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23 MAR 2007

CONTEMPT: Hammerton v Hammerton [2007] EWCA Civ 248

(Court of Appeal; Wall and Moses LJJ; 23 March 2007)

There had been a number of grave procedural errors in the husband's committal to prison for 3 months for breach of an undertaking. The Human Rights Act 1998, the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and the Practice Direction (Family Proceedings: Committal) [2001] had not been drawn to the attention of the judge at any stage, nor had any authority. The procedural errors had stemmed from a combination of the fact that the husband had been unrepresented, and the decision of the judge to hear the wife's application for committal at the same time as the husband's application for contact with the children. Had the judge enquired as to the husband's lack of legal representation he would have discovered that the withdrawal of the husband's legal aid was to be reviewed by the panel in 2 weeks time, and he could have adjourned the committal hearing until that issue had been resolved. A sense of urgency often impeded the fair conduct of committal proceedings. It would rarely be open to anyone in opposing an appeal based on Art 6 of the Convention to contend that Art 6 rights, such as legal assistance when defending criminal charges, would have made no difference in the particular case. The decision to hear both applications at the same time had led to inescapable errors in procedure, concerning burden and standard of proof and particularly an unresolved conflict between the husband's right not to give evidence in his own defence and his need to give evidence to establish his claim for some form of contact. This was a case in which the allegations of breaches of an undertaking were relevant to the contact proceedings, but it did not follow that it was necessary to hear the proceedings for committal at the same time as the contact proceedings. It might be that applications for contact and for committal could be heard at the same time, but it was difficult to envisage circumstances that would compel such a procedure. Further, since the husband was unrepresented and had never been given an opportunity to mitigate, the process of sentencing had been fatally flawed. The findings and the sentence would be quashed.

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