Hammerton v Hammerton

Committal proceedings in family cases determine a criminal charge for article 6 purposes. A person at risk of imprisonment is ordinarily entitled to legal representation. The court must inquire into an unrepresented party’s position and, absent unreasonable refusal or exceptional urgency, adjourn so that representation can be obtained.

A contact application should not ordinarily be heard with a committal application where doing so forces a parent to choose between proving contact and exercising the privilege against self-incrimination. The allegation must be strictly proved, with a proper opportunity to challenge evidence. Before imposing imprisonment, the court must hear mitigation and consider the proper purposes of sentencing.

The appellant father applied for contact with two children. His former wife applied for his committal for alleged breaches of undertakings and a non-molestation order. At Woolwich County Court, His Honour Judge Collins heard both applications together while the father was unrepresented.

The judge made an order for indirect contact, against which there was no appeal. He found eight alleged breaches proved and committed the father to prison for three months. The father appealed against the committal order and sentence. The central issue was whether the procedure had afforded the safeguards required before an unrepresented litigant could be imprisoned for contempt.

1. Appeal allowed. The findings of contempt and the three-month sentence were quashed. The procedural failures affected both proof and sentence and made that result inevitable.

2. Per Moses LJ, with whom Wall LJ expressly agreed, a committal application is a criminal charge for article 6 purposes. Under section 6 of the Human Rights Act 1998, the court had to secure the appellant’s article 6 rights. A person facing loss of liberty was entitled to legal representation unless unreasonable conduct made representation impossible. The judge should have asked why the appellant was unrepresented and adjourned the committal application while a pending legal-aid review was resolved.

3. Hearing the contact and committal applications together placed the appellant in an irreconcilable position. He needed to address the alleged conduct to obtain contact, but he was not obliged to give evidence in his defence to the criminal charge. The judge gave no warning of that right and did not distinguish the different burdens and standards of proof. There was no demonstrated urgency requiring the committal application to proceed with the contact application. It should have been adjourned, preferably for another judge.

4. The applicant for committal bore the burden of proving contempt to the criminal standard. Disputed evidence, including the content of telephone calls, had to be properly proved and the alleged contemnor given a fair opportunity to cross-examine its author and adduce contradictory evidence.

5. The sentencing process was independently flawed. The judge did not hear mitigation, did not consider the family context and future compliance, and referred to old convictions apparently unrelated to the allegations. Legal representation might also have obtained a police report materially contradicting aspects of the incident treated as decisive.

6. Wall LJ added that serious domestic violence and harassment may justify immediate imprisonment when proved in fair proceedings. The contact context does not ordinarily mitigate such conduct. He also observed that an undertaking restricting a litigant in person from contacting the other party’s solicitors should preserve communications necessary to conduct proceedings.

• Court of Appeal (Civil Division): Allowed the father’s appeal and quashed the findings of contempt and the custodial sentence.
• Woolwich County Court: His Honour Judge Collins found eight alleged breaches proved and committed the father to prison for three months. He also made an unappealed order for indirect contact.