Young v Young

A court may impound a party’s passport during pending financial remedy proceedings where this is necessary to protect its procedures. Because such an order restricts the liberty of the subject and freedom of movement, the power must be exercised cautiously and ordinarily for a short period.

The applicant for restraint must establish a good cause of action for a substantive award, probable cause to believe that the other party is about to leave the jurisdiction, and that departure would materially prejudice prosecution of the claim. Observance of those requirements may make the restriction a proportionate public-policy measure based on the restrained party’s personal conduct. Exceptional circumstances may justify restraint until trial, provided that the restrained party has liberty to apply again for discharge.

During long-running financial remedy proceedings following divorce, the husband applied for the release of his passport. It had been held by the tipstaff under a sequence of orders made after failures to comply with disclosure obligations. The wife opposed release until the final hearing, contending that the husband’s departure would impede further disclosure and any proceedings needed to compel compliance.

The court considered its power to restrain departure under section 37(1) of the Supreme Court Act 1981, by analogy with section 6 of the Debtors Act 1869. It also considered the common-law protection of liberty, Convention rights, and European Union freedom of movement. The central question was whether continued impoundment for a further nine months was lawful, necessary and proportionate.

1. The husband’s application was dismissed. A court has power to impound a passport during pending financial remedy proceedings in aid of its procedures leading to disposal of the case. The power derives from section 37(1) of the Supreme Court Act 1981 and must be exercised consistently with the safeguards reflected in section 6 of the Debtors Act 1869 (paras [18]–[21], [26]).

2. Passport impoundment does not necessarily engage article 5 of the European Convention on Human Rights 1950. Confinement to the United Kingdom and the Republic of Ireland was not confinement to a sufficiently limited place. On the evidence, article 8 was also not engaged because no relevant restriction of family or private life was demonstrated (paras [5]–[8]).

3. The power restricts the liberty of the subject and must therefore be exercised cautiously. The law favours liberty, and the authorities emphasise that restraint should ordinarily be short-lived. The applicant must establish: a good cause of action for a substantive award; probable cause to believe that the respondent is about to leave the jurisdiction; and that departure would materially prejudice prosecution of the claim (paras [11]–[21], [26]).

4. Those requirements were satisfied. The wife had a good cause of action for a substantive award. The husband intended to leave the jurisdiction, and his explanation that he wished to undertake charitable work in Africa was implausible. His departure would materially prejudice the wife’s financial remedy claim because substantial disclosure remained outstanding and further coercive orders might be required (paras [27]–[32]).

5. The husband remained subject to an extant finding of contempt for breach of disclosure orders and was also in serious default under the maintenance order. It was for him to demonstrate full compliance with his disclosure obligations. A bare assertion of belief in compliance was insufficient, and the evidence demonstrated continuing deficiencies (paras [29]–[31]).

6. Continued restraint for nine months lay at the extremities of the court’s powers. The exceptional facts nevertheless justified it. The order was a proportionate public-policy restriction on European Union freedom of movement, based on the husband’s personal conduct, and was accompanied by liberty to apply again for discharge (paras [22]–[26], [33]–[34]).

• High Court (Family Division): The present application sought discharge of passport-impounding orders. The application was dismissed by the court in [2012] EWHC 138 (Fam).

• Earlier proceedings: Orders made between March and September 2009 required the tipstaff to retain the husband’s passport. Parker J found him in contempt for non-compliance with disclosure orders and imposed a suspended six-month sentence. A later consent order continued impoundment until further order.

• Maintenance proceedings: In December 2009 Black J ordered substantial maintenance pending suit. The husband did not appeal and had paid nothing under that order by the present hearing.