England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Justice KEEHAN

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2016

Sir James Munby, President of the Family Division :

1. This is an appeal by Gous Oddin (sometimes spelled Uddin) from a committal order made by Keehan J on 18 January 2016. Keehan J sentenced Mr Oddin to an immediate sentence of six months' imprisonment for breach of a collection order which had been made, over eleven years previously, by Her Honour Judge Bevington (sitting as a judge of the High Court) on 30 December 2004. Mr Oddin appeals as of right; for permission to appeal is not required where the appeal is from a committal order.
2. The appellant's notice was filed on 22 January 2016. On 29 January 2016, Master Meacher made an order granting Mr Oddin legal aid in accordance with section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The appeal came on for hearing before us on 3 March 2016. We gave permission for the provisional grounds of appeal attached to the appellant's notice, and prepared before the Transcripts of the proceedings and judgment on 18 January 2016 had been received, to be supplemented by perfected grounds of appeal. We had before us skeleton arguments from Miss Elizabeth Norman, on behalf of Mr Oddin, dated 24 February 2016, from Mr Edward Bennett, on behalf of the local authority, dated 25 February 2016, and from Mr Matthew Maynard, on behalf of L, dated 1 March 2016. At the end of the hearing we announced that the appeal would be allowed, for reasons to be given later. We ordered Mr Oddin's immediate release from prison. We now give our reasons.

The legal context

3. As will appear in due course, the proceedings before Keehan J involved two different aspects of the inherent jurisdiction of the High Court in relation to children, both currently exercised by the Family Division. It is convenient to describe them before turning to the history of the proceedings.

The legal context: Tipstaff orders

4. The first is the jurisdiction of the Family Division to make a variety of Tipstaff orders, that is, orders directed to and authorising the Tipstaff to take such steps and do such things as are set out in the order. For present purposes I can focus on location and collection orders. These are orders made in standard form which, although modified from time to time (most recently in September 2015 in response to Holman J's judgments in Taukacs v Taukaca [2015] EWHC 2365 (Fam) and Re DAD [2015] EWHC 2655 (Fam)), have been in force for many years. A location order is an order directed to finding where a missing child is; a collection order goes further and authorises the Tipstaff to take charge of the child and place the child in the care of the person or body referred to in the collection order: see Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, para 3.
5. The important point for present purposes is that a collection order contains the following provisions (I quote the words in use in 2004 when the collection order in the present case was made). Paragraph 3:

"If the Defendants^[1] or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she^[2] must each:-

(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child."

Paragraph 4:

"The Defendant^[3] … must … hand over to the Tipstaff (for safe-keeping until the court makes a further order) as many of the following documents as are in his or her possession or control … (b) every passport relating to the Defendants^[4] and every identity card, ticket, travel warrant or other document which would enable the Defendants^[5] to leave England and Wales."

Paragraph 5:

"This order or a faxed^[6] copy of it must be personally served upon the Defendants^[7] … PROVIDED THAT,^[8] if the Defendants^[9] … refuses or evades^[10] personal service, the court will consider that he or she has been validly served if the effect of the order has been brought to his or her attention."

Paragraph 6:

"The obligations under paragraphs 2 and 3^[11] above will continue until the Tipstaff takes charge of^[12] the child …"

The collection order also contains a warning that:

"the court has directed the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with this order and has disobeyed any part of it."

6. The form of collection order in use in 2004 was six pages long. Paragraphs 3, 4 and 6 were on the second page. The penal notice, warning the Defendants of their liability to be committed to prison for "breach of any part of this order", was on the fifth page: for the implications of this see Holman J's pungent observations and decision in Re DAD [2015] EWHC 2655 (Fam).
7. At the same time as making a collection order the court also gives the Tipstaff a direction in standard form. For present purposes the relevant provisions, which I need not set out, but which are in essentially the same terms today as they were in 2004, direct the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with the collection order and has disobeyed any part of it and to bring him or her before the court as soon as practicable and in any event no later than the working day immediately following the arrest: see Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, para 4.
8. It will be appreciated that the effect of paragraph 6 of the collection order is that the obligation under paragraph 3 is without limit of time. It continues indefinitely – potentially for years; in the present case, as we have seen, for more than a decade – until the Tipstaff has taken charge of the child. This was thought unsatisfactory, and the form of collection order in use since July 2013 qualifies what is now paragraph 21 (previously paragraph 6) with the words "but if the Tipstaff has not located the child by [the date 6 months after the making of the order] this order shall lapse in its entirety."

The legal context: seeking information

9. The second is the jurisdiction of the court to order third parties to provide information which I described in Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, paras 36, 38, in passages approved by this court in In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 14-15:

"[36] It has long been recognised that, quite apart from any statutory jurisdiction (for example under s 33 of the Family Law Act 1986 or s 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.

...

[38] There are three further aspects of this jurisdiction which it is convenient also to mention. First, that legal professional privilege is no answer to such an order: Burton v Earl of Darnley (1869) LR 8 Eq 576n, Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591. Second, that the court's powers in this kind of case – where it is seeking to locate a missing child – are not subject to the limiting principles of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, [1973] 3 WLR 164. Thus there is no need to establish that the person against whom disclosure is sought has, albeit innocently, been involved in the abducting parent's wrongdoing. The jurisdiction can be exercised against someone who is not merely wholly innocent but also a 'mere witness'. It is enough for the court to exercise jurisdiction that the person from whom information is being sought may have information (however acquired) which may lead to the location of the missing child. 'Possibility' is enough; there need not be probability: Ramsbotham v Senior (1869) LR 8 Eq 573, (1869) FLR Rep 591 (where the order was made to produce certain documents which, as Sir Richard Malins V-C put it at 578 and 592 respectively, 'it was just possible (I did not think it at all probable) … might lead to the discovery of … her residence, or where she is absconding with the wards.'). Third, that in aid of this jurisdiction the court can make a variety of orders directed to the Tipstaff, including, in addition to location, collection and passport orders,^[13] an order authorising the Tipstaff to enter private residential property, if need be using force to open doors, with a view to searching for, removing and taking into custody anything (for example, a computer or a mobile phone, blackberry or other similar device) which there is reason to believe may contain information throwing light on the missing child's whereabouts: see Re S (Ex Parte Orders) [2001] 1 WLR 211, [2001] 1 FLR 308 at 222 and 320 respectively."

