Committal to prison and children proceedings: Part 2


Release of court material


The first part of this two part series looked at the appeal in the unfortunate case of Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) in the context of Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) and Family Procedure Rules 2010 (FPR 2010) r 12.73; and especially at the extent to which a committal application needs guilty intent. An application that the administration of justice has been interfered with – which is what a committal application is – is a criminal contempt which may result in the defendant (accused?) being sent to prison.


It is worth recalling that contempt proceedings, albeit in civil and family cases, are treated as ‘criminal’ proceedings under European Convention 1950 (Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81, 85 and 86) so that a respondent has the rights guaranteed by Art 6.3.


In NM’s case, Baker LJ first recalled the ‘utmost seriousness’ of contempt proceedings. Therefore strict procedural rules must be followed. He mentioned the words of Vos LJ in Re L (a Child) Re Gous Oddin [2016] EWCA Civ 173 at [75]: ‘The process of committal for contempt is a highly technical one as this case shows. But it is highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court.’


In cases of an alleged contempt, Vos LJ said, no-one should be at risk of being sent to prison for contempt of court unless they have notice of what is alleged, they information that they may remain silent, and that the application is proved to the criminal standard.


Where the circuit judge went wrong


Baker LJ (at [17]-[21]) listed what went wrong in NM’s case:


  • ‘[18] The appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him; [and NM] says he did not understand the significance of what was being said.’ If the judge thought proceedings against NM were appropriate he should have set out exactly the particulars of ‘the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. It was not sufficient for the judge to proceed simply because the appellant agreed that he could do so.’ (European Convention 1950 Art 6.3(a).)


  • ‘[19] The failure to particularise the allegations led to a further defect in the process. So far as I can see from the papers, the judge was never shown the specific documents from the family proceedings which had been disclosed to the First-tier Tribunal. In those circumstances, it was impossible for him to gauge the seriousness of the alleged breach.’ He was entitled to plead mitigation, but without these documents any plea would lack substance (see eg Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55 (30 January 2019)).


  • ‘[20] There is little sign that the judge considered the extent of the appellant’s culpability for what had allegedly occurred…. It does not seem to have occurred to the judge that [the solicitor for who NM was working] may have been the real culprit. That omission stemmed from the failure to particularise the alleged contempt.’ This is the mens rea point (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA) discussed in Part 1.


  • The errors above were compounded by the judge’s direction to the appellant to go in the witness box. It seems he overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The principle is of long standing, although it has been overlooked in other cases; see, for example, the case of Re Lcited above (and see Dougherty (above); Mubarak v Mubarak [2001] 1 FLR 698).


And to cap it all, a cosmetic complaint: any committal application must be in open court Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, [2015] 2 AllER 541. No one was robed, the Court of Appeal was told.


Postscript: material which can be released


As a postscript to all this: what can be released in children proceedings under FPR 2010? Despite what the provisions of s 12(1)(a) appears to say – that it will be a contempt if material is published from children proceedings – FPR 2010 rr 12.73 and 12.75 allow for some release of documents from family proceedings.


The operation of r 12.73 can be seen in Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218. Baker J (as Baker LJ he was the judge in Nasrullah Mursalin) was dealing with an application by the police who wanted to see a judgment in which he had recorded that the father of a child had admitted, after the making of a care order, that he had perpetrated the injuries on one of three children.


The father applied for an order prohibiting the local authority or any other party from communicating any information to the police or CPS. The police filed a statement asking for ‘disclosure of any information that had come to light in these proceedings indicating the perpetrator of [the child’s] injuries “in order that the decision to prosecute that person can be taken”’.


Baker J explains the working of r 12.73 and its accompanying Practice Direction 12G. Rule 12.73(1) says:


12.73 Communication of information: general

(1)     For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –

(a) where the communication is to [various individuals and bodies such as the legal representative of a party, Legal Aid Agency, a court appointed expert etc, formally entitled to receive information];

(b) where the court gives permission; or

(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.


