FD24P00214 - [2025] EWHC 2165 (Fam)

I now turn to the law. The procedure relating to contempt is found in FPR 2010 rule 37.4 which sets out the requirements for contempt. Rule 37.4(2) sets out the precise requirements for contempt applications.

“(2)

A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—

(a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);

(b)the date and terms of any order allegedly breached or disobeyed;

(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;

(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;

(e)confirmation that any order allegedly breached or disobeyed included a penal notice;

(f)the date and terms of any undertaking allegedly breached;

(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;

(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;

(i)that the defendant has the right to be legally represented in the contempt proceedings;

(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;

(k)that the defendant may be entitled to the services of an interpreter;

(l)that the defendant is entitled to a reasonable time to prepare for the hearing;

(m)that the defendant is entitled but not obliged to give written and oral evidence in their defence;

(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;

(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;

(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;

(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;

(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and

(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.”

In Re L (A Child) [2016] EWCA Civ 173, Theis J set out the requirements of a committal application and in particular the need to set out allegations with complete clarity. I note that this pre-dates amendments made to the Family Procedure Rules but the judgment still sets out the important principle about the need for complete clarity. I do not need to set out all of the case law in detail.

Contempt proceedings are analogous to criminal proceedings. All breaches must be proved beyond reasonable doubt.

In Omay Ali Elhag Elkndo v Elnoaman Gassam Elsyed (Committal: Sentence)[2024] EWHC 2230 (Fam), Mr Justice Cobb, as he then was, made clear that a court can proceed to consider a committal application and to make orders for committal even in the absence of a party. In this case, the deliberateness of the father’s absence could hardly be clearer. The father is sitting outside the court, refusing to come in.

In terms of sentence, Mr Justice Peel set out the law in detail in Bailey v Bailey (Committal)[2022] EWFC 5, and I fully take that into account. In my view, the most important passage in respect of sentencing which appears at [60] in Peel J’s judgment is in the judgment of Lady Justice Hale as she then was in Hale v Tanner [2000] EWCA Civ 5570 at [25]–[35].

“25.

In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.

26.

Having said that, firstly, these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is  not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe [1998] 2 FLR 127, a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion.

27.

Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited. The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non-attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved.

28.

Thirdly, if imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension.

29.

Fourthly, the length of the committal has to depend upon the court’s objectives. There are two objectives always in contempt of court proceedings. One is to mark the court’s disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity.

30.

Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.

31.

Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure  compliance with the court’s order.

32.

Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.

33.

Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break-up of an intimate relationship in which emotions run high and people behave in silly ways. The context of having children together, if that be the case, cannot be ignored. Sometimes that means that there is an aggravation of what has taken place, because of the greater fear that is engendered from the circumstances. Sometimes it may be mitigating, because there is reason to suppose that once the immediate emotions have calmed down, the molestation and threats will not continue.

34.

Ninthly, in many cases, the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts or some of the same facts, which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contender to suffer punishment twice for the same events.

35.

Tenthly, it will usually be desirable for the court to explain very briefly why it has made the choices that it has made in the particular case before it. One understands all the constraints in a busy county court, dealing with large numbers of these cases these days, and one would not wish to impose too great a burden on the judiciary in this respect. Nevertheless, it would be appropriate in most cases for the contemnor to know why he or she was being sentenced to a period of imprisonment; why it was the length that it was; if it was suspended, why the suspension was as it was, but only very briefly.”

It is important to note that the court has a range of choices in terms of sentencing options for contempt of court – albeit not as wide as in the criminal courts. Lady Justice Hale at [28] on the length of committal says that it must be decided without reference to whether it is suspended. There are two objectives in the sentence – first, to mark the court’s disapproval of breaches of its orders and the other is to secure compliance with those orders. The length must have a reasonable relation to the maximum of 2 years.

In Oliver v Shaikh [2020] EWHC 2658 (QB), Mr Justice Nicklin sets out the two purposes or principles behind a sentence of committal. He says that the sanction should only be imposed where the court is satisfied that the contempt was so serious that no other penalty is appropriate. A suspended sentence is equally a prison sentence. I also have regard to the very recent judgment of the Court of Appeal, the leading judgment being given by Lady Justice King in B (a child) (Sentencing in contempt proceedings)[2025] EWCA Civ 1048 where she emphasises the importance of parties complying with court orders.

With the backdrop of law set out, I turn to each alleged breach.