AF v RM

This is the reserved judgment on the application made by RM to commit the Father, AF, to prison for breach of the order made by me on 11^th May 2025 in private children proceedings relating to the parents’ two children, AB and CD.

Both parties have attended in person and are unrepresented. In view of the background of allegations of domestic abuse, I prohibited the parties from directly cross examining one another and made orders appointing Qualified Legal Representatives to conduct cross examination on their behalf. Unfortunately, it was only possible to secure the services of one qualified legal representative. Mr. Causton was appointed to cross examine the RM on behalf of the AF. RM did not have a Qualified Legal Representative to ask questions on her behalf of AF. She prepared a list of questions for me to put to AF. It transpired that a number of the questions were unnecessary because of the admissions made by AF.

At the start of the hearing, AF applied for an adjournment of the hearing on the basis he said that he had not been contacted by Mr. Causton prior to the hearing and that Mr. Causton had not been provided with the voluminous historical documentation relating to AF’s four applications for child arrangements orders. Qualified Legal Representatives are Court appointed qualified lawyers who will cross examine a party on behalf of the other party. They do not represent that party and do not provide them with advice. They are not required to take instructions from the party who they are appointed to cross examine for. Mr. Causton explained that he had prepared his own questions to test the evidence in a manner entirely consistent with his professional duty. I also offered AF the opportunity to speak to Mr. Causton prior to the cross examination of RM. In relation to the documents relating to the previous proceedings, I made the decision that the issue of how the order RM was seeking to enforce came about was not relevant to the decision of whether AF breached the order I made on 11^th May 2025. As a result, the papers in the previous proceedings were not required to be considered at this hearing. I refused the application to adjourn.

I should add that AF applied to adjourn the final hearing on the basis there was a lack of particularisation of the allegations and that he had been provided with documents in a piecemeal fashion. I refused to adjourn the final hearing. The order made by me on 7^th August 2025 summarised the particular allegations that AF was facing as follows;

“The Mother has made a contempt application dated 3^rd August 2025. She alleges that the Father is in breach of the order made by District Judge Guirguis on 11^th May 2025 on the basis that;

a)

He has shown/provided documents relating to the proceedings under LV22P0116 to third parties on 25^th June 2025 in breach of the Family Procedure Rules Part 12.73 and 12.75 and section 12 of the Administration of Justice Act 1960;

b)

That he has communicated or attempted to communicate with the children via third parties other than via the maternal grandparents address, in breach of paragraph 8 of the said order”.

Accordingly, AF was clearly aware of the allegations he was facing from, at the very latest, 7^th August 2025, six months before this final hearing. It is acknowledged that there have been difficulties in ensuring each of the parties have the documents from the other because there is no direct communication between them. However, at each hearing, I have checked that the parties have the documents filed by the other. This matter was listed for final hearing on 19^th January 2026, which was not effective. At that hearing, I checked the parties each had the documents the other party filed, and AF confirmed at the hearing on 19^th January 2026 that he had the relevant documents and evidence against him. This was over a month before this hearing, and I am satisfied that he had sufficient time to prepare for this hearing. I therefore refused to adjourn this hearing.

The general principles governing committal proceedings were summarised by Peel J in Hohenberg Bailey v Bailey, Woods and Rentschler [2022] EWFC 5, particularly from paragraph 23. I set out the relevant sections below;

“Procedure: general matters

23.

… I remind myself of the essential procedural safeguards applicable to the issue and conduct of a committal application. Rules 37.3 and 37.4 of the Family Procedure Rules, which took effect on 16 July 2020, codify the safeguards set out in a number of cases. ....

Open court and right to remain silent

24.

I have sat in public throughout. Although H was not present, I stated in front of his legal team that he had the right to remain silent and there was no obligation on him to give evidence, although adverse inferences might be drawn from his silence: Khawaja v Popat and Popat [2016] EWCA Civ 362. I was told that this was relayed to him over the telephone. The right to remain silent had also been recited on the court order of Mostyn J dated 9 June 2021, at a hearing attended remotely by H.

Contempt applications: general principles

25.

In terms of legal principles, committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at [56], Ravnsborg v. Sweden (1994), Series A no. 283-B).