PD12G provides three tables which set out what communications in children proceedings can be passed on to particular bodies or individuals. Paragraph 2.1 is the first of these and sets out a table which deals with ‘any information relating to the proceedings’. The rule and PD table enable information to be passed on by specified individuals as of right – for example, a party, a legal representative or others lawfully in possession of the information – to other individuals or bodies and for specified purposes, other than the proceedings (eg information to a person conducting ‘an approved research project’). Communications under r 12.73(1)(c) and PD 12G paras 1 and 2, which may be made. Other communications, which under 12.73(1)(b) may only be made with the court’s permission.


In S v SP and CAFCASS [2016] EWHC 3673 (Fam) Baker J dealt with a committal application by a father who objected to a Cafcass officer who provided information to police when asked. The judge gave short shrift to S’s argument that this passing on of information was ‘publication’ as anticipated by AJA 1960 s 12(1), and dismissed the committal application.


Procedure for a committal application


Given the state of the rules which govern all this, it is perhaps not surprising that judges make mistakes. An application for committal for NM’s mistake, is ‘interference with the due administration of justice’ (since case law tells us that that is what a breach of AJA 1960 s 12(1) is deemed to be). Anyone looking at the rules has to know this and to know, therefore, FPR 2010 Pt 37 Ch 4 applies – I think….


The application under this Ch 4 must be with permission (r 37.13(2)). Application is to a High Court judge (FPR 2010 r 37.14) for permission. If this is correct, why was HHJ Mordifar dealing with this case at all? Rule 37.15 tells you how to make the application for permission; and that is all Ch 4 tells you. Nothing is said about how the court proceeds with the application itself once an application has permission; nothing is mentioned about the points made by Baker LJ above; and especially nothing is said about service of any application. The accompanying Practice Direction PD37A gives some tips on procedure generally, but says nothing about Ch 4.


All this is only if an individual is making the application. If it is the court proceeding on its own motion, the rules are silent altogether (as far as I can see). This may have been how HHJ Mordifar proceeded; though it is not obvious from the Court of Appeal judgment on what basis Judge Mordifar thought he was proceeding – except that he seems to have been cross that the family proceedings document had got into the Immigration Tribunal bundle. But judicial crossness is not a good basis for a criminal charge against someone who seems to have made a genuine mistake; and to have had no intent to do anything wrong.


It is hardly surprising that cases like NM’s go so badly wrong.

Committal to prison and children proceedings: Part 1


Committal of an unknowing paralegal


The suspended committal order imposed on the paralegal – set aside by the Court of Appeal in Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) – was justifiably widely reported in the press at the beginning of September. It was another case where a circuit judge had failed to follow basic procedures. These two articles will look at the facts of the case and the background to the law. The second article will look at the law as it was applied – or not applied – in this case; and that will involve looking at the procedure for making a committal application which is by Family Procedure Rules 2010 (FPR 2010) Pt 37 Ch 4 which seems to have had no regard in either family court or Court of Appeal.


The appellant Nasrullah Mursalin (NM) was working for a solicitors firm which specialises in immigration law and family law. In the course of his work for a client he prepared and filed a bundle of documents for the Immigration and Asylum Tribunal. It is said that the documents included a number of papers from family proceedings involving the client’s children.


Baker LJ stated that as a result pursuant to Administration of Justice Act 1960 (AJA 1960) s 12 and FPR 2010 r 12.73 the passing on of such documents ‘would be a contempt of court unless the Family Court has given permission for the disclosure’ (at [2]). (As will be seen, Baker LJ’s assumption is controversial in itself: more than just passing on of documents is needed for contempt.) No such permission was obtained, or applied for. An application was made to commit NM. The court directed his firm to file a statement, which he prepared at the request of his employer. When the hearing was called on, and NM had arrived at court (at [6]) Baker LJ described the following exchange between him and the judge, HHJ Mordifar:


‘JUDGE: I have read your statement. For me to formally accept it, because it is not a sworn document I have to ask you to take the oath and confirm it as true whilst you are under oath, okay? It may be that you will be asked other questions about what has happened. What is at stake here is potentially a very serious breach of the court rules which in itself may lead to a committal which can carry a term of imprisonment of up to two years…. So, with all those factors in mind, if I ask you to take the oath, would you like to have the opportunity of seeking independent legal representation and legal advice first or do you want to proceed today?’


