Joyce v Joyce

In committal proceedings, contempt must be proved beyond reasonable doubt. Where children have been wrongfully removed from one jurisdiction, proceedings for their return decide which court should determine their future; they do not finally determine where the children should live. A parent who knowingly withholds the children’s whereabouts, or fails to provide the court with assistance required to locate them, may be found in contempt. Imprisonment may be imposed where the obstruction is serious, with an opportunity to purge the contempt by apologising and providing the required assistance.

The mother and father were involved in Hague Convention proceedings concerning the return of their three children from England to Ireland. Orders were made requiring the father to return the children, followed by further orders requiring their handover to the mother. The children resisted return and eventually could not be located. A Collection Order was made and later restored. When the father attended court without the children, the Tipstaff caused him to be arrested after he failed to identify their whereabouts.

The mother alleged contempt. The central issue was whether the father knew, or could identify how to locate, the children and had deliberately failed to assist the court.

1. Contempt proved. The court applied the criminal standard of proof, namely proof beyond reasonable doubt. Having observed the father and heard his evidence, the judge concluded that it was inconceivable that he did not know where the children were, or at least how they could be contacted and located. His cooperation with the court process had been partial, leaving the children to refuse return while he stood behind their refusal. His failure to provide the assistance specifically required by the court therefore constituted contempt.
2. Nature of the return proceedings. The judge emphasised that returning children to the jurisdiction from which they had been wrongly removed did not finally determine where they should live. The court in that jurisdiction could decide whether, in the children’s interests, they should later leave and live elsewhere. The immediate issue was which court should make the substantive welfare decision.
3. Sentence. The contempt was treated as serious because the court could not trace the children and the person from whom it needed assistance had withheld it. The least sentence the judge considered appropriate was six months’ imprisonment. The father was given an opportunity at any time to purge his contempt by apologising and assisting the court to find the children. The case was listed for a further hearing to allow him to reconsider his position and to address any fresh order requiring him to take steps to return the children to Ireland.

The judgment records that the father sought permission to appeal the earlier return decision, but the Court of Appeal refused permission on 26 March 2013. The present judgment concerned subsequent enforcement and committal proceedings.