G (A Child), Re

A passport order made under the inherent jurisdiction may secure a person’s attendance at a forthcoming hearing where departure would frustrate the hearing or related relief. It must not be retained or used to coerce a third party into returning a child to the jurisdiction. Breach of a properly served passport order carrying a penal notice is a serious contempt and will normally warrant immediate imprisonment, although a suspended sentence may be justified by mitigation. Committal proceedings require strict observance of procedural formalities.

The proceedings concerned G, a child who had lived abroad with her mother after the mother failed to comply with contact and residence arrangements. The father sought the committal of the mother’s former fiancé, John Lewis Dixon, alleging breaches of earlier disclosure, non-assistance and anti-facilitation orders.

The case also concerned a later passport order requiring Mr Dixon to surrender his passport before a hearing at which he was required to answer questions under section 33 of the Family Law Act 1986. The central issues were whether the committal application was procedurally sound, how the passport order could lawfully be used, and the appropriate sentence for its admitted breach.

1. Committal application withdrawn. The application based on the earlier orders was seriously undermined by procedural defects. The order of 7 May had discharged, or at least created significant ambiguity about, earlier orders against Mr Dixon. Although paragraph 6 remained in force, it had no penal notice. Authorities including Nicholls v Nicholls [1997] 1 FLR 649 and S-C v H-C [2010] EWCA Civ 21 establish that committal formalities must be strictly observed, though a defect may be overlooked if it does not affect the justice of the case.
2. Lawful purpose of passport order. The judge applied the distinction explained in Re B [2014] EWCA Civ 843. A passport order may prevent a person leaving before a hearing where absence would frustrate the hearing or render related interlocutory relief nugatory. The order against Mr Dixon secured his attendance to answer questions and meet the committal application, rather than pressuring the mother to return G.
3. Sentence for breach. Mr Dixon admitted lying to the tipstaff’s representative when served with the order. Wilful breach of a tipstaff order is serious and normally attracts immediate imprisonment. In light of his admission, apology, explanation, good character and personal circumstances, the court imposed two months’ imprisonment suspended for 12 months.
4. Passport returned. Once the hearing had taken place, the purpose of the passport order had passed. Retaining the passport would have risked the coercive use condemned in Re B [2014] EWCA Civ 843. The order was therefore discharged, and Mr Dixon undertook to give 14 days’ notice of any intention to travel abroad during the following 12 months.