J (Children) [2015] EWCA Civ 1019 (07 October 2015)

J (Children) [2015] EWCA Civ 1019 (07 October 2015)

The appeal is dismissed because the President's order refusing committal was not wrong. The father failed to prove to the criminal standard that the mother had the power to comply with the orders. The established law requires proof of ability to comply, and the facts did not support contempt. Even if strict liability or a reverse burden were adopted, no practical penalty could be imposed in this case. The proceedings have run their useful course and should be brought to an end.

Citation
[2015] EWCA Civ 1019
Parties
Appellant: Appellant Father; 1st Respondent: Respondent Mother; 2nd Respondent: J (Child)
Jurisdiction
England and Wales
Judgment Date
07 October 2015
Procedural Posture
Appeal (family Law Committal) / Court of Appeal Judgment on Appeal From High Court (family Division)
Outcome
Appeal dismissed
Legal Topics
Committal for Contempt, Enforcement of Child Return Orders, Burden of Proof in Contempt Proceedings, Hague Convention 1980, Human Rights Act 1998, Article 8 ECHR
Family Law Civil Procedure Committal for Contempt Enforcement of Child Return Orders Burden of Proof in Contempt Proceedings Hague Convention 1980 Human Rights Act 1998 Article 8 ECHR

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Appellant Father

Appellant

Respondent Mother

1st Respondent

J (Child)

2nd Respondent

Procedural Posture

Appeal (family Law Committal) / Court of Appeal Judgment on Appeal From High Court (family Division)

Legal Issues

  1. 1 Whether the mother was in contempt of court for failing to comply with orders to return children to Spain or bring them to London
  2. 2 Whether the burden of proof and standard applied by the President was correct
  3. 3 Whether the law should be changed to allow for strict liability or a reverse burden in contempt applications involving children

Ratio Decidendi

The appeal is dismissed because the President's order refusing committal was not wrong. The father failed to prove to the criminal standard that the mother had the power to comply with the orders. The established law requires proof of ability to comply, and the facts did not support contempt. Even if strict liability or a reverse burden were adopted, no practical penalty could be imposed in this case. The proceedings have run their useful course and should be brought to an end.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed against the order refusing committal of the mother.
  • Return order made by Hedley J on 9 October 2012 in relation to both children set aside.