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22 JUL 2014

Re K (Return Order: Failure to Comply: Committal) [2014] EWCA Civ 905

Re K (Return Order: Failure to Comply: Committal) [2014] EWCA Civ 905
(Court of Appeal,Maurice Kay, McFarlane, Kitchin LJJ, 15 July 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 927]

Contempt – Committalprocess – Return order – Failure to comply – Sentence of imprisonment – Appeal

The full judgment is attached below

The Mongolian motherand Singaporean father met in Singaporeand relocated to Londonfollowing their marriage where the 2-year-old child was born. The parentsagreed to place the child temporarily with the paternal grandparents in Singapore whilethe mother completed her exams. The father claimed this was a long-termarrangement but the mother asserted it was only temporary.

Once in Singapore thefather issued divorce and custody proceedings and the mother applied to theEnglish court for a return order. The court found in favour of the mother,found the child was habitually resident in Englandand Walesand ordered the child’s return to the jurisdiction. The father’s appeal wasdismissed but he refused to return the child.

At a further hearingthe father produced evidence that he had contacted the paternal grandparentsrequesting the child’s return and demonstrating that he had booked tickets forthem all to travel to Londonbut that they had not taken the flights. The father was informed that he hadone last opportunity to secure the child’s return and the matter was listed fora committal hearing.

The father bookedflights to Londonand explained to the paternal grandfather about the committal proceedings buthe refused to return the child. When the matter returned a further order wasmade requiring the child’s return including a recital that if the paternalgrandparents refused to do so then the father should apply to the Singaporeancourt for orders to ensure his return.

The child was notreturned and the father was committed to prison. He appealed.

On appeal the courtwas critical of the inclusion in the recital of unspecified steps which thejudge was not prepared to order but which was likely to be used in subsequentcontempt proceedings.

The appeal was allowed and the order committing thefather to prison was set aside. It was directed that he should be released fromprison immediately. In applying the test in Porterv Magill, Weeks v Weeks [2001] UKHL 67 [2002] 2 AC 357 the judge’s commentsat the previous hearing suggested that she had made up her mind before thecommittal hearing and she should have directed that another judge should hearthe committal application. Furthermore, the hearing was unfair and failed toadhere to the principles set out in Hammertonv Hammerton [2007] EWCA Civ 248. The father was not warned that he was notobliged to give evidence and was immediately cross examined. The evidence didnot support a finding that the father had deliberately failed to comply withthe return orders and the judge was wrong to proceed straight to sentencingwithout giving the father any opportunity to secure representation or attemptmitigation.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Neutral Citation Number: [2014] EWCA Civ 905

Case No: B4/2014/1314/1314(A)/1048/1056

The Hon Ms Justice Russell

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/07/2014



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In the matter of K (A Child)

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Mr G Armstrong (instructed by Hodge Jones & Allen LLP) for the Appellant
Mr M Jarman (instructed by Landmark Legal) for the Respondent

Hearing date: 4 June 2014

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Please see attached file for the full judgment

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