10. In the present case, as we shall see, Mr Oddin was brought before Keehan J in this way on 8 October 2015.

The proceedings

11. For reasons which will become clear, it is necessary to trace the history of these proceedings in some detail.
12. For present purposes the story starts on 25 March 2004, when Kirkwood J made care and freeing orders in respect of a little girl L, who had been born in July 2001. (She was, I might add, the child the subject of the well-known decisions of this court in In re U (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, and In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398.)
13. On 30 December 2004, by which time L had disappeared, seemingly abducted by her parents, Judge Bevington made the collection order to which I have already referred. The collection order, which was made in exercise of the court's inherent jurisdiction in relation to L, was in the form I have set out above. "The Defendants" referred to in paragraph 3 of the collection order had been defined in paragraph 2 of the order as being ten named individuals, who were in fact the ten defendants in the proceedings. We are concerned with the sixth defendant, Mr Oddin, referred to in the collection order as Gous Oddin/ Uddin. He is L's paternal uncle. I will return below to consider whether it has been proved that Mr Oddin was ever served with the collection order, either as that word is used in paragraph 3 of the order or for the purposes of FPR 37.5.
14. On 10 January 2005, L was made, and she still remains, a ward of court.
15. On 11 April 2006, Kirkwood J made an order discharging Mr Oddin as a party to the proceedings. His order made clear, however, that Mr Oddin remained bound by the terms of the collection order.
16. On 30 June 2015, Keehan J discharged both the care order and the freeing order. L remained a ward of court. On 30 July 2015 Keehan J made an order which, so far as material for present purposes, was in the following terms:

"UPON the court being satisfied that the attendance of Mr Gous Oddin to attend court for the purpose of examining the whereabouts of the parents [that is, L's parents] and the welfare and whereabouts of the child [that is, L] is necessary

… IT IS ORDERED THAT

1 Leave is granted to the local authority for a witness summons to be issued, whereby Mr Gous Oddin shall attend court at 9.30am on 8 October 2015 before Mr Justice Keehan sitting at … for the purposes of being examined as to the whereabouts of the parents and the welfare and whereabouts of the child, L …

2 Mr Gous Oddin … shall attend the hearing on 8 October 2015 for the purpose of examination as to the whereabouts of the parents and whereabouts of the child L …"

17. On 8 October 2015 Mr Oddin attended before Keehan J as directed. We have the Transcript of the proceedings. The local authority was represented by Mr Stefano Nuvoloni and L by Miss Roberta McDonald. Unsurprisingly, since he was there as a mere witness, Mr Oddin was not represented. The judge asked Mr Oddin to "come forward to the witness box." Mr Oddin affirmed, gave his name and address and explained, in answer to questions from the judge, that he was L's paternal uncle. Keehan J then said this:

"Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?

A. Yeah.

You are today in a very, very serious position. I should tell you now that, subject to anything that is said by Mr Nuvoloni or by Miss McDonald, what I propose to do is to take evidence from you today. If I am not satisfied with your answers, I will adjourn the matter for a period of time to hold a committal hearing at the Royal Courts of Justice in London. If that comes to pass, I would very strongly advise you to seek legal representation for that hearing. Do you understand?

A. Yeah."

18. Mr Oddin was then questioned, at the judge's invitation, first by Mr Nuvoloni and then by Miss McDonald. From time to time the judge asked Mr Oddin questions. Mr Nuvoloni asked a few more questions, concluding "My Lord, I do not think I can take it further." The Transcript continues:

"THE JUDGE: (Long pause) Mr U, I am very sorry to tell you that I do not believe you have been telling me the truth. I do not believe that you have given me all the information that you can. This is what I propose to do. I am going to list this matter at the Royal Courts of Justice in London on Wednesday, 28th October. It will be listed for half a day. It will be listed as a committal hearing, when I will consider whether you are in contempt of court, and if you are in contempt of court, I will then proceed to decide what punishment you should face for that. Do you understand?

THE WITNESS: Yeah."

19. The judge asked Mr Nuvoloni to draft the order. The Transcript continues:

"THE JUDGE: On the face of the order, it should obviously refer to the fact that Mr U gave evidence under affirmation –

MR NUVOLONI: Of course.

THE JUDGE: – and I was not satisfied that he had provided either a truthful account or gave all possible information in respect of the whereabouts of L, and accordingly I have adjourned the matter off for a contempt hearing.

MR NUVOLONI: My lord, I will include that in the preamble."

The Transcript concludes:

"MR NUVOLONI: My Lord, is Mr U free to go?

THE JUDGE: He is free to go."

20. The order as drawn by Mr Nuvoloni and, we were told, approved by the judge, was, so far as material, in the following terms:

"UPON the court noting that Mr Gous Oddin remains subject to an Order of the High Court dated 30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Oddin

AND UPON the Court being satisfied that Mr Gous Oddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child

…

IT IS ORDERED THAT:

1. Mr Gous Oddin of … shall attend court at 9:30am on 28 October 2015 before Mr Justice Keehan sitting at The Royal Courts of Justice, Strand, London to show cause why he should not be committed to prison for a contempt of Court in not providing the Court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L ..."

The contrast with the judge's language as recorded in the Transcript will be noted. "I was not satisfied" has become "satisfied that … has not".

21. On 28 October 2015, Keehan J made an order vacating the hearing and re-listing it for 9 November 2015. So far as material for present purposes the order was in the following terms:

"UPON restating the following two recitals in the Order of the Honourable Mr Justice Keehan dated 8 October 2015, namely that:

the Court notes that Mr Gous Uddin remains subject to an Order of the High Court dated 30 December 2004 directing him to inform the Tipstaff of any information in his possession as to the whereabouts of the respondent child L and that this order carries a power of arrest in the event of non-compliance by Mr Uddin; and

the Court was satisfied on 8 October 2015 that, following his giving oral evidence, Mr Gous Uddin has not provided the Court with all the information and knowledge he has as to the whereabouts of the parents and the welfare and whereabouts of the child L

…

AND UPON the Local Authority having indicated … that it will endeavour to issue a committal application as soon as possible with Mr Gous Uddin as the Respondent/Defendant to that application;

…

IT IS ORDERED THAT:

1. The hearing listed for 28 October 2015 before Mr Justice Keehan sitting at the Royal Courts of Justice is vacated. The matter is re-listed before Mr Justice Keehan on 9 November 2015 at 10:30am with a time estimate of half a day, sitting at the Royal Courts of Justice, Strand, London …

2. The application made by the Local Authority to commit Mr Gous Uddin to prison for contempt of court referred to in the recitals above is to reserved to [sic] the Honourable Mr Justice Keehan and to be heard at the same time as the hearing listed at Paragraph 1 (above).

