A (A Child)

A committal for contempt based on disobedience of an order to return a child requires proof to the criminal standard. The applicant bears the burden throughout. It must be proved that the alleged contemnor had the ability to comply and deliberately failed to do so; suspicion of recalcitrance is insufficient.

Proof of ability may arise from all the evidence, including the alleged contemnor’s evidence and the inferences properly drawn from successive explanations. The applicant need not prove a particular available step. However, a judge imposing imprisonment must make clear findings that deliberate non-compliance by a person able to comply has been proved.

The father removed his young child from England to Syria and left the child with his family. Orders requiring him to secure the child’s immediate return remained in force. After he had not obtained the return, Coleridge J made a suspended committal order for two months’ imprisonment, which took effect when the father did not comply within the further period allowed.

The father appealed. He accepted that the child remained in Syria and had not been returned, but contended that the mother had not proved that he could procure the return and had deliberately disobeyed the orders. The central issue was whether there was sufficient evidence and a sufficiently clear finding to support committal for contempt.

1. Appeal allowed. The court set aside the committal order. The order requiring the father to secure the child’s return remained in force.
2. Contempt lay in disobedience of the return order, not in the original removal of the child. The removal could amount to grave misconduct and might constitute an offence under section 1 of the Child Abduction Act 1984, but it was not itself a contempt because no order prohibited it when it occurred.
3. The applicant had to prove contempt so that the judge was sure. The burden did not shift. The court accepted that contempt required deliberate disobedience and that a person unable to cause the child’s return was not in contempt. In that respect, the court applied LB of Southwark v B [1993] 2 FLR 559 and Mubarak v Mubarak [2001] 1 FLR 698.
4. The court rejected the father’s further submission that the mother had to prove a particular practical step available to him, or that his family in Syria was ready and able to assist. A judge could infer ability to procure return from the surrounding evidence. But here the mother had adduced no evidence, beyond a Foreign and Commonwealth Office letter, concerning the practical ability of an adult sibling to obtain entry clearance and accompany the child to the United Kingdom.
5. There was no clear finding that the father could achieve the return, and therefore no clear finding to the criminal standard that his breach was deliberate. The committal could not stand. A fresh application remained open if evidence established a means by which he could secure the return and a deliberate failure to do so.

• Court of Appeal (Civil Division). Allowed the appeal and set aside Coleridge J’s committal order.
• High Court, Family Division (Principal Registry). Coleridge J made a suspended order committing the father to prison for two months unless he secured the child’s return by 11 August 2008; it then took effect.
• High Court, Family Division. Hedley J had rejected an earlier challenge to the orders requiring the child’s return.