M (A Child), Re

In contempt proceedings arising from breach of a court undertaking, an alleged contemnor cannot defeat the process by knowingly failing to attend. The court may proceed in the person’s absence where the person knew of the hearing, the undertaking and the consequences of breach, and deliberately chose not to attend. A prior adjournment and the availability of written evidence and witnesses may support that course, although it should generally be avoided. Procedural defects may be waived where the governing procedural direction permits waiver and no injustice is shown. Breach must be proved to the criminal standard.

The father appealed out of time, with permission, against a contempt determination made by Leeds County Court on 5 October 2011. The proceedings arose from private contact proceedings concerning his daughter. He had given undertakings concerning material posted on Facebook about the child, the proceedings and a local-authority employee. HHJ Rose found two breaches proved and sentenced him to three months’ imprisonment, suspended for two years on each breach concurrently.

The father did not attend the committal hearing, although he knew of it and had previously attended an adjourned hearing. His grounds were that he had not breached the undertakings, that the evidence was insufficient, and that the hearing should have been adjourned to enable representation, relying on Article 6 of the European Convention on Human Rights. The merits of contact were not before the Court of Appeal.

Lord Justice Ryder gave the judgment of the court. Lord Justices Davis and Sullivan agreed. The appeal was dismissed.

1. Procedural defects. The application had been made under County Court Rules Order 29 and was supported by a witness statement rather than an affidavit, contrary to the applicable Practice Direction. The defect was capable of waiver under paragraph 10 of the Practice Direction where no injustice was caused. The judge had considered the issue and there was no prima facie case of injustice.
2. Proof of breach. The evidence was more than sufficient to establish the breaches to the criminal standard. The judge had carefully evaluated the evidence, and the father’s bald assertion that the evidence was fabricated gave no sustainable basis for disturbing the findings.
3. Proceeding in absence. An alleged contemnor cannot avoid the consequences of an alleged breach merely by avoiding court and failing to attend. The court should be cautious about proceeding in the person’s absence, but may do so where the person knew of the hearing, understood the undertaking and the consequences of breach, and deliberately chose not to attend. The previous adjournment, the written evidence and the attendance of witnesses supported the decision to proceed in this case. The father provided no adequate explanation for his absence.
4. The Article 6 complaint did not justify an adjournment on these facts. Ryder LJ noted that, if the father accepted the contempt, he might consider applying to purge it in the continuing county-court proceedings.

• Court of Appeal (Civil Division): On 22 May 2013, the appeal against the contempt determination was dismissed: [2013] EWCA Civ 743.
• Leeds County Court: On 5 October 2011, HHJ Rose found two breaches of undertakings proved and imposed concurrent sentences of three months’ imprisonment, suspended for two years.