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Order 5.1 - Order for Immediate Committal

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Standard family order as approved by the President 30 November 2017

  • Committal Orders: General

    There are a number of draft orders for use in committal proceedings.

    These can arise:

    • In any family proceedings where one party seeks the court's assistance in punishing the other for failing to comply with an order of the court or an undertaking given to the court (standard committal procedure: FPR 2010, Part 37)
    • In financial related financial proceedings where one party has failed to make a due payment to the other, whether the obligation to pay arises from an order or an undertaking (judgment summons procedure: FPR 2010, Part 33)
    • Where the court decides, on its own initiative, to punish a litigant for contempt in the face of the court (FPR 2010, r 37.12 and PD37A, para 3)

    Note that Committal Orders may be made by any level of judge, but that such an order made in respect of a breach of an order or undertaking should only be made by a judge

    at the same or higher level of judge as the judge who made the original order or who accepted the original undertaking: The Family Court (Composition and Distribution of Business) Rules 2014, r 17(5).

    Note the contents of Practice Direction: Committal for Contempt of Court – Open Court given by Lord Thomas LCJ on 26 March 2015, which includes some guidelines, which cover the Family Court as well as other courts, for the way in which committal applications should be dealt with and how judgments should be publicised and includes the comment:

    'Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are made in, public. This rule applies to all hearings, whether on application or otherwise, for committal for contempt irrespective of the court in which they are heard or of the proceedings in which they arise... Derogations from the general principle can only be justified in exceptional circumstances.'

    There is also a standard Bench Warrant for Arrest (see Order 5.7)

    Standard committal procedure
    A committal application brought by one party seeking the court's assistance to punish the other's failures to comply with a court order or undertaking will follow the procedure set out in FPR 2010, Part 37.

    It is to be noted that, because committal orders potentially involve the liberty of the respondent, it is particularly important to follow the rules correctly, but the paramount consideration is that the respondent has had a fair trial, taking into account that these applications are quasi-criminal proceedings: Nicholls v Nicholls [1997] 1 FLR 649.

    To be enforceable by committal the original order must prominently display on its front a warning notice in the prescribed form: FPR 2010, r 37.9 and PD37A, para 1.

    If the relevant obligation is an undertaking then the order must contain the relevant prescribed warning for undertakings and the respondent must have signed the form acknowledging that he has understood the obligation: FPR 2010, PD37A, para 2. If this formality is complied with then the breach of an undertaking is treated, in enforcement terms, as indistinguishable from the breach of an order: FPR 2010, r 37.9 and PD37A, para 2.

    There are strict requirements for service of the original order: FPR 2010, rr 37.5 to 37.8. The committal application notice must be in Part 18 form and must set out in clear terms what is alleged and, together with supporting documentation, must be personally served on the respondent: FPR 2010, r 37.10.

    At the hearing the respondent can give oral evidence, but cannot be compelled to do so: FPR 2010, r 37.12. The hearing will ordinarily be in public: FPR 2010, r 37.27.

    The maximum sentence on a committal application is two years imprisonment: Contempt of Court Act 1981, s 14. This may be suspended on terms: FPR 2010, r 37.28.

    Using this order
    This draft order should be used when the court makes an immediate committal order either on an application under the standard committal procedure or, on its own initiative, to punish a litigant for contempt in the face of the court.

    Note that, under paragraph 7 of the draft order, a Warrant for Committal (in the form of Order 5.6 below) should be issued at the same time as the Committal Order: FPR 2010, r 37.29.

    Note that, under paragraph 8 of the draft order, a person committed to prison may apply at any time to purge the contempt and be released from prison: FPR 2010, r 37.30.

    Guidance above reproduced from the Standard Family Orders Handbook (Vol 1) by HHJ Edward Hess (Class Legal)

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Published: 29/11/2017
This item is reviewed, and was last reviewed on 19/01/2018

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