SA v Nsongo & Ors

In committal proceedings, where breach depends on the respondent’s ability to comply with an order, every fact establishing that ability must be proved to the criminal standard. A prior finding on the balance of probabilities cannot, without more, establish the necessary factual foundation for contempt.

Where an order requires the return of a child, the court must be sure that the child is alive, that the respondent knows the child’s whereabouts, and that the respondent can arrange the return. The court must then determine whether the respondent failed to comply. A respondent who cannot personally procure compliance because another person controls the relevant arrangements may not be in contempt.

The applicant father sought the committal of the child’s mother and maternal grandfather for failing to comply with orders requiring the return of the child to England and Wales and notification of her return. The respondents maintained that the child had died in the Democratic Republic of the Congo and therefore could not be returned.

At an earlier fact-finding hearing, the court had concluded, on the balance of probabilities, that the child was alive, that documents supporting the alleged death were forged, and that both respondents knew her whereabouts. The committal hearing required those matters to be reconsidered to the criminal standard, together with the respondents’ respective abilities to procure the child’s return.

1. Applicable standard. Committal proceedings engage the possible deprivation of liberty. The Guardian bore the burden of proving each alleged breach beyond reasonable doubt. The court also noted the fundamental principle that committal applications should be heard and decided in public.
2. Ability to comply. A finding of breach could not be made unless the court first established, to the criminal standard, that the respondent was able to comply. The earlier fact-finding conclusions, having been reached on the balance of probabilities, could not by themselves establish the necessary facts for contempt.
3. Required elements. In the circumstances of an order requiring a child’s return, the court had to be sure that the child was alive, that each respondent knew where she was, and that the respondent could arrange her return. It then had to determine whether the respondent had failed to do so.
4. Application. The court was sure that the child was alive, that both respondents knew her whereabouts, and that the grandfather could arrange her return. The grandfather’s continuing conduct, including the production of further forged material, reinforced those conclusions. The grandfather was therefore proved to be in breach of the return and notification provisions of the order dated 13 December 2013.
5. The court was not sure that the mother could procure the child’s return against the grandfather’s opposition. Although the court found that the grandfather controlled the mother, that control meant that her inability to secure the child’s return was not disproved to the criminal standard. The mother was therefore not found in contempt.
6. Disposition. The grandfather was committed to prison for six months. The judgment arose from the earlier fact-finding proceedings, reported as 3013 EWHC 4417 (Fam), but the committal findings were made afresh to the criminal standard.

The judgment describes earlier fact-finding and contact proceedings in the same litigation, culminating in an order dated 13 December 2013. These were not appellate proceedings.