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Contempt of court and Family Law

Contempt of Court is an interference with the administration of justice. This may take several forms but each of them will result in justice itself not being properly carried out. It is for this reason that contempt of Court is seen as such a serious offence and which can result in a custodial sentence.

Contempt is governed by the Contempt of Court Act 1981 and case law.  There is strict liability for statutory contempt.  This means that conduct may be treated as contempt of Court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. Contempt may be civil or criminal and carried a punishment of up to 2 years in prison or an unlimited fine.

Family Judges are increasingly taking a tough approach when dealing with a party who is in contempt.   Non-cooperation may mean non-compliance with Court Orders, attempting to mislead the Court or attempting to place assets beyond the Court’s reach.  Such behaviour often increases costs for the other party as their solicitors chase responses, attempt to traces assets or try to enforce Orders.  Unsurprisingly, Judges frown on those who believe that they are above the law.

In the recent case of Young v Young, Mr Young’s failure to disclose evidence of his alleged loss of assets was held to be contempt.

Mr Justice Moor jailed former property developer Scot Young for a gross contempt of Court in the long-running financial remedy proceedings.   The Judge described Mr Young’s explanations for not complying with orders as “absurd” and “next to useless”.

In 2009, Mr Young was ordered to pay Mrs Young rent, school fees for the children and maintenance at £27,500 per month. Mr Young has paid nothing to date and yet the Orders were never appealed. Maintenance arrears now amount to almost £1 million.

Mrs Young says Mr Young has hidden substantial financial assets. Mr Young, who represented himself in Court, claims that he is penniless.

This case highlights the importance of providing full and frank disclosure within proceedings and provides a useful and current reminder that Family Division Judges will have little sympathy with parties guilty of contempt and that the penalties for such an offence will not merely be a costs order or a fine.  It is demonstrative of an increasing desire to bring the family Courts in line with civil law.

When faced with such conduct, the Court can impose other sanctions other than a custodial sentence or fine.  In serious cases, a Hadkinson order may be considered appropriate.  This type of unless Order takes its name from the 1952 case: Hadkinson v Hadkinson [1952] P 285, CA and is made to remedy something done in defiance of the Court.  A Hadkinson order limits the wrongdoer’s access to the Court until they rectify the breach.

By way of example, if a party is in breach of a Court Order and refuses to comply, an application may be made to prevent him for applying for any further Orders of the Court until he complies with the original Order.

Such Orders are very draconian as they essentially deprive the party in question of  a right to be heard and they were described as a ‘sanction of last resort’ in the case of Mubarik v Mubarik 2006 EWCH 1260 (Fam).

This case set out 6 conditions that must be met before such an Order should be made.

  1. Is there contempt?
  2. Is there an impediment to the course of justice?
  3. Is there any other effective means of securing compliance with the Court’s Orders?
  4. Should the Court exercise its discretion to impose jurisdiction having regard to the question?
  5. Is the contempt wilful, i.e. is it deliberate and continuing?
  6. If so, what conditions would be proportionate?

The making of a Hadkinson Order is discretionary; indeed, the Court is more likely to exercise its discretion where one party acts particularly badly.  They have proved to be a useful tool where there is a continuous and deliberate non-payment under an Order or a failure to pay capital or maintenance sums.  It should be remembered, however that they will not be granted where there are other effective methods of ensuring compliance with the breached Order.

If you have any questions in relation to the issues raised in this article please contact Rayden Solicitors.

Image courtesy of nixxphotography at FreeDigitalPhotos.net

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