O (Committal: Legal Representation) [2019] EWCA Civ 1721

O (Committal: Legal Representation) [2019] EWCA Civ 1721 concerned an appeal by Adriana Ortega Zeifert against a four‑week sentence of imprisonment imposed by Cohen J in the High Court Family Division for contempt of court. The Court of Appeal (Moylan and Peter Jackson LJJ) allowed the appeal on 11 October 2019 on the single procedural ground that the appellant, though she wished to be legally represented, had not been provided with legal representation at two critical hearings.

The appellant was committed for disobedience to court orders made in proceedings concerning access to her three children under the Hague Convention 1980. The father had issued an application to enforce his right of access after the parents’ relationship ended and he returned to Mexico in 2013, whilst the mother and children remained in England under a student visa which had since expired. In December 2018 Cohen J ordered the mother to return the children to Mexico by 30 January 2019; she did not do so. On 7 March 2019 Francis J made a further order requiring return by 8 April; that order was also breached and on 11 April the father issued a committal summons.

The matter came before Cohen J on six occasions. At hearings on 30 April and 17 May 2019 the judge adjourned to allow the mother to obtain legal representation. On 17 May the mother said she had approached specialist solicitors but had been refused legal aid on the basis of her means. On 13 June the mother again appeared in person. The judge expressed reservations as to whether the Legal Aid Agency had applied its own rules appropriately, noting his reading of the relevant regulation was that such legal aid was not means-tested and was available as a right. He said he would email both parties with the relevant link after the hearing. Nonetheless, he concluded it was not appropriate to adjourn again, noting the mother had had two months and admitted the breaches, though she said they were unintentional. He sentenced her to four weeks’ imprisonment, suspended until 31 July 2019, to be discharged if she returned the children by that date.

After the hearing the judge forwarded references to relevant authority on the legal aid issue to the parties. On 11 July non‑means‑tested legal aid was granted to the appellant’s solicitors to represent her in the committal proceedings. At hearings on 31 July and 9 August the mother was represented by a solicitor without higher rights of audience. Further suspensions were granted when the mother bought tickets for the children to fly on 8 August, but one child refused to board and they were returned to their mother.

On 2 October the matter came before Cohen J again. The mother appeared in person while the father and the Home Secretary (who had been invited to participate) were represented by counsel. No representative from the mother’s solicitors attended. The mother came to court with an unsigned letter from the firm requesting an adjournment on the basis that they had been unable to find counsel with requisite knowledge of family, criminal and immigration law. The judge rejected this as incredible and described the absence of legal representation as a delaying device. He activated the four‑week sentence handed down on 13 June while noting the mother’s ability to purge her contempt at any time. On the day of her imprisonment, the solicitors issued an appellant’s notice. Peter Jackson LJ observed that the typed document appeared to have been prepared before the hearing and that it was entirely unclear why the solicitors, who had the benefit of a legal aid certificate, did not attend court. On receipt of the appellant’s notice this court made a representation order granting legal aid and representation under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The appellant sought to attack not only the committal proceedings but also fundamental aspects of the orders made in the underlying Hague Convention proceedings, including the lack of oral evidence, consideration of the children’s wishes and feelings, a Cafcass report or a welfare judgment. Peter Jackson LJ held that none of these matters could properly be considered. The orders made in December 2018 and March 2019 had not been appealed at the time and were not the subject of this appeal; once an order is made it is to be obeyed unless and until set aside. The court was concerned only with the integrity of the enforcement proceedings.

On the question of permission to appeal, Peter Jackson LJ held that an appellant does not require permission to appeal from a committal order under CPR 52.3(1)(i), which he interpreted to include not only an order for committal but a subsequent order relating to whether the suspension should continue, at least where such a subsequent order had the effect of depriving an appellant of liberty. However, the time for appealing under CPR 52.12(2)(b), namely within 21 days of the decision, applies equally to committal orders, so that any appeal from the order made in June required time to be extended. Ms Harris for the father did not seek to deter the court from extending time in respect of the order of 13 June. The court granted permission for the appellant’s notice to be treated as amended and for time to be extended.

