Bold v Khew

Where a party’s personal attendance has been contemplated or required for a substantive hearing, fairness may require an adjournment if that party is temporarily imprisoned abroad and cannot attend. The court should consider the expected duration of the absence and the urgency of the proceedings.

Retention of a passport is a powerful restriction on liberty. It must remain strictly necessary and proportionate, and should not continue longer than required. A proposed undertaking or property security may be insufficient where the factual dispute remains unresolved and the relief sought concerns the return of a child.

The proceedings concerned a child who had been habitually resident in England and Wales but had lived in Singapore with the paternal grandparents for most of his life. The mother was imprisoned in Singapore following her arrest there and could not attend the hearing in person. The hearing had been listed to consider the future conduct of the wardship proceedings and the father’s application for return of his passport.

The father sought immediate return of his passport so that he could travel to Singapore and undertook to return for the adjourned hearing, supported by proposed security over property. The issues were whether the substantive matters should be determined in the mother’s absence and whether the passport should be returned pending a later hearing.

1. Adjournment. It would be unjust to determine the substantive issues while the mother was imprisoned in Singapore and unable personally to attend, particularly because the previous order had contemplated and effectively required her attendance. Her expected release was shortly forthcoming, and the case did not have the degree of day-to-day urgency that would justify proceeding in her absence. All issues were therefore adjourned to 31 October 2014.
2. Passport retention. An order retaining a passport substantially restricts freedom of movement and must remain strictly necessary and proportionate. The court recognised that the father had been unable to leave England and Wales for many months, but the passport had been retained by an order of a judge of co-ordinate jurisdiction during existing proceedings.
3. The court declined to return the passport immediately. There had been no adjudication on the circumstances in which the child had not returned to England. The mother disputed the father’s reliability, and the proposed property charge would require detailed investigation of ownership and existing charges. It would also provide no complete answer to the mother’s claim, which concerned the return of the child rather than financial compensation.
4. The judge indicated that the court might soon need to cede jurisdiction and decision-making to an appropriate Singapore court, given the child’s lengthy residence there and the judge’s confidence in the Singapore legal system. If the mother were free to attend on 31 October but failed to do so, the proceedings might then be discontinued, subject to the discretion of the judge hearing the matter.

The judgment records that the father’s committal to prison had previously been set aside on appeal and that the Court of Appeal ordered his release. The other orders then in place were not disturbed. No citation for that appellate decision is stated in the judgment.