Nigeria. It seemed to me that there were almost insuperable difficulties. Whilst I did not take the view that necessarily they were engaged in the same conduct, even circus, as Levi Egeneonu, because that was the ultimate conclusion that I came to in his case, nonetheless there were a number of problems. Each of them had, over a year ago, filed some form of document or contribution to the wardship proceedings, and those documents could not have been in more contrary effect to the statements which were now filed by Victor Egeneonu. Those previous documents, of course, had been filed in relation to Levi Egeneonu.
34. I firstly heard from Godwin Anusie (known as Engineer Godwin). He gave evidence but even on the poor link on the mobile telephone, when an inconsistency, and indeed a number of inconsistencies, were put to him between his statement of 6^th January 2014 and his current statement, he became very agitated. His demeanour was quite clearly different. Indeed, he became almost incoherent. I have concluded that I can attach absolutely no weight whatever to what Engineer Godwin has to say. I do, of course, bear in mind, although it forms no part of the evidential analysis, that he is very much a part of this family; that he was very much concerned and involved with them as the telephone evidence demonstrates.
35. I then endeavoured to hear from Professor Madu. There is no dispute, as I understand it, that he is a highly intelligent, educated man, who teaches in English in Nigeria. Such was the difficulty of understanding what it was that was going on on the other end of his phone, that I asked for help using Victor Egeneonu's interpreter, for which I was very grateful, to be sworn to try and assist me. But, in fact, as became immediately apparent, the difficulty was not one of language. It was not an issue of communication. It became immediately apparent, until I terminated the call as being almost a complete waste of time, that actually Professor Madu did understand what was taking place but for one reason or another was not engaging in the process quite in the wholehearted way that the Court could have expected. It seems to me, although I place no reliance on what he says at all, that he was doing his level best not to engage in these proceedings and indeed to obfuscate whatever involvement he had. He is, I am afraid, tarred with the same brush as Engineer Godwin.
36. I then endeavoured to hear from Caroline Nwankwo, who is the paternal aunt, who it is said has from time to time, indeed, cared for, with the father, the children. The line was impossible and she could not hear us. Therefore I place no reliance on her evidence, I am afraid, whatsoever having regard to the contentions that are made in both ways.
37. Ultimately it seems to me, that in particular in relation to Engineer Godwin Anusie, that he said the first thing that would assist him, as he thought, and indeed, having regard to the divergent expressions that appear in the statements about 12 months apart, in my view it is more likely than not that he would say the first thing that would come to his mind that would assist the moment, initially the father and now Victor. As I say, I can place no reliance on his evidence.
38. A part of the evidence which I have not yet referred to concerns the telephones. It is not, and indeed cannot really, be challenged. I would wish to attach to this judgment the extremely helpful chronology which has been prepared by Mr. Perkins and his instructing solicitor which, whilst it might be selective as to some of the evidence on which it concentrates (that is the evidence given before Ms. Justice Russell), puts into context the telephone activity of Victor and Levi Egeneonu in particular. I adopt it in its entirety into this judgment. I summarise it as follows. On 3^rd December 2013 Victor called Levi Egeneonu on the 7100 telephone. It is the only time, as far as I am aware, that that telephone was used until it started being used exclusively upon the father's exit from this country to Nigeria, the phone then being used from 7^th February onwards.
39. What the mobile telephone records show is that Victor and Levi were in almost daily contact: 3^rd December, 4^th December, 5^th December, 6^th December, 7^th December, 8^th December, and following. What is of particular note is that around the times of the hearings there is a great deal of telephone activity. So, for example, the case came before Judge Moylan, at the end of December. He made an order and over the course of those few days it is evident that there was significant activity between Victor and Levi, frequently several attempts a day (not all of them successful, I make it clear, but several a day). That activity was particularly intense at the time when the court hearings were taking place. I note that, for example, on 19^th December Levi used the 3410 telephone to send a text to Nigeria, thus, as it were, lampooning what was alleged by Caroline in her statements. In any event, that activity continues and so, for example, on the day the matter was heard by Judge Richards (8^th January), Victor endeavours to speak to Levi by telephone and again the following day and the day after, and so on, and so the pattern develops.
40. Not without significance, in my judgment, was what was taking place during the two day hearing before Ms. Justice Russell. It started on 29^th, the judgment given on 30^th January. At 8.38 that morning (that is the first morning of the hearing) Victor calls Levi. He does so again at 20 past 12, possibly during the short adjournment, and again at 31 minutes past 5 and 10 minutes past 6. It is not without significance that on 30^th January no less than one attempt and two calls were made by Victor to Levi, all of them in the afternoon or early evening. There is a battery of activity between the two men. There are a number of attempts on almost every day, a number of pages of them, leading up to, and including, 6^th February 2014. That, of course, is the day that Levi Egeneonu left the country.
