Y v Z

In committal proceedings for breach of a family order, the applicant bears the burden of proving contempt to the criminal standard. The court must establish proper service of the underlying order and penal notice, and must ensure that the respondent has had a fair opportunity to participate. Where those safeguards are met, the court may proceed in the respondent’s absence if further adjournment has no reasonable prospect of securing participation. A deliberate failure to comply with an order requiring the return of children may constitute contempt. Sentencing may be adjourned to allow compliance, reflection and mitigation.

The father applied to commit the mother for contempt after she failed to return their two children from India, contrary to an order made by Baker J in December 2013. The order declared the children habitually resident in England and Wales, required their prompt return, and contained a penal notice. The mother did not attend the committal hearing, although the court found that she had received the relevant orders and hearing notice and had been given opportunities to provide evidence, obtain representation or participate by video-link. The issues were whether the court could proceed in her absence, whether contempt was proved, and what consequence should follow.

1. The court was satisfied that the mother had been properly served with the December 2013 order, including its penal notice, and with notice of the committal hearing. It was also satisfied that it was fair and appropriate to proceed in her absence.
2. The burden of proof rested on the father, and the criminal standard applied. The mother’s non-compliance with the return order was established beyond reasonable doubt. She had acknowledged in the Indian proceedings that she possessed return tickets and had identified no legal or practical impediment to compliance.
3. The court had provided ample opportunity for participation, including filing evidence, appearing by video-link and obtaining legal representation. Having regard to the checklist in Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam), the court was satisfied that the relevant safeguards had been met. A further adjournment had no reasonable prospect of securing the mother’s attendance or participation.
4. The mother was therefore found to be in contempt of court. The question of sentence was adjourned. This allowed time for reflection and possible compliance, and preserved an opportunity for the mother to make representations and present mitigation.

First instance decision. No appellate history is stated in the judgment.