…

5. The requirement for the committal hearing to take place not less than 14 days after service by the Local Authority on Mr Gous Uddin of the committal application referred to in the recitals above is dispensed with, pursuant to Paragraph 12.2 of PD 37A FPR 2010.

6. The requirement for the application referred to at Paragraph 2 (above) to be served personally upon Mr Gous Uddin is dispensed with, pursuant to r.37.10 FPR 2010. The application may be served upon Mr Gous Uddin through service, by post or by e-mail, on his solicitors …

7. The requirement that this Order be served personally on Mr Gous Uddin is dispensed with. The application may be served upon Mr Gous Uddin through service, by post or by email, on his solicitors …"

We were told that the purpose of the proposed application being made by the local authority was to ensure that Mr Oddin would be able to obtain legal aid in circumstances where, as the order recited, the Legal Aid Agency had indicated that legal aid would not be forthcoming unless an application for committal was made.^[14]

22. On 3 November 2015, Mr Oddin made his first witness statement. What he said in paragraphs 2 and 4 is highly material:

"2 I accept that I am still subject to the order of the High Court dated 30 December 2004 but I have mislaid the original order. I said then and I say now that I do not know the whereabouts of L or [her parents].

…

4 I state that I am not and never have been part of a conspiracy to abduct L and would not pervert the course of justice by lying to this Honourable Court or any of its officesr. Indeed, the Tipstaff not only made the consequences of breaking the Court's order abundantly clear but has held my passport, now expired, since service of the order. I have not had a holiday for 18 years."

23. On 9 November 2015, Keehan J made an order adjourning the committal proceedings until 30 November 2015. Mr Oddin was present in court and represented by counsel, Mr Christopher Gibbons, having by then obtained public funding – with the consequence that the proposal that the local authority bring committal proceedings fell by the wayside. Paragraph 2 of the order provided that:

"Gous Uddin of … shall attend court before the Honourable Mr Justice Keehan, sitting at Birmingham, to show cause why he should not be committed to prison for contempt of court in not providing the court with all information in his possession as to the whereabouts of the parents and the welfare and whereabouts of the child L."

24. On 27 November 2015, Mr Oddin made his second witness statement. In it he said:

"I have been advised by my solicitors that there is an Order dated 31 December 2004 which requires me to inform Tipstaff if I have any information as to the whereabouts of L or information which would assist in locating her.

I wish to co-operate with the Court but emphasise that I do not know the whereabouts of L. I have not seen my brother … or my sister-in-law … or L since 2004. My passport and that of my wife … and my parents have now been held for the last 11 years. We cannot travel abroad. My family and I are being punished for the actions of my brother when we did not take part or assist in any way in the abduction of L. We are being made to suffer for my brother's actions. I would respectfully ask that after the length of time which has elapsed our passports are returned to us."

25. When the matter came back before Keehan J on 30 November 2015, Mr Oddin was again represented by counsel, on this occasion Miss Elizabeth Norman, who, as I have said, also appeared for him before us. We have the Transcript of the proceedings.
26. In the course of ultimately inconclusive submissions to the judge, Miss Norman expressed her "concerns about the way that matters have proceeded," pointing to the fact that on 8 October 2015 Mr Oddin was "not given the opportunity to be legally represented" and was "told that he must answer questions." That, she submitted, "causes certain problems", not least because Mr Oddin was not granted legal aid "until after the damage was done." She submitted that Keehan J had "come to a conclusion about his veracity", to which the judge said "No, I have not" – which led Miss Norman to refer to the passage in the Transcript of the hearing on 8 October 2015 that I set out in paragraph 18 above. Towards the end of the discussion the judge made clear that, if invited to do so, he was more than content to revisit his view that Mr Oddin was not telling the truth.
27. On 1 December 2015, Mr Oddin made his third and final witness statement. In paragraph 5 he said this:

"I have not had sight of the Tipstaff order made in 2004. I cannot remember after this length of time whether it was served upon me or my parents. I do recall that the police came to my parent's home. My parents, my wife and I were required to hand our passports to the Court. About a year later we asked for their return but this was refused. After that we made no further requests. Eleven years hare now elapsed and my father, my wife and I believe that we should be able to obtain current passports enabling at least my wife and I to travel abroad. My father is in no fit state to travel. It is an infringement of my human rights that my mobility is restricted and I have no freedom to travel."

28. For the hearing on 18 January 2016, Mr Edward Bennett, who by then was acting for the local authority, had prepared a position statement dated 15 January 2015 to which were annexed what was described as a passing overview of the law relating to committal and copies of the decisions of this court in Hale v Tanner [2000] 2 FLR 879 and Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133. In his passing overview, Mr Bennett summarised what he submitted were the principles to be extracted from the latter case, including, importantly for present purposes, the right of the defendant not to give evidence and the need for the court to advise the defendant expressly of his right not to give evidence.

The case-law

29. Before proceeding further, it is convenient to deal with Hammerton v Hammerton, a decision of a two-judge court consisting of Moses and Wall LJJ. The problem in that case arose because the judge had decided to hear the mother's application for the committal of the father at the same time as the father's application for contact with the child.
30. In relation to that, Moses LJ said this (paras 14-16); the passage is so important I must set it out at some length:

"[14] This brings me to the second source of error. That was the decision of the judge to hear both the application for contact and the committal proceedings at the same time … But the decision to hear both applications at the same time led to inescapable errors in procedure. Once the judge had decided to hear both the applications together, he was faced with an insoluble conflict. It was for Mr Hammerton to make good his claim for contact …

[15] But at the same time as Mr Hammerton was seeking to establish his claim for contact, it was incumbent upon Mrs Hammerton, in seeking committal, to prove breaches of his undertakings and of the court order to the high standard of proof necessary in committal cases. Moreover, as Butler-Sloss P pointed out in [Re G (Contempt: Committal) [2003] EWCA Civ 489, [2003] 1 WLR 2051] (para [22]) Mr Hammerton was not obliged to given evidence at all in his own defence. The court was obliged to warn him that he did not need to give evidence. No such warning was given. But the evidence he gave about the alleged breaches of the undertakings and of the order was clearly relevant to the issue as to whether any form of contact was appropriate in the interests of the children. Accordingly, if Mr Hammerton exercised his right not to give evidence in the committal proceedings, he would almost inevitably fail in his claim for some form of contact.

