A judge in the Court of Appeal has suggested a checklist for dealing with contempt of court in family law cases.
Mrs Justice Theis said that before anyone is sent to prison for the offence, the courts should consider a number of factors. These included “complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is”, either failure to obey a court order or contempt within a courtroom such as lying.
When someone disobeys a court order, judges must make sure it “contained a penal notice in the required form” which explained the punishments for such action. That notice should be present when the order is initially given to the person accused of contempt, she added.
The courts should also ensure that anyone accused should be given the opportunity to hire legal representation, that they are “advised of the right to remain silent” and that they are “warned about self-incrimination” should they choose to give evidence.
Mrs Justice Theis included the checklist in a judgment following an appeal from a man sentenced to prison for six months. A previous judge had ruled that he disobeyed an 11 year-old court order during proceedings which involved his niece. He had been a named defendant in an order for the girl’s return after she had apparently been abducted by her parents. There was a great deal of confusion during the initial contempt proceedings as it was unclear whether the focus was on his breach of a court order or his reported dishonesty in court.
Sir James Munby, the President of the Family Division was one of three judges who heard the appeal alongside Mrs Justice Theis and Lord Justice Vos. The President said there had been an “irremediable, procedural error” in the contempt proceedings as a result of this lack of clarity. He also noted that there had been no proof that the man accused had been served with the court order in the first place.
Both of these factors prompted Sir James to rule in the man’s favour and order his immediate release from prison. Lord Justice Vos agreed with this decision, as did Mrs Justice Theis.
Read the judgment in full here.