L (A Child)

Committal proceedings for contempt must preserve the alleged contemnor’s fundamental procedural safeguards. Evidence obtained from a person compelled to testify as a witness in an information-gathering hearing cannot later be used to prove contempt for breach of an earlier order. The alleged contemnor must know the precise charge and has the right to remain silent and not to enter the witness box.

Committal for breach of an order also requires criminal-standard proof that the person was served with the order before the alleged breach. Under the Family Procedure Rules 2010, a defective penal notice cannot support committal. Collection and passport orders must not be left coercively in force for years.

L had disappeared after care and freeing orders had been made. In 2004, the High Court made a collection order requiring specified family members, including L’s paternal uncle, Gous Oddin, to provide the Tipstaff with information which might assist in locating her.

In 2015, after the care and freeing orders had been discharged, Mr Oddin attended under a witness summons and gave compelled evidence about L’s whereabouts. Keehan J later treated that evidence as supporting an allegation that Mr Oddin had breached the 2004 collection order. On 18 January 2016, the judge found him in contempt and sentenced him to six months’ immediate imprisonment.

Mr Oddin appealed, challenging the use of his compelled evidence, the lack of proof of service of the collection order, and the defective penal notice.

1. Appeal allowed. The finding of contempt and the six-month immediate custodial sentence could not stand. Mr Oddin was ordered to be released immediately.

2. On 8 October 2015 Mr Oddin had attended as a compellable witness under the court’s information-gathering jurisdiction. The judge was entitled to warn him that untruthful evidence could lead to contempt proceedings. However, the later use of evidence extracted from him under compulsion to prove breach of the earlier collection order deprived him of the absolute right of an alleged contemnor to remain silent and refuse to enter the witness box. That was an irremediable breach of the principle in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, as applied in Hammerton v Hammerton [2007] EWCA Civ 248 and Inplayer Ltd and ors v Thorogood [2014] EWCA Civ 1511.

3. The proceedings were also fatally confused as to whether the alleged contempt was contempt in the face of the court or breach of the 2004 order. A person at risk of imprisonment is entitled to know precisely what wrongdoing is alleged.

4. Committal for breach of paragraph 3 of the collection order required proof, to the criminal standard, that Mr Oddin had been served with the order and that the breach occurred after service. No such finding was made. Further, the penal notice on the fifth page did not comply with rule 37.9(1) of the Family Procedure Rules 2010, which required it to be prominently displayed on the front. The defect could not properly be waived.

5. The collection order was discharged and the passports were to be returned. Its eleven-year duration, its defective form, and the coercive retention of passports for that period were wrong in principle. Although unnecessary to the result, the court considered that six months’ immediate imprisonment was likely unduly severe even on the judge’s findings.

• Court of Appeal (Civil Division): Allowed Mr Oddin’s appeal in [2016] EWCA Civ 173, ordered his immediate release, discharged the 2004 collection order and directed the return of passports.

• High Court, Family Division: On 18 January 2016, Keehan J found Mr Oddin in contempt for breach of the 2004 collection order and imposed six months’ immediate imprisonment.