[16] Thus, the decision of the judge to hear both applications at the same time placed Mr Hammerton in an impossible position. There was no means of reconciling the need for him to establish his case for contact, in the course of which he would have to deal with the alleged breaches of undertakings and of the order, and defending himself, at the same time, in the committal proceedings. There is no hint at any stage of the transcript of anyone advising Mr Hammerton of his rights in respect of the committal proceedings …"

Wall LJ gave a separate judgment expressing (para 31) his "complete agreement" with Moses LJ's analysis on this point.

31. The absolute right of a person accused of contempt to remain silent, which carries with it the absolute right not to go into the witness box, was established in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, where this court held that such a person is not a compellable witness. This right is to be distinguished both from the privilege against self-incrimination and from legal professional privilege, each of which may entitle a witness in certain circumstances to decline to answer a particular question but neither of which entitles the witness to refuse to go into the witness box or refuse to take the oath (or affirm): see Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, para 9.
32. As both Re G and Hammerton v Hammerton illustrate, the principle in Comet has repeatedly been emphasised in this court; see also Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 61, to which we were referred. Most recently, so far as I am aware, the relevant principles were summarised by Jackson LJ, with whom both Lewison LJ and Treacy LJ agreed, in Inplayer Ltd and ors v Thorogood [2014] EWCA Civ 1511, paras 40-45:

"40 A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67. It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence.

41 If the committal application is heard at the same time as other issues about which the alleged contemnor needs to give evidence, he is placed in the position where he is effectively deprived of the right of silence. That is a serious procedural error: see Hammerton v Hammerton [2007] EWCA Civ 248. This is precisely what happened in the present case. Furthermore no-one told Mr Thorogood that an alleged contemnor has the right not to give evidence.

42 If the contempt application had been the subject of a separate hearing and Mr Thorogood had been informed of his right not to give evidence, he might have exercised that right. He could then have dealt with the contempt allegations by way of submissions. In that regard it should be noted that the judge based her two findings of contempt upon answers which Mr Thorogood had given under skilful cross-examination.

43 Mr Milford points out that Mr Thorogood was reminded of his right not to incriminate himself. That is true, but it is not sufficient. Mr Thorogood should have been told that he was not obliged to give evidence. Furthermore the litigation should not have been managed in a way that forced Mr Thorogood into the witness box.

44 Mr Milford submits that even if there had been a separate hearing of the contempt application, the result would have been the same. If Mr Thorogood gave evidence, he would have been caught out in cross-examination. If he had declined to give evidence, the court would have drawn adverse inferences.

45 What Mr Milford says may well be true. Indeed, as things have turned out, Mr Thorogood may be a very lucky man. Nevertheless there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case."

33. I return to the proceedings.

The proceedings: the hearing on 18 January 2016

34. We have the Transcript of the hearing on 18 January 2016. Before the evidence was called, Miss Norman sought clarification from Keehan J as to "what the contempt is that my client faces." She made the point that the collection order required the provision of information that might reasonably assist the Tipstaff in locating the child, whereas the judge's observations at the end of the hearing on 8 October 2015 had been in very much wider terms, referring to the whereabouts of the parents and the welfare and whereabouts of the child. She continued, "what I am not clear about is, is the contempt as your Lordship might see it not answering your Lordship's questions, or is the contempt going back to the 2004 order?" The judge replied, "It is going back to the 2004 order." Miss Norman took the point no further (nor, for that matter, did anyone else) and the judge proceeded to hear the only witness called in support of the allegation of contempt, L's guardian.
35. Just before Miss Norman called Mr Oddin to give evidence, she said this to the judge: "Mr Oddin tells me that he has never been served with the 2004 order", adding, "This matter of service has not been raised before but I am bound to raise it now." The judge was then taken by counsel to the passages in Mr Oddin's first and third witness statements which I have set out. Mr Oddin then gave evidence.
36. In answer to questions in the usual form from Miss Norman, Mr Oddin confirmed that each of his three witness statements was true. The Transcript continues:

"Q. Good. I would just like to ask you some questions about the fact you do not believe that you personally were served with ---"

at which point the judge interjected, asking Mr Oddin to confirm his name and address. The Transcript continues with the following questions by Miss Norman:

"You have raised the issue about not being served with the 2004 order? – A. Yes I don't remember being served with that order. When my barrister told me that my Mum ---

Q. Just speak up a little bit more clearly – A. When my barrister told me that my mother had one of the orders, so then I agreed she must have had an order.

Q. Which barrister are you talking about? – A. Mr – the previous one.

Q. Do you mean the barrister previously involved in these committal proceedings? – A. Yes

Q. And so at some time during these committal proceedings, that barrister told you your mother had had an order? – A. Yes.

Q. Did you see an order? – A. He showed me an order.

Q. Who showed you an order? – A. The barrister.

Q. And that is during these committal proceedings? – A. During the committal proceedings, yes.

Q. When you saw it, had you seen it before? – A. I don't remember seeing it before, no.

Q. Okay. You talk in your statements about the tipstaff making it clear how important it is to keep the order and not to disobey it. What did you mean by that? How did you know what the tipstaff thought? – A. I don't remember the tipstaff telling me anything like that.

Q. Sorry …? – A. I don't' remember that bit."

37. Keehan J pointed out to Mr Oddin what he had said in paragraph 4 of his first witness statement. Mr Oddin said, "I think that could have been in the court the last hearing when they mentioned it in the court." The Transcript continues:

"MR JUSTICE KEEHAN: I am afraid, no, it will not because the tipstaff was not present in court. – A. I've never seen the tipstaff.

MISS NORMAN: You have never seen the tipstaff? – A. No, I don't know who they are so I never seen –

Q. These words are in your statement. – A. Yes.

Q. Obviously you did not literally write it yourself? – A. No.

Q. But you have read it, have you not. – A. Yes.

Q. When or how did the tipstaff make the consequences of breaking the court clear? In writing, in person or do you not know. – A. I probably read it on the order.

Q. On the order that you were shown by the barrister? – A. Yes, the barrister probably.

Q. Before these committal proceedings started – the run up to them started last October – were you aware of the terms of the order? – A. Before the committal hearing, no.

Q. Now we know that you handed in your passport and you have been deprived of your passport since you had first handed it in? – A. Yes.

