K v D (Committal - Application to Strike Out)

A committal application should be struck out at an early stage only where it is plainly unfounded, abusive or procedurally defective. Under the applicable practice direction, showing weaknesses that may later prove decisive is insufficient; the applicant must have no realistic prospect of establishing contempt, or the proceedings must otherwise fall within a qualifying strike-out ground.

A mandatory order can support committal without specifying a fixed calendar date, provided that it clearly identifies what must be done and when the obligation operates. An immediate and continuing obligation may satisfy that requirement. A person need not be domiciled, resident or present in England and Wales for an order to be effective, but must have a sufficient link with the jurisdiction in the circumstances of the case.

The applicant father sought to commit members of the maternal family for alleged contempt arising from the disappearance of a child during contact with her mother. Earlier location and disclosure orders required information relevant to locating the child. Fresh committal proceedings relied on further material obtained through disclosure.

The respondents applied to strike out the proceedings on grounds including lack of a reasonable ground, abuse of process and procedural failures. The grandparents separately challenged the court’s jurisdiction over them. The court also considered whether the location order could be enforced by committal without fixing a specific calendar date for compliance.

1. Strike out. The court held that the power under paragraph 5 of the Practice Direction attaching to RSC 52, and CPR PD81 paragraph 16.1, is discretionary. The purpose is to dispose of applications that are patently unfounded, abusive or disorderly. For lack of a reasonable ground, the applicant must show more than defects that may be important or decisive at trial. The application must have no realistic prospect of success.
2. The father had a realistic prospect of establishing at least some allegations on the evidence. The prior committal application had not been tried and much of the present material was obtained later. There was no double jeopardy or abuse of process. Delay and the initial procedural defects did not justify striking out, though continuing procedural failures could prejudice the father at trial.
3. The second limb of the location order was sufficiently precise to be enforced. The respondents’ undertakings were in any event substantially to the same effect. Committal proceedings are not subject to a general requirement that they be used only as a last resort.
4. A mandatory order must make clear what is required and when it must be done. The reference in CPR 81.4 to the time fixed for compliance does not require a particular calendar date. An order may impose an immediate and continuing obligation, lasting until the child is located.
5. The grandparents were amenable to the jurisdiction. Residence, domicile, habitual residence or physical presence in England and Wales was not essential, but a sufficient link was required. The grandparents’ ownership of the family home, their connection with the child and their presence there at the time of the abduction supplied that link.
6. The court refused permission to issue a writ of sequestration or to order disclosure of assets before any finding of contempt. The committal hearing was fixed for five days, and the orders and undertakings remained in force until the child was found. The judge indicated that he would have recused himself from trying the committal application.