H, Re

A committal application in family proceedings must comply strictly with the procedural safeguards in the Family Procedure Rules. The application must identify each alleged contempt in detail, be supported by the evidence relied upon, and be served within the prescribed notice period. Although the court has power to waive procedural defects, the liberty of the alleged contemnor makes waiver highly exceptional. In particular, the court will generally require full information about the charge and the full period of notice. A possible exception may arise for a gross contempt committed in the face of the court, but that does not extend to an alleged breach of a previous order. Non-compliance with these requirements may be fatal and require dismissal of the committal application and release from custody.

Three children were made wards of court and a passport order was made requiring the father to disclose their whereabouts. After the Tipstaff arrested him for alleged non-compliance, he was remanded in custody while the court considered committal proceedings.

When the matter came before the court, there was no committal application in the prescribed form. The court therefore considered whether the procedural requirements governing committal applications and the applicable notice period could be waived, and what consequence followed from the defects.

1. The committal application was dismissed and the father was directed to be released immediately from prison.

2. Under Family Procedure Rules r.37.10(1), a committal application must be made by application notice using the Part 18 procedure. Rule 37.10(3) requires the notice to set out in full the grounds relied upon, identify separately and numerically each alleged act of contempt, and be supported by affidavits containing all the evidence relied upon.

3. Because the Part 18 procedure applied, the notice requirements in r.18.8(b)(ii), read with r.2.9(4) and the definition of a business day in r.2.3(1), required seven working days’ notice. The notice therefore had to be served by 4.00 pm on 6 December 2018.

4. Practice Direction 37A, para.13.2 gives the court power to waive a procedural defect where no injustice has been caused. However, in light of the liberty of the subject, the court endorsed the strict safeguards stated in Re L; In the matter of Gous Oddin [2016] EWCA Civ 173. The alleged contemnor must be properly informed of the order, the alleged breach, and the right to remain silent, and the allegation must be proved to the criminal standard.

5. The court held that it was difficult to envisage circumstances in which the detailed requirements of r.37.10(1) and (3), or the full notice period, could be waived. A gross contempt committed in the face of the court might be treated differently, but that possible exception did not apply to the alleged breach of a previous order.