Q. How did you come to hand it in? What happened? – A. The solicitors rang me up and told me I have to give them my passport.

Q. Whose solicitors was this? – A. It's my Mum's solicitor.

Q. Your mother's solicitors? – A. Yes.

Q. Your mother had been part of the proceedings? – A. That's right, yes.

Q. And so what did you do with your passport? – A. I went and handed it into the solicitors."

Mr Oddin was then cross-examined before being re-examined by Miss Norman.

38. In the course of her closing submissions Miss Norman returned to her opening point:

"MISS NORMAN: My Lord, I expressly asked the question were we dealing with the 2004 order or were we dealing with contempt in the face of the court, and I understood your Lordship to say we were dealing with the 2004 order.

MR JUSTICE KEEHAN: The two are related, though, because if I find that I do not accept the evidence that Mr Oddin gave me on 8^th October, or if I do not accept the evidence he has given me today and I find that he is lying to the court, I am then entitled, or may well then be entitled on that basis to be satisfied that he is not telling the truth, that he knows more than he is telling and is therefore in breach of the 2004 order.

MISS NORMAN: My difficulty is this, as I have suggested to your Lordship earlier on, that your Lordship found him to be at fault in a much wider area than the 2004 order. The 2004 order was matters which might reasonably assist in locating the child and that was it, nothing about welfare or parents or anything else. And so if we focus on that issue …"

39. After Miss Norman had concluded her submissions there was a short adjournment, after which Keehan J returned to court and gave judgment.
40. In paragraph 3 of his judgment the judge framed the issue in these terms:

"This matter is listed today before me for committal proceedings against one of the father's brothers, Mr Gous Oddin. The issue is, do I find that he is in breach of the order made consequent upon that abduction on 30 December 2004."

He then quoted paragraph 3 of the collection order. In paragraph 5 of his judgment, he said this:

"The question was raised by Ms Norman, on behalf of Mr Oddin, at the start of this hearing as to precisely on what grounds Mr Oddin was being considered for committal and contempt proceedings. I made plain that that related solely to the order of 30 December 2004. But very plainly when considering whether there has been a breach of that order, I am entitled and I must consider the totality of the evidence before me and, in particular, whether I find that Mr Oddin is telling the truth or not. If I find that he is not telling the truth, I then have to consider the reason or possible reasons for him lying to the Court."

41. Having directed himself impeccably as to the standard of proof, the judge continued in paragraph 6:

"At the start of these committal proceedings Mr Oddin gave evidence before me on 8 October 2015. There is a transcript of the evidence he then gave in the bundle before me today. I remind myself of what I said to Mr Oddin at the conclusion of his evidence on that occasion" –

and the judge then set out the passage from the Transcript which I quoted in paragraph 18 above.

42. In paragraphs 7-12 of his judgment, Keehan J turned to consider the guardian's evidence and Mr Oddin's challenge to it. There is, as matters have turned out, no need for me to examine the detail of this. He expressed his conclusion in paragraph 13:

"I remain of the view that the evidence given by Mr Oddin on 8 October was evasive and untruthful. He was being asked very simple questions about what information he had received about L and from whom. The transcript demonstrates that he evaded answering those questions for a considerable period of time. He then eventually said that his wife passed on messages that she had received to him and then also implicated his brother, FM and his wife, Mrs DB. He did not during the course of his evidence on the 8 October mention an individual now known and called Mr J."

43. Keehan J then turned in paragraphs 14-15 to the question of Mr Oddin's knowledge of the 2004 order:

14 Just before Mr Oddin went into the witness box today I was told for the first time that he disputed that he had been served with the order of 30 December 2004. When, after he had been sworn, he told me that he was not asserting that he had not been served with the order of 30 December, but he could not recall being served with the order of 30 December 2004. That came as something of a surprise because in his statement of 3 November 2015 at paragraph 4, which just a few moments into his evidence he had confirmed was true, he had said, "I state I am not part and have never been part of a conspiracy to abduct L, and I would not pervert the course of justice by lying to this honourable court or any of its officers. Indeed the tipstaff not only made the consequences of breaking the court order abundantly clear but has held my passport now expired since the service of the order."

15 When asked to explain why that passage had appeared in his statement of November he sought to assert that the conversation that he had with the tipstaff had been at the last court hearing in these committal proceedings. That was plainly a lie because the tipstaff has not been present at any of these committal hearings. On that issue I find that he is lying."

44. In paragraph 16 of his judgment, Keehan J turned to deal with Mr Oddin's evidence in relation to a Mr J:

"No mention was made by Mr Oddin of the involvement of Mr J in any of his statements or in his evidence of 8 October. When he was pressed as to why it was that he had not mentioned Mr J he was, once again, evasive. He did not know why he had not mentioned his name. When he was pressed that he must have known why he did not mention him, he eventually conceded that he may not have mentioned him because he did not want to get him involved because he was not a family member. It is quite clear to me, and I am quite satisfied beyond all reasonable doubt, that Mr Oddin either made a deliberate choice not to mention Mr J to me or that the reference to Mr J is a complete fabrication. I am inclined to believe it is a fabrication; either way it is a deliberate lie to this court."

45. Keehan J set out his findings in paragraphs 17-18:

"17 … What I am quite satisfied of, so that I am sure, is that Mr Oddin, both in his evidence of 8 October and today, has told serial lies. I also find that what he told the guardian was accurately recorded by her. Moreover, in giving that information he, at that time in May 2015, was using the present tense to describe the circumstances, the health and the welfare of L. He now denies those matters. I am satisfied, so that I am sure, that the reason why he denies saying those matters to the guardian is because he knows full well what the position is of L, whether that is by direct communication with his brother or his sister-in-law or indirectly I know not, but I am quite satisfied that he has told all of these lies to me to cover up what he knows to be the truth. He has covered up and I find, so that I am sure, that he has information which would reasonably enable the tipstaff to locate the whereabouts of L and that he has quite deliberately chosen to conceal that information by the lies that he has told this Court. I am quite satisfied, so that I am sure, that there is no other reasonable explanation for the lies that I have found that he has told me. I find no other reasonable explanation as to why he now denies what is said by the guardian of their conversation on 28 May.

18 Accordingly I am entirely satisfied, so that I am sure, that Mr Oddin is in breach of the order made on the 30 December 2004, paragraph 3 and I find him to be in contempt of Court."

