Natalie Dawn Kennedy v Philip Thomas

Committal to prison in family proceedings is justified only for a clear and consequential breach of a court order. Contempt must be proved to the criminal standard. The applicant must establish that the respondent knew the order, breached it deliberately, and had the power to comply. The burden remains on the applicant; difficulty or inconvenience does not amount to impossibility.

Imprisonment is not automatic, including on a first application. The court must consider the seriousness of the breach, the objectives of marking disapproval and securing future compliance, the family context, available alternatives, and whether imprisonment should be suspended. A continuing and deliberate refusal to comply with return orders may justify a substantial custodial sentence, suspended for a defined period to permit compliance.

The applicant sought the committal of the respondent, the father of their five-year-old child, for breaches of return orders requiring the child’s return from Florida to England and Wales. The child had been living with the mother under an order made after contested proceedings.

Two breaches of orders dated 4 October 2023 and 15 November 2023 were admitted and remained unresolved. The father did not attend in person, gave no evidence, and declined to assure the court that he would comply with a further return order requiring the child’s return by 20 February 2024. The central issues were whether the admitted breaches warranted committal and, if so, the appropriate sentence and whether it should be suspended.

1. Contempt established. Applying the principles summarised in Bailey v Bailey (Committal) [2022] EWFC 5, the court treated committal proceedings as criminal in nature. The mother bore the burden of proof throughout, the presumption of innocence applied, and contempt had to be proved so that the judge was sure. The admitted breaches concerned properly stamped and served return orders, and there was no technical defence. The father had knowingly failed to comply and had the power to do so.
2. Sentencing principles. The court applied the guidance in Hale v Tanner [2000] EWCA Civ 5570. Imprisonment was not automatic, even on a first committal application. The relevant objectives were to mark the court’s disapproval and secure future compliance. The court considered the family context, the continuing nature of the breaches, the limited utility of adjournment, and the possibility of suspension.
3. Custody threshold and sentence. The father’s continuing refusal to comply, including his refusal to assure compliance with the current return order, demonstrated deliberate and ongoing defiance. The custody threshold was met. A sentence of 12 months’ imprisonment was appropriate, assessed on the facts of this case and without treating the sentence in H v Butt & Anor [2023] EWHC 3042 (Fam) as determinative.
4. Suspension. Following the approach in Hale v Tanner, the sentence was suspended for 28 days. That period allowed the father to comply with the latest return order and covered the next listed hearing. If the child was returned, the father could apply to purge his contempt and seek removal of the sentence. If not, he risked arrest on returning to the jurisdiction.
5. The remaining alleged breaches, involving possible technical defects and later orders, were left for determination on another occasion.