Chaimae Chat Kaha v Adil Lahmer

In committal proceedings, the applicant bears the burden of proving beyond reasonable doubt that the respondent knew the order, deliberately breached it, and had the power to comply. The respondent does not bear a burden of proving impossibility. Compliance may remain required where it is difficult or inconvenient, provided it is not impossible.

An obligation relied upon for committal must be expressed with essential clarity. A materially defective obligation may be struck out where the defect is not appropriately waived under the relevant procedural direction. The court may rely on earlier evidential findings, together with the evidence before it, when assessing whether compliance was within the respondent’s power.

The applicant sought the respondent’s committal for alleged breaches of an order requiring him to return their five-year-old child from Algeria, purchase and communicate flight arrangements, provide written authority for an accompanying third party, and arrange indirect contact.

The respondent accepted non-compliance but contended that the child’s paternal grandmother in Algeria prevented him from acting. The court considered the clarity of the order, the procedural sufficiency of the committal application, the burden and standard of proof, and whether the respondent had the power to comply.

1. Procedural requirements. The application complied with rule 37.4 of the Family Procedure Rules 2010. The alleged facts were sufficiently stated. The obligation in paragraph 19 of the return order was unintelligible because it did not state the content of the required written authority. The defect was not appropriately waived under PD37A(2), and that allegation was struck out.
2. Applicable principles. Committal proceedings are criminal in substance. The applicant must prove the alleged breach beyond reasonable doubt. The presumption of innocence applies, and the respondent has no burden of proving impossibility. The applicant must establish that the respondent knew precisely what was required, deliberately failed to comply, knew the facts constituting the breach, and had the power to comply. Difficulty or inconvenience does not amount to impossibility.
3. Power to comply. The court rejected the contention that the paternal grandmother prevented compliance. The respondent’s evidence and conduct showed that he retained control over the significant decisions concerning the child. Earlier findings that he had taken no steps to secure the child’s return, and had produced no evidence that return was impossible, were relevant evidential findings. The respondent had also produced no evidence of an effective Algerian order preventing departure.
4. Findings and disposition. The applicant proved beyond reasonable doubt that the respondent deliberately breached paragraph 17 by failing to procure the child’s return, and the first sentence of paragraph 18 by failing to purchase tickets and send copies to the applicant’s solicitors. The alleged breach of the second sentence of paragraph 18 was not established, since the order did not require return through a third party. The paragraph 19 allegation was struck out. The respondent breached paragraph 21 by failing to arrange indirect contact, which was within his power. The court adjourned consideration of sentence for mitigation.