46. Miss Norman then mitigated. Keehan J sentenced Mr Oddin in these words:

"By reason of my findings I am quite satisfied, so that I am sure, that you have information which you have not disclosed to this Court nor to the Tipstaff which might reasonably assist in locating her wherever she may be. I consider that that is a deliberate course of conduct on your part and I therefore consider it to be an extremely serious contempt of Court, particularly where a child who was made the subject of a care order and a freeing order as long ago as 2004 has still not been located.

I have considered all that has been said on our behalf. I accept and take fully into account that you are a man of good character and that you have on past occasions in this unhappy matter [we were told that this was a reference to events in 2003-2004 before the collection order was made] assisted the Local Authority with the securing of the return of L. But I am quite satisfied that you have chosen not to do on this occasion. I have considered the range of options. I am quite satisfied that given the seriousness and the severity of the contempt that I find you to be in a custodial sentence, an immediate custodial sentence is inevitable. Accordingly, the minimum sentence I pass is one of six months immediate imprisonment."

47. The committal order, which was signed by the judge, is a curious document. It was drawn on Form N79, a form originally required to be used in the County Court in accordance with Order 29 of the County Court Rules 1981 (as set out in Schedule 2 to the Civil Procedure Rules 1998) which, together with Order 52 of the Rules of the Supreme Court 1965 (as set out in Schedule 1 to the Civil Procedure Rules 1998), were replaced, with effect from 1 October 2012, by Part 81 of the Civil Procedure Rules 1998 in relation to the County Court and High Court and, with effect from 22 April 2014, by Part 37 of the Family Procedure Rules 2010 in relation to the Family Court and Family Division. The only particulars of the contempt proved which were given in the committal order were "Breach of paragraph 3 of the order dated 30^th December 2004." That part of the 'Record of Service' in the order which required particulars to be given of the 'Service of Injunction Order with Penal Notice incorporated or endorsed' was left entirely blank.

Discussion

48. In my judgment, no criticism can be made of what happened on 8 October 2015; the problem arises because of the use that was made on 18 January 2016 of the evidence given by Mr Oddin on the earlier occasion.
49. It is quite clear that on 8 October 2015 Keehan J was exercising, and exercising only, the jurisdiction which I have described in paragraph 9 above. By then, Mr Oddin was no longer a party to the proceedings. He attended court as a witness in answer to the witness summons which Keehan J had directed on 30 July 2015. Mr Oddin was a compellable witness. He was compelled to give evidence. Despite being a compellable witness he would have been entitled to plead the privilege against self-incrimination as a reason for declining to answer a particular question. He was not advised of that right, though in the event nothing, in my judgment, turns on this fact.
50. Keehan J was appropriately robust in spelling out the implications for Mr Oddin if he did not tell the truth: namely that if he did not tell the truth he stood in peril of committal proceedings for contempt. Keehan J said nothing at that point about the collection order; the species of contempt he had in mind was plainly contempt in the face of the court, not contempt arising from breach of the collection order. The warning, though robust, was entirely proper, indeed only fair, so that Mr Oddin be left in no doubt as to the seriousness of the proceedings before the judge. It is precisely the kind of warning that I have myself given on many similar occasions. As McFarlane LJ said in Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 77:

"The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court's considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case, the judge did just that, and no criticism has been sustained in relation to her actions."

However, as he went on (para 78):

"The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process."

51. A comparison of the language used in the order which he had made on 30 July 2015 with the language used in the orders Keehan J subsequently made on 8 October 2015, 28 October 2015 and 9 November 2015, shows clearly, in my judgment, that the contempt in relation to which Mr Oddin was required to attend before Keehan J on 18 January 2016 was in respect of his untruthful evidence to Keehan J and not in relation to the collection order. It is the point which Miss Norman correctly identified on 18 January 2016. Each of the three later orders identified the contempt as being "not providing the court with" all the information Mr Oddin had "as to the whereabouts of the parents and the welfare and whereabouts of the child" (emphasis added). The inconclusive discussion between Miss Norman and the judge on 30 November 2015 did not, seemingly, change matters, though, as her question to Keehan J on 18 January 2016 indicated, it left Miss Norman somewhat unsure as to what exactly the contempt was which the judge was intending to consider at that hearing.
52. At the beginning of the hearing on 18 January 2016, as we have seen (paragraph 34 above), Keehan J made clear that the contempt he thought he was considering was not contempt in the face of the court on 8 October 2015 but rather contempt for breach of the collection order. It was at this point, in my judgment, that the proceedings took a fatal turn.
53. It rather seems that Miss Norman's main concern may have been as to the ambit of the factual inquiry before the judge at the hearing on 18 January 2016. Be that as it may, the salient, and very regrettable, fact is that no-one – no-one – thought through the implications of the answer Keehan J had given Miss Norman; no-one thought through the implications of the fact that the judge was about to embark upon the hearing of committal proceedings, based on an alleged breach of the collection order, in the course of which much weight was obviously going to be attached to the evidence Mr Oddin had given under compulsion on 8 October 2015. And, even after all the evidence had been given and Miss Norman was making her closing submissions (paragraph 38 above), no-one thought through the implications of what had happened or of the fact that, as the judge put it, the collection order and the evidence he had heard on 8 October 2015 were "related" in the way he described.
54. The confusion is revealingly illustrated by what the judge said in paragraph 6 of his judgment, where he referred to "the start of these committal proceedings … on 8 October 2015." The committal proceedings had not started on 8 October 2015; and if they had, there would have been the plainest possible breach of the Comet principle on that occasion.
55. The consequence of what I have just described was a serious, and in my judgment irremediable, procedural error. Because of the use that was made against him during the hearing on 18 January 2016 of the evidence which had been extracted from him under compulsion on 8 October 2015, Mr Oddin was denied the safeguards which anyone facing proceedings for committal is entitled to: in particular, and fatally, the right to remain silent, the right to refuse to go into the witness box. The court had forced him into the witness box on 8 October 2015 and then used his evidence against him, not in committal proceedings for perjury committed on that occasion (which would have been entirely permissible) but in support of committal proceedings in relation to a previous order. In my judgment, this amounted to a clear, serious and irremediable breach of the Comet principle, necessitating, for the reasons given in Hammerton v Hammerton and Inplayer, that the appeal be allowed. As Jackson LJ said in the passage from Inplayer which I have already quoted, "there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in [such] circumstances." I add, lest it be thought I have overlooked the point, that there is, in my judgment, nothing in the decision of this court in Dadourian Group International Inc and others v Simms and others (No 2) [2006] EWCA Civ 1745, [2007] 1 WLR 2967, which can be relied upon to save what happened here.
56. On this ground alone, the appeal must, in my judgment, be allowed.
57. There is, however, a second, and equally fatal, flaw in these committal proceedings. It has never been proved, as it had to be if he was to be committed for breach of it, that Mr Oddin was served with the collection order. Service of the collection order was not merely something which, unless dispensed with, was required by FPR 37.5. More fundamentally, it was something required by paragraph 3 of the collection order itself. Unless the case could be brought within the proviso to paragraph 5 of the collection order (and that has never been suggested), paragraph 3 by its very terms would not bind Mr Oddin unless he had been "served" with the collection order. And although this point was taken only very late in the day, it was fairly and squarely taken by Miss Norman before Mr Oddin started to give his evidence on 18 January 2016 (paragraph 35 above). Miss Norman made it clear that Mr Oddin's case was that he had never been served with the collection order.
58. As we have seen (paragraph 43 above) this matter was dealt with by Keehan J, to the extent it was dealt with at all, in paragraphs 14-15 of his judgment. But there are, as it seems to me, three problems with the judge's analysis:

