Committal proceedings: How a court
enforces child arrangements orders
and other orders relating to children
Christopher Hames QC –
Ormrod LJ in Churchard v
Churchard [1984] FLR 635
• [Committal to prison] would mean two things:
first if committed, that their mother would be
taken away from them for a time and their
father would be branded in their eyes as the
man who had put their mother in prison... An
application to commit for breaches of orders
relating to access are (sic) inevitably futile and
should not be made.
Ward LJ in Re F unreported 13 May
1996
• In my judgment, it is time that it is realised
that against the wisdom of the observations of
Ormrod LJ is to be balanced the consideration
that orders of the court are made to be
obeyed... It is perhaps appropriate that the
message goes out in loud and in clear terms
that there does come a limit to the tolerance
of the court to see its orders flouted by
mothers even if they have to care for their
young children.
Re L-W (Enforcement and Committal: Contact) [2010]
EWCA Civ 1253; [2011] 1 FLR 1095 per Munby and
Sedley LJJ
• Appeals by father against 3 compensation orders,
2 enforcement orders and 1 committal order for 6
breaches of contact order by him.
• Given 28 days on each breach suspended for 12
months on condition obeyed contact orders
• 2 children – boy 10 lived with father and girl 8
lived with mother
• Intractable contact dispute over the boy who, it
was reported, refused to see his mother
• Appeals against committal allowed in part
Thoughts of Munby LJ
• Not just concerned with the welfare of child
• Caring for child not a shield
• Courts must do their duty by Parliament; if court yields, respect for court
orders and administration of justice would be at an end
•No court should threaten coercive action unless prepared to see it through;
•Committal is an order of last resort
•Difficult balance. Where child refusing to comply has too much power –
either can decide to go, reluctantly and under sufferance and overflowing
with resentment to keep parent out of prison – or if fails to go can have
residential parent punished
•Difficulty for judge – even if find that parent created the child’s objection
question is: can that parent do anything about it?
•If committal order stood – indefinite committal applications and could have
lengthy periods of imprisonment
•Maybe 1 or 2 days earlier in proceedings – worth keeping in mind
•Court can defer sentence (as well as suspend sentence) – carrot as 2 years
prison is maximum total on any one occasion
Judge Caddick
at first instance
• It is as a matter of law no defence to say that
producing the child for contact is ... impossible
because of the child’s refusal to come
• It is not for me to advise him as to how to do it
• The father has it in his power to persuade [the
boy] to have contact with the mother
Legal Principles
[34] What I derive from these authorities are the following further propositions:
(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.
Principles (continued)
(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.
Human Rights
• Committal proceedings are criminal proceedings –
Hammerton v Hammerton [2007] 2 FLR 1133
• There is therefore unqualified right to a fair trial, particularly
in a criminal process which could lead to the deprivation of
liberty [Art 6(1)] and the presumption of innocence [Art 6(2)]
are directly engaged.
• FPR 2010 PD 37A, para 8, now enshrines that principle: 'In all
cases the Convention rights of those involved should
particularly be borne in mind'.
• The defendant can not be compelled to give evidence but is
entitled to give evidence and call witnesses
Jones saga – [2014] 1 FLR 852 and
[2014] EWHC 2264 Fam
• Mother’s failure to return children to Spain pursuant to summary
return order
• Children objected to returning
• Objecting child was joined as a party to the committal proceedings,
gave challenged oral evidence and made full submissions through
counsel
• Impossible to read implied terms into an order
• Not “strict liability” – the breach has to be ‘contumelious, that is to
say a deliberate, disobedience to the order.’
• No reversal of burden of proof
• The court awarded non-means tested criminal legal aid to the
defendant’s legal team – see Chelmsford CC v Ramet [2014] 2 FLR
1081 and King's Lynn and West Norfolk Council v Bunning (Legal Aid
Agency,Interested Party) [2013] EWHC 3390 (QB)
Procedure – FPR 37 and PD 37A
• Order being enforced must:
– Be clear, precise and unambiguous
– Must be directed to person or persons or group or
class of persons who are intended to be bound
– Must have penal notice on front of order –
FPR37.9(1) (not on later page)
– Be personally served, although personal service
can be dispensed with if just to do so FPR37.5 to
37.8 – or court can order alternative service
Procedure (2)
• The hearing date must be not less than 14
days after service unless the court specifies to
the contrary. The date is obtained on issue.
• FPR 37.10 mandates Part 18 Procedure
• PD5A Table 2 specifies Form FP2
• 37.10(3) requires application to set out
grounds and each alleged breach separately,
numerically and by date
Procedure (3)
• FP2 not fit for purpose unless ‘rider’ added.
• FPR PD 37A, para 13.2 procedural defects can be
waived if court no injustice caused
• FPR PD 37A para 13.1 provides a strike out power
• See Re An Application by Gloucestershire County
Council for the Committal to Prison of Matthew John
Newman (No. 1) [ 2015] 1 FLR 1359 per Munby P and
H v Dent, McKay & Harman [2015] EWHC 2090 Fam
per Roberts J
Practice Direction of 26 March 2015 – Committal
for Contempt of Court Open Court
• Committal proceedings should generally be held in public save
for certain prescribed circumstances – and all advocates and
the judge must be robed
• In all circumstances with no exceptions, where a committal
order is made, the judge must state in open court: the name;
the nature of contempt in general terms and the punishment;
and sent to the national media, via the CopyDirect service,
and to the Judicial Office
• In addition in all committals, either the written judgment or a
transcript of an oral judgment judgments must always be sent
as above and to Bailii; and transcript ordered on the day of
the judgment and expedited.
Re K (Return Order: Failure to Comply:
Committal: Appeal) [2015] 1 FLR 927
• Father failed to comply with order to cause the
return to England of 2 year old child placed with
PGPs in Singapore
• Father applied to different judge without notice
to discharge the order
• Father unrepresented
• Father applied to judge to recuse herself
• Judge sentenced him to 18 months imprisonment
• Appeal allowed – father released from custody
forthwith
Reasons (or warnings!)
• Judge should have recused herself. In contested proceedings,
often better (and safer) for another judge to hear the
committal proceedings – echoing following Hammerton v
Hammerton : contact should be dealt with separately to
committal
• Father asked by judge to give evidence and then immediately
cross examined – without being warned he was not obliged to
give evidence AND without giving evidence in chief first
• Judge failed to consider whether mother had established that
father could have complied – father had delivered up
passport, pleaded he had done all he could to persuade the
grandparents to return and had run out of money
Warnings (continued)
• Judge elided: original deceptive behaviour with proof of
breach; made a finding on balance of probabilities that father
had colluded with the grandparents; and failure to comply
with the return orders from the separate question of whether
that failure was contumelious
• Judge placed undue weight on application without notice to
discharge order – when nothing to do with contempt
• Judge assumed he could make applications in Singapore
against grandparents without any evidence that he could or
the likely result
• Finally – then judge proceeded to deal with sentence without
any further opportunity to secure representation or make
submissions