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Family Law

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02 SEP 2013

Evidence, Practice and Procedure: Clarity in committal orders – legal aid for defence of committal

David Burrows

Solicitor Advocate

@dbfamilylaw

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn October 2012 Hedley J found that Mrs Jones had retained her four children in breach of the 1980 Hague Convention and ordered their return to Spain as follows:

 (a)        The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

 (b)        The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012.

 In Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P heard an application by the Solicitor General for committal of Mrs Jones for contempt of Hedley J's order. For reasons, which the President found to be beyond Mrs Jones's control (the two older children tried to run away), she was unable to bring the children to Cardiff Station as ordered. She and the children then went on the run.

 He dismissed the committal application because the mother was not in breach:

 [20] There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time ...

 The President went on to assert how important it is for mandatory orders to be drawn in terms which ‘are clear, precise and unambiguous' if they are to be enforceable (para [21]). An order must state a time for compliance (Temporal v Temporal [1990] 2 FLR 98); and must also state a later time if the order may need to be enforced thereafter (as should have occurred in Jones). ‘This is an application of the wider principle that in relation to committal "it is impossible to read implied terms into an order of the court": Deodat v Deodat (unreported, 9 June 1978: Court of Appeal Transcript No 78 484) per Megaw LJ'.

 Legal aid for committal

 A subtext to the case is that Mrs Jones only had representation because her solicitors and counsel acted pro bono. She was refused legal aid. The judgment concludes:

 [43] ... I am told that the reason why the mother was denied public funding was not because of the merits of her case, not because her income took her out of scope, but because the value of her share of two properties in Spain meant that her capital exceeded the statutory limit of £8,000. Mr Hames told me on instructions that there was no method by which she could realise the value of her share within the short timeframe of the proceedings. There is, I am told, no other basis upon which public funding can be made available in a case such as this. If this is really so, it might be thought that something needs to be done, not least bearing in mind the requirements of Article 6(3)(c) of the Convention and the learning expounded in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133.

 European Convention 1950 Art 6(3)(c) provides that anyone charged with a criminal offence has certain ‘minimum rights', including:

 (c) 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 ...

 Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647 (as explained in eg Mubarak v Mubarak [2001] 1 FLR 698, CA) holds that committal proceedings, which may lead to imprisonment, are criminal proceedings under Art 6(3). Hammerton stressed the importance of not sending a person to prison without the court ensuring that they have legal assistance.

 The following factors will have been exhaustively researched for Mrs Jones:

 (1)        What is meant by an ‘exceptional case' under LASPOA 2012 s 10(3) in the context of committal? It seems to be designed for representation which is ‘necessary', if to deny it would be a breach of a person's ‘Convention rights'.

 (2)        Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 define the extent to which the means of a person is taken into account. ‘Disposable' capital is an element in that. If capital cannot be deployed (eg to pay for lawyers) within the time-scale demanded by committal proceedings, can it be said to be ‘disposable'? The regulations do not answer this point.

 (3)        CLAFRR 2013, reg 31(b) provides that a capital resource is its sale value, or ‘(b) the value assessed in such other manner as appears to the Director to be equitable'. The regulations give no further assistance as to what that may mean.

 Each of these factors must be seen by LAA decision-makers in the light of what was said by Sir James Munby P, and through the prism of Art 6(3)(c).

  David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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