26.

The burden of proof lies at all times on the applicant. The presumption of innocence applies (Article 6(2) of the ECHR). There is no burden on the defendant.

27.

Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure (see Cambra v Jones [2014] EWHC 2264 per Munby P).

28.

Contempt of court involves a contumelious that is to say a deliberate, disobedience to the order. The accused must (i) have known of the terms of the order i.e precisely what s/he is required to do and (ii) have acted (or failed to act) in a manner which involved a breach of the order and (iii) have known of the facts which made his/her conduct a breach (see Masri v Consolidated Contractors Ltd [2011] EWHC 1024 (Comm).

29.

If it be the case that applicant cannot prove that the defendant was able to comply with the order, then s/he is not in contempt of court. It is not enough to suspect recalcitrance. It is for the applicant to establish that it was within the power of the defendant to do what the order required. It is not for the defendant to establish that it was not within his/her power to do it. That burden remains on the applicant throughout, but it does not require the applicant to adduce evidence of a particular means of compliance which was available to the defendant provided the applicant can satisfy the judge so that s/he is sure that compliance was possible. The judge must determine whether s/he is sure that the defendant has not done what s/he was required to do and, if s/he has not, whether it was within his/her power to do it. Could s/he do it? Was s/he able to do it? These are questions of fact. That said, breach may occur where compliance is difficult or inconvenient but not impossible; see Perkier Foods Ltd. v Halo Foods Ltd. [2019] EWHC 3462 (QB).

AF was not personally served with the order made on 11^th May 2025. It was sent to him by the Court in the usual way by post. I am satisfied that he was aware of the terms of the order because he sought permission to appeal against the order and filed with his appeal a copy of the order I made. He filed his notice of appeal on 3^rd June 2025, which was over three weeks before the incident forming the basis of the allegations of contempt. Pursuant to Family Procedure Rules Part 6.19, I retrospectively authorise service of that order upon AF by alternative means, namely by post and/or email.

On 21^st August 2025, I gave permission for AF to be served by the bailiff posting the application, statement in support (with exhibits) and my initial directions order through the letterbox of AF’s home. This was completed on 22^nd August 2025 as recorded in the statement of service dated 22^nd August 2025.

AF was reminded in the application and in my order of 23^rd October 2025 that he had the right to remain silent. I note his skeleton argument dated 25^th February 2026 refers to the procedural safeguards for contempt proceedings. I asked him at the commencement of his evidence if he wanted to give evidence. I am entirely satisfied that he knew of his right to silence and chose to voluntarily give evidence.

I have read and considered the following documents in determining this judgment;

I heard sworn evidence from RM, SL, YH and AF. I then heard closing submissions from each of the parties and I heard mitigation on behalf of AF in the event that I found the contempt proved.

I will summarise the facts, highlighting the extent to which there is any factual dispute. In fact, there was a limited amount of factual dispute.

On 11^th May 2025, I made a final order concluding AF’s application for a child arrangements order in relation to the children AB and CD. The order I made provided for the children to have indirect contact from the Father on a monthly basis, to be sent via a specified relative by postal service. The order contains the following warning notices;

“Important Notices

This order includes a child arrangements order (the part of the order setting out the living arrangement for a child and the time to be spent or contact with another person). If you do not do what the child arrangements order says you may be made to do unpaid work (“an enforcement order”) or pay financial compensation. You may also be held in contempt and imprisoned or fined, or your assets may be seized…

Confidentiality warnings

…Further, during the proceedings or after they have concluded, no person shall publish information relating to the proceedings including accounts of what has gone on in front of the judge, documents filed in the proceedings, transcripts or notes of evidence and submissions and transcripts and notes of judgments (including extracts, quotations, or summaries of such documents). Any person who does so may be in contempt of court.

At the end of the order, it says as follows;

“Where a child arrangements order is in force: if you do not comply with a provision of this Child Arrangements Order-

a)

You may be held in contempt of court and be committed to prison or fined; and/or

b)

The Court may make an order requiring you to undertake unpaid work (“an enforcement order”) and/or an order that you pay financial compensation”.

