Reilly v Shamrez

Committal proceedings may proceed in a respondent’s absence where the court is satisfied that the respondent has been properly served, knows of the hearing, and has had a fair opportunity to attend or be represented. The alleged breaches of a penal order must be proved to the criminal standard. Wilful disobedience of an order will ordinarily attract punishment, but the court retains discretion to adjourn sanction where that better serves the administration of justice and the welfare objective underlying the proceedings. In child-return proceedings, the court may revise an earlier handover direction where changed circumstances mean that the child should first be assessed by Cafcass and the court.

The applicant mother sought the committal of the respondent father for contempt of court. Earlier orders required him to return their daughter from Saudi Arabia to England and Wales, provide flight details, and disclose evidence of the child’s whereabouts. The father failed to comply and did not attend the committal hearing.

The court considered whether the father had been properly served and whether it was appropriate to proceed in his absence. It also determined whether the breaches were proved, what sanction should follow, and whether the earlier direction that the child be handed directly to the mother remained appropriate after several months in the father’s exclusive care.

1. Proceeding in absence. The court was entitled to proceed notwithstanding the father’s absence. It was satisfied to the criminal standard that he had been engaged in the earlier proceedings, knew the terms and deadlines of the orders, had been served with the committal application and supporting documents in accordance with the order of Francis J, and knew that the hearing was taking place. The court had regard to the factors identified by Cobb J in Sanchez v Oboz (Committal Proceedings in Absence of Respondents) [2015] EWHC 235 (Fam).
2. Contempt proved. The father had deliberately retained the child in Saudi Arabia in defiance of the orders. Four breaches were proved to the criminal standard: failure to return the child by 24 May 2019; failure to provide flight details; failure to return the child by 25 July 2019; and failure to file and serve evidence of her whereabouts.
3. Sanction. Wilful disobedience would ordinarily be punished. However, exercising its discretion and taking account of the mother’s overriding objective of securing the child’s return, the court imposed no sanction at that hearing and adjourned sentence for at least six weeks. If the father returned the child before sentence, he would not be arrested or imprisoned on arrival provided that the relevant travel documents were surrendered.
4. Child arrangements. The court set aside the earlier direction requiring the child to be handed directly to the mother. After six months in the father’s exclusive care, it was no longer self-evident that immediate handover was in the child’s best interests. The child should return to England and Wales, be assessed promptly by Cafcass, and remain with the father pending further decisions at a hearing where both parents could be present and represented.