A British appeals court has freed a Singaporean dad jailed for contempt after finding the judge involved should have recused herself from dealing with the case.
The court held that the judge had been so "steeped" in the child wardship case, which led to the contempt hearing, that it would have been a "better course" and "a safer one" for another judge to hear the case.
In April, the Singaporean banker was jailed for 18 months for failing to return his Singapore-based two-year-old son "M" to London, as ordered in an ongoing custody tussle with his estranged London-based wife. The man, who cannot be named, had not complied with court orders to return M, who has been looked after by his paternal grandparents here since last July.
The appeals court, in judgment grounds released last week, held that it was "inappropriate" for the judge to deal with the man for contempt, given her strong remarks which an appeals court judge described as coercive in the run-up to the actual contempt hearing.
"The more robust a judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of the breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process," wrote Lord Justice Andrew McFarlane in the judgment grounds.
The court, however, made clear the judge was justified for her "very robust demeanour" in warning the man of the potential consequences of disobeying court orders, in the earlier hearings leading up to the contempt case.
The couple married in Singapore in 2011 and subsequently lived in London, but the relationship soured and his Mongolian wife obtained a British court order which held that the child's habitual home is in London.
It instructed the father to return the child to her care. But he failed to comply with court orders issued on March 14 and March 21 this year for the boy's return, which led to the contempt hearing on April 3, when he was jailed.
On appeal, the court found that the man was confined in London and therefore not in a position to carry out the judge's orders as his parents in Singapore had refused to send the boy back.
It emerged that the grandparents had instead taken court proceedings in Singapore to keep the boy here and the grandfather no longer responded to the man's e-mail or spoke to him.
"In this case, the father had delivered up his passport and so could not return to Singapore to collect M himself," noted Lord Justice David Kitchin.
"He also maintained he had done everything he could to comply with the three orders made against him. There was nothing more he could do because he had exhausted his funds and because he could not take action against his parents, for that would destroy his family." Contempt involved a deliberate failure to comply with a court's order but the order must be one where the alleged contemnor had "the ability to comply", he added.
The court also held that the judge erred in not allowing the man a further opportunity to make submissions to mitigate, for the purpose of sentencing, against the serious nature of the contempt of which he had been found guilty.
The appeals court also upheld the judge's "unusual" order that the man pay the full £51,800 (S$109,850) to his wife for the costs of the proceedings, based on his unreasonable conduct. It also further upheld the judge's ruling that the child was to return to his habitual residence in London.
The court remitted the case to the London High Court to reconsider fresh orders against the man in relation to M. It called for "continued liaison" with the Singapore High Court through the appropriate channel for the return of M to London as soon as possible.