GERARD PATRICK McMEEL v SIAN GISSING-McMEEL

Existing court orders remain binding unless set aside or successfully appealed. A party’s right to freedom of expression, including criticism of judges and the legal system, does not authorise breach of an operative order.

For contempt, the court must be sure that the order was breached. Procedural safeguards concerning penal notices are material. Where a penal notice is defective and the court is not satisfied that no injustice resulted, the defect cannot be waived and contempt should not be found. A clearly compliant penal notice may support committal where breach is proved beyond reasonable doubt.

The applicant sought the respondent’s committal for contempt for alleged breaches of orders made in family proceedings under the Family Law Act 1996 and the Children Act 1989. The allegations concerned removing the children from the applicant’s care, publishing material identifying the applicant or the children, disseminating documents from the proceedings, and recording a hearing.

The court also determined applications for an adjournment and recusal. The respondent argued that the orders had been obtained by fraud, that procedural requirements had not been met, and that her conduct was protected by freedom of expression. The central issues were whether the orders were binding, whether the committal procedure and penal notices complied with the Family Procedure Rules 2010, and whether the alleged breaches were proved.

1. Applications for adjournment and recusal. The respondent had had ample opportunity to obtain representation and the case was ready for judgment. The application to adjourn was refused. Applying Porter v McGill [2001] UKHL 67, the question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. That test was not met, and recusal was refused.
2. Binding effect of orders. The respondent’s belief that the orders were fraudulent did not excuse non-compliance. Unless set aside or successfully appealed, court orders remain in force. Freedom of speech, including criticism of judges, the legal system and freemasonry, does not include a right to breach an order.
3. Proof and procedure. Contempt had to be proved to the criminal standard. The committal notice complied with Rules 37.4 and 37.5 of the Family Procedure Rules 2010. The court accepted that the relevant orders had been served.
4. Penal notices. Rule 37.2 requires a prominent warning that disobedience may result in contempt and punishment. Following the approach illustrated by Re Dad [2015] EWHC 2655 (Fam), the defect in placing a penal notice away from the front of the order could not be waived where the court was not satisfied that no injustice had resulted. Accordingly, no contempt was found for removing the children or for the alleged breaches concerning publication of their names and proceedings material.
5. Established contempts. The respondent was proved beyond reasonable doubt to have posted material identifying and referring to the applicant after service of the 24 August order. That order contained a compliant warning, and the respondent was in contempt for the specified social-media posts. The alleged contempt in the face of the court, concerning recording a hearing, was not proved. Determination of penalty was adjourned to enable the respondent to obtain legal representation.

This was a first-instance committal decision in the High Court (Family Division). The judgment does not state any appeal from an earlier decision.