Samira Addou v Sidali Bennabi

A suspended committal order may be activated only if its terms are sufficiently clear. It must identify the breaches found, the sentence imposed and the conditions governing activation, so that the contemnor can understand the consequences of compliance or non-compliance. Procedural defects may be waived where no injustice is caused, but defects creating identifiable prejudice cannot be cured where they are fundamental. A committal application based on a mandatory return order requires a specified deadline for compliance. A continuing obligation to return a child, without a further deadline, lacks the clarity and certainty required for committal. Contempt must be proved to the criminal standard, including knowledge of the order, deliberate breach and the ability to comply.

The applicant sought to activate an 18-month suspended committal sentence imposed after the respondent breached orders requiring him to return their child from Algeria to England and Wales. The applicant also issued a further committal application alleging breaches of three later return orders.

The court considered whether the original suspended order was sufficiently clear to permit activation, whether procedural defects could be waived, and whether the later orders were clear, served and deliberately breached. The central issues were the requirements of clarity and procedural fairness in contempt proceedings, and whether the respondent had proved unable to comply with the return orders.

1. Activation application dismissed. Activation of a suspended sentence is discretionary, not automatic: Villiers v Villiers [1994] 1 FLR 647 (CA). Before exercising that discretion, the court had to determine whether the original order was sufficiently clear.
2. A committal order must state with precision the breaches found, the sentence imposed and the conditions of suspension or activation. The principle in Re S-C (Contempt) [2010] EWCA Civ 21 applied equally to a suspended committal order. The original order contained an incorrect cross-reference, failed to explain how the sentence related to five breaches, and used confusing provisions concerning suspension and activation.
3. FPR 2010 PD37A 2(2) permitted procedural defects to be waived where no injustice had been caused. The first defect caused no injustice, but the latter defects created identifiable prejudice. The respondent could not know precisely which breaches generated the sentence or what would follow from failing to return the child by the specified time. The defects were fundamental and could not be amended. The activation application therefore could not stand.
4. The additional committal application was limited to three breaches supported by specific deadlines. Alleged breaches of continuing obligations were dismissed because the orders did not specify a date by which the child had to be returned. The principle stated in The Solicitor General v JMJ (Contempt) [2013] EWHC 2579 (Fam), citing Temporal v Temporal [1990] 2 FLR 98, applied to suspended committal orders as well as original mandatory orders.
5. The three later orders had been served or brought to the respondent’s attention and were clear. Applying the principles summarised in Bailey v Bailey [2022] EWFC 5, the applicant proved beyond reasonable doubt that the respondent knew of the orders, deliberately failed to comply and had the ability to procure the child’s return. The respondent was consequently found in contempt on three counts.