This is Sir James Munby’s response to the Law Commission’s current open consultation. The consultation is open until 8 November. Sir James is the previous President of the Family Division. The Transparency Project will be submitting its own response (covering issues within the scope of our charitable objectives) in due course.
On 9 July 2024, the Law Commission published its long awaited Consultation Paper (CP 262) on Contempt of Court. Because of the Commission’s somewhat limited terms of reference, the Consultation Paper is far from being a comprehensive examination of the law of contempt, yet it is long and detailed: it runs to 474 pages, although to be fair the last 50 of these are taken up listing the 137 consultation questions posed by the Commission.
Nonetheless, for those involved with the family justice system the Consultation Paper is thin gruel and makes for disappointing, and frankly concerning, reading. There are three reasons for this:
- First, the Commission’s understanding of its limited terms of reference means that many of the most pressing issues of concern to the family justice system are treated as being outside the scope of the project.
- Secondly, and in relation to topics which are plainly within scope, the Commission simply fails to engage with issues crucial to the family justice system.
- Thirdly, and I regret having to say this, when the Commission does engage with the family justice system it displays an uncertain grasp, suggesting a lack of understanding and expertise in relation to the realities of the family justice system.
A striking example of this last point (I shall come to others in due course) can be found in the Commission’s discussion of how long proceedings remain “active” for the purposes of the Contempt of Court Act 1981. In the Consultation Paper we read this (CP, ##5.115-5.117):
“5.115 We have heard from stakeholders that there is a deal of uncertainty about when it can be said that proceedings cease to be active in family cases. The concern is that where a decision may be made about, for example, a child maintenance order, there may be further hearings scheduled many months in the future to review the order. We were told that sometimes proceedings are paused and then subsequently reactivated, and that there may be multiple proceedings. This makes it difficult for parties or members of the family to know when they may speak publicly about their cases.
5.116 Under the CCA 1981, it appears to us that proceedings are likely to remain active in such instances given the definition in schedule 1 …
5.117 In those circumstances, it appears that parties and family members are hampered in discussion of their cases. We would welcome evidence about whether and how the status of proceedings in such matters (or in any similar circumstances) might be addressed.”
I find this most surprising. I can say with some confidence that I have never heard of any concerns about the application of this part of the 1981 Act in the context of family proceedings, let alone in this particular context; that so far as I am aware the case-law is entirely silent on the potential application of this part of the 1981 Act to family proceedings; and that what hampers discussion by parties and family members of their cases is not the 1981 Act but section 12(1)(a) of the Administration of Justice Act 1960 – a topic which, as we shall see, is completely ignored by the Commission. To ask consultees for their views on this issue, which in reality is, at worst, minor and uncommon, while not seeking their views on the vastly greater hampering impact of section 12, is to ignore the elephant in the room.
I appreciate that this will be uncomfortable reading for the Commission, but the subject matter of the Consultation is so important that it demands, to adopt the language of Megarry J in In re Barbour’s Settlement Trusts [1974] 1 WLR 1198, 1202, plain speaking rather than “nods and becks and wreathed smiles.”
I will argue here that:
- The exclusion of the reach and impact of section 12(1)(a) of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 from the scope of the Project is illogical and wrong; a great opportunity to clear up one of the more confused aspects of the law of contempt will be lost.
- These provisions formed part of a list of vitally important topics in the law of contempt (below) which bear upon daily family law practice. This list was explicitly drawn to the Commission’s attention but has largely been ignored or declared to be out of scope.
- The Commission’s approach to what it calls general contempt simply does not accord with the existing law of contempt in relation to wards of court. In relation to wards of court the Commission’s provisional proposals are unworkable. Far from creating “greater certainty” they would, if enacted, cause even greater confusion and uncertainty than exists at present.
- The Commission’s ’s provisional proposals do not fit with the type of situation which arises in a Tipstaff case.
To explain some background. In relation to proceedings about children, section 12(1)(a) punishes as a contempt the publication of “information relating to proceedings … in private” (though not, on the authorities, the child’s identity) while section 97(2) punishes as a criminal offence the publication of “material which is intended, or likely, to identify” the child. Section 12(1)(a), it should be noted, in large part reflects the pre-existing non-statutory law (common law and equity): see the decision of the Court of Appeal in In re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58, where Scarman LJ explained (98, 100) that the plain purpose of section 12 was “to clarify the law, which had been extremely obscure, … [it] must be interpreted in the light of the pre-existing law. It is not a code of new law, but a clarification of the old.”
The scope of the project
The consultation is described (CP, p i) in sweeping terms:
“Topic of this consultation: We are conducting a review of the law on contempt of court and considering the need for reform to improve its effectiveness, consistency, and coherence. Our objective is to produce a law of contempt that is easier to understand, fairer, and that better protects the administration of justice.”
The Commission’s ability to achieve this objective is however limited by its terms of reference (CP, #1.11). So far as material for present purposes these provide that:
“The project will consider: …
(5) the effectiveness of the current provisions relating to contempt of court by publication (considered in its broadest sense) and breach of anonymity orders, including consideration of Article 10 rights under the European Convention on Human Rights, and the appropriateness of the penalties for breach;
… The following topics are beyond the scope of this project:
Substantive law relating to reporting restrictions and anonymity orders (rather than the law relating to their breach which is, for the avoidance of doubt, within scope).”
The Commission’s understanding of the inter-relationship between, and the overall effect of, these two provisions is puzzling. It treats as being within scope “contempt by publication while proceedings are active”, that is, contempt under the Contempt of Court Act 1981, in distinction to both contempt by publication under section 12 of the Administration of Justice Act 1960 and the criminal offence of publication in breach of section 97 of the Children Act 1989, neither of which it even addresses in this context. The only reference to section 12 (CP, #6.29, fn 41) is on a different point. References to section 97 (CP, ##8.197, fn 245, 8.198, 8.199, 10.31, fn 47) do not bear on the present point.
The Commission’s approach is puzzling for two distinct reasons:
- The rationale for drawing a distinction between the restrictions on publication imposed on the one hand by the 1981 Act (treated by the Commission as being within scope) and on the other hand by the 1960 and 1989 Acts (treated by the Commission as being not within scope) is neither explained nor, it might be thought, explicable.
- It is far from obvious that the distinction can be justified by the expressed limitation on the Commission’s terms of reference.
What is meant by the “Substantive law relating to reporting restrictions and anonymity orders”? There are two possible views as to what this means:
- It might be understood as referring to “orders” of two specified types – those imposing reporting restrictions and those providing for anonymity. This construction can be represented as (reporting restrictions + anonymity) orders.
- It might be understood as referring to two distinct things: “reporting restrictions” and “anonymity orders”. This can be represented as (reporting restrictions) + (anonymity orders).
I suggest that the first is the correct view:
- It is surely the more natural reading.
- It has an obvious rationale: excluding from the project the distinct and complex issues surrounding the jurisdiction of the court to make certain types of order.
- It means that the terms of reference read as a whole create a coherent scheme: para 5 defines the project as including “provisions relating to contempt of court by publication”, while there is carved out by way of exclusion the “law relating to orders”.
- The other view would be in conflict with the Commission’s own approach which, to repeat, is to treat reporting restrictions imposed by the 1981 Act as being within scope.
In other words, the terms of reference embrace the substantive law relating to contempt of court by publication (whether the common law or statute law: what are referred to in the family law jurisprudence as automatic restraints) while excluding consideration of restraints imposed by court order.
Section 12 and section 97 have nothing to do with the court’s power to make orders. Both deal with certain types of restraint which arise automatically (as does the type of restraint dealt with by the 1981 Act).
There is in fact no need to parse its terms of reference to come to the conclusion that the Commission’s approach is both misconceived and potentially most damaging:
- To draw a distinction between the restrictions on publication imposed by the 1981 Act (treated by the Commission as being within scope) and those imposed by the 1960 and 1989 Acts (treated by the Commission as being not within scope) is neither sensible nor, it might be thought, even rational.
- It makes a mockery of the Commission’s claims that its objectives are (CP, p i) “to improve [the law’s] effectiveness, consistency, and coherence … to produce a law of contempt that is easier to understand, fairer, and that better protects the administration of justice” and (CP, #3.119) to “consolidate, clarify and simplify the law.” To ignore section 12 and section 97 is to stage a production of Hamlet without the Prince.
On a simple reading of its terms of reference and, quite apart from that, as a matter of principle and common sense, there is thus a very strong case for disputing the Commission’s exclusion of both section 12 and section 97 from scope. I therefore suggest that:
- The Commission should reconsider its exclusion of section 12 and section 97 from scope.
- Following such reconsideration the Commission should:
- accept that section 12 and section 97 are within scope; and
- consult further in relation to both section 12 and section 97 (see below).
- If it is nonetheless to persist in its present stance the Commission needs, as a minimum, to explain its thinking, to set out explicitly its understanding of its terms of reference, and to articulate some convincing justification and rationale for its approach.
Furthermore, as the Commission explains (CP, #1.21):
“Our Terms of Reference, above, include matters regarding the relationship between the law of contempt and criminal offences. This does not place a review of criminal offences within the scope of our project. We discuss criminal offences and the overlap with contempt on numerous occasions, but we make no provisional proposals in relation to the reform of criminal offences. In addition, the second of our Terms of Reference invited us to consider whether any types of contempt should become criminal offences. It will be apparent from our provisional proposals regarding liability … that we provisionally conclude that contempt should not become a criminal offence.”
This is subject to one qualification (CP, #1.21, fn 20):
“There is, however, one criminal offence in relation to which we seek consultees’ views on whether Government might look at reform in future. This is the offence (in s 41 of the Criminal Justice Act 1925) of taking photographs in court. The issue of potential reform arises as a result of our provisional proposals in relation to contempt.”
On 26 September 2022 I submitted a Memorandum to the Commission dealing with eight topics which I invited the Commission to consider as part of its Contempt of Court Project. I said that I appreciated that some of this might fall outside the scope of, or be peripheral to, the Project, but I believed it important to consider the wider context. The eight topics were: (1) – Transparency; (2) – Section 12 of the Administration of Justice Act 1960; (3) – Section 97 of the Children Act 1989; (4) – The Judicial Proceedings (Regulation of Reports) Act 1926; (5) – Technical issues in relation to anonymity; (6) – Contempt in the context of wardship; (7) – The distinction between criminal and civil contempt; and (8) – Reform of the Debtors Act 1869.
Of these, topics (1), (2), (3), (4) and (5), presumably being considered outside scope, are not considered at all in the Consultation Paper. From a family law perspective this must inevitably reduce very significantly whatever importance and utility the Contempt of Court Project might otherwise have had.
So far as concerns topic (8), the Commission’s response is welcome so far as it goes. It invites views on the maximum sentence for contempt resulting from non-payment of debt (CP, ##10.21-10.27). Disappointingly, however, and despite the many views on the matter which it records having already received, it offers no provisional proposals.
I turn to more fundamental concerns.
Section 12
In terms of the law of contempt, reform (or as I would suggest repeal; I return to this below) of section 12(1)(a) of the 1960 Act is a fundamental issue.
The Commission will recall that in February 2021, together with His Honour Clifford Bellamy, Lucy Reed, Dr Julie Doughty and Louise Tickle, I had submitted to it a Proposal for the Law Commission’s 14th Programme of Law Reform: [2021] Fam Law 466.
“That consideration be given to a review of s 12(1)(a) of the Administration of Justice Act, with a view to its repeal and, if appropriate, replacement with more focused provisions better suited to the modern world.”
Our thesis was simple and uncompromising:
“With the passage of time, and in the modern context in which it is now operating, section 12(1)(a) has become unsatisfactory, unfair, unduly complex, inaccessible and outdated. Repeal of section 12(1)(a) is long overdue. Until it is repealed the public’s perception of the Family Court as a ‘secret’ court will persist.”
On 28 October 2021, the President of the Family Division published the outcome of his Transparency Review: Confidence and Confidentiality: Transparency in the Family Courts. His view (Review, para 38) was emphatic and striking:
“The 1960 Act was concerned to protect and support the administration of justice. Now, some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision.”
There has not been, and so far as I am aware there is no intention to carry out, any such review. The Commission treats it (I have to suggest erroneously) as being not within scope.
Even if it is correct in its understanding of its terms of reference, it is disappointing (to use no stronger word) that, in contrast to its stance in relation to section 41 of the 1925 Act, the Commission cannot even bring itself to say that the repeal or replacement of section 12(1)(a) of the 1960 Acts is a topic where reform might be looked at in future.
Section 97
Its stance in relation to section 97 of the 1989 Act is equally unhelpful. In my Memorandum I had said this (paras 9-10):
“There is at present a curious interplay between section 12(1)(a) of the 1960 Act and section 97 of the 1989 Act, not least that while one gives rise to a civil contempt the other creates a criminal offence. The Commission may wish to consider whether in this context the appropriate remedy should, as a matter of general principle, take the form of proceedings for contempt or criminal proceedings. Whatever the answer, it would not, of course, affect the standard of proof.
Section 97 requires amendment in two respects: First, by reversing the decision in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, so that the protection afforded by Section 97 would continue beyond the end of the case and until the child reaches the age of 18. Secondly, so as to put beyond doubt the correctness of the construction of section 97(4) expressed obiter by the Court of Appeal in Griffiths v Tickle [2021] EWCA Civ 1882, paras [46] and [74], namely that section 97(4) must be ‘read down’ in accordance with section 3 of the Human Rights Act 1998 so as to permit the court to dispense with the prohibition in section 97(2) wherever this is required to give effect to the Convention rights of others.”
So far as concerns the reversing of Clayton I should mention two adjustments to what I said in my Memorandum.
Where the case involves more than one child, the protection afforded by section 97 should probably extend until the youngest child reaches the age of 18.
Consideration ought also be given to whether that protection should be expressed as extending a specific number of years after the youngest child has reached the age of 18. Whatever time-limit were to be selected it would be arbitrary – what is there to say that it should be 5, 10, 15, 20, 30 or 40 years – but it would at least provide certainty. Moreover, whatever the time-limit it would not prevent the court, as at present, and applying well-known principles, either disapplying the statutory restraint or extending it by order.
What, then, should the time-limit be? It should certainly not be towards the upper end of the bracket: could it seriously be suggested that a grandparent should be prohibited 30 or 40 years later from telling a grandchild all about what may be an important part of their family’s history? Properly, I suggest, it should be at the very lower end of the bracket: perhaps 5, or at most 10, years. I propose 5.
A further possibility would be to express the protection as extending until either (say) 10 years after the last substantive order in the case or until the youngest child has reached the age of (say) 23, whichever is the later. I would not favour this: there is a paramount need for clarity and certainty on this crucial point and the date of the relevant order (perhaps many years in the past) may not be readily accessible to those who need to know whether or not the protection is still in place.
I propose therefore that section 97 be amended to stipulate a time-limit of 5 years after the youngest child has reached the age of 18.
Given the Commission’s recognition that its terms of reference “include matters regarding the relationship between the law of contempt and criminal offences” it is disappointing that, except in the limited context of section 41 of the 1925 Act, is has apparently decided not to engage with the more general question so strikingly illustrated by the juxtaposition of section 12 of the 1960 Act and section 97 of the 1989 Act. And it is also disappointing that the Commission cannot even bring itself to say that the possible amendment of section 97 is a reform that might be looked at in future.
The inter-relationship between section 12 and section 97
How one tackles the problem of section 12 is inextricably linked with how one tackles the problem of section 97.
Both impose automatic restraints on what can be published. A major issue relates to the duration of those restraints, a matter on which there is both uncertainty and inconsistency. According to Clayton the restraint under section 97 lasts only as long as the proceedings are on foot – arguably not long enough. How long the restraint under section 12 lasts is wholly uncertain – a disgraceful obscurity in the law – though the better view is that it outlasts the proceedings.
There are, I suggest, two possible ways forward:
- As I proposed in para 11 of my Memorandum, if section 97 were to be amended in the way I suggest, then section 12(1)(a) of the 1960 Act could simply be repealed without replacement. This is the solution I would favour. The core principle ought to be that any restriction on reporting family proceedings heard in private over and above that imposed by section 97 of the 1989 Act (as so amended) should require a specific court order appropriate to the circumstances of the particular case. The key question then would be for how long restraint under section 97 should last: as already explained I would propose until 5 years after the youngest child has reached the age of 18.
- An alternative approach in relation to section 12(1)(a), although not the one I favour, would be to repeal section 12(1)(a) while adding by way of amendment to section 97(2) any specific matters which ought not to be published.
I therefore suggest that in relation to the reform or repeal of section 12 and section 97:
- The Commission should propose the repeal of section 12.
- The Commission should propose the amendment of section 97 in the two respects mentioned above: by reversing the decision in Clayton,and so as to put beyond doubt the correctness of the construction of section 97(4) expressed obiter by the Court of Appeal in Griffiths v Tickle.
More generally, given that the task of the Commission is “to improve [the] effectiveness, consistency, and coherence” of the law of contempt, then it should at the very least identify those topics (including topics referred to by consultees) which, although not within scope, might merit reform in future. I would strongly urge it to do so.
Matters treated as being within the scope of the Project
I do not propose to consider all, or indeed most, of the 137 consultation questions posed by the Commission. My purpose here is to focus on two topics of particular interest to those concerned with the family justice system: (A) contempt in relation to wards of court; (B) contempt and the Tipstaff.
It would be a grievous error to assume that these are anachronistic rarities. It is important to appreciate that the use of wardship and recourse to the Tipstaff are common features of practice in the Family Division, particularly in child abduction cases and children cases with an international aspect.
To put this in context we need to bear in mind the Commission’s analysis (CP, #1.25) of the substantive law of contempt under three headings: “(1) “general contempt”; (2) “contempt by breach of court orders or undertakings”; and (3) “contempt by publication while proceedings are active”.
Topic A : contempt in relation to wards of court
What the Commission calls “general contempt” embraces, as I understand it, what was traditionally referred to as “criminal contempt”, excluding those parts of criminal contempt involving what the Commission calls “contempt by publication while proceedings are active”.
In my Memorandum, under the heading Contempt in the context of wardship, I said:
“Any proposal to put the law of contempt on a statutory footing requires thought to be given to the long-established principles:
(a) that no “important” or “major” step in the life of a ward of court can be taken without the prior consent of the court; and
(b) that a criminal contempt of court is committed by someone who (i) without the consent of the court undertakes or facilitates some “important” or “major” step in the life of the ward of a kind that cannot lawfully be taken without the prior consent of the court and (ii) knows that the child in question is a ward of court.
Although the law on this topic is complex, these two principles are clearly established by the authorities: see Kelly v British Broadcasting Corpn [2001] Fam 59, Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 4 WLR 100, and In re A Ward of Court (Wardship: Interview) [2017] EWHC 1022 (Fam), [2017] Fam 369.
What is not so clear is what in this context constitutes an “important” or “major” step: see, for example, Kelly and In re a Ward and the various textbooks to which reference is there made. This will require very careful analysis if a statutory formulation is to be proposed.”
I should elaborate this with a reference to what I said in Kelly, pp 75-76:
“Understandably no one has ever sought to define what constitutes an “important” or “major” step for this purpose. I certainly do not propose to do so.”
After referring to certain textbooks I continued:
“These show that included in the category of “important” or “major” steps for this purpose are: marrying the ward; removing the ward from the jurisdiction; making a material change in the ward’s education, residence or whereabouts (including placing the ward in secure accommodation, moving the ward between foster parents or placing the ward for adoption); instituting adoption proceedings or freeing for adoption proceedings with respect to the ward; changing the ward’s name; making an application on behalf of the ward to the Criminal Injuries Compensation Board; administering a police caution; or subjecting the ward to the more significant forms of medical treatment (for example, an abortion or a sterilisation).
Also included in the list … are: a psychiatric examination for forensic purposes; interviews by an independent social worker; police interviews; and interviews on behalf of a defendant in criminal proceedings.”
The inclusion in this list of “police interviews” has subsequently been shown to be erroneous: In re a Ward.
It is important to emphasise that these are all contempts that can be committed even if the court has made no order at all other than an order warding the child. That, after all, is why they are classified as criminal and not civil contempts: see the discussion in Egeneonu, esp paras [31], [50]. It follows that, as a matter of principle, these types of contempt are within the category of what the Commission calls general contempt.
This issue has simply been ignored by the Commission. Neither the word “ward” nor the word “wardship” appears anywhere in the body of the Consultation Paper.
The Commission’s provisional proposals are set out and explained at some length in Chapter 3 of the Consultation Paper. The essential proposal is described as follows (CP, #3.2):
“… our provisionally proposed conduct element … will be satisfied where a person’s conduct either creates a substantial risk of non-trivial interference with the administration of justice, or actually interferes in a non-trivial way with the administration of justice. … our provisionally proposed fault element … will be satisfied where the conduct element is accompanied by an intent to interfere with the administration of justice in a non-trivial way. … we seek consultees’ views on whether the fault element should be satisfied only by proof of intention or whether it should be satisfied either by intention or recklessness as to the interference.”
It is very difficult to see how this sits with the present law of contempt in relation to wards of court. There are two obvious problems:
- So far as concerns what the Commission calls the fault element, the present law does not require any form of intent. Liability is dependent only on knowledge of the existence of wardship proceedings, ie that the child is a ward of court. For the foundation of modern understanding of this see In re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58.
- More fundamentally, in relation to what the Commission calls the conduct element, I would defy anyone to deduce from the proposed test – a substantial risk of non-trivial interference, or actual interference in a non-trivial way, with the administration of justice – any of the examples of this class of contempt as listed, for example, in Kelly.
The Commission’s approach to general contempt simply does not accord with the existing law of contempt in relation to wards of court.
In this context we need to bear in mind that, as the Commission assures us (CP, #3.119):
“our primary aim in formulating general contempt is not to expand or contract the law, but rather to consolidate, clarify and simplify the law by use of an overarching test.”
Does the Commission propose to retain the existing law of contempt in relation to wards of court and, if so, subject to what clarifications and simplifications? We are not told.
The further one reads into the detail of Chapter 3, the more puzzling it becomes. The Commission helpfully provides what it describes (CP, #3.119) as a non-exhaustive list of “some of the more common ways that general contempt could be committed.” The list (CP, #3.120) identifies the following types of conduct:
“(1) disrupting court proceedings;
(2) obstructing court officers or staff in the execution of their duties;
(3) threatening or assaulting court officers and staff, parties to proceedings, witnesses, or jurors;
(4) misconduct by jurors;
(5) conduct associated with disobeying court orders;
(6) providing false statements or disclosures to the court;
(7) accessing court documents without authorisation; and
(8) misconduct by legal representatives.”
The Commission provisionally proposes (CP, #3.177) that “a non-exhaustive list of examples should accompany any statement of what constitutes general contempt.” The list (CP, #3.179) is as follows:
“(1) disrupting court proceedings;
(2) obstructing court officers or staff in the execution of their duties;
(3) threatening or assaulting court officers or staff, parties to proceedings, witnesses or jurors;
(4) taking photographs in court;
(5) making non-permitted audio or video recordings of proceedings;
(6) misconduct by jurors;
(7) disobeying a court order made for the purpose of protecting the administration of justice;
(8) subverting an order of the court by destroying the subject matter of an action;
(9) encouraging or assisting another to disobey a court order;
(10) providing false statements or disclosures to a court;
(11) accessing court documents without authorisation; or
(12) misconduct by legal representatives.”
Now this throws a very interesting and revealing light on what the Commission thinks it is considering. But it is all so very far removed from the present question, and the Commission’s provisional proposals so completely fail to ‘mesh’ with the present law of contempt in relation to wards of court, that one has to question the entire thrust of the Commission’s thinking and, indeed, the workability of its proposals.
To speak bluntly, what is proposed is, as it stands, absolutely useless for the family practitioner or judge. Consider, for example, the very specific and practical question, “Is it a contempt of court to expose the ward to a psychiatric examination for forensic purposes without the prior permission of the court?” I defy anyone reading Chapter 3 of the Consultation Paper to say whether or not, if the Commission’s provisional proposals were enacted, this would or would not remain a contempt of court.
The Commission tells us (CP, #1.53) that:
“Our provisional proposals are characterised by … a move towards clarification and codification. Throughout, our provisional proposals aim to increase certainty in law and procedure. In some instances, this involves substantive reform of the law. In others, we do not provisionally propose changes to the substance of the law but rather codification of existing common law and measures that will enable judges, legal professionals, and the public to know with greater certainty what the law is and what procedures would be used.”
In the context of the law of contempt in relation to wards of court the Commission’s provisional proposals are unworkable. Far from creating “greater certainty” they would, if enacted, cause confusion and uncertainty, and, one has to fear, generate years of litigation of profit to no-one but the lawyers.
Topic B : contempt and the Tipstaff
Tipstaff orders in the Family Division – location orders, collection orders and passport orders – play a vital role. Their importance in the present context is that these orders invariably give the Tipstaff power to arrest any person to whom the order is directed if he has reasonable cause to believe that this person has disobeyed the order, for example, if the person fails to disclose the whereabouts of a missing child. The order requires the Tipstaff to produce the alleged contemnor before a judge as soon as practicable.
This process is illustrated by Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321; see in particular paras [31]-[32] where I said this:
“Mr Hemming’s response … is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction … the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge …
As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint …”
The point for present purposes is that in this kind of situation the court proceeds without there being any notice of application. I may add that it is not the practice in these cases to involve the Law Officers nor (unless they happen already to be involved) either the Official Solicitor or CAFCASS.
There is another aspect of this kind of situation, exemplified in Re L (A Child) [2016] EWCA Civ 173, [2017] 1 FLR 1135, to which I must draw attention. Typically, when the Tipstaff has exercised his power of arrest and brought the alleged contemnor before the court, the child is still missing and the primary, and very pressing, concern of the court is to locate the missing child. This creates a potential problem.
As explained in Re L, whereas the court, in exercise of its jurisdiction to find missing children, can compel the alleged contemnor to give evidence as to the whereabouts of the child, it is elementary that it cannot compel him to give evidence if it is considering whether he has committed a contempt by failing to comply with the Tipstaff order. Therefore, the evidence extracted from him under compulsion cannot be adduced in support of any application for committal.
The practical problems are well illustrated by what happened in Re L.
All this seems to pass the Commission by. The only reference to the Tipstaff’s functions (CP, #8.217) is so brief and uninformative as to be almost misleading:
“A tipstaff [sic] is an enforcement officer for all orders in the High Court whose duties include effecting arrests and seizing property. Their role is concerned with the practical execution of orders, rather than applying to the court to have orders enforced.”
Curiously there is no reference in this context to Justice for Families v Secretary of State for Justice though it is referred to elsewhere (CP, #10.240) on a quite different point.
There is a long discussion in Chapter 8 of the Consultation Paper about the need for reform in the procedure in relation to contempt. I have absolutely no quarrel with the Commission’s view that reform is urgently needed, nor with the general thrust of its provisional proposals. But this discussion is postulated on the assumption that proceedings for contempt come before the court either on the application of a party (or sometimes a Law Officer) or of the court’s own motion. The Commission seems not to have considered the type of situation which arises in a Tipstaff case, nor is it all easy to understand how the Commission’s provisional proposals would apply in such circumstances as those which faced the court in Justice for Families v Secretary of State for Justice and in Re L. Further work by the Commission explicitly addressing this issue is surely required.
Conclusion
Thus far the Project has been a tale of missed opportunities. Let us hope that when the final report is published it does not turn out to be an account of lost opportunities.