Egeneonu v Egeneonu & Anor

In committal proceedings for breach of mandatory family orders, the court must first construe the order and identify precisely what it required. It must then decide whether the defendant failed to comply and whether compliance was within the defendant’s power. The applicant bears the burden throughout, and the criminal standard applies. Contempt requires deliberate disobedience, proved so that the court is sure. The judgment must state clearly both the breach and the defendant’s ability to comply. For a best-endeavours order, impossibility is assessed at the date fixed for compliance. The court must not substitute criticism of a defendant’s efforts for proof that compliance was within the defendant’s power.

The applicant sought the committal of Levi and Victor Egeneonu for alleged breaches of orders made during proceedings concerning the return of three children from Nigeria to England and Wales. Levi was alleged to have breached passport, return, attendance and protective orders. Victor was alleged to have failed to use his best endeavours to secure Levi’s attendance and the children’s return, and to have misled the court in sworn evidence.

The court considered the previous orders, telephone evidence, witness evidence and the defendants’ decisions not to give evidence. The central issues were whether the alleged breaches were proved to the criminal standard, whether compliance was within each defendant’s power, and whether Victor’s evidence amounted to deliberate contempt in the face of the court.

1. Applicable principles. The court applied the principles stated in Re L-W [2011] 1 FLR 1095. The judge must construe the express language of the order, determine what the defendant did and whether the required act was within the defendant’s power, and apply the criminal standard. The burden remains on the applicant throughout. A finding of contempt requires clear findings of both breach and ability to comply.
2. The court also relied on Re A [2008] EWCA Civ 1138, Re S-C [2010] EWCA Civ 21 and Re K. An ambiguous order, or one which does not specify the required act and time for compliance, cannot found contempt. Contempt requires deliberate, contumelious disobedience.
3. As explained in Cambra v Jones [2014] EWHC 2264, impossibility in relation to a best-endeavours order is assessed at the date fixed for compliance. The question is whether the defendant could comply at that time, not whether the defendant previously contributed to the circumstances making compliance difficult.
4. Levi’s breaches were proved so that the court was sure. He left England in breach of successive orders, failed to arrange and secure the children’s return, failed to attend hearings and breached undertakings not to intimidate, harass, pester or threaten the applicant. Each breach was deliberate and constituted contempt.
5. Victor’s alleged failure to use his best endeavours was not proved. Although there was regular contact with Levi and evidence of an attempt to encourage him to return, the court could not be sure that Victor had failed to use his best endeavours.
6. Victor’s sworn evidence was different. The telephone records contradicted his evidence about his contact with Levi and his knowledge of Levi’s whereabouts. The court was sure that he deliberately lied over several hearings to mislead the court. That contempt was proved. Sentencing was adjourned for consideration and further assistance from counsel.