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K v D (Committal - Application to Strike Out) [2013] EWHC 796 (Fam)

Application to strike out a committal application for failure to comply with disclosure order arising from a child abduction. Application dismissed.

AD was 7 and lived under a residence order with his father, having weekend and holiday contact with his mother. During summer holiday contact, the mother and AD disappeared from her family home in London.

The father both applied for an order requiring the maternal family to provide information on AD's whereabouts, and then commenced wardship proceedings, during which a location order was made. At a subsequent hearing on a committal application, the application was dismissed upon the maternal family members giving undertakings that they would assist by providing all relevant information.

With fresh information provided from this subsequent disclosure, the father issued a further committal application against the mother's aunt, uncle and parents. The respondents applied to strike out the application, with the grandparents also challenging the court's jurisdiction.

The father based his application on various assertions, including that the maternal family were very close, that the family were all together when the mother disappeared with AD, and that the mother appeared to have stayed after her disappearance with a sister who was left off a list of names and addresses provided by the maternal family.

Peter Jackson J considered Practice Direction 81 to the Civil Procedure Rules. He considered whether it should be said that there was "no reasonable ground" for alleging that the respondents were guilty of a contempt of court. He considered that those seeking to strike out must show that the application had no realistic prospect of success.

He concluded that regardless of whether the father would ultimately succeed, it could not be said that he had no reasonable prospect of so doing. He did not consider that the fact of the father's previous application being dismissed made this application an abuse of process.

He rejected the argument that because the grandparents were not habitually resident, resident, or present in the jurisdiction, the order could not be effective. There needed to be a sufficient link to the jurisdiction in the circumstances of the case, and the judge was satisfied that there was, given the grandparents' ties to the country, to the child, and their presence at their home at the time of the abduction.

Despite ruling in the father's favour, the judge observed that the father might reflect on what would actually be achieved by the application, even if it were to succeed, and noted the high level of costs involved.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square

Neutral Citation Number: [2013] EWHC 796 (Fam)
Case No: W108P00297

2 April 2013

Before :

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SK Applicant


(1) HD

(2) SD

(3) UD

(4) MD

(5) FD Respondents
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Rachel Gillman (instructed by Landmark LLP Legal) for the Applicant (father)
Hassan Khan (instructed by Freemans Solicitors) for the 2nd Respondent (aunt)
Michael Gration (instructed by Dawson Cornwell) for the 3rd Respondent (uncle)
Ruth Kirby (instructed by The International Family Law Group) for the 4th and 5th Respondents (grandparents) 

Hearing dates: 27 March 2013
Judgment date: 2 April 2013
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Mr Justice Peter Jackson:
1. This is an application to strike out a committal application arising from a child abduction. 

2. AD, born in 2005 and now aged 7, is the only child of her parents.  They separated in 2008 and a residence order was granted to the father, with weekend and holiday contact to the mother.  After the separation, the mother lived in a property in London belonging to her parents ('the grandparents'), which was also occupied by her brother ('the uncle') and at times by her twin sister ('the aunt') and by the grandparents themselves.  The parents are doctors, as are all the maternal family members.

3. On 20 August 2011, the mother collected AD for a summer holiday.  Between 20 and 26 August, they stayed at her family home, the grandparents, uncle and aunt also being present. 

4. On 26 August, the mother and AD left the home and disappeared.  Proceedings have followed in this jurisdiction and in Pakistan, where AD may now be living.

5. On 6 September an order was made in the County Court requiring the uncle and others to provide information on the whereabouts of AD and her mother.  The father then began wardship proceedings in the High Court, in the course of which a location order was made on 14 September.  This places an obligation on the maternal family members to:

"(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child."

6. A number of hearings followed.  On 29 September, the maternal family members gave undertakings to the court to the effect that they would assist in the search for AD by providing all relevant information to the father and the court in the form of statements.   

7. Before that hearing, the father had issued committal proceedings against members of the maternal family.  These were dismissed on the basis of their undertakings, and wide-ranging disclosure orders were also made on that date without the knowledge of the maternal family.

8. On 10 January 2013, armed with information gained from the disclosure orders, the father issued fresh committal proceedings against the aunt, the uncle, and the grandparents as second, third and fourth/fifth respondents respectively.  On 29 January, he issued a further application seeking permission to issue a writ of sequestration against them, and for an order for the disclosure of their assets.  Between these dates, the matter came before me for directions on 15 January, when the present hearing, which took place on 27 March, was fixed.

9. The issues now arising are (i) the application to strike out, made by all respondents, and (ii) a challenge by the grandparents to the court's jurisdiction over them.

The strike-out application
 10. Paragraph 5 of the Practice Direction attaching to RSC 52 (incorporated into the CPR at Schedule 1) provides at paragraph 5 that:

"The court may, on application by the respondent or on its own initiative, strike out a committal application if it appears to the court:

i. that the committal application and the evidence served in support of it disclose no reasonable ground for alleging that the respondent is guilty of a contempt of court,

ii. that the committal application is an abuse of the court's process or, if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings, or

iii. that there has been a failure to comply with a rule, practice direction or court order."