NM said he wanted the case dealt with then. The judge told NM that: ‘[8] The rules against disclosure are in place for very good reasons that include the protection of the parties and the children who are the subject of court proceedings…’; and he concluded by giving him ‘a six-month term of imprisonment that is to be suspended for six months beginning today’.


The Court of Appeal allowed his appeal and set aside the judge’s order. They were very critical of the way the judge had dealt with the committal application. So first, what is the statutory or common law source for of the committal application (this article, Part 1)? And then why was NM made subject to an application in the first place (Part 2)?

Part 1 involves dealing with the following:


  • Sources: AJA 1960 s 12(1)(a) and FPR 2010 r 12.73
  • Meaning of contempt at common law
  • The distinction between civil and criminal contempt
  • NM’s was a criminal contempt: so is it necessary for the court to find any guilty intention (mens rea).


(1)        Administration of Justice Act 1960 s 12(1)


The source of this case is AJA 1960 s 12(1)(a) which says:


‘12 Publication of information relating to proceedings in private.

(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor…’


This raises two immediate questions of construction: what is meant by ‘publication’ and what of ‘proceedings’:


To get off the ground a committal application must show there to have been a ‘publication’. What does that mean? In a print medium, on-line or a broadcast that is easy enough. In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J defined it as:


‘(iii)     There is a ‘publication’ for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

‘(iv)     Specifically, there is a ‘publication’ for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, etc…’.


The person who receives the material must surely reads, or be intended to, read it?


And then ‘proceedings’? In Re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422, Balcombe J was being sked to make an order contra mundum (ie all possible publishers of information) for a ward. He needed to be satisfied that his order would go wider than s 12(1) ‘proceedings’; and for explanation of the meaning of ‘proceedings’ he referred to Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA. First Lord Denning MR at 88–89 said:


‘But none of those old cases considered the publication of information relating to a ward of court. There is no suggestion anywhere that it was a contempt of court to publish information about the ward herself, be it favourable or adverse, helpful or injurious to her. But these are cases to show that it was a contempt of court to publish information relating to the proceedings in court about a ward.’


Scarman LJ. said, at 93:


‘It is, I think, a necessary implication in all the speeches in Scott v Scott [1913] AC 417 that the cloak of secrecy was available to conceal from the world, not the life story of the ward, but only so much of it as was properly to be regarded as the subject of the proceedings.


He follows that up, after referring to section 12(4) of the Administration of Justice Act 1960, at  99: ‘what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. And ‘the judgment of Geoffrey Lane LJ is to the same effect’. Balcombe J was satisfied that he had jurisdiction, if he chose to use it, to make a contra mundum order.


(2)        Meaning of contempt: undermining administration of justice


The ill which contempt proceedings are intended to address is interference with the administration of justice. ‘Contempt of court’ is rarely appropriate as a descriptor. The meaning of the term was discussed recently in HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin) (9 July 2019), QB Divisional Court where Sharpe LJ said:


‘[25] Contempt of court is principally a common law doctrine. Its purpose is to protect the integrity of civil and criminal proceedings by imposing appropriate penalties on those who interfere with, obstruct, impede or prejudice the due administration of justice, or expose the process to risk that these consequences will follow. The label “contempt of court” has long been considered inappropriate. As Salmon LJ observed in Morris v Crown Office [1970] 2 QB 114, 129: “The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: Skipworth’s Case, L.R. 9 Q.B. 230 and Rex v Davies [1906] 1 KB 32….”


