Tanya Borg v Mohammed Said Masoud El Zubaidy

A committal application under Part 37 of the Family Procedure Rules 2010 should identify the required matters and information, but an irregularity does not require dismissal where the respondent has suffered no prejudice or injustice. A contempt application may validly incorporate an accompanying document or separate sheet forming part of the application. Wilful failure to take any step towards complying with an order to use best endeavours is capable of constituting contempt. Committal proceedings uphold the authority of the court and are not confined to securing the practical objective of the breached order. Imprisonment may remain appropriate for repeated, deliberate defiance, subject to proportionality and totality.

The applicant sought the committal of the defendant for contempt arising from breaches of orders requiring him to use his best endeavours to execute and serve duly attested consents allowing two children to travel from Libya with their mother. The defendant had repeatedly failed to comply with earlier return orders and had previously served terms of imprisonment for contempt.

A preliminary application argued that the fresh committal application was procedurally irregular because it used a Part 18 form and supplied the information required by Part 37 in an accompanying statement and exhibits. The court also had to determine whether the orders had been breached and, if so, the appropriate sentence.

1. Procedural compliance. The application was properly made under Part 18. The accompanying statement and exhibited documents formed part of the application and, taken together, included the matters and information required by r.37.4(2)(a)–(s). Part 37 did not prescribe the form in which that information had to be provided.
2. Irregularity and prejudice. Even if there had been non-compliance, dismissal would not have followed. Applying M v P and others; Butler v Butler [1993] 1 FLR 773 and Devjee v Patel [2006] EWCA Civ 1211, a procedural defect in committal proceedings is not fatal where it causes no injustice. The defendant had received the relevant information, had sufficient time to prepare, and was legally represented.
3. Contempt. The orders were validly made and served, contained penal notices, and clearly required the defendant to take practical steps, beginning with contacting the Libyan Embassy. He took no steps whatsoever and had no intention of complying. The criminal standard of proof was satisfied, and each breach constituted contempt.
4. An order to use best endeavours may require careful assessment in a difficult case, but no such difficulty arose where the defendant had made no effort at all. Committal proceedings serve to uphold the authority of the court and do not depend solely on whether imprisonment will achieve the order’s underlying objective.
5. Sentence. The defendant’s deliberate and repeated defiance, the continuing harm to the children, and his previous contempts made imprisonment the only appropriate disposal. The court imposed 12 months’ imprisonment for each breach, concurrent, commencing immediately. The sentence was not suspended. The defendant would serve half the term, subject to any earlier purging of the contempt.