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Defending Committal Applications in the County Court under Part IV of the Family Law Act 1996

Tom Tyler, of 4 Brick Court, provides practical guidance on how you can best defend a client in the face of committal proceedings in the family courts.

Defending Committal Applications in the County Court under Part IV of the Family Law Act 1996

image of tom tyler, 4 brick court

Tom Tyler, 4 Brick Court

`Come and fight,' said the pale young gentleman.

`Laws of the game!' said he. Here, he skipped from his left leg on to his right. `Regular rules!' Here, he skipped from his right leg on to his left. `Come to the ground, and go through the preliminaries!'

Here, he dodged backwards and forwards, and did all sorts of things while I looked helplessly at him.

Charles Dickens: Great Expectations.

This article is aimed at assisting those who represent respondents on applications for committal in the county court. Those who represent applicants need only look in the Family Court Practice or some other procedural book for the rules governing the bringing of applications. The rules are there for all to see and are simple to understand and to follow. This guide is aimed at helping those who represent clients on the receiving end of such applications, and for whom I perceive there is a lack of helpful information.

A good knowledge of the laws of the game will stand you in very good stead in applications for committal involving alleged breaches of undertakings and injunctions. These applications are quasi criminal proceedings and are subject to some quite strict rules in how they must be conducted. It has certainly been this writer's experience that many applicants are poorly served because of non-compliance with the rules. A sound knowledge of the preliminaries is what is needed to exploit these weaknesses when they can be found, and that means knowing the rules and where to find them.

If you are acting for a respondent who finds himself on the wrong end of a committal application or has been arrested under a power of arrest, your duty is to secure his release by any fair means you can, and there is an awful lot you can do to throw dust in the eyes of the applicant's team. It is the aim of this piece to help ensure that if you are the advocate for the respondent; then like the pale young gentleman above, you may skip and dodge your way to the release of your respondent while those representing the applicant look helplessly on.

There are essentially two ways that the respondent can find his way into trouble. The first is where he is arrested for breaking an injunction and brought before the court: this is dealt with specifically in Part 2 of this piece. The second is where he is subject to an application to commit him to prison for breaking an order or an undertaking that he has given. That is covered in Part 3. First of all, in Part 1 I shall run through the main tools of the trade.

Part 1: The Basics
The law and the rules
The principal provisions affecting committal applications in this area are:

(a) Family Law Act 1996 Part IV
(b) CCR 1981 Order 29
(c) Family Proceedings Rules 1991 Rule 3.9A
(d) Contempt of Court Act 1981

The injunction
A domestic violence injunction order under Part IV of the Family Law Act 1996 is usually an order against a party forbidding him to act in certain specified ways. He will usually be forbidden from using or threatening violence against or harassing a certain named person. He may also be forbidden from entering a certain place or going within a certain specified distance of such a place. There will be a penal notice attached to such an order. This is a written warning that if the order is broken then the respondent may go to prison if it is proven to the criminal standard that he has broken the order.

The power of arrest
Injunction orders will often have a power of arrest attached to them. This is a special written direction to the police that they should arrest the respondent should they have reasonable grounds to suspect that the order has been breached. The power of arrest is specifically attached to one or more provisions of an injunction order. FLA 1996, s 47. A power of arrest does not represent a penalty of any kind. It helps to think of it as an accelerated method of getting the respondent to court. Once he is there he can be dealt with in a variety of ways. If your respondent has been arrested under one of these orders then there are strict rules in relation to how he must be dealt with and how soon he must be brought before the court. More of this later.

The undertaking
An undertaking is a promise to the court to do or not to do a specified thing. In the county court an undertaking is given in Form N117. It will usually come into being on a court hearing that is attended by the respondent. It will usually consist of a series of hand written promises. There is a penal notice attached to it in the same way as an injunction but it does not come with a power of arrest. The consequences of breach are the same as for breaking an order.

Part 2: Attending Court upon the Respondent's Arrest
What to do at court
Typically you will be briefed to attend court in a hurry because the respondent will have been arrested and will be locked in a room at court awaiting your arrival. You will often get the papers at court and therefore you will need to know what to look for and to act quickly. You will usually be under pressure of time from the court staff to deal with the matter at break neck speed. Never mind about them. You are there to do a job and you must ensure that you have the time to do it. Ask the judge for more time if you need it.

Check the wording of the documents carefully
First of all read the injunction order. Be sure that you know exactly what it is that your client can and cannot do. Next, read the power of arrest carefully. Make sure that it says on its face what paragraph of the injunction order it is attached to; see Family Proceedings Rules 1991 Rule 3.9A. These orders are often typed out by very hard pressed clerical staff at the court. Errors are frequent, especially so in some courts more than others. Sometimes the text of the order or power of arrest amounts to nonsense due to typographical errors. If that is the case, then you might argue that the order was incapable of breach because it cannot be understood. If there is ambiguity on the face of a document then you will be able to argue that the ambiguity should be resolved in favour of the respondent whose liberty is at stake

Is the arrest valid ?
Ask to meet the arresting police officer. Obtain a photocopy of his note book recording the arrest. It may be that the respondent was arrested for something other than breach of the order, such as unpaid fines. In that case there was no arrest for breach of the injunction and you can argue that he should be released immediately due to the lack of a valid arrest. Check for any admissions of guilt or unlikely explanations by the respondent which might prove to be your client's undoing should the matter go to trial.

