K, Re

Habitual residence is a child-centred question of fact. The court assesses the quality and stability of the child’s residence and whether there is sufficient integration into a social and family environment, considering the reasons for the stay, perceptions and past context. Intention alone does not determine the result. A mandatory injunction must clearly identify what the respondent must do. A recital expressing an expectation that a party take unspecified steps, especially in foreign proceedings, cannot properly coerce compliance or support committal. Committal is criminal in character for Article 6 purposes. The applicant must prove beyond reasonable doubt a deliberate breach of an order with which the respondent had ability to comply. Prior coercive comments may require a different judge to hear committal proceedings where a fair-minded observer would see a real possibility of bias.

The appeals arose from wardship proceedings concerning M, who had been left in Singapore with his paternal grandparents after a temporary arrangement. The High Court found M habitually resident in England, ordered the father to return or cause his return, retained the father’s passport and awarded costs to the mother.

The court later extended the return deadline and recited an expectation that the father would make applications in Singapore. It then refused the father’s recusal application and committed him to 18 months’ imprisonment for alleged breaches. The appeals concerned habitual residence, the return order, costs, the Singapore recital, apparent bias, committal procedure, proof of contempt and sentence.

Lord Justice Kitchin gave the leading judgment. Lord Justice McFarlane agreed with it, and Lord Justice Maurice Kay agreed with both judgments.

1. Habitual residence. The question was factual and child-centred. Applying the guidance in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 and In re LC (Children)(Reunite International Child Abduction Centre intervening) [2014] UKSC 1, the court considered the quality and stability of M’s residence, the reasons for his stay, his integration into a social and family environment and the position before the move. M’s stay in Singapore was intended to be temporary, so his habitual residence in England had not changed.
2. Return order and costs. Having found M habitually resident in England and having regard to his immediate welfare, the judge was entitled to order the father to return or cause M’s return, while leaving wider welfare and forum issues for later consideration. The costs order was also permissible because the father’s deliberate concealment and misleading conduct was unreasonable.
3. The Singapore recital. A mandatory injunction must clearly state what the respondent must do. The recital that the court expected the father to take proceedings in Singapore was not an injunction. It sought to pressure him into unspecified steps which had not been ordered and whose jurisdictional and practical basis had not been examined. It was wrongly included and could not properly support a later committal.
4. Apparent bias. Applying the approach in Porter v Magill, Weeks v Magill [2001] UKHL 67, a fair-minded observer would have considered that the judge had already formed, or was strongly disposed to form, conclusions about deliberate breach and imprisonment. Her conclusory refusal to recuse herself was inadequate. The committal application should have been heard by another judge.
5. Contempt. Committal proceedings are a criminal charge for the purposes of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The alleged breach had to be proved beyond reasonable doubt, had to be deliberate or contumelious, and the order had to be one with which the father could comply. The judge failed to distinguish non-compliance from deliberate breach, failed properly to assess the father’s inability to travel and his efforts to secure M’s return, and relied on a balance-of-probabilities finding of collusion. The evidence did not establish contempt.
6. Procedure and sentence. Under the safeguards reiterated from Hammerton v Hammerton [2007] EWCA Civ 248, an unrepresented defendant had to be told the nature of the proceedings and that he was not obliged to give evidence. If he gave evidence, he should first have been allowed to give his own account before cross-examination. The judge also had to decide contempt before addressing sentence and give the father an opportunity to make submissions on seriousness and mitigation.

McFarlane LJ added that a robust approach and warnings about consequences may be justified when securing compliance in international child cases, but the more coercive the earlier hearing, the less appropriate it becomes for the same judge to conduct the later committal.

The appeal against the order of 14 March was dismissed. The appeal against the order of 21 March succeeded to the limited extent that the Singapore recital was wrongly included. The committal order of 3 April was set aside, and the matter was remitted to the High Court to consider further or different orders.

• Court of Appeal (Civil Division) [2014] EWCA Civ 905: dismissed the appeal against the order of 14 March 2014, allowed the appeal against the order of 21 March 2014 to the limited extent stated, and allowed the appeal against the committal order of 3 April 2014.
• High Court of Justice, Family Division: Russell J declared M habitually resident in England, ordered his return or return to be secured, made the Singapore recital, refused recusal and imposed an 18-month custodial sentence for alleged contempt.