Jones, Re (Alleged Contempt of Court)

A person may be committed for breach of a mandatory order only where the order states clearly, precisely and unambiguously what must be done and the time for compliance. The court cannot read an implied continuing obligation into an order requiring an act by a specified time.

The applicant must prove to the criminal standard both non-compliance and that compliance was within the respondent’s power. A mandatory order ordinarily gives rise to a single breach. A further committal requires a further order fixing a new time for compliance.

The Law Officers may institute civil contempt proceedings arising from private litigation where intervention serves the public interest and the administration of justice.

The Solicitor General applied to commit a mother for failing to comply with an order requiring her to deliver four children to their father at Cardiff Railway Station by 4 pm, so that they could return to Spain under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Two children ran away during the afternoon and were taken to a police station. The mother attended the station but was not shown to have regained control of the children in sufficient time to reach Cardiff. The application alleged both breach at 4 pm and a continuing breach until the family was found five days later.

The court determined the Law Officers’ standing, the temporal scope of the order and whether the Solicitor General had proved that timely compliance was within the mother’s power.

1. The application was dismissed. The Solicitor General failed to prove to the criminal standard that compliance by the specified time was within the mother’s power. There was no order as to costs.

2. The Law Officers had standing to seek committal even though the alleged contempt was civil, arose from an order obtained by a private individual and occurred in private litigation. They act to protect the public interest and the administration of justice. Their decision that intervention serves the public interest is not for the court to review or control.

3. Paragraph 1 of the return order was not enforceable as an injunction. It was not addressed to the mother or any other identified person and did not specify a time for compliance. Paragraph 2(b) required delivery at Cardiff Railway Station by 4 pm. It imposed no express duty thereafter and supplied no alternative place, date or method of compliance. The court could not construct such obligations by implication.

4. An order carrying penal consequences must identify with complete precision the conduct required or forbidden and the applicable timeframe. Uncertainty cannot support committal. Failure to comply with a mandatory order by its specified time constitutes one breach, not successive or continuing breaches. Continued non-compliance may affect whether an established contempt has been purged, but a further committal requires a further order fixing a new compliance date.

5. For alleged breach of a mandatory order, the court must first construe the order’s express requirements. It must then decide whether the respondent performed them and, if not, whether performance was within the respondent’s power. The applicant bears the burden throughout and must prove both non-performance and ability to comply to the criminal standard.

6. Two children ran away shortly before the latest practicable departure time and were taken to a police station. The mother was required to work to the police timetable, and the evidence did not establish that she had regained access to the children by 2.56 pm, when departure for Cardiff was required. Events and conduct after 4 pm could not remedy the failure to prove ability at the material time or constitute a further contempt under the existing order.

• High Court (Family Division): On 24 July 2013 the court dismissed the Solicitor General’s committal application. The present judgment gives the reasons for that decision.
• Earlier proceedings: On 9 October 2012 Hedley J ordered the children’s return to Spain and required their delivery to the father by 4 pm on 12 October 2012: Re Jones [2012] EWHC 2955 (Fam).
• Subsequent enforcement steps: Roderic Wood J refused an application to set aside or stay the return order, made a collection order and later invited the Attorney General to consider contempt proceedings.