J (Children)

An appeal lies against the order, not the judgment. Where a parent was ordered to secure a child’s return despite an acknowledged risk that the child would frustrate compliance, and the applicant later failed to prove to the criminal standard that the parent could have secured compliance, a strict-liability challenge could not produce a penalty on the facts. The wider questions of strict liability, a reverse burden of proof and implied best-endeavours obligations were therefore left unresolved. Return proceedings may properly be brought to an end where return against the children’s will is no longer realistically achievable and continued litigation is materially harmful to them.

This was the father’s appeal from the President of the Family Division’s committal judgment, [2014] EWHC 2264 (Fam). The father sought the committal of the mother for failing to comply with orders requiring J and T to be returned to Spain and brought to London. The President dismissed the application, holding that the father had not proved to the criminal standard that compliance was within the mother’s power.

On appeal, the father argued for strict liability, a reverse burden of proof, or a purposive construction requiring the mother to take all reasonable or lawful steps. He also relied on the Human Rights Act 1998 and article 8 of the ECHR. By the hearing, J was aged 17 and there was no realistic prospect of either child returning to Spain against their will. The central issues were whether the dismissal order was wrong and whether the court should determine the wider principles governing contempt in such cases.

Lady Justice Black gave the lead judgment. Lord Justice Floyd and Lord Justice Sullivan agreed, and the appeal was dismissed unanimously.

1. Disposition. The appeal was against the President’s order dismissing the committal application, not against the reasoning in the judgment. The order had not been shown to be wrong.
2. The President had approached the application on the basis of the existing line of authority, particularly Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others, [2010] EWCA Civ 1253. That approach required proof of non-compliance and proof, to the criminal standard, that the defendant had power to comply. The Court of Appeal did not finally re-determine those principles.
3. The orders had been made despite an acknowledged risk that the children would frustrate compliance. The President later found J to be settled and determined in her refusal to return, and held that the father had fallen well short of proving that the mother could have secured the return of the children. Even if the strict-liability argument succeeded, no penalty could realistically be imposed on the facts. Any penalty would depend on proving that the mother had failed to do all that she lawfully could, which would substantially resemble the best-endeavours order that the father said was impermissible.
4. The Court left open the broader questions concerning strict liability, a reverse burden, purposive construction of the orders and best-endeavours obligations. It was inappropriate to lay down rules on best-endeavours orders without fuller argument. The Court also noted the significant differences between money-order or Hadkinson applications and committal applications, including their purposes, standards of proof and consequences.
5. Under the 1980 Hague Convention, J was already outside the Convention’s age range and T would shortly be so. There was no realistic prospect of either child returning against their will. The proceedings had therefore run their useful course. The return order made on 9 October 2012 and any other orders with continuing effect were set aside. Mediation was commended as a possible means of helping the family repair its relationships.

• Court of Appeal (Civil Division): Appeal dismissed. The return order and other orders with continuing effect were set aside. [2015] EWCA Civ 1019.
• High Court of Justice, Family Division: The President dismissed the father’s application to commit the mother for alleged breaches of the relevant return and attendance orders. [2014] EWHC 2264 (Fam).