Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed & Ors (Committal: Findings)

Committal proceedings may proceed in a defendant’s absence where the court is satisfied that the defendant has been properly served, has had sufficient notice and opportunity to participate, understands the consequences of non-attendance, and has waived the right to be present. The court must also consider prejudice, the likelihood that an adjournment would secure attendance, and the wider need to deal with the case fairly and expeditiously.

Contempt must be proved to the criminal standard. The court may determine the full scope of alleged breaches notwithstanding an earlier concession by the applicant to proceed on fewer grounds, particularly where the alleged contempts concern orders made in children’s best interests and the defendant suffers no forensic prejudice. Findings must be confined to breaches proved beyond reasonable doubt.

The claimant, the maternal aunt of six children involved in wardship proceedings, applied to commit their father for alleged breaches of orders requiring the children’s return to the jurisdiction, attendance at hearings and compliance with a passport order.

The defendant had repeatedly failed to engage with the committal proceedings and did not attend the hearing, despite service by email and WhatsApp, prior legal representation in the wardship proceedings, and notice that the court might proceed in his absence. The central issues were whether the hearing could fairly proceed without him, the scope of the allegations to be determined, and whether the alleged breaches were proved to the criminal standard.

1. Proceeding in the defendant’s absence. Applying the approach in Sanchez v Oboz, the court found that the defendant had been served with the relevant documents, had sufficient notice, knew of the consequences of non-attendance, and had waived his right to be present. His persistent non-engagement made an adjournment unlikely to secure attendance. The court also considered his disadvantage in not presenting his account, the plight of the children abroad, and the absence of undue prejudice to the forensic process.
2. Scope of the hearing. Although an earlier advocate had indicated that the claimant would seek to prove only two alleged breaches, that concession was relevant but not determinative. The court could consider the full grounds because they concerned alleged contempts of the court’s own orders, the defendant had notice of them, and his lack of engagement meant that no prejudice would arise.
3. Proof and findings. The alleged breaches were required to be proved beyond reasonable doubt. The court found seven contempts proved: failures to assist with or secure the children’s return, failures to attend three specified hearings, and failures to comply with specified requirements of the passport order concerning notification of the children’s residence and causing them to change residence.
4. The court declined to find breaches where the evidence did not satisfy the criminal standard. It made no finding concerning the alleged travel with the children on the order of 15 February 2024, or the alleged obtaining of a travel document under paragraph 11 of the passport order.
5. Disposition. A further hearing was listed to determine penalty. The defendant was required to attend in person and was reminded of his entitlement to publicly funded legal representation.

This was a first-instance committal application. The judgment records earlier procedural hearings before Henke J, Williams J and Sir Jonathan Cohen, but no appeal from an earlier decision.