i) First, what the judge said in the second sentence of paragraph 14 of his judgment is not borne out by the Transcript (the relevant passages from which I have set out in paragraphs 36-37 above).

ii) Secondly, the judge's analysis in paragraph 15 of the judgment simply fails to engage with much of what Mr Oddin said in the course of his oral evidence, in particular his evidence to the effect that he had "never seen the tipstaff" and "don't know who they are" and that his knowledge of the order was derived from what his previous barrister had told him – this must have been a reference to the hearing on 9 November 2015.

iii) Finally, and fatally, although the judge found Mr Oddin to have been lying (seemingly in relation to the Tipstaff's presence in court) he made no finding that Mr Oddin had been served with the collection order, let alone a finding as to when he had been served.

Behind all this is the regrettable fact that at no stage does it seem to have occurred to anyone to find out from the Tipstaff when and in what circumstances the collection order had been served, in particular on Mr Oddin (if it ever was).

59. If Mr Oddin was to be found guilty of a breach of paragraph 3 of the collection order it was necessary for the judge to find proved (and to the criminal standard) (a) that the collection order had been served on Mr Oddin and (b) that any breach found established had occurred after service of the order on him. Nowhere in the judgment does one see any finding that the collection order had been served, any finding as to when it was served or any finding as to when the breaches occurred. On this ground also, in my judgment, this appeal must be allowed.
60. There is a further problem with the collection order. FPR 37.9(1) requires that, if an order is to be enforced by committal, it must contain a penal notice in appropriate form "prominently displayed, on the front of the copy of the … order". In this case, the penal notice was on the fifth page. I can do no better than to repeat and endorse what Holman J said of a similarly defective collection order in Re DAD [2015] EWHC 2655 (Fam), para 12:

"the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be "prominently displayed". It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, "on the front of the copy of the … order". It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, "a judgment or order … may not be enforced …" In my view, the words "may not be enforced" where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal."

61. Moreover, given the complete lack of any cogent information as to how (if at all) the contents of the collection order were brought to Mr Oddin's attention, I do not see how it could be proper to dispense with the requirements of FPR 37.9(1) by exercising the discretionary power conferred by FPR PD 37A, para 13.2 to "waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect." Holman J refused to do so in Re DAD, and for much the same reasons I would refuse to do so here.
62. This, in my judgment, is another fatal defect in the proceedings which requires the appeal to be allowed.
63. In support of Mr Oddin's appeal, Miss Norman relied upon various other matters which in the event there is no need for me to consider further. Therefore, I do not, for example, need to consider her attack on the judge's findings in relation to Mr Oddin's veracity, derived from the judge's assessment of the guardian's evidence. I ought, however, to refer to her final ground of appeal, challenging what she submitted was the undue severity of the sentence Keehan J imposed. In the circumstances I need say no more than that I am inclined to think that, even on the judge's appraisal of Mr Oddin's conduct, a sentence of six months' immediate imprisonment was unduly severe to an extent which would have justified some reduction in the term imposed.

The collection order

64. Once we had announced our decision to allow the appeal, the question arose as to what should happen about the collection order which had been made on 30 December 2004. We indicated our view that it should be discharged. No opposition to this course having been voiced either by Mr Bennett or by Mr Maynard, we discharged the collection order and directed the immediate return of the passports.
65. Three factors, in my judgment, pointed very obviously and, in the event, decisively to that outcome:

i) First, it is wholly wrong in principle that a collection order should be left in place, hanging over peoples' heads like the sword of Damocles, for anything remotely approaching the eleven years throughout which this collection order has been in force.

ii) Secondly, it is undesirable, to put it no higher, to allow an order to remain in force which is not compliant with FPR 37.9(1).

iii) Finally, and decisively, the perpetuation, beyond a comparatively short period, of the passport order (paragraph 4(b) of the collection order), essentially for purposes of coercion, was wrong in principle and fundamentally objectionable: see In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 24-33. This should never have been allowed to happen. Mr Oddin's protests as set out in his three witness statements (paragraphs 22, 24 and 27 above) were well-founded. It is very much to be regretted that Mr Oddin and other members of his family should have been deprived of their passports for so long and without any proper justification. They have been badly ill-used by the court.

Other matters

66. For the sake of completeness, I briefly mention, without further exploring, two matters which did not arise in this case and were therefore not the subject of argument before us.
67. As I have mentioned (paragraph 16 above), Keehan J had discharged the care order and the freeing order before the hearing on 8 October 2015. By then, the matter was proceeding by way of wardship. If the care and freeing orders had still been in place on 8 October 2015, a question might have arisen as to the impact and effect of section 98 of the Children Act 1989. I do no more than draw attention to the point and to the decisions in Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944.
68. I referred in paragraph 50 above, to what McFarlane LJ had said in Re K about the circumstances in which a judge who had conducted the kind of hearing which took place in the present case before Keehan J on 8 October 2015 ought not to conduct subsequent committal proceedings. That issue, which was at the heart of the appeal in Re K, is not one which, in the event, arose for determination here, so I say no more about it. The point to which I draw attention, is simply this. Quite apart from the Comet principle, which, as we have seen, would prevent the use in subsequent committal proceedings of the evidence given by someone in Mr Oddin's position at a hearing such as that which took place on 8 October 2015, it is possible that the rule in[2008] 2 FLR Hollington v F Hewthorn and Company Limited and another [1943] KB 587^[15] might in certain circumstances prevent the use in subsequent proceedings of any findings made by the judge at the first hearing. That is a complicated matter which may require careful examination on some future occasion; so, beyond identifying the point, I say no more about it.
69. I have drawn attention (paragraph 47 above) to the limited particulars of the contempt proved which were set out in the committal order. Under the regime in place when such matters were governed by RSC Order 52 and CCR Order 29, such lack of particularity might very well have been fatal to the validity of the committal order: see the discussion of the authorities in Arlidge, Eady & Smith on Contempt (ed 4) paras 15-52, 15-73 and 15-76. This is not a matter which was canvassed before us, so there was no need for us to explore whether this approach remains appropriate under the new regime governed by CPR Part 81 and FPR Part 37. I express no views on the point, one way or the other.

