Button v Salama

Successive committal orders may be made for breaches of fresh, free-standing mandatory orders, even where earlier orders concerned similar obligations. The later breach is a separate contempt. Any further imprisonment must nevertheless be necessary and proportionate. The court must consider the contemnor’s past and cumulative imprisonment, the seriousness and persistence of the breach, and the likely sentence for comparable criminal conduct where relevant. Repeated defiance may aggravate the breach, but punishment must not become excessive. A procedural failure to serve a committal notice personally may be overlooked in an exceptional case where the respondent had clear prior notice of the hearing, the obligations and the issue of further contempt.

The mother applied to commit the father for contempt of court. The proceedings concerned the father’s failure to disclose information about their child, to procure the child’s return from Egypt to England and Wales, and to arrange telephone or Skype contact.

The father admitted non-compliance with fresh orders made by Wood J on 2 July 2013, but disputed his ability to comply and challenged the court’s jurisdiction. The committal notice had not been personally served before the hearing. The central issues were whether the procedural defect could be overlooked, whether the breaches were deliberate and capable of compliance, and whether further imprisonment was lawful and proportionate after substantial earlier detention.

1. Procedure and proof. The father had not been personally served with the notice to show cause until the hearing. Personal service and clear notice are fundamental in committal proceedings. In the special circumstances, the defect could be overlooked because the hearing had been fixed since July, the father knew the obligations imposed by the order, and he knew that further contempt would be considered. The breaches and the father’s ability to comply had to be proved to the criminal standard, with the burden on the mother.
2. Breaches. The father’s evidence was rejected as shifty, evasive and dishonest. The court was sure that he knew more about the child’s whereabouts than he disclosed and could instruct the child’s carers to arrange her return. His breaches of paragraphs 3, 4 and 5 of the July order were deliberate and contumacious. The court was not satisfied that breach of paragraph 6 concerning telephone or Skype contact was punishable, since arranging such contact might have been difficult while he was detained.
3. Successive orders. The July order created fresh, free-standing obligations. Imprisonment for their breach was not punishment again for the earlier breaches. Following Re W (Abduction: Committal) [2011] EWCA Civ 1196; [2012] 2 FLR 133, successive mandatory injunctions and fresh committal proceedings were legally permissible.
4. Proportionality. The court had to assess on each occasion whether further imprisonment was necessary and proportionate, looking at earlier orders and cumulative custody. The continuing and stubborn defiance was aggravating, but the existing equivalent of 42 months’ imprisonment meant that 12-month terms would risk excessive punishment.
5. The father was sentenced to three concurrent terms of six months’ imprisonment for breaches of paragraphs 3, 4 and 5, consecutive to the sentences imposed by Wood J. No sentence was imposed for paragraph 6. Further orders were made with revised dates and a timetable requiring personal service of any future committal notice at least seven days before the next hearing.

This was a first-instance committal application. The judgment records earlier orders and a judgment of Wood J dated 2 July 2013, but gives no citation for that decision.