When a court order is not complied with

Family Law|September 24th 2015

“Teach not thy lip such scorn, for it were made

For kissing, lady, not for such contempt.”

William Shakespeare

Okay, that quote may not be entirely apt for what is to follow, but it is a favourite of mine, so any excuse to use it…

As I have said here previously (see here and here), court orders must be obeyed. If the court makes an order, it expects people to do as they are told. That is because, as District Judge Davis said in one of the cases to which I will refer below, “if they do not we may as well go home, or we may as well exact some penalty”. Exacting a penalty, however, is not always a straightforward matter, and sometimes it is not necessary to implement the penalty.

These two things were demonstrated by two judgments published this week.

The first case, with the (to my knowledge) unique, if not exactly accurate, name Re Dad has already been mentioned here. I will not go through its details again, save to point out that it was dealing with a very serious issue. As Mr Justice Holman pointed out:

“I wish to stress at once … that the factual context in which this application [to commit the uncle of the child to prison for contempt] is made is also one of the utmost gravity and seriousness. It involves the abduction of a child from his mother with whom he was living, apparently by his father. That abduction took place on or about 6th January 2015. As I understand it, there has been no face to face contact at all between the child and his mother since then, now over eight months ago; and, indeed, the mother does not even have any reliable information as to where in the world her child is. An abduction and retention of a child in those circumstances involves abhorrent cruelty both to the parent from whom the child has been abducted (in this case, his mother) and also to the child himself.”

Despite such gravity, Mr Justice Holman was not prepared to overlook a serious procedural defect with the committal application: that the court order with which the uncle was served did not display sufficiently prominently a notice warning him of the consequences of failure to comply with the order. The committal application was therefore struck out.

The point of all of this is that whilst court orders must be obeyed, depriving a person of their liberty by sending them to prison is, as Mr Justice Holman said, a “grave and serious” matter. Accordingly, a person cannot simply be committed to prison for a breach of an order, however egregious, without due process.

The other judgment, Cheltenham Borough Council v Nield, did not actually relate to a family matter. It was a somewhat unusual judgment, in that it was really just a recording of an exchange between the district judge and the defendant to the committal application, which was in connection with the breach of a noise nuisance injunction. However, that makes it interesting, as a record of just the kind of thing that happens when such an application is heard.

District Judge Davis began as follows:

“Mr Nield [i.e. the defendant], I do not know what you were thinking. When you received this injunction it was exceptionally clear. It told you what you should and should not do. I do not know what the last judge dealing with this case told you, but I want to make something very clear to you, which is this. If this court makes an order, we expect people to do as they are told. That is because if they do not we may as well go home, or we may as well exact some penalty. Let me reassure you, I am not going home and neither are my colleagues here. We do not tolerate a breach of our orders.”

In the event, however, District Judge Davis did not impose an immediate custodial sentence, as there had not been any further breaches of the injunction and the local authority, which applied for the committal, was satisfied with a suspended sentence. “Had there been a hint of any further breach after 10th April” he told the defendant, “I would have sentenced you to three months imprisonment, without warning, like that. That is because the injunction has to be respected. What we say has to go.”

There we are again: What we say has to go. He continued in a similar vein:

“The message you should take out of this room today is that if you breach this injunction in any way again, it will come back before the judge. It may be me, I hope it is, because I will remember you, let me reassure you, and the suspended sentence which I am going to give you will fall. You will not only get the three months on this suspended sentence, you will get additional time for the breach. Neither I nor my colleagues want to send you to prison, but we will. You must understand that. It is not on, dragging people into court. Noise nuisance blights people’s lives. It is not fair and you saying, “I do not know what happened” is not very convincing. That is an excuse for one. You have got six here. There will not be a seventh. Am I making myself clear?”

I think the defendant got the message.

Image by Martin Pettitt via Flickr

Author: Stowe Family Law

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