AB v CD

Under Family Procedure Rules 2010 Part 37, confiscation of a contemnor’s assets is a sanction available only when the court is determining the appropriate order following a finding of contempt. It cannot be obtained through a Part 18 application, particularly on a without-notice basis. The court may, after a fresh contempt finding, direct that confiscated property be sold and that the proceeds fund litigation required to secure compliance with existing family orders. A mandatory order remains legally effective after the date for compliance has passed, unless it is set aside or varied. Continuing non-compliance may therefore found fresh contempt proceedings.

The applicant mother sought, without notice under Part 18 of the Family Procedure Rules 2010, an order for the sale of property owned by the respondent father. She intended to use the proceeds to fund proceedings in Dubai seeking the return of their child, whom the father had retained abroad in breach of English family orders.

The father had previously been found in contempt and sentenced to imprisonment, suspended to allow him to return the child. The mother argued that the court’s sequestration or confiscation powers permitted the property to be sold immediately. The central issues were the source and scope of those powers, the procedural route by which they could be exercised, and whether the existing return orders continued to bind the father after their compliance dates had passed.

1. The Part 18 application was refused in substance. The court had no power under FPR 37.9 to confiscate the father’s property on a Part 18 application. Contempt proceedings are subject to specific procedural safeguards under FPR 37.4 and must be brought on notice; FPR 18.1(2)(b) prevents Part 18 being used for that purpose.
2. The modern expression is “confiscation of assets”, rather than sequestration as a contempt sanction. FPR Part 37 codifies the procedural rules but does not remove the underlying inherent, statutory or common-law jurisdiction. The court may confiscate property, including real property, and may direct its sale or otherwise determine how it is to be used. That may include funding litigation abroad which is required to remedy the consequences of the contempt. Damages are not available as a contempt remedy.
3. Those powers must be exercised as part of the sentencing decision following a finding of contempt. The earlier sentencing exercise had already been completed. It was inappropriate, especially without notice, to reopen it by adding a further sanction. The mother could seek confiscation in fresh contempt proceedings based on the father’s continuing breach.
4. A mandatory order remains legally effective after its stipulated compliance date unless set aside. The father therefore remained under an obligation to return the child, and continuing failure could found fresh contempt proceedings.
5. To preserve the position pending those proceedings, the court accepted an undertaking that fresh contempt proceedings would be issued and served. It dispensed with personal service, permitted service by email, and granted an injunction restraining the father from selling, charging or otherwise dealing with the property pending the contempt hearing.