L (A Child)

A person accused of contempt has an absolute right to remain silent and to refuse to enter the witness box. Evidence previously obtained from that person under compulsion cannot be used to establish contempt through breach of an earlier order. It may support proceedings for a fresh contempt committed while giving that evidence.

Where an order makes service a condition of its obligations, service and a subsequent breach must be proved to the criminal standard. Enforcement by committal requires a penal notice prominently displayed on the front of the order. Procedural defects may be waived only where the court is satisfied that they caused no injustice.

Collection orders should not remain indefinitely in force. Prolonged retention of passports essentially for coercion is wrong in principle.

L, a child subject to care and freeing orders, disappeared after apparently being abducted by her parents. In December 2004, the High Court made a collection order requiring named defendants, including her paternal uncle, Gous Oddin, to provide information to the Tipstaff and surrender travel documents. L subsequently became a ward of court. Mr Oddin ceased to be a party in 2006 but remained subject to the collection order.

In October 2015, after the care and freeing orders had been discharged, Mr Oddin attended under a witness summons and was compelled to give evidence about L and her parents. Keehan J considered his evidence untruthful and directed a committal hearing. In January 2016, the judge treated the alleged contempt as breach of the 2004 collection order, relied on the earlier compelled evidence and sentenced Mr Oddin to six months' immediate imprisonment.

Mr Oddin appealed against the committal order. The principal issues concerned compelled evidence, proof of service and compliance with the requirements for a penal notice.

Appeal allowed. The committal finding was unsustainable on three independent grounds.

1. Mr Oddin had properly attended the October hearing as a compellable witness under the inherent jurisdiction to obtain information about a missing child. The warning about the consequences of untruthful evidence was proper. The fatal error arose when that compelled evidence was subsequently used to establish breach of the earlier collection order. An alleged contemnor has an absolute right to remain silent and to refuse to enter the witness box. The use of the earlier evidence deprived Mr Oddin of those safeguards and constituted an irremediable procedural error. Proceedings for a fresh contempt committed while giving the evidence would have been permissible. Comet Products UK Ltd v Hawkex Plastics Ltd, Hammerton v Hammerton and Inplayer Ltd and ors v Thorogood applied (paras 48–56).

2. Service was required both by rule 37.5 of the Family Procedure Rules 2010 and by the collection order itself. The judge had to find, to the criminal standard, that the order had been served and that the established breach occurred afterwards. Findings that Mr Oddin had lied supplied neither finding. The absence of findings about service, its date and the timing of the breaches independently required the appeal to be allowed (paras 57–59).

3. Rule 37.9(1) required a penal notice prominently displayed on the front of the order. A notice on its fifth page failed that mandatory requirement. The court endorsed and applied Re DAD [2015] EWHC 2655 (Fam). Given the absence of cogent information about how the order's contents had reached Mr Oddin, the court could not properly waive the defect under paragraph 13.2 of Practice Direction 37A. This was another independently fatal defect (paras 60–62).

4. Courts must identify the precise alleged contempt and ensure that the accused knows the particulars before the hearing. They must preserve the right to silence and require proof to the criminal standard. Theis J's checklist also addressed representation, judicial suitability, self-incrimination and the recording of findings. Counsel and solicitors must assist the court, particularly where liberty is at stake (paras 71–79).

5. The collection order was discharged. Its continuation for eleven years was wrong in principle, its penal notice was defective, and prolonged retention of passports essentially for coercion was fundamentally objectionable. In re B (A Child) (Wrongful Removal: Orders against Non-Parties) applied. The court directed the immediate return of the passports (paras 64–65).

The court tentatively considered the prison term unduly severe but did not determine a substituted sentence. Questions about section 98 of the Children Act 1989, the subsequent use of earlier judicial findings and the legal effect of insufficient particulars in a committal order were left open. Mr Oddin's immediate release had been ordered when the appeal was allowed (paras 2, 63, 66–69).

• Court of Appeal (Civil Division): In L (A Child) [2016] EWCA Civ 173 , allowed the appeal against committal, ordered immediate release, discharged the collection order and directed the return of passports.
• High Court, Family Division, Birmingham District Registry: On 18 January 2016, Keehan J found Mr Oddin in contempt for breach of the collection order and sentenced him to six months' immediate imprisonment.
• High Court: On 30 December 2004, Judge Bevington, sitting as a High Court judge, made the collection order. In April 2006, Kirkwood J discharged Mr Oddin as a party but preserved his obligations under that order.