Margaret Langley considers some important points of principle about committal proceedings


The Practice Direction to order 52 of the Rules of the Supreme Court and order 29 of the County Court Rules (the Practice Direction) sets out in part 1 the requirements for a committal application, with part 11 making additional provision for contempt in the face of the court in both the High Court and in the county court. In relation to family proceedings, the Practice Direction (Family Proceedings: Committals) [2001] 1 WLR 1253 applies.



Committal applications remain a regular means of enforcement of both undertakings and injunctions in family proceedings, and as such occupy an important place within them. Care must be taken to deal with them in the emotional context of such proceedings when there are frequently live issues as to contact, residence or outstanding financial or property matters.



A committal hearing concerns or may concern the liberty of the alleged contemnor and as such constitutes criminal proceedings for the purposes of article 6 of the European Convention on Human Rights and Fundamental Freedoms. A respondent to a committal application is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (article 6.1).



This is subject to paragraph 6(1) of the Practice Direction, which provides that the court hearing an application for an order for committal may sit in private where the application arises out of certain categories of proceedings relating to children, but if the court then makes an order of committal, it shall in public state the name of the person committed, in general terms the nature of the contempt in respect of which the order of committal is made, and the length of the period of the committal.



The burden of proof lies on the person seeking the committal and the standard of proof is that of the criminal courts, namely beyond reasonable doubt. Section 6 of the Human Rights Act 1998 imposes a duty on all public authorities, which include courts, not to act in a way which is incompatible with a convention right. Article 6.3 of the convention provides that everyone charged with an offence has the following minimum rights:

l To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

l To have adequate time and facilities for the preparation of his defence;

l To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

l To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; and

l To have the free assistance of an interpreter if he cannot understand or speak the language used in court.



These principles and their application have been the subject of scrutiny by the higher courts, which have emphasised the requirement for the lower courts to apply them rigorously. In Newman v Modern Bookbinders [2000] 2 All ER 814, the Court of Appeal made clear the importance of giving precise written details of the allegations made against him to a respondent to an application to commit, warning him of the consequences should a breach of the order/undertaking be proved and giving him the opportunity of obtaining legal advice and/or representation.



In Hammerton v Hammerton [2007] EWCA Civ 248, [2007] All ER(D) 393 (Mar), the Court of Appeal considered again the principles relating to a committal in the context of family proceedings. The court heard an application for contact by Mr Hammerton together with a committal application against him by Mrs Hammerton, who was represented by counsel. Mr Hammerton was unrepresented. Judge Paul Collins made an order for indirect contact and committed him to prison for three months for breach of an undertaking and a court order. Mr Hammerton appealed successfully against the committal order.



The Court of Appeal set out five principles relating to committal proceedings which it regarded as well settled:

l By virtue of section 6 of the Human Rights Act 1998, it is unlawful for a court, as a public authority for the purposes of section 6(3), to act in a way incompatible with the defendant's rights enshrined in article 6 of the convention;

l It emphasised that committal proceedings are a criminal charge for the purposes of article 6 and that the defendant had the rights set out in article 6(3)(c). Unless a defendant unreasonably failed to co-operate with whatever legal assistance is offered, or in refusing it, may make it impossible for legal assistance to be continued, a defendant is entitled to be represented. If that resulted in an adjournment, then it should be granted save in circumstances of extreme urgency: see Re K (Contact: Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277;

l As committal proceedings involve a criminal charge against a defendant, the burden of proof lies on the person seeking committal;

l A defendant to criminal proceedings is not obliged to give evidence. His right against self-incrimination under article 6.1 of the convention applies to committal proceedings in family cases; and

l If the facts constituting contempt are proved, the seriousness has to be viewed by reference to the facts found, but future compliance must be considered. The courts had to bear in mind that different considerations apply from other contempts because the parties are subject to heightened emotional tensions and there is often a need for family members to continue to be in contact with each other: see Hale v Tanner [2000] 2 FLR 878.



In Hammerton, the judge made no enquiry as to whether Mr Hammerton wished to be represented and was therefore unaware that the decision to withdraw his legal aid was to be reviewed two weeks later. He also decided to hear the contact and committal applications together, which resulted in Mr Hammerton giving evidence in support of his contact application, and so losing his right against self-incrimination in the committal proceedings. He could have been offered legal help at court or the committal proceedings could have been adjourned pending his legal aid review. In seeking to avoid delay, Judge Collins had left himself facing an insoluble conflict.



This judgment and that in Re K (Contact: Committal Order) should be required reading for all judges and advocates dealing with committal applications in family cases.



District Judge Langley sits at Central London County Court