The father apealed against his sentence of committal for contempt of court in the course of children proceedings. During a dispute over residence, he took the child to his family in Syria and returned alone. He had then disobeyed orders requiring him to secure his son’s return to England. Syria is not a party to any international convention for the return of abducted children. He now contended that that there was no sufficient evidence of contempt of court and that the approach taken by mother effectively reversed the onus of proof by requiring father to demonstrate that he was unable to effect the return of the child, rather than accepting that it was mother’s responsibility to demonstrate that he was in deliberate breach of the order.
Held: If it be the case that father cannot cause the return of the child he is not in contempt of court, however disgraceful and/or criminal the original abduction may have been. Nor is it enough to suspect recalcitrance, it has to be proved. Various difficulties arose with different proposed means of bringing him back, and the mother had adduced no evidence to suggest how it might in fact be arranged. In the absence of such, a finding that the breach was deliberate must fail, and the appeal succeeded.
Judges:
Hughes, Thomas, Keene LJJ
Citations:
[2008] EWCA Civ 1138, [2009] 1 FLR 1, [2009] 1 WLR 1482, [2008] Fam Law 1189
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Jones, Re (Alleged Contempt of Court) FD 21-Aug-2013
The Solicitor General sought the committal of the respondent for alleged contempt of court. There had been repeated litigation between the respondent and her former husband as to whether the children should live in Spain with the father or in Wales . .
Cited – Re W (A Child) (Abduction: Committal) CA 17-Aug-2011
If the sentence for an original breach of a court order has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, . .
Cited – Button v Salama FD 2-Jul-2013
An order had been made placing the child of the parties under wardship. The mother now applied for an order to commit the father to prison for contempt of court in failing to abide by orders made. He had taken the child to Egypt, and now said that . .
Lists of cited by and citing cases may be incomplete.
Children, Contempt of Court
Updated: 19 July 2022; Ref: scu.277353