(3)        Civil or criminal contempt


In Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 273 at 307H-308 Lord Diplock explained the difference between civil and criminal contempt:


  • ‘civil contempt’ consists of disobedience to a court order by one party to proceedings (for example, a person who allegedly breaches a domestic abuse injunction, or fails to comply with a CA 1989 s 8 prohibited steps order); and


  • ‘criminal contempt’, which Lord Diplock defined as (at 308C-D and 310G):


‘… It must relate to some specific case in which litigation in a court of law is actually proceeding…. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.’


Committal for criminal contempt turns ultimately on whether an alleged contemnor has undermined the administration of justice. The contempt may take a number of forms (eg breaches of privacy of proceedings; dishonesty and statements of truth etc). Contempt of court under AJA 1969 s 12(1) is a matter of undermining administration of justice.


Lord Diplock explained this form of contempt in Attorney General v Leveller Magazine Ltd ([1979] AC 440 at 449):


… Although criminal contempts of court make take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.


(4)        Guilty intent (mens rea)


An application where s 12(1) is said to have been breached is a criminal contempt, for which a person may go to prison; yet on what charge and is any intent (mens rea) involved. This was considered by the Court of Appeal in Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA where the court (Lord Denning MR, Scarman and Geoffrey Lane LJJ) were considering as application to commit the editor of the Daily Telegraph (and a Slough newspaper), where they had published information about a ward, but where they thought – wrongly as it turned out – her wardship had ceased. Lord Denning MR made the point on this question, even if they had not exercised ‘reasonable care’ then (at 90-91)


‘… [This] does not mean there was any guilty knowledge or intent. I base my decision on this simple ground: The offence of contempt of court requires mens rea — guilty knowledge or intent. None such was proved to exist in the two newspapers. They were, therefore, not guilty. I would accordingly allow the appeal.’


Scarman LJ summarised his view of the law on intent (at 100):


‘… That in this class of case — publication of information relating to proceedings which the court has ordered to be in private — no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings.’


Geoffrey Lane LJ (at 107) held that ‘honest mistake is a defence providing that had the mistaken circumstances been true, no offence would have been committed. The section is not intended to enlarge the scope of the offence as it existed at common law.’


Family Procedure Rules 2010 r 12.73


FPR 2010 r 12.73 is a rag-bag of a provision. It permits information from the proceedings to be ‘communicated’ to certain individuals (‘a party’ – really?; a party’s legal representative’ the Legal Aid Agency and so on) but it does not say who may communicate this information. It is said to be ‘for the purposes of the law relating to contempt’; but what does that mean. A court rule cannot create an offense; nor can it create a defence if someone is otherwise in contempt.


This provision and AJA 1960 s 12(1)(a) and the common law offence of contempt of court will be considered in Part 2.

Breach of a court order in family proceedings

Prison for breach of a family courts order: how long?


In two recent cases derived from family relationships, High Court judges have sent to prison respectively a defendant wife (for forgery and lying: Ms Henderson);  and a respondent husband (for failing to comply with a matrimonial finance court order: Mr Hart). But in what type of case and for how long should a person be sent to prison?


On 8 September 2011 HHJ Carr in Sheffield County court sent Mr Zuk to prison for nine months for failure to pay a lump sum of £10,000 required of him by order one year earlier (Zuk v Zuk [2012] EWCA Civ 1871, [2013] 2 FLR 1466). On his appeal – heard, eventually, by the Court of Appeal – it was said firmly that the judge had no power to do this. Six weeks was the limit. How did the judge make this ‘grave mistake’ asked the appeal judge, Thorpe LJ?


[13] … It seems to me that it is easy to infer that she thought she was exercising powers under section 14 of the Contempt of Court Act 1981, which imposes a maximum term of 24 months for imprisonment pursuant to an order for committal. So it was an understandable mistake, but it was a very grave mistake, since it had had the consequence of wrongfully depriving Mr Zuk of his liberty for a period of at least three months and probably more. I say probably more, because this was not the only error that has emerged from our post-mortem on the proceedings in the Sheffield court.


