Gibbs v Gibbs (Rev 2)

In civil contempt proceedings, a breach of a court order must be proved to the criminal standard. The alleged contemnor bears the burden of establishing reasonable excuse on the balance of probabilities, although the court treated that issue as affecting sanction rather than the existence of contempt. Imprisonment is not automatic for deliberate breach. The court must adopt a proportionate approach, considering both punishment of disobedience and securing future compliance. Where imprisonment would not secure compliance and would provide only temporary respite, a further custodial sentence may be disproportionate. The court may instead protect the applicant through effective declaratory and enforcement orders.

The judgment concerned four applications arising from longstanding family proceedings: applications to commit the respondent for breaching a non-molestation order and an earlier order, the applicant’s application for sale of the respondent’s house to enforce a charging order, and the respondent’s application to discharge the orders.

The respondent accepted repeated breaches but claimed a reasonable excuse because she believed allegations of historical sexual abuse against the applicant to be true. The court examined earlier family-court findings, later police material and the circumstances surrounding the allegations. The central issues were whether the breaches were proved, whether there was a reasonable excuse, what sanction was proportionate, and whether the non-molestation order should be discharged.

1. Contempt and procedural safeguards. The court applied the principles summarised in Re L (A child) [2016] EWCA Civ 173 and Egeneonu v Egeneonu [2017] EWHC 2336 (Fam). The alleged breaches were clearly identified, the orders contained penal notices, the respondent had been advised of her right to legal representation and legal aid, and she had been warned of her right to silence and the risk of self-incrimination. The applicant bore the burden of proving breach so that the court was sure.
2. Breaches and reasonable excuse. The respondent knowingly breached both orders. The court held that her asserted belief in the allegations did not amount to a reasonable excuse. The earlier family-court findings were not treated as conclusive without review, but they were given close regard. The later material, including the police interview and investigation, did not provide material support for the allegations. The court concluded that the allegations were unfounded and dismissed the application to discharge the non-molestation order.
3. Sanction. Applying Hale v Tanner [2000] EWCA Civ 5570, the court emphasised that committal serves both to mark disapproval and to secure future compliance. Imprisonment was not automatic. The respondent had previously served four and a half months in prison and had immediately resumed her campaign. A further substantial sentence would not secure compliance and would provide only temporary respite. In the absence of violence or threats, imprisonment for more than a tokenistic period would be disproportionate. No further custodial sentence was imposed.
4. Enforcement and costs. The court ordered the sale of the respondent’s house to enforce the charging order and awarded the applicant his costs of the present proceedings on the indemnity basis.

First-instance judgment. The judgment refers to earlier proceedings and decisions in the same litigation, including Gibbs v Gibbs [2017] EWHC 1700 (Fam) and Gibbs v Gibbs [2017] EWCA Civ 2418, but those decisions are not judgments appealed in the present proceedings.