The relevant terms of the order are as follows;

“The Father, [AF], shall have indirect contact with the children by sending them letters, cards and small gifts once per month. [AF] is permitted to send additional gifts to the children for their birthdays and at Christmas. All indirect contact is to be sent by postal service and should be sent to the [relative specified] address.”

On 25^th June 2025, AF attended outside the school that AB attends. He spoke to four boys on their way into school and established from two of them that they were in the same year group as AB and that they knew AB. AF used a photograph of AB to confirm that they knew him. He then handed an envelope to the boys asking them to hand it to AB, explaining that he was travelling abroad and that he wanted AB to have the material. The two boys from AB’s year reported it to a teaching assistant, who in turn reported it to the then safeguarding lead. A CPOMs record was prepared which recorded that the envelope handed to the boys included the following;

SL says that AF was contacted and told not to approach any other children from the school and warned him the police would be called if he did so. The YH and then safeguarding lead called AF on speakerphone and told him that it was inappropriate for him to approach and involve other pupils at the school. He asked them what crime he had committed. After some time, he agreed not to approach other children. He asked for the prospectus to be returned to him, and it was agreed that he would collect it from outside the school gates before 2pm, with it being passed through the fence, so that he did not come onto school grounds. The then safeguarding lead told AF that he was in breach of the order made on 11^th May 2025 because the correspondence should to the relative’s home. He was told that the documents would not be handed to AB and that they would not be informed AF was travelling abroad. The school then informed RM and spoke to the parents of the other children involved in the incident.

YH told me that the boys were offered the option to go home early if they wished but they chose not to. They were told not to discuss it with AB and CD.

AB and CD were not told of this incident and as far at RM understands, AB and CD continue to be unaware of this incident.

AF did not challenge any of the evidence of SL. The only evidence he challenged of YH was whether the court documents were handed over in paper form as well as on the flash drive. SL was clear that there were court documents in the envelope as described in the CPOMS. She said that she was sure that they were in the envelope because she saw documents with Liverpool Family Court on. She explained that there was no apology from AF for his actions.

RM had no direct knowledge of what had happened at the school, and she relied upon what she had been informed of by the staff at the school. She didn’t speak to the boys who spoke to AF. She confirmed the children were unaware of AF’s actions. The school had been careful to provide additional support for AB, to check that he was managing. She explained the draining and stressful effect of the multiple proceedings, which have been subsisting on and off for eight and a half years, with multiple hearings and multiple applications from AF, including appeals. She expressed her frustration that AF was choosing not to abide by the terms of the order regarding indirect contact, that he had failed to send monthly indirect contact by the specified means and instead had attempted to covertly communicate with the children. She was extremely concerned by the contents of the letter the school say was received from AF which included references to the court proceedings. RM told me that she was concerned that AF would make further attempts to contact the children other than in accordance with the order I made in May 2025.

I note that the letter that has been provided by the school that the witnesses SL and YH say was intended for the children informs them that he had “been to court 64 times, trying everything I can to be with you both”. It goes on to say “It’s been really hard, but I will explain when the time is right… I honestly don’t know what you’ve been told, but I think you both deserve to know the full story. That’s why I’ve included a pen drive with this letter. On it, you’ll find court papers that show what’s really been going on- not just from me, but from everyone who spoke in court in April. You have the right to know the truth and make up your own minds”. It goes on to inform them that he was appealing my order of 11^th May 2025, and he asked for an emergency visit before he goes abroad. He asks them to message him back and gives his mobile telephone number for that purpose.

AF chose to give evidence. He told me that he felt he needed to tell the children he was going abroad in case he didn’t come back, and they felt abandoned by him. He said that he could not go to the children’s NYAS Guardian for help, and he could think of no other forms of help to be able to contact the children. That is why he took the steps he did.

He told me that he did approach the boys at the school to give the documents to the children. He said that he felt ‘torn apart’ by not having contact with the children and that something had been torn out of them as a result of not having contact with him. He said that people who were preventing him from having contact with the children did not love the children.