In a recent Transparency Project blog their ‘reporting watch team’ comments on a committal for failure to comply with a court order, as follows:


Whether the breach is of an order about a child or an order about money the approach is the same – the breach has to be proved beyond reasonable doubt just like in a criminal court, and the sentence that is imposed will be partly by way of punishment and partly in order to secure compliance. The longest sentence that can be imposed is two years (the max is 6 weeks where the committal is for non-payment of debt under a judgment summons).


Contempt of court in family proceedings


There are five main categories of contempt (ie not doing something an order says you must do, or doing something an order or a law says you must not do):


  • Failure to pay sums of money (as with Mr Zuk) where the maximum penalty is 6 weeks (depending on the procedure chosen by the person seeking the cash). The term ‘judgment summons’ is explained below;
  • Failure to comply with a court order to do an act, or not to do something, such as failure to hand over a child, failure to comply with orders to provide documents or otherwise deliberately not to follow court orders, where the maximum penalty is two years;
  • Publicising information about proceedings (eg about children or about private matters from family proceedings): penalty up to two years;
  • Failure to comply with a domestic abuse (‘non-molestation’) order where, in addition to contempt proceedings in the family courts, prosecution is by the police or following a power of arrest attached by the court
  • Contempt in the face of the court and interference with the due administration of justice (eg perhaps, calling judges ‘enemies of the people’, or discouraging your opponent from pursuing their case) (see eg post at ICLR).


Judgment summons procedure


The Zuk case was under the judgment summons procedure which is still available in family courts where money is said not to have been paid. It relates back to Debtors Act 1869 s 5 which, as Thorpe LJ explained, was passed ‘in the Victorian era for the abolition of imprisonment for debt and for other purposes. Its plain intention was to restrict the circumstances in which a person could be imprisoned for non-payment of a debt.’ In 1992 Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan [1992] 2 FLR 196) was plainly concerned at how crude was this procedure:


‘The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.’


To protect a little against the crudeness of s 5, as Thorpe LJ pointed out, the section further says:


(2) Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.


Thus imprisonment is only possible where the court considers ‘that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects’ to pay what is owed by court order. It is akin to a contempt provision: a person has the money but deliberately decides to flout the court order.


By contrast with these debt provisions, the provisions under which Ms Henderson and Mr Hart were sent to prison were because they flouted court orders (in both cases) and, in Ms Henderson’s case, because she forged a signature in breach of the rules for statements of truth (Civil Procedure Rules 1998 r 18.18, because this was civil proceedings: the family courts’ equivalent is Family Procedure Rules 2010 r 17.6).


Importance of procedure and correct prison sentence


And what of the extra time Mr Zuk spent in prison? Thorpe LJ concluded his judgement:


[29] The end result seems to me that everybody suffers. The wife, who was the successful applicant in the ancillary relief proceedings, has been kept out of her money, and, however lacking in merit [Mr Zuk] may be in the context of the ancillary relief proceedings, he has been unjustly imprisoned for a period which looks to me [around four-and-a-half months]. It is a sad story, and the moral of it is that, where in the county court steps are taken to enforce ancillary relief payments by an application to commit under the Debtors Act, both those representing the creditor and the judge must take the greatest care to ensure that all the safeguards provided by statute are duly observed.


If a civil court – like the Family Court – is going to send someone to prison, it must make sure all the right procedural steps are taken before it does so; that if someone is entitled to legal aid they are given it by the court (which means checking criminal legal aid regulations: yes, really, as explained here); and that, if a contempt or Debtors Act 1869 charge, are proved then the right period of time in prison is ordered.


Many people think by the time Charles Dickens died imprisonment for debt was consigned to history. In family courts it lives on in the Debtors Act 1869 s 5 judgment summons procedure; and lawyers still use it – despite the fact that time in prison butters no parsnips for their clients.