Peter Jackson LJ set out the legal framework, referring to paragraph 12.5 of PD37A of the Family Procedure Rules which requires the court to have regard to the need for the respondent to be allowed a reasonable time for responding to the committal application, made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency, and given the opportunity, if unrepresented, to obtain legal advice. He reviewed the authorities, including King’s Lynn and West Norfolk Council v Bunning and The Legal Aid Agency [2013] EWHC 3390 (QB), Brown v London Borough of Haringey [2015] EWCA Civ 483 and CH v CT [2018] EWHC 1310 (Fam). In Brown, McCombe LJ had emphasised that the right to a fair trial at common law and under the European Convention on Human Rights is squarely engaged on any application to commit an individual to prison for contempt of court and that it is highly desirable that such an individual should be legally represented if he or she so wishes. When it came to the committal application, the proceedings had moved to an entirely different phase, becoming quasi‑criminal in character with the tenant’s liberty at risk. It was necessary to isolate the quasi‑criminal application and make full inquiry as to whether the tenant wanted legal representation and whether he had applied for the necessary funding. In CH v CT, Baker J identified that there is no financial test for criminal proceedings in the High Court and that a person who is the subject of a committal application in that court, including an appeal against a committal order, is entitled to publicly‑funded representation.

Peter Jackson LJ acknowledged that he had sympathy with some of the submissions made on behalf of the father and with the situation that the judge faced. The judge was well placed to assess the mother’s true motivation and he had given her many opportunities to comply with the court’s orders. She had been specifically ordered to return the children to Mexico by dates in January, April, July and September 2019, all of which had come and gone. Since the committal order was made in June, it had been suspended three times. A committal order may have been a likely outcome even had the mother been legally represented.

Despite all this, Peter Jackson LJ held that the orders could not be upheld. Committal proceedings are criminal in nature and are different in kind to the proceedings from which they spring. The judge was the first to appreciate the mother’s entitlement to be represented if she wanted and he adjourned twice on that account. However, when she was frustrated in obtaining representation, apparently on invalid grounds, he should have taken further steps to resolve the problem, such as by making a representation order himself or by adjourning yet again on 13 June to ensure that the refusal of legal aid was effectively challenged. He provided useful information to the parties, but only after the hearing at which the substantive order was made. That was too late, and the fact that the mother subsequently had legal representation could not save the situation.

As to the order of 2 October, the judge understandably regarded the reason given by the solicitors for seeking an adjournment as incredible, but he should nonetheless have confronted the unexplained absence of any legal representation by deferring a decision, if only for a very short period, in order to investigate what was on the face of it an inadequate legal service to a litigant facing a serious penalty. Peter Jackson LJ appreciated that the mother accepted to some extent that she was in breach of the order but, in his view, this further highlighted the impact that legal representation might have had. It could not be known what the outcomes of both hearings might have been had the mother been represented; they might very well have been the same, but they might not have been.

Peter Jackson LJ acknowledged that there may be circumstances where the court will decide to proceed with hearing a committal application without the alleged contemnor having legal representation, for example because it is just to do so where an adjournment is likely to prejudice the litigant himself, but this was not such a case. In the circumstances, the appeal from the contempt findings and the order for committal had to be allowed and the father’s committal application would have to be reheard by a different judge, who would inevitably, if a fresh finding of contempt was made, make allowance for the fact that the appellant had served nine days imprisonment. The court also ordered that the senior partner of the solicitors’ firm should within 14 days write to the court giving an explanation for the fact that the appellant was not provided with fully‑qualified legal representation at the hearings on 31 July, 9 August and 2 October 2019, to the extent that an explanation could be given without breaching client privilege.

In short, the committal order was set aside because the respondent, though entitled to non‑means‑tested legal aid and desirous of legal representation, was denied both a fair opportunity to obtain it at the first hearing and any representation at the second, rendering the proceedings procedurally irregular notwithstanding the judge’s patience and the mother’s admitted breaches.

King’s Lynn and West Norfolk Council v (1) Bunning and (2) Legal Aid Agency [2013] EWHC 3390 (QB)
Brown v Haringey London Borough Council [2015] EWCA Civ 483
H v T (Committal Appeal Notices on Orders) [2018] EWHC 1310 (Fam)

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