41. Then, very curiously, on 7^th February 2014 Victor, who continues to regularly get in touch with and speak to Levi on his mobile telephone, then starts using a different mobile telephone. So, for example, on 7^th February there were no fewer than five contacted calls as well as a number of failing contacts and, indeed, on that day there were many occasions when he endeavoured to speak to him. In the evening he spoke to him for 157 seconds and therefore on a number of days there were many occasions when he spoke.
42. That frequent contact continued, and again the pattern is replicated, when the matter went before the court on 19^th February. It is clear on that occasion that Victor called and spoke to Levi, as it appears, that morning. Thus the pattern continues through February, until the father gives evidence on 26^th February before Ms. Justice Russell. Although much is made of the manner in which he gave evidence -- he was unrepresented, no doubt catapulted into the witness box and cross-examined -- nonetheless I am entirely satisfied that he understood (a) the purpose of the questioning and (b) the real effect of what was being put to him. So that, for example, when he gave evidence, that he spoke to Levi around the first week of this month, whilst of course I accept the submission that no one can be expected to remember precisely when one spoke to somebody or possibly how frequently, the clear effect of that evidence was that he had not spoken to him certainly for a couple of weeks or thereabouts. But that, of course, as the telephone evidence clearly shows, was a palpable and a deliberate lie. He was cross-examined. He said that he did not know and had denied speaking to Victor since the first week of February. That clearly was nonsense. He did not know where Victor was. I am entirely satisfied, having regard to the evidence that I have seen, that also was nonsense. The phone records demonstrate completely the contrary. That he did not think that he had spoken to Levi more than ten times before 5^th February, as the records show, whilst it would be wrong to split hairs, if it were twelve or eight or sixteen or six one might not have been too troubled, but he spoke to him repeatedly and on a daily basis. He said that he did not know whether he was in Nigeria. He said, "Actually I don't know". I think it is clear from the evidence, and I am absolutely satisfied so that I am sure putting all the above matters together, that he did in fact know.
43. One thing that is clear is that he asserts on a number of occasions, and indeed corrects, the relationship between himself and Levi, asserting as he did in evidence that Levi was his father. I of course take into account the submissions made in relation to that, I have seen a marriage certificate; there is the 2004 settlement visa, though I have not seen the reply from the Home Office from the EX660, and, of course, the expressed view both of Levi and of Victor is that their relationship is one of father and son, not of brothers. I do not have to decide this issue but, in my view, it is an issue which will need to be decided, it may well be that there is a significant immigration issue here. I am not, of course, in any way going to speculate as to the method and mode of Victor Egeneonu's entry into this country. It may be that if he was Levi's brother that he would not have been able to enter or settle in the way in which he had, but as his son, having regard to his age, he may have been. That is a matter which in due course I shall consider at the conclusion of this case, as to the extent to which the Home Office and the immigration authorities should be involved. But for the purposes of the committal, it is irrelevant because I proceed on the basis that there is a familial relationship between Victor and Levi.
44. So the position so far as that is concerned is that the telephone evidence demonstrates, and puts the lie to, what was being said expressly by Victor Egeneonu to the judge on the many occasions when she clearly and unambiguously questioned him.
45. Returning to the committal notices in relation to Levi, it is set out at B186 in the bundle. The applicant alleges that Levi has failed to do a number of things and has expressly broken the court order. Firstly, that in breach of the very first order, and subsequently repeated by no fewer than two other judges, he was ordered not to make any application for, obtain, seek to obtain, knowingly cause, permit, encourage or support any steps being taken to apply for or obtain any passport, identity card, ticket, travel warrant or other document which would enable the respondent to leave England. On 6^th February Levi Egeneonu left the country. He went to Nigeria. I am not going to speculate as to whether he retained documents or obtained documents from the Nigerian authorities. The fact is he went there and remains there and that is a clear breach of that and the two successive orders which followed them.
46. In relation to the undertakings, and which were repeated subsequently by Ms. Justice Russell when I deal with the committal notice, Levi gave an undertaking not to intimidate, harass, pester or, indeed, threaten her with violence. The applicant gave very clear evidence as to what she says occurred when, firstly, she was left an angry voicemail on 22^nd March and subsequently when, on an unidentified number, the father spoke to her. It seems to me, having regard not just to what it is said was said by him but also having regard to the way in which he conducted himself, that what was said both on 14^th March and on 22^nd March to her was entirely consistent (a) with his manner before me when cross-examining her; (b) with the context of the proceedings which were then taking place, that is to say the going was getting rougher because Victor was being involved, something which the father objected to, and (c) I have no reason to disbelieve what the mother says about that. I am entirely satisfied so that I am sure that those allegations are made out.