11. The same rule appears as CPR PD81 Paragraph 16.1.

12. The word 'may' makes clear that the court has a power, but not a duty, to strike out an application in one or more of the three qualifying circumstances.  The power seems more likely to be exercised where one or both of the first two conditions is met, while a failure to comply with rules, practice directions or orders may in the first instance lead to a lesser sanction than striking out, unless the failure is fundamental.

13. The overall purpose of the rule, it seems to me, is to enable the court to dispose of applications that are patently unfounded, abusive or disorderly.  In particular, the wording of condition (i) is significant.  To be struck out, there must be 'no reasonable ground' for alleging contempt (which must of course be proved to the criminal standard).  This suggests that the court is seeking to fish out plainly unmeritorious applications using a rough and ready net and not a fine mesh.  The task facing those seeking to strike out therefore goes beyond pointing out shortcomings in the application that may prove to be important, or even determinative, at trial; what they must show is that the application has no realistic prospect of success,

14. Against that background, I now address the parties' submissions.

No reasonable ground
15. The father's case against each respondent is that they know but have not disclosed information that could have led to AD being found.  He bases his case on the inferences that he says should be drawn from assertions such as these:

• the close nature of the maternal family

• the fact that they were all together when the mother and AD disappeared

• the sale by them of the mother's car in the previous week

• the fact that the mother visited the grandmother's sister in Pakistan earlier that summer

• the fact that no member of the maternal family later disclosed this, despite the obvious possibility that the trip had been a reconnaissance

• the fact that the mother and AD appear to have stayed with that sister after their disappearance

• the fact that the maternal family omitted that sister's details from lists of names and addresses that they then produced 

• the pattern of phone calls (or absence of calls) made and received to and from the family home and the respondents' mobile phones

• inconsistent accounts given by the family about such calls

• the behaviour of the respondents following AD's disappearance  

• the delayed disclosure of a letter from the mother purporting to have been sent from England   

• the delayed disclosure of a letter from the mother purporting to have been sent from Qatar   

16. To this the respondents collectively assert that

• they have no idea where the mother and AD are

• they have fully cooperated with the court inquiry

• the assertion that they must know more does not establish that they actually know more

• the required standard of proof cannot be reached

• they have explanations for the above matters

• in some cases, it cannot be said which individual respondent was involved

• the second limb of the location order is too imprecise to be enforced

• committal proceedings should only occur as a last resort

17. Each respondent then raises issues particular to their own circumstances at the relevant time and emphasises the burden of the proceedings upon them in terms of time, competing commitments, and expense.

Abuse of process
18. The respondents point to the fact that the father has already applied to commit them in September 2011, and that his first application was dismissed.

19. They also complain at the length of time it has taken the father to issue the present application.

Procedural failures
20. The respondents make a variety of arguments about the service of orders and of the application.  In particular they draw attention to the unsatisfactory evidence about service of the County Court order.

21. The uncle complains about his treatment by the court following his arrest under the location order, which included a remand in custody overnight after (as he now admits) he did not give full information to the Tipstaff or the court.  He asks me to recuse myself from any hearing of the committal application.   

22. The grandparents state that they have not been regularly served with the present application.

23. All respondents point to the prolixity of the father's evidence and his refusal until now to disclose other material in his possession, including papers from the Pakistan proceedings. 

Jurisdiction in relation to the grandparents
24. The grandparents have throughout contested the jurisdiction of the court, and gave their undertaking in September 2011 without prejudice to that contention.  In presenting their written argument on this issue, Ms Kirby (at paragraph 19) does not point to authority, but submits that they should only be amenable to the jurisdiction of this court if they have a sufficient link with this country.  They have not lived in the UK since 2003.  They now live in Bahrain, where the grandfather works.  They are not resident, domiciled or present in England, though they visit from time to time.  

25. In response, the father argues that the grandmother spent most of her time in England before the abduction, that she is frequently here for health care, and that she is on the electoral register.  The grandfather, who is a British national, is the head of the family.  At the time of the abduction, he owned the family home, from which AD was abducted on an occasion when both grandparents were present.

26. In the circumstances, I shall say no more than is necessary to explain my decision.

27. I will strike out any allegation against the uncle that arises solely from the County Court order, as to which the evidence of service is unreliable. 

28. Other than that, the father's application for committal will not be struck out, for these reasons:

(1) Whether or not the father will succeed, given the standard of proof, it has not been shown to my satisfaction that he has no reasonable prospect of establishing at least some of his allegations on the basis of the current evidence, briefly summarised at paragraphs 15 and 16 above. 

(2) While the respondents' circumstances are of course individual, I find no basis for discriminating between them in this regard.

(3) I do not accept that the second limb of the location order is too imprecise to be enforced, but in any event the obligations arising from the respondents' undertakings are essentially to the same effect.

(4) The concept of committal proceedings being a last resort does not assist in this case.

(5) I do not consider the father's application to be an abuse of the process of the court on the basis that a previous application was dismissed with his consent.  The matter was not tried and much of the material upon which reliance is now placed has been gathered since then.  The respondents have not in reality been in double jeopardy.