Has the order been personally served ?
An injunction must be personally served to be enforceable as a contempt of court: Order 29, r 1(2). Ask the applicant to prove that the respondent was personally served with the order. There ought to be a statement of service from a process server. Do not ask your client if he was served until you have seen the statement of service and then take instructions on the document. It is for the applicant to prove service rather than for your client to admit it.

Check that the process server has stated by what means he has identified your client. A good statement of service will say something to the effect that the respondent was identified by means of a photograph provided by the applicant's solicitors. It might state that the respondent admitted his identity upon being asked. If no clue is given as to how the respondent was identified prior to being served, then you need to ask yourself whether there is any evidence as to the identity of the person who was served.

Be careful of an exception to Order 29, rule 1(2) contained in Order 29, rule 1(7). This rule gives the court a discretion to dispense with personal service of an order but only if the court thinks it just to do so. You would ordinarily find such a situation where a respondent was in court at the time an order was made and told the judge that he understood the order. In such an instance the court has a discretion to disapply Order 29, rule 1(2). Rule 1(7) might further be applied should personal service not be possible but your client was informed of the order over the telephone. It is probably fair to say that this rule would be applied to excuse personal service only if your client could be proven to have come to know about the order in some way other than being personally served with it, and had understood it.

What if there has there been an order for substituted service ?
Sometimes you will have an order for substituted service of the injunction order under Order 7, rule 8 saying that the order may be served by posting it through the letter box of his last known address or something of that nature. Take note that if there has been an order for substituted service then the order will say so on its face.

If your client denies having knowledge of the order, there opens up for you the potential to make an excellent argument that despite the substituted service he was not effectively served and that Order 29, rule 1 (2) has not been complied with. Do not lose sight of the fact that if the respondent knows nothing of the order then he can not be in contempt of it whether there is an order for substitute service or not. It is the Applicant's job to prove that the respondent knew about the order, not the other way round. Order 29, rule 1(7) can only be invoked if it is 'just to do so'.

If the respondent says that he knows nothing of the order then ask the judge to hear evidence to establish his knowledge or ignorance of the order. Just because some lazy process server has pushed it in a letter box it does not mean that the respondent has opened the envelope and read the order. Perhaps he shares a letterbox with five other tenants. No matter what he is accused of, he must have knowledge of the order if it is going to be enforced.

Service of the proper documents on the police station
It is mandatory that the power of arrest be served on the police station. See Family Proceedings Rules 1991 Rule 3.9A (1)(b). Note that it is the power of arrest that must be served not the injunction order. Read the rule and you will see that it is so. As before, it is for the applicant to prove service. The statement of service will confirm whether or not this was done. It should say a date and a time that the police station was served and what documents they were served with.

If it has not been done, then it is highly arguable that the arrest is invalid and you client should be released. The writer can recall many instances when the statement of service has been lacking in this respect. This is good because it worries the other side and puts them under pressure. The applicant's counsel then has to make telephone calls to the solicitors who in turn start chasing the process server. Sometimes this gentleman is asked to drive to court urgently and give evidence.

If the applicant is lucky, the process server will grudgingly come to court, be stood in the witness box and face questions as to whether he can remember serving the police station with the document. His usual answer will be that he usually does, and that he must have done so but cannot exactly remember doing it on this occasion. This will rarely satisfy the circuit judge who will, it is hoped, decide that he can find no evidence of service on the police station. The writer has found this approach to result in the respondent's immediate release virtually every time that service on the police station fails to be proved.

It is often overlooked that there must be served on the police not only the power of arrest but also the statement of service: see again Family Proceedings Rules 1991, Rule 3.9A (1)(b), especially the frequently overlooked text at the end of this rule. You will note from the wording of the rule that this too is mandatory. Once again, it should say on the face of the statement of service that this was done. If it does not, then you will once again say that the arrest was invalid and argue for the release of your client. The writer has found that this approach results in the respondent's immediate release less often than in cases of non-service in the paragraph above. Much depends on the attitude of the judge. Some judges will happily accept this approach, and enjoy the fact that you have turned up a bit of law for them. However, other judges will turn you down if no prejudice to the respondent can be demonstrated.

Time limits
By reason of FLA 1996, s:47(7), once the respondent has been arrested he must be dealt with by the court within 24 hours, not including Christmas Day, Good Friday or any Sunday. If he comes before the court after the expiry of 24 hours, then you may argue for his release and in this writer's experience he will ordinarily be released.

If all the above arguments fail to release your respondent, then matters, it is conceded, may take a turn for the worse. He will either have to be sentenced for any admissions he makes or alternatively the matter will have to be adjourned for a full hearing. If the applicant is content to rely solely on the matter for which the client was arrested then the adjourned hearing must take place within 14 days: see Family Proceedings Rules 1991, rule 3.9A (4)(b)(i). If the adjourned case is heard at court a single hour later than the mandatory 14 days, then he should be released forthwith because the court will lack power to deal with the matter after the time limit has expired. If the applicant wants to add other allegations to that for which your client was arrested, then the allegations must be put to your client in Form N78. More about the N78 later.

