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Applying to commit for breach of a child arrangements order

Date:19 JUL 2018
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Family analysis: Sarah Keily, partner at Thomson Snell & Passmore in Tunbridge Wells, discusses the decision in CH v CT [2018] EWHC 1310 (Fam), [2018] 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.
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What was the background?

The case concerned E, a child almost five years old, who had lived with her mother throughout her life. E’s father died in 2014 and E’s paternal grandparents were no longer in a relationship.

Following her father’s death, E had had contact with her paternal grandmother (C) and her partner (P), but that contact broke down. C and P applied successfully for a child arrangements order so they could resume contact with E, with the justices finding that ‘it was appropriate for the paternal grandparents to have time with their granddaughter’. The order was opposed by the mother and she failed to comply with it, never making E available for contact with C and P.

The mother applied for permission to appeal the order, and for a further child arrangements order to be made. Both applications were refused. C applied to enforce the original order under s 11J of the Children Act 1989.

In February 2018, a committal order was made which stated that the mother was to be committed to prison for three months, suspended for four months. The mother appealed against the committal order arguing, among other things, that she wasn’t given any warnings by the court of a prison sentence being a possibility.

What did the court decide?

The court allowed the mother’s appeal, finding that there had been a number of serious procedural irregularities and that the recorder’s order was wrong. There had been no application to commit the mother and she did not have proper notice of the committal application. There was no identification of the alleged acts of contempt, and nothing to indicate that the mother had been made aware of the possible availability of criminal legal aid. The recorder’s judgment did not adequately set out the breaches she found proved and the recorder did not give sufficient consideration to the making of an enforcement order, which was the order originally applied for by C.

The court went on to find that in any event, the original order was not capable of being enforced by committal at all, as it was not endorsed with a penal notice that complied with FPR 2010, SI 2010/2955, 37.9(1), and FPR 2010, PD 37A 1.1 and FPR 2010, PD 37A 1.2.

A committal order should be a remedy of last resort, but in this case one should not have been made at all, due to the procedural failures.

What guidance was given about how a child arrangements order can be enforced by an application to commit the defaulting party to prison for contempt of court?

This judgment provides a helpful guide to how a child arrangements order can be enforced by an application for committal to prison. Practitioners should refer to the summary of the law and procedure set out by Baker J, and should consider carefully whether they are seeking an order for enforcement or an order for committal.

If practitioners are seeking an order for committal, they must strictly comply with the requirements set out in FPR 2010, SI 2010/2955, Pt 37 and FPR 2010, PD 37A. They must also make the respondent aware of the possible availability of criminal legal aid, to avoid the risk of an adjournment for funding to be obtained.

Interviewed by Emily Meller.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial