Family Law

Mostyn J has imposed an immediate 9-month custodial sentence, thought to be the longest immediate custody ever imposed for non-disclosure in the family courts on a husband who has systematically failed to comply with orders of the English court.

In Sarah Kimura Al-Baker  v Abdul Amir Al-Baker  [2015] EWHC 3229 (Fam) the wife ('W') issued proceedings on 6 January 2015 following a 45-year marriage, secured on the parties' joint domicile. The husband ('H') subsequently produced a Talaq divorce said to have been effected in the UAE. W applied for, and was granted, permission to bring an application under Part III of the Matrimonial and Family Proceedings Act 1984.

As a result of these proceedings, a number of disclosure orders were made against H. The first by Roberts J on 19 August and then identically on 2 September by DJ Aitken, H, who sought to challenge the jurisdiction of the English court, refused to engage with any of the orders and had provided none of the ordered disclosure. He had also remained outside of the jurisdiction since proceedings began, described in court by counsel as 'pulling up the drawbridge'. W applied for him to be committed for contempt.

The Law on Committal

Committal for breach of an order is the Family Court's last line of defence against non-compliance. In order to apply for committal, an order endorsed with a penal notice (as specified in FPR 2010, r 37.9(1)) must have been breached. The party seeking committal must ordinarily serve the application, supported by an affidavit, personally on the respondent with 14 days' notice in advance of the hearing. To commit someone to prison, the court must be satisfied beyond reasonable doubt that the respondent (a) has not done what he or she was ordered to do; and (b) that it was in the respondent's power to do it.

Preliminary considerations

Mostyn J first considered whether it was permissible to serve by alternative methods outside of the jurisdiction. In examining Chapter 4, the learned judge observed that it contained no explicit provision for alternative methods of service. Applying Rule 6.1, he held that it was possible to read such provision into Chapter 4 and permitted email service outwith the jurisdiction.

Mostyn J also gave permission to dispense with personal service of the committal application and shortened the time for service by 1 day under the general power to correct defects.

The Contempt

In terms of the substantive application, the judge held that he was 'satisfied beyond any reasonable doubt that the respondent has failed to comply with the disclosure orders'. He went on to find that 'not only has he refused to comply, but he has been defiant in his refusal to do so'. In open court, the learned judge referred to this as 'absolute defiance. Obstinate defiance'.

In comparing the case with Young v Young [2013] EWHC 34 (Fam), where the contemnor husband received a 6-month sentence, the learned judge stated that: 'I regard this as worse case in terms of the obloquy of the respondent'. In having regard to H's defiant contempt, Mostyn J passed an immediate sentence of 9 months' custody. This is believed to be the longest immediate sentence imposed by the Family Court for non-disclosure, backed by a request for a European arrest warrant which is to be coordinated with the police.

Conclusion

The Al-Baker case highlights the increasing tough line that the courts are taking towards non-disclosure. Whilst in previous cases such as Zuk v Zuk [2012] EWCA Civ 1871 and Ball v Shepstone [2013] EWCC 6 (Fam) the courts had seemed reticent to impose long and immediate custodial sentences, the mood has clearly changed.

In imposing a 9-month sentence, effective immediately, Mostyn J has indicated the strong approach that the court will take to those who continue to defy its orders and disengage from the court process. This follows a trend of judges imposing longer sentences on serial contemnors, signalling the Family Court's intent to enforce its orders.