If you are lucky enough to secure the release of the respondent by one or other of these means above, you will often get some sour grapes from the applicant's side. On more than one occasion the writer has unexpectedly freed a lucky respondent from his arrest only to be told sagely by the applicant's counsel:

'oh that was all a waste of time you know, because my instructing solicitors will be issuing an application in Form N78 next week so your client hasn't got away with it'

Well, in this writer's experience, this is usually brave talk and no application appears. The usual reason for this, I suspect, is that the failure of the arrest takes all of the steam out of the applicant's side who usually want to put the whole sorry matter behind them and forget it ever happened. This is all good news for your client of course.

Part 3: Applications for Committal on Notice Application in Form N78
Form N78 is an odd document because on the face of it the burden of proof is reversed. Your client appears to have to come to court and show why he should not go to prison. This is truly an odd state of affairs in view of the current emphasis on the human rights of the individual but the practice of serving this form in family proceedings persists. In practice, of course, the applicant still has to prove the allegations beyond reasonable doubt and your client has to prove nothing. The trial of the application will follow the pattern of a criminal trial.

Perhaps one day some brave soul will make a submission that the N78 that has been served upon your hapless client is in itself an abuse of process and should be struck out.

Committal for breach of undertakings
As touched upon in paragraph 7, the undertaking is a written promise to the court made on a printed form. The person who gives the undertaking stands before the judge and confirms his understanding of the promise. He will then be asked to sign it and hand it to the judge. However, there is a potential pitfall for the unwary here that you could turn to your advantage.

The respondent may stand there in court and listen attentively as the judge gives the usual lecture about it being a serious promise to the court. He may even sign the back and hand it up to the judge, but all this may do no good unless he is subsequently served with it in accordance with CCR 1981 Ord 29 rule1A (1). The reason for this is that the rule effectively requires the written undertaking to be delivered to your respondent. Surprisingly, this rule 1 (A)(1) has removed the courts discretion to dispense with delivery/service of the undertaking as it can do with an injunction order under rule 1(7). This gives rise to a chink in the applicant's armour and affords you a potential defence to a committal application for breach of undertaking.

Therefore if the respondent were to deny a full understanding of the undertaking that he gave to the court, and it could not be proven that he was served with a copy of it, you might have a potential defence against a committal application. Lack of service of the document would not of itself be a complete defence because the authorities say that it is the giving of the undertaking that gives rise to its enforceability rather than the service of the document; see Hussain v Hussain [1986] 2 FLR 271. However, the signing of the document, the service of the document and the absence or otherwise of legal advice go to form the evidence that your Respondent knew what he was doing when he gave the promise. If you read the Hussain case (which is very brief) you will understand better why the rules were amended after this important case.

Every case is different on its facts and in most cases the lack of service of the undertaking document will probably not help at all because the respondent is of sound mind, signed the document and was represented by counsel who, it can be presumed, would have advised him of the consequences of a breach. However, the situation could be different where the respondent was a litigant in person who now alleges that he misunderstood the promise he gave. In that situation, the absence of compliance with what is a mandatory rule could tip the balance in his favour.

Rule 1 (1)(A) is a little understood rule that the writer suspects few practitioners even know exists. You will probably never even come close to using it as an argument in court, but it is worth keeping in your armoury for the appropriate case. Even if it fails as a complete defence it might just create enough doubt to save your respondent from prison and if you can achieve that then you will have done your client a considerable service that would make Charles Dickens's pale young man proud of you.

Age and understanding
Lastly, always bear in mind that a respondent will only be held in contempt if he is capable of understanding the order or undertaking. When taking instructions from your client, always bear this in mind and consider asking for a medical report or adjourning for the appointment of the Official Solicitor if your client strikes you as having a defective understanding. Read the case of Wookey v Wookey [1991] 2 FLR 319 which explains the principles.

Likewise, bear in mind the age of your respondent. Under s 14 of the Contempt of Court Act 1981, imprisonment or a fine are the only penalties for contempt of court. If he is under 18 then he cannot be imprisoned under the law and there is no point in imposing a fine on a 17 year old because usually he will not have any money. See the case of Re S (A Minor) which can be found under the same citation as the Wookey case above. These two cases decided that if a Respondent was under age or lacked capacity then an application for an injunction or committal for that matter would usually be misconceived. (See also Re:H (Respondent under 18:power of arrest) [2001] 1 FLR 641)

It hardly needs to be said that if you are representing the applicant in a committal application then the above advice applies just as much to you too, but from the opposite perspective, and will help you avoid the traps for the unwary. The ideas set out herein very often work, but there are times when they do not for one reason or another. On such occasions the keen reader of Dickens will recall that it was, after all, the pale young gentleman who was knocked to the ground for all his ducking and diving.

4 Brick Court
London EC4Y 9AD