An order made by a family court is legally binding on the parties named within it, and must be complied with at all times unless there is a reasonable or urgent reason not to do so. Going against the terms of a court order is a serious offence which can have far-reaching consequences. This article examines what will amount to a contempt of court and the sanctions for not doing so.
An order made by a family court is legally binding on the parties named within it, and must be complied with at all times unless there is a reasonable or urgent reason not to do so. Going against the terms of a court order is a serious offence which can have far-reaching consequences. This article examines what will amount to a contempt of court and the sanctions for not doing so.
If you have need help with your divorce and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
What is contempt of court?
Fundamentally, a contempt of court is defined as “an interference with the administration of justice”. This can take many different forms, but however it occurs, it will result in justice not being properly carried out. Family judges are increasingly taking a robust approach when dealing with a party who is in contempt. The following is a non-exhaustive list of potential breaches of a court order that can lead to a contempt of court being found:
- Non-cooperation or non-compliance with court orders
- Attempting to mislead the court
- Relocating with the child without permission or refusing to return the child to the jurisdiction
- Attempting to place assets beyond the court’s reach by hiding them
- Repeated failure to provide full and frank disclosure
- Publishing material that could jeopardise the prospect of a fair hearing
- Making public information relating to private family proceedings
- Disrupting proceedings in some other way, such as swearing or making inappropriate comments during the hearing
Such behaviour often increases costs for the other party because their solicitors have to chase responses, trace assets or enforce breached orders. Unsurprisingly, judges frown on those who believe they are above the law.
What happens when someone is found in contempt of court?
A judge has wide discretion to decide how to deal with contempt of court. Often, an individual will be removed from court or taken down to the cells to cool off for a short period of time. In family proceedings, the conduct leading to a finding of contempt is generally something that one of the parties does or doesn’t do.
Before finding someone in contempt of court, the judge must look at the following matters:
- Is there a contempt?
- Is there an impediment to the course of justice?
- The wishes and feelings of the child
- The welfare checklist
- The reasons for the breach/non-compliance
- Whether any advice is required from CAFCASS on the appropriate way forward
- Is there any other effective means of securing compliance with the court order?
- Is the contempt wilful, e.g. is it deliberate and continuing?
- If so, what conditions would be proportionate?
What are the sanctions for contempt of court?
If you fail to comply with a court order, for example, and the order contains a warning about what may happen in the event of a breach, proceedings may be brought against you. While it is possible for someone to theoretically be sent to prison, it is more likely a fine will be given.
There are several powers available to the court when considering an application to enforce an order:
- In child arrangements cases, referral of both parents to a separated parents information programme or mediation
- Unpaid work requirement of between 40 and 200 hours where the court is satisfied that one party has failed to comply with a court order
- Committal to prison of up to two years (in very rare or serious cases)
- Changing which party the child or children live with (in very extreme or serious cases) or variation of the child arrangements order to include more defined terms
- A fine
- An order for compensation for financial loss
- A contact enforcement order or suspended enforcement order
Custodial sentences are rarely handed down by the family court. However, if there is repeated breaches of court orders, judges may have little choice but to clamp down. This was demonstrated in a High Court family case stemming from a child custody dispute, which ordered the child to live with the mother. Three months later, the child travelled with her father to Florida for a two-week holiday, but she was not returned to the mother as had been agreed.
The mother made several applications to secure her daughter’s return, and although the father engaged remotely on a few occasions, he declined invitations from the court to identify where he and his daughter were staying. In addition, he had not returned the child to the UK despite a series of orders requiring him to do so.
With contempt having been established, the court had to decide whether a prison sentence should be imposed on the father. In making its decision, the court found that a series of continuing and serious breaches had taken place, and that the threshold had been met for a custodial sentence. The father received a 12-month jail term, but for the sake of his daughter, it was suspended for 28 days to allow him to return her to the UK in accordance with the court orders. If he did as requested, he would be given the opportunity to apply for his contempt of court to be removed and his prison sentence lifted.
Is there ever a reasonable excuse for breaching a court order?
There may be limited circumstances where one parent will need to breach a court order, this could be related to a child who refuses to go to contact, for example. In this situation, it would be sensible for parents to communicate and make alternative arrangements rather than breaching the order and possibly being found in contempt.
That said, there may be genuine reasons where one parent has a reasonable excuse to breach a court order. For instance, this could be if a child is unwell or where one parent experiences issues with transport, such as their car breaking down. When considering a breach of an order, the court will need to be satisfied that the breach is significant and intentional and there is no reasonable excuse. The court is therefore unlikely to take any enforcement action if there is a reasonable excuse to breach an order.
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