Emoni v Atabo

In committal proceedings, the court may proceed in the alleged contemnor’s absence where, having considered fairness, notice, the reason for non-attendance, likely prejudice, the prospect of securing attendance by adjournment, and the overriding objective, a fair and effective hearing remains possible. The court must identify the alleged contempt with precision, ensure proper service and a penal notice, and apply the criminal standard of proof. An order must state clearly what conduct it requires or prohibits; terms cannot be implied. The applicant must prove deliberate disobedience and that compliance was within the respondent’s power. Hearsay is admissible, but should be approached with caution.

The applicant sought findings that the respondent was in contempt of four orders concerning their daughter, including orders requiring the child’s return to England and Wales and the handover of the child’s passports. The respondent, who was in Nigeria, did not attend or have legal representation. The court first determined whether the committal application could fairly proceed remotely in her absence. The applicant did not pursue two of the alleged breaches at the hearing. The issues were whether the remaining orders had been properly served and were sufficiently clear, whether the respondent had deliberately breached them, and whether compliance had been within her power.

1. Proceeding in absence. Applying the guidance in Sanchez v Pawell Oboz and Jolant Oboz [2015] EWHC 235 (Fam), the court considered service, notice, the absence of any explanation, the respondent’s disadvantage, the likelihood that an adjournment would secure attendance, prejudice caused by delay, the effect on the forensic process, and the overriding objective. Although absence caused substantial disadvantage, earlier witness statements provided material about the respondent’s case. A fair and effective remote hearing could therefore proceed.
2. Procedural safeguards. The contempt application and supporting material identified the orders and alleged breaches. The respondent had notice, access to legal representation, and knowledge of her right to silence and protection against self-incrimination. The court applied the requirements of Part 37 of the Family Procedure Rules 2010, including the requirements for written evidence, service, and a public hearing. Any defect in the form would have caused no injustice and could be waived under PD 37A para 2(2).
3. Contempt principles. Following the guidance in Re L (a Child) [2016] EWCA Civ 173 and Egeneonu v Egeneonu [2017] EWHC 2336 (Fam), the alleged contempt had to be precisely identified; the relevant order had to be clear, served, and accompanied by a penal notice; and the alleged breach had to be proved beyond reasonable doubt. The burden remained on the applicant to prove deliberate disobedience and that compliance was possible.
4. Findings. The respondent knowingly returned to the United Kingdom without the child, contrary to the order of 19 December 2019 requiring the child’s immediate return. She also failed deliberately to instruct her Nigerian lawyers to hand over the child’s Nigerian and United Kingdom passports as required by the orders of 10 June and 21 July 2020. The breaches were proved beyond reasonable doubt. The judgment records findings of contempt in relation to those three orders.