47. As a consequence of the judgment on 30^th January 2014, the father was ordered and required to do a significant number of things: arrange for the children to be produced at the British High Commission in Lagos; to arrange for them to be transferred into the care of an uncle, Dr. Osuji; to cause the children to be returned to this jurisdiction, and to confirm by a date (7^th February) that he had booked flights. None of those things occurred. In fact the evidence now demonstrates that far from booking flights putting everybody off their guard, LE reserved seats but did not book them. That no doubt was yet another device engaged by him in order to give himself more time. Subsequently, of course, orders were made for him to attend a number of hearings (three) and he is in breach of each of those.
48. As I make clear, he has left the country in breach of the order; left the jurisdiction; he has failed to produce the children; he has failed to cause the children to return; he has failed to attend the various hearing which I have set out. I am entirely satisfied that those individually and severally are contempts of court. I am satisfied so that I am sure that that is the case and that is my finding.
49. In relation to Victor Egeneonu, the committal notice in relation to him begins at para.B257. On 26^th February 2014 he was ordered, that order only being served on him on 3^rd March 2014, to use his best endeavours to contact his brother and to inform him that he must attend on 5^th March. In addition, I take that and read that as, also para.5 on 5^th March, using best endeavours to contact Levi Egeneonu to inform him that he must attend on 14^th March. In addition, and in a similar vein, was the order to use his best endeavours to contact Levi Egeneonu to inform him that he must attend on 20^th March. Then an order in a different flavour, the order of 20^th March to use his best endeavours to ensure that the children are immediately returned to the jurisdiction of England and Wales.
50. What is evident from the evidence, which is not challenged before me, is that Victor Egeneonu was in regular, indeed almost daily, contact with Levi Egeneonu. I have no evidence as to the content of what was said. I bear in mind, of course, that Levi Egeneonu has expressed in a number of places no opinion whatever of Victor. He has said, for example, that he would not do as he was told by Victor. "He cannot tell me what to do. He cannot decide my future or that of my children". He describes him as weak and that he could not decide for him. But I note also that he additionally decides that, "He did not know that I left the UK". I find that Victor did know that he had left the UK and when he left the UK as the telephone calls, and the number that he called, directly demonstrates this. So to an extent that is simply evidence which reinforces the mother's description of Levi, that he is someone who at a particular moment says whatever comes to mind at a particular time if it will assist him.
51. But what I am anxious about in relation to those passages is that what is alleged and relied on by the mother is that he has not used his best endeavours. In my judgment, I think that although I have the gravest suspicions as to what has taken place, it seems to me that whereas it is not specific as to what he should have done, and whereas there is evidence, as there clearly is, of repeated contact, and there is some evidence, having regard to, I think, a copy of a text message which I have seen, that he did endeavour, on the face of it, to encourage Levi Egeneonu to come back, I cannot and could not be satisfied that he has not used his best endeavours.
52. However, I am much, much more troubled by what is further alleged in the committal notice, which is that he has committed a contempt in the face of the court, that is to say when he gave evidence on a number of occasions before Judge Russell. As the transcripts show, whereas he had been ordered to provide information to the court, and indeed directly upon service to those instructed by the mother, he failed to do so. The best evidence of that is immediately apparent if one follows the path of the transcribed evidence, when he was directly asked and put on the spot his way of avoiding the question, as I find he was, was "My mind is not going anywhere". Russell J had not been told, and was not told, expressly that there was frequent and daily contact between Levi and Victor Egeneonu. I have little doubt that the course she would have taken might have been different had she done so. In fact, what Victor Egeneonu made quite clear was that he did his level best to ensure and maintain a position that he had a very limited relationship with his brother. It was accepted by the mother that there had been a schism in the relationship between 2009 and 2012, but that is not the position now. The position now is that notwithstanding the fact that he says, "I don't normally call and we are not on good terms", the evidence suggests that precisely the contrary.
53. In my judgment Victor lied to the court on a number of occasions and continued over several hearings, with the express purpose of misleading what is in fact a very serious enquiry by this court. I am entirely satisfied that it was done deliberately. I do not in any way underestimate the potential influence of Levi Egeneonu upon him, but my findings, therefore, are that in relation to that part of the committal, that is to say that Victor Egeneonu had provided a false statement of truth in his sworn testimony and has actively told lies before a Judge of this Division, I am satisfied so that I am sure that that is what he did and I am sure it was done for one purpose. To that extent I find the committal is proved.
54. I shall adjourn sentencing, and do so to the first week of next term. I do so very deliberately. I do it for these reasons. I have no formed view as to what I shall do at the moment. A pause for reflection is appropriate. Ordinarily such a contempt in the face of the court, in a criminal court, would lead, as counsel knows, to an immediate and fairly significant term of imprisonment, as, for example, trials of politicians have recently demonstrated. I have in mind referring this judgment, together with the evidence, to the Crown Prosecution Service and to the immigration authorities. At the moment I shall not do so (I shall put particular weight as to whether the children have been returned by then). I shall ask for further assistance from counsel when I reconvene on sentence. That will be some five or six weeks hence.