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Family Law

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25 JUL 2013

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

(Family Division, Peter Jackson J, 2 April 2013)

When the parents of the 7-year-old child separated a residence order was granted in favour of the father, with contact provisions for the mother. However, during a period of contact during the summer when the mother and child should have been staying in the mother's family home, she disappeared with the child.

The father initiated wardship proceedings and a location order was duly made whereby the maternal family gave undertakings to provide any information they may have regarding the whereabouts of the child. With information gained from the orders the father issued committal proceedings against the maternal grandparents, uncle and aunt. He later also applied for a writ of sequestration and an order for the disclosure of their assets. The family members issued an application to strike out the proceedings and the grandparents challenged the court's jurisdiction.

By virtue of CPR PD81 required for an application to be struck out that there was no reasonable ground for alleging contempt. The father's application would not be struck out on that basis as it had not been demonstrated that he had no reasonable prospect of establishing at least some of the allegations. However, a writ of sequestration would not be issued. If a contempt finding were made then the writ could be issued.

The grandparents' jurisdiction argument was rejected. It was not the case that a person had to be domiciled, habitually resident, resident, or present in England and Wales for an order to be effective, but there did have to be a sufficient link in the circumstances of the individual case. In this case, the grandparents had solid ties to this country and to this child, reflected in their presence in their own home here at the time of the abduction.

For a mandatory order to be enforceable by committal, it had to be clear what must be done and when it must be done. The reference in the CPR 81 to ‘the time fixed' did not require a specific calendar date for compliance to be stated. It would 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 was recovered.

 

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