Cambra v Jones & Anor

For committal for breach of a mandatory order, the applicant must prove to the criminal standard that the order was clear, that it was not obeyed, and that compliance was within the respondent’s power at the date fixed for compliance. The burden remains on the applicant throughout. It is not displaced by the respondent’s failure to make genuine or substantial efforts, nor by the fact that the respondent may have contributed to the circumstances relied on as making compliance impossible. The court cannot read an obligation to use all lawful means into an order which does not clearly impose it. A reverse burden or strict liability cannot be introduced in this context by reference to Convention-compliant approaches in criminal law.

The father applied to commit the mother for contempt after she failed to bring two children to London and failed to return, or cause their return, to Spain under earlier orders. The children had expressed exceptionally strong and sustained resistance to both steps. The mother denied contempt, relying on the alleged impossibility of securing compliance.

The application followed earlier Hague Convention proceedings and several judgments, including a decision joining the elder child as a party to the committal proceedings. The central issues were the construction of the orders, the burden and standard of proof, whether the mother could have complied at the relevant dates, and whether failure to make meaningful efforts justified a strict or reverse burden.

1. Application dismissed. The father failed to prove beyond reasonable doubt that the mother could have brought the children to London on 21 August 2013 or secured their return to Spain in September 2013.
2. In a committal application for breach of a mandatory order, the court must first construe the order and identify precisely what it required. It must then decide whether the respondent failed to do it and whether performance was within the respondent’s power. The applicant bears the burden throughout and must prove both non-compliance and ability to comply to the criminal standard: [2010] EWCA Civ 1253, adopting the approach in [2008] EWCA Civ 1138.
3. Impossibility is assessed at the date fixed for compliance. If it has not been proved that performance was then within the respondent’s power, the allegation fails, even if the respondent’s earlier acts or omissions helped create the relevant state of affairs.
4. The orders required the mother to bring the children to London and to return, or cause their return, to Spain. They did not clearly require her to use all lawful means, regardless of cost or practicality, or to use her best or reasonable endeavours. Such an obligation could not be implied for the purposes of contempt. An injunction must be clear, precise and unambiguous.
5. The mother’s efforts were superficial and inadequate, and she had materially impeded the testing of whether compliance was possible. Those findings did not alter the legal burden. The court rejected the proposed strict liability or reverse burden. Although Convention law may permit proportionate reverse burdens in criminal contexts, that approach had not been adopted for contempt and the existing law was Convention compliant. The argument based on [2004] UKHL 43 therefore failed.
6. Permission to appeal was refused. The proposed appeal points had no real prospect of success, or challenged factual findings reached on the totality of the evidence. A leapfrog certificate was also refused: a decision finding that contempt was not proved is still a decision made in the exercise of jurisdiction to punish for contempt, within section 15(4) of the Administration of Justice Act 1969.

This was a first-instance committal decision. The judgment records earlier Hague Convention and committal-related proceedings, including Cambra Jones [2013] EWHC 88 (Fam) and Cambra v Jones [2014] EWHC 913 (Fam), but does not state a lower-court decision from which the present application was appealed.