He told me that he did approach the four children, introduced himself to them and gave them the documents and pen drive to the children. He asked them to ring him when they had done it. He said he deliberately picked boys to pass the material on and that they were friendly boys. He said that he wanted the children to see the prospectus he was in to show them a positive example. He didn’t want to ‘stress out’ AB and CD, but he felt they needed to know the truth.

He said that he gave the children a pen drive with the court documents saved on it. He said that the court documents “belonged to the children” and at he didn’t see that it was a “problem” for him to share them with the children. He rhetorically asked what RM was hiding from the children. He admitted that he had sent the envelope with the words set out in paragraph 13a) above and that he had sent the letter, extracts of which I have referred to in paragraph 19 above. He said that he had no other choice in order to ensure that communications reached the children. He said that because the children were parties to the proceedings, he didn’t think that it was contempt for the children to be given the court documents because they had been made parties to the proceedings.

He said that he had sent a birthday card for each of the children in accordance with the order made on 11^th May 2025 and a letter for CD. However, he made the decision to send the documents through the school to avoid RM “having control”. He then went on to say that he didn’t understand the terms of the order requiring his correspondence with the children to be sent via the specified relative or the warning notices that appear on the order.

He insisted that his actions in attempting to communicate with the children was an act of love. He said that he didn’t believe these contempt proceedings were in the best interests of the children, they were not proportionate because he had not committed a criminal act and his behaviour was not directed at RM.

I make the following findings;

Having made those findings, I conclude that the Father is in breach of the order made by me on 11^th May 2025 in that;

Having found contempt proved, I now turn to sentence. The maximum term of imprisonment I can impose is 2 years. The contemnor will serve one half of the sentence, although it may be that it is just 40% of the sentence as a result of the government’s current early release provisions.

I have referred myself to the decision of the Court of Appeal in Hale v Tanner [2000] 2 FLR 879, where guidance is given as to sentencing of contempt in the family court. The case concerned a breach of a Family Law Act injunction. The guidance is summarised in the headnote as follows;

Hale v Tanner was applied by the Court of Appeal in relation to breaches of anti-social behavioural injunctions in Lovett v Wigan Borough Council, Smith v Network Homes Limited and Hopkins v Optivo [2022] EWCA Civ 1631. In that case, the Court of Appeal was provided with a report from the Civil Justice Council regarding Anti Social behavioural injunctions. The objectives of sentencing for breach of civil injunctions was identified as follows;

Within the judgment of Lovett, the Court of Appeal re-produced the table produced by the Civil Justice Council setting out sentencing guidelines. I have not found any cases implementing the same guidelines when sentencing for breach of a financial remedy order. In particular, there is no refence to these guidelines in the decision of Peel J in Bailey v Bailey, Woods and Rentschler [2022] EWFC 5, a case concerning a breach of a financial remedy order.

I invited AF to set out his mitigation in the event that I found the alleged breaches proved at the end of his closing submissions. He told me that he had felt compelled to communicate with the children because he was going to Korea and he wanted to communicate with them before he left. He told me he feels torn apart from his children and that he was concerned about the children feeling abandoned by him. He said that the information that he was communicating to them was their information anyway and that there had been a massive overreaction. He said that he had not committed any criminal offences, evidenced by the fact the police did not take any action against him.

I have considered the mitigation submitted by AF. On the one hand, the children did not receive the communications from AF and appear to be unaware of the attempt to communicate with them. The harm is therefore limited to the impact of those involved in the situation at the school and the emotional impact upon RM. I accept AF genuinely loves the children and misses them greatly. However, what was genuinely concerning to me is that AF seemed unwilling to be bound by the terms of the order and saw that his attempt to give the children court documents, including my judgment, was in their best interests. He has chosen not to communicate with the children via the method set out in the order and chosen to take matters in his own hands. He tried to involve the children in deceiving their RM. He did not demonstrate any remorse. He appears to have no regard or understanding of the impact of his actions on the children or on RM. He was focused on himself and not on the children. It therefore follows that I must be careful to ensure that my sentence reflects the need to ensure compliance with the order in the future.

I have reached the conclusion that the fair and proportionate punishment for each breach of the order is 28 days imprisonment, concurrent. However, this shall be suspended until 10am on 12^th March 2027 on the following terms;

That concludes my judgment.