Egeneonu v Egeneonu (Rev 4)

On a committal application for contempt in family proceedings, the applicant bears the burden of proving each allegation to the criminal standard. The procedure must comply with Family Procedure Rules 2010, rule 37 and Practice Direction 37A. A respondent has an absolute right not to give evidence, but the court may consider the evidential consequences of silence after giving an appropriate warning. Penalty for contempt must reflect both punishment for defiance of court orders and the coercive purpose of securing compliance. Relevant considerations include prejudice, pressure, deliberateness, culpability, appreciation of seriousness and subsequent co-operation. Imprisonment remains a last resort, but repeated and grave contempts involving the concealment of abducted children and the misleading of the court may require immediate custody.

The mother applied to commit Victor Egeneonu for contempt. The proceedings concerned three children taken to Nigeria in 2013 and alleged breaches involving misleading evidence, the production of false material, non-compliance with orders and failures to provide information.

The application had previously been listed for determination. Before and during the hearing, Victor made substantial admissions. The mother abandoned several allegations, while the remaining allegations were determined on the admitted facts, permissible inferences and the documentary and recorded evidence.

1. Proof and procedure. The application complied with rule 37 of the Family Procedure Rules 2010 and Practice Direction 37A. Applying Mubarak v Mubarak [2001] 1 FLR 698, the mother bore the burden of proving each allegation to the criminal standard. The court followed the guidance in Re L [2016] EWCA Civ 173.
2. Evidence and silence. Victor was not compellable, having regard to section 35(4) of the Criminal Justice and Public Order Act 1994. His silence did not reverse the burden of proof. After an appropriate warning, the court applied Cowan [1996] QB 373 and was entitled to take account of the absence of evidence rebutting, contradicting or explaining the mother’s case.
3. Findings. The admitted facts and proper inferences proved that Victor materially misled the court, participated in producing false evidence concerning the children’s wishes and feelings, helped procure a false third-party statement, and breached orders requiring information and contact details.
4. Penalty. Under section 14 of the Contempt of Court Act 1981, imprisonment could not exceed two years on any sentencing occasion. Applying Chrystal Mews Ltd v Metterick & Ors [2006] EWHC 3087 Ch and Hale v Tanner [2000] EWCA Civ 5570; [2001] 1 WLR 2377, the court considered punishment, coercion, prejudice, pressure, deliberateness, culpability, seriousness, contrition and co-operation. Custody was justified because the contempts were grave, repeated and committed by a person previously subject to a suspended committal order.
5. The aggregate sentence was seven months’ imprisonment, with concurrent and consecutive terms as specified in the judgment.