Button v Salama

In committal proceedings for breach of a family order, the applicant bears the burden of proof and must establish each breach to the criminal standard. The court must distinguish fresh contempts from breaches already punished. Further imprisonment may be imposed where the contempts arise from a later order, a different period and fresh facts, subject to proportionality. Child-abduction sentencing authorities may provide a proportionality cross-check, although comparisons with criminal statutory offences require caution.

The applicant mother sought the committal of the respondent father for alleged breaches of an order made by Cobb J on 15 January 2013. The order required information about the child’s circumstances and care in Egypt, steps to facilitate her return to England and Wales, telephone or Skype contact, and surrender of the father’s passports.

The father accepted non-compliance but argued that compliance was beyond his control because his family had ceased to assist him. The issues were whether the breaches were proved to the criminal standard, whether they were deliberate and fresh, and whether further imprisonment was proportionate.

1. The applicant bore the burden of proof. The criminal standard applied, so the judge had to be sure of each breach. The civil standard had no part in committal proceedings. A Lucas warning was applied when assessing allegedly untruthful evidence.
2. The father had the power to comply with the order. His defence that his family had closed ranks was rejected as bogus. He had deliberately breached the relevant obligations.
3. The court considered only breaches of the 15 January order, not the earlier retention of the child in Egypt. The breaches were fresh and separate because they arose from a fresh order, concerned a different period and were based on fresh facts.
4. The court adopted and applied the approach in Re W (Abduction - Committal) [2012] 2FLR 133. Criminal child-abduction sentencing authorities could provide a proportionality cross-check, but had to be approached cautiously.
5. Six months’ immediate imprisonment was imposed for the breaches concerning the statement, return, information and contact obligations. The terms were concurrent with one another but consecutive to the earlier sentence. No separate penalty was imposed for the passport breach because the passports had been recovered.