Sanchez v Oboz & Anor

Committal proceedings may exceptionally be determined in a respondent’s absence where the court is satisfied that the respondent had proper notice, has effectively waived attendance, and fairness permits the hearing to proceed. The court must consider service, notice, reasons for absence, the prospect of securing attendance by adjournment, prejudice, and the overriding objective.

For breach of a mandatory order, the court must construe the order precisely. The applicant must prove beyond reasonable doubt both non-compliance and that compliance was within the respondent’s power. A defect in personal service may be waived where it has caused no injustice and the respondent knew what the order required.

The mother applied to commit the father and paternal grandmother for alleged breaches of wardship orders requiring the return of their three-year-old child from Poland to England and Wales. The child had been found habitually resident in England and Wales and wrongfully retained in Poland.

Neither respondent attended the committal hearing. The father had received extensive notice and filed evidence. The paternal grandmother had been served with return orders but had not been shown to have received notice of the hearing. The central issues were whether the court could proceed in their absence and whether the father’s alleged breaches of the return and attendance orders were proved to the criminal standard.

1. The court proceeded with the committal application against the father in his absence, but declined to determine it against the paternal grandmother. Committal is quasi-criminal and engages the fair-hearing protections of the European Convention on Human Rights. The father had been personally served with the material orders and later hearing documents, had sufficient time to prepare, filed evidence, gave no reason for his absence, and was taken to have waived his right to attend. An adjournment was unlikely to secure his attendance. The court would preserve fairness by permitting representations on penalty at a later hearing.

2. It was unsafe to proceed against the paternal grandmother. Although she had been properly served with the orders requiring return of the child, there was no adequate evidence that she had independently received the order listing the committal hearing. The court would not infer notice merely from her residence with the father.

3. Applying Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2010] EWCA Civ 1253, the court construed the mandatory orders, determined whether the father had complied, and considered whether compliance was within his power. The mother bore the burden of proving each relevant fact beyond reasonable doubt.

4. The lack of immediate personal service of the order of 8 August 2014 was not fatal. Under Nicholls v Nicholls [1997] 1 FLR 649 and paragraph 13.2 of Practice Direction 37A, a procedural defect could be waived because it caused the father no injustice: he had attended the hearing, understood the obligation, and had been warned of the consequences of breach.

5. The court found beyond reasonable doubt that the father had failed to return, or cause the return of, the child by 14 August 2014 or thereafter; failed to make and notify the required travel arrangements; failed to ensure the child boarded a return flight; failed to attend the hearing on 15 August; and failed to comply with the continuing return obligation imposed on 15 August. Disposal of penalty, and the remaining allegations concerning the father and paternal grandmother, was adjourned.

High Court (Family Division): This was a first-instance committal determination within wardship proceedings. The judgment records earlier return orders made on 8 and 15 August 2014. No appellate history is stated.