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.