O (Committal: Legal Representation)

Committal proceedings are criminal in nature and distinct from the underlying civil proceedings. A respondent who wants legal representation is entitled to receive it and qualifies for non-means-tested legal aid. The court must take effective steps to secure that protection.

A committal order may be procedurally irregular where the court proceeds despite an apparent failure in obtaining representation. Later representation does not cure an earlier hearing at which the substantive committal order was made. A court may exceptionally proceed without representation where that course is just, including where an adjournment would prejudice the alleged contemnor.

The mother was subject to orders requiring the return of her children to Mexico. After repeated non-compliance, the father issued a committal summons. On 13 June 2019, while the mother remained unrepresented following an apparently erroneous means-based refusal of legal aid, Cohen J found contempt and imposed a four-week sentence suspended on conditions.

Non-means-tested legal aid was subsequently granted. Nevertheless, the mother lacked fully qualified representation at later hearings and appeared in person on 2 October 2019, when the judge activated the sentence. She appealed against the contempt findings, the suspended committal order and the activation of the sentence.

The central issue was whether the failure to secure legal representation at the material hearings constituted a serious procedural irregularity requiring the committal orders to be set aside.

Appeal allowed. Peter Jackson LJ gave the judgment of the court, with which Moylan LJ agreed.

1. Committal proceedings are criminal in nature and differ in kind from the civil proceedings from which they arise. The respondent’s liberty is at risk. The court must therefore address afresh whether the respondent wants representation and whether effective arrangements have been made to provide it. The approach in Brown v London Borough of Haringey [2015] EWCA Civ 483 was followed.

2. A person facing committal in the High Court who wants representation is entitled to publicly funded representation without a financial means test. The court has an obligation to ensure that this protection is available. Paragraph 12.5 of PD37A of the Family Procedure Rules requires attention to legal aid, legal advice, adequate preparation time and interpretation.

3. At the hearing on 13 June, the judge appreciated that the refusal of legal aid appeared to rest on invalid means-testing grounds. He should nevertheless have resolved the problem before determining contempt and sentence. He could have made a representation order or adjourned so that the refusal could be challenged. Providing legal-aid information after the substantive order was made was too late. Later representation did not cure that irregularity.

4. At the hearing on 2 October, the solicitors’ explanation for seeking an adjournment was understandably regarded as incredible. Even so, the judge should have deferred his decision briefly to investigate the unexplained absence of representation for a litigant facing imprisonment. It could not be known whether representation would have altered either outcome.

5. A court may sometimes proceed with a committal application although the alleged contemnor is unrepresented. That may be just where an adjournment would prejudice the alleged contemnor or in comparable circumstances. No such circumstance existed here.

6. No permission was required for the appeal. Rule 52.3(1)(i) of the Civil Procedure Rules 1998 extended to a later decision concerning continued suspension where that decision deprived the appellant of liberty. The 21-day limit in rule 52.12(2)(b) nevertheless applied, and time to appeal the June order was extended.

7. The contempt findings, suspended committal order and warrant were set aside, and the mother was released. The father’s first committal summons was remitted for urgent directions and rehearing before a different Family Division judge. Any new sentence must allow for the nine days already served.

1. Court of Appeal (Civil Division): The appeal was allowed in [2019] EWCA Civ 1721. The contempt findings, suspended committal order and warrant were set aside. The appellant was released, and the committal summons was remitted for rehearing before a different Family Division judge.
2. High Court, Family Division: On 13 June 2019, Cohen J found the mother in contempt and imposed a suspended four-week sentence while she was unrepresented. On 2 October 2019, he activated that sentence, again while she was unrepresented.