(6) Nor is the delay in making the application abusive.  The case is extremely serious and there have been significant proceedings in Pakistan in the meantime, to the respondents' knowledge.

(7) The manner in which the application was originally presented was less than ideal, but I do not accept that substantial injustice has been done to the respondents as a result.  The father now has notice of the procedural complaints and has the opportunity to remedy them to the extent that he chooses; any continued failing would no doubt be adverse to him at the trial.

(8) The father now agrees to disclose the documentation sought by the other parties.

(9) I do not grant permission to the father to issue a writ of sequestration or order the respondents to disclose their assets.  If a finding of contempt were made, that process could follow.

(10) I would have recused myself from trying the application even if an application had not been made.

29. I reject the argument that the grandparents are not amenable to the jurisdiction.  I do not accept the submission that a person must be domiciled, habitually resident, resident, or present in England and Wales for an order to be effective, but I do accept that there must be a sufficient link in the circumstances of the individual case.  In this case, the grandparents have solid ties to this country and to this child, reflected in their presence in their own home here at the time of the abduction.

30. I will fix the hearing of the father's application for 10 June 2013, with a time estimate of 5 days before a judge of the Division or a s.9 judge.  The parties will please submit a draft order containing the necessary directions. 

Further observation
31. Having upheld the father's right to pursue his application, I make this further observation, which will be of no significance should the matter come to trial.   It is that the father may now wish to reflect on what is likely to be achieved by the application, even assuming it were to succeed, and on the high level of expense that will be incurred, which will have to be paid for somehow.  He points to the recent return of another abducted child whose father had been repeatedly imprisoned for contempt but, apart from the differences in the two cases, it is within my knowledge that that child's return was achieved despite and not because of her father's imprisonment.   

32. The order will contain a provision that permits the father, should he decide to do so, to withdraw his application for committal, provided that he informs the parties and the court within 21 days of this judgment.  In those circumstances, I would make no order for costs in relation to the application as a whole, though I would entertain written submissions from any party who wished to apply for costs, whereupon the matter would be at large. 

33. The orders and undertakings, which require the respondents to give all information that might assist in the search for AD, will remain in force until she is found, whether or not the committal proceedings continue.

34. After the above judgment was sent to the parties, but not yet formally handed down, the respondents renewed a point that was made at the hearing and filed a short addendum document referring to authority.  This refers to an argument that was not dealt with in the above judgment, and I now address it.

35. The argument is based upon on the old RSC O.45 rule 5(1)(a):

(1)  Where – (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under a court order or CPR rule 2.11; …  the judgment or order may be enforced by one or more of the following means … (iii) … an order of  committal

36. CPR 81.4 now provides as follows:

Enforcement of judgment, order or undertaking to do or abstain from doing an act

81.4 (1) If a person –

(a)  required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

(b)  disobeys a judgment or order not to do an act,

then, subject to the Debtors Acts 1869 and 1878 and to the provisions of these Rules, the judgment or order may be enforced by an order for committal.

37. The respondents argue that this means that a time limit for compliance with a mandatory order is necessary if it is to be enforced through committal proceedings.  Accordingly the orders of 14 September 2011 (set out at paragraph 5 above) cannot be enforced as it does not specify when it is triggered and does not set a time limit for compliance.  

38. Aside from authority, I do not accept this submission.  For a mandatory order to be enforceable by committal, it must be clear what must be done and when it must be done.  The reference in the rule to 'the time fixed' does not require a specific calendar date for compliance to be stated.  As a good example, the order in this place is of both immediate and continuing effect.  Paragraph 1 requires that those bound should inform the Tipstaff of the whereabouts of the child, if such are known to him or her and also to inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child.  Paragraph 6 states that this obligation continues until the Tipstaff locates the child. 

39. Turning to authority, the respondents refer to these two excerpts:
Re S-C (Contempt) [2011] 1 FLR 1478 at paragraph 17, per Wall LJ:

[17]   Secondly, if para 6 of the order of 20 January 2008 was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing: – see (inter alia) Federal Bank of the Middle East Limited v Hadkinson and Others [2000] 1 WLR 1695; D v D (Access: Contempt: Committal)  [1991] 2 FLR 34 and Harris v Harris, A-G v Harris [2001] 2 FLR 895 at para [288].

D v D (Access: Contempt: Committal) [1991] 2 FLR 34 at 39-40 per Dillon LJ:

"Moreover, it is well established that committal is not available for refusal or neglect to comply with an order to do an act, unless there has been an order (whether the original order or a subsequent one) fixing a time at which, or within which, the act is to be done"

40. These cases are not authority for the proposition that a fixed calendar date for compliance must be set in every case.  It will often be appropriate to fix a date, but in a case such as this, an immediate and continuing obligation may be appropriate, having effect until the child is recovered. 

41. In any event, the specific argument made by the respondents does not apply to the obligations undertaken by them under the order of 29 September 2011.

42. The respondents' submissions on this point do not therefore disturb my conclusion on their application to strike out these proceedings.