Dad, Re

An application to commit for contempt cannot be enforced unless the order relied upon contains a penal notice prominently displayed on the front of the copy served. The requirement in rule 37.9 of the Family Procedure Rules 2010 is mandatory. A procedural defect may be waived only where the court is satisfied that no injustice has been caused to the respondent. Where the notice is absent or inadequately displayed, and the defect has caused injustice, the committal application must be struck out without determining the alleged breach on its merits.

The mother applied to commit Muhammad Nawaz Chaudhry for contempt of court. The alleged contempt concerned his failure to provide information required by paragraphs 3(a) and 3(b) of a Collection Order concerning the whereabouts of the child, who had allegedly been abducted and retained by his father.

Before the substantive evidence was considered, the respondent raised procedural objections. The decisive issue was whether the Collection Order complied with the requirement for a prominently displayed penal notice on the front of the copy served, and whether any defect could be waived.

1. The committal application was struck out. The court therefore did not determine whether the respondent had disobeyed the Collection Order or whether he possessed further information about the child.
2. Rule 37.4 of the Family Procedure Rules 2010 makes enforcement by committal subject to the Rules. Rule 37.9 provides that an order to do or not do an act may not be enforced under rule 37.4 unless a warning that disobedience would constitute contempt punishable by imprisonment, fine or sequestration is prominently displayed on the front of the copy served.
3. The Collection Order was in the standard form, but the relevant warning appeared only on page 5, within several pages of text. It was neither prominently displayed nor on the front page. The words in the order therefore did not satisfy rule 37.9(1).
4. The words “may not be enforced” imposed a mandatory direction. The court had no power to commit for breach of the order while the rule remained unsatisfied, however serious the alleged breach.
5. Practice Direction 37A, paragraph 13.2, permitted waiver of a procedural defect only if the court was satisfied that no injustice had been caused. The respondent had limited educational attainment, was handed a lengthy document without being directed to the warning, and was arrested without appreciating that he might spend thirteen nights in custody. The court was satisfied that substantial injustice had been caused.
6. The application was accordingly struck out as a threshold matter. The respondent was not required to give evidence or defend the substantive allegation.