Family analysis: Sarah Keily, partner at Thomson Snell & Passmore in Tunbridge Wells, discusses the decision in CH v CT  EWHC 1310 (Fam),  All ER (D) 03 (Jul), which illustrates the need to strictly comply with the relevant procedural requirements when seeking a committal order following a breach of a child arrangements order.
What are the practical implications of this case?
The judgment, handed down by Baker J, makes it clear that the procedural requirements set out in the Family Procedure Rules 2010 (FPR 2010) (SI 2010/2955), Pt 37, and FPR 2010, PD 37A, must be strictly complied with if the court is to make an order committing a party to prison for non-compliance with a child arrangements order. The fact that a party has failed to comply with an order does not empower the court to make a committal order if the procedural requirements have not been complied with.
Practitioners should be mindful of the fact that a committal order cannot be made in respect of a child arrangements order unless there is prominently displayed, on the front of the copy of the original order, a warning that failure to comply would be a contempt of court punishable by imprisonment, a fine or sequestration of assets. Practitioners should make sure that if they have concerns about a party complying with the terms of the order, the correct warning is endorsed on the front of the order when it is served.
A committal application should be made using procedure under FPR 2010, SI 2010/2955, Pt 18. The application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt –
including, if known, the date of each of the alleged acts. The application notice must be supported by one or more affidavits containing all the evidence relied upon. The application notice and the evidence in support must be served personally on the respondent. The court found that none of those requirements had been compiled with in this case.
The judgment provides helpful guidance on the availability of legal aid in respect of committal applications. The mother argued that as she was under threat of prison and in receipt of benefits, she was entitled to legal aid, and the court should have satisfied itself that there was a good reason why she was unrepresented before making the committal order, and adjourn the hearing if necessary. The court found that ‘there is no financial test for criminal proceedings in the High Court, and that a person who is the subject of a committal application in that court, including an appeal against a committal order, is entitled to publicly-funded representation’.
Practitioners should therefore make sure that the issue of public funding has been addressed before proceeding with the committal hearing, so as to avoid the risk of a successful application to adjourn the proceedings to allow the respondent to obtain representation.