A final observation

70. This appeal, even more than the decision of Holman J in Re DAD, has focused attention on a number of disquieting problems arising in relation to collection orders made prior to the new form of order which was introduced in July 2013. It is idle to imagine that the collection order we have been considering in this case is unique. On the contrary, there is every reason to fear that there are significant numbers of elderly collection orders still in force and which, it might be thought, ought, for the reasons set out in paragraph 65 above, to be discharged. I propose, therefore, to identify, with the assistance of the Tipstaff, just how many such orders there are, with a view to taking appropriate steps to investigate whether those orders should or should not be allowed to remain in force.
71. I have read Vos LJ's judgment in draft. I agree with every word of it. I have also read Theis J's judgment in draft. I commend her useful checklist to the attention of everyone involved in such cases in the family courts. I associate myself expressly with her important observations about the responsibilities of counsel and solicitors.

Lord Justice Vos :

72. I agree entirely with the President's judgment. I wish to add a few words of my own to emphasise how serious the procedural errors in this case have been, and how important it is that judges in future cases make sure that the correct procedures are adopted to protect the fundamental rights of any citizen accused of a contempt of court.
73. As the President has said there were a number of fatal errors made in this case, each of which would have rendered the finding that Mr Oddin was in contempt of court unsustainable. I cannot over-emphasise the importance of any court dealing with an alleged contempt of court, whether a breach of a court order or a contempt in the face of the court, identifying or requiring the party bringing the contempt proceedings to identify precisely the particulars of the contempt with which it is dealing. This is a basic but crucial point. The alleged contemnor is entitled to know precisely the particulars of the charge he faces; put in layman's terms, he is entitled to know what precisely he is said to have done wrong. It is simply not fair to proceed with a hearing that leads to a finding that a person has committed a contempt of court by which they are punishable by imprisonment without identifying precisely the allegation which the evidence to be relied upon is directed at proving against him. In this case, there was utter confusion about what the contempt was that was being alleged, and it was described in materially different terms at different times as the President has explained.
74. It is also simply not fair to use evidence obtained under compulsion in support of a finding of contempt based on a breach of a previous order. An alleged contemnor has the right to refuse to give evidence and must be told of that right before he goes into the witness box at the hearing of an allegation that he is in contempt of court. If evidence obtained under compulsion can be used to prove an earlier contempt, there is a risk that witnesses will be summoned with the objective of forcing them to answer questions to prove a suspected but unsubstantiated allegation of contempt. That is unfair and inappropriate. It is a different matter, of course, if they commit a fresh contempt in the course of giving evidence properly obtained under compulsion.
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 breach of a previous court order, persons should not be at risk of being sent to prison for contempt of court unless (i) they have been served, or otherwise made fully and properly aware in accordance with the rules, of the order they are said to have breached before the alleged breach occurs, (ii) the fact that they have been served or so made aware is established before the committing court, (iii) they have been informed before the hearing of the precise details of the breach that they are alleged to have committed, (iv) they have been informed of their right to remain silent before they give evidence, if they choose to do so, and (v) the allegation of contempt is proved to the criminal standard. The principles as to the need for service have always been axiomatic in civil proceedings where injunctions are frequently made against defendants in their absence. It can be no different in family proceedings.
76. Finally, I would mention that it was, in my judgment, entirely inappropriate for Mr Oddin's passport to have been withheld from him for such a lengthy period. I very much hope that the new standard provision allowing collection orders to lapse after a relatively brief fixed period will prevent such a thing happening in future cases.

Mrs Justice Theis :

77. The powers of the court to make, and enforce, orders to secure the return of children who have been wrongfully removed from those who care for them is an essential part of the family court's powers to protect vulnerable children from harm.
78. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:

(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.

(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.

(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.

(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.

(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.

(6) Whether the person accused of contempt has been advised of the right to remain silent.

(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.

(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.

(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.

79. Counsel and solicitors are reminded of their duty to assist the court. This is particularly important when considering procedural matters where a person's liberty is at stake.

Note 1    The current form (where paragraph 3 is now paragraph 14) reads “respondent” in place of “Defendants”.    [Back]

Note 2    The current form reads “they” in place of “he or she”.    [Back]

Note 3    The current form (where paragraph 4 is now paragraph 16) reads “respondent” in place of “Defendants”.     [Back]

Note 4    The current form reads “respondent” in place of “Defendants”.    [Back]

Note 5    The current form reads “respondent” in place of “Defendants”.    [Back]

Note 6    The current form (where paragraph 5 is now paragraph 20) inserts “or scanned” before “copy”.    [Back]

Note 7    The current form reads “respondent” in place of “Defendants”.    [Back]

Note 8    The current form reads “but” in place of “PROVIDED THAT”.    [Back]

Note 9    The current form reads “respondent” in place of “Defendants”.    [Back]

Note 10    The current form inserts “or seeks to evade” before “personal”.    [Back]

Note 11    The current form (where paragraph 6 is now paragraph 21) reads “12-14” in place of “2 and 3”.    [Back]

Note 12    The current form reads “locates” in place of “takes charge of”.    [Back]

Note 13    For passport orders see now In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871.    [Back]

Note 14    The correctness of this stance on the part of the LAA is not before us. I merely make the obvious point that legal aid is, in principle, available to anyone facing committal proceedings, whether or not there is a formal application (as there may not be where the contempt was allegedly committed in the face of the court).    [Back]

Note 15    That is (see most recently, Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17) the rule that judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger.    [Back]