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This article concerns a case before the Court of Appeal: the appellant mother had been imprisoned for four weeks for repeatedly breaching an order that she return the parties’ children to the respondent father (in Mexico). The appellant successfully appealed on one procedural ground: that she had not been represented.

PD37A 12.5(3) of the FPR states that, at the hearing of a committal application, the court should have regard to whether the respondent has been “given the opportunity, if unrepresented, to obtain legal advice”.

This case addresses the following points: first, the importance of legal representation; second, what representation entails; and third, what steps a court ought to take to ensure that a litigant has representation.

This case concerned complex and lengthy children proceedings. The appellant mother had been twice ordered by the High Court to return the children to Mexico, which she did not do. The father issued committal proceedings.

The first two committal hearings were adjourned in order to give the mother the opportunity to obtain legal advice. At the third hearing (13th June 2019) the Judge, not wishing to adjourn the matter again, made a suspended committal sentence of 4 weeks until 31st July 2019. This order stated that if the mother complied with the original order and returned the children to Mexico, the committal order would be discharged [11].

The Judge commented on the mother’s attempts to stop the father seeing the children (abuse allegations, attempts to remove his parental responsibility in Mexico) and noted that her contempt was “blatant and admitted” [11].

The mother then instructed a solicitor and there were two further hearings in summer 2019 where she was granted further suspensions of the committal order (until 2nd September 2019). The mother continued to fail to comply with the original order and the father issued a further committal summons.

The parties returned to court on 2nd October 2019. While the mother was unrepresented in court she presented an unsigned letter from her solicitors stating that she had been unable to secure counsel [16]. The Judge rejected this argument and the mother was committed to prison. Her solicitors then issued an appellant’s notice.

At the appeal hearing on 11th October 2019 the mother, represented by counsel, submitted numerous grounds of appeal. However, the court found there was one “core” ground [28]:

“there was a serious procedural error arising from the court’s failure to secure representation for the appellant from the outset of the committal proceedings.”

Counsel for the father argued that the mother had not been prejudiced in any way; she had been represented at two hearings and her lack of representation was tactical [29] “she has made sure she is represented when she wants to be”.

Although the court expressed sympathy with the father’s position, acknowledged the mother had every opportunity to comply and suggested that even if she had been represented the outcome may have been the same, the appeal was upheld [31] – [32]:

  • Committal proceedings are criminal (Brown v London Borough of Haringey [2015] EWCA Civ 483; [2017] 1 WLR 542 (CA).
  • As such, the Judge should have taken steps beyond adjourning to ensure the mother was represented.
  • The Judge should have deferred the decision at 2nd October 2019 hearing in order to investigate further representation.
  • The fact that the mother accepted she was in breach of the orders emphasises the need for representation.
  • While the outcome may have been the same if she had been represented, the court cannot be sure.

The court stated that there may be occasions where a litigant can be committed without representation – such as when an adjournment would prejudice the litigant himself (the respondent) [33].

The court directed that a directions hearing for the father’s original committal summons ought to be heard urgently.

In summary, it would seem:

  • Legal representation is crucial.
  • A litigant ought to be represented throughout the proceedings.
  • The court must take significant steps to ensure a litigant has access to representation.
  • A litigant’s continual and blatant non-compliance with an order does not render legal representation immaterial. 

Florence Jones, Barrister, 1 Hare Court

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