XYZ v Hocine Soltani

Committal proceedings require allegations of contempt to be pleaded with accuracy and in compliance with procedural directions, particularly where the respondent’s liberty is at stake. The court may refuse to determine allegations omitted from the authorised schedule, even where the omission appears to be drafting oversight and the respondent has suffered no demonstrated prejudice. Delay will not ordinarily defeat committal proceedings where it was caused, wholly or partly, by assurances of compliance, attempts to secure compliance, or other circumstances connected with the alleged contempt. Committal proceedings retain utility where enforcement may still secure compliance with return orders. Breaches must be proved to the criminal standard, namely that the court is sure.

The mother applied to commit the father to prison for alleged breaches of multiple High Court orders requiring the parties’ children to be returned from a North African state or handed over to the mother. The hearing was conducted as a fact-finding hearing, with any sanction adjourned to a later date. The father accepted that the orders were made, understood and served, but relied on alleged restrictions imposed by authorities in the other state, delay, and lack of utility because some children had returned.

The preliminary issue was whether allegations concerning the order of 18 December 2020 could be pursued when that order had not been included in the authorised schedule of alleged breaches.

1. Pleading and procedural compliance. The allegations concerning the 18 December 2020 order were excluded. The authorised schedule had been carefully directed to identify separately and numerically each alleged act of contempt. The omission of that order could not be treated as an immaterial drafting error, since committal proceedings engage the respondent’s liberty and require precision and compliance with procedural requirements (see para. [7]).
2. Delay. The proceedings were not rendered impermissibly stale. The delay had been caused in part by the father’s assurances or agreements to comply, by the mother’s efforts to enforce the orders abroad, by public-funding difficulties and by pandemic-related travel restrictions. A person cannot rely on the passage of time where his own conduct materially contributed to it (see paras [20]-[23]).
3. Alleged foreign restriction. The father’s evidence that he was prohibited from leaving the other state with the children was rejected. There was no documentary evidence of such a restriction. His conduct, including proposing a return date and attending the airport, was inconsistent with the alleged prohibition. In any event, the evidence did not establish that any restriction prevented compliance with the earlier orders (see paras [24]-[32]).
4. Utility. The fact that some children had ultimately returned did not remove the utility of committal proceedings. Their return resulted from the mother’s efforts rather than compliance with the orders, and enforcement could still assist in securing the return of the eldest child. Matters concerning the eventual return of that child could be relevant to mitigation at any later sentencing hearing, but did not defeat the proceedings (see paras [33]-[37]).
5. The court found, to the criminal standard, that the pleaded breaches of the 22 October, 2 December and 12 December 2019 orders, the 14 July 2020 order, and the 16 October and 19 November 2020 orders were proved. Other allegations were disallowed. The question of sanction was adjourned (see paras [38]-[41]).