Family court proceedings often trigger high emotions. When you introduce a contempt of court application and a consequential possible period of imprisonment into the mix, those emotions are frayed even further.
It has therefore been disconcerting that, at our firm, we have recently seen a notable increase in instructions to deal with applications for contempt in the family courts. Sadly, many of these applications have been unarguable, procedurally defective and verging on abusive.
It is easy to see how this happens. Couples who have lived together for years, started families, intertwined their assets and conducted the emotional labour of building a joint life, can then split. These splits can involve difficult circumstances, such as allegations of physical or financial abuse, coercive control or sexual offences. Once these cases reach the courtroom, proceedings overtake the parties’ lives.
As with all courts, there is a backlog of cases. The parties endure a painful wait for trial to have the allegations determined by the court. Until then, both are in limbo. They comply with deadlines for the filing of evidence and other procedural steps.
The frustration is understandable. Some aggrieved parties choose to attack perceived inequity by making a contempt application against the opposing party.
We have seen it numerous times. One party will analyse every detail of their ex-partner’s evidence to find any possible discrepancy.
Being served with a contempt application causes the defendant more issues than simply the emotional distress of further litigation and the threat of imprisonment. There is also a real cost to the public purse; defendants are automatically entitled to non-means-tested legal aid to deal with the allegations.
In these circumstances, the least that defendants ought to be able to expect is both for the application to have complied with strict procedural requirements, and to disclose an arguable case that would amount to contempt of court if proved. Unfortunately, this is often not the case.
Most of the family contempt applications we have seen are hopeless and are inevitably struck out or dismissed before the allegations of contempt can be properly considered. The allegations range from breaching of orders addressed to other people, false statements on factual matters which will be decided at a final hearing, or interfering with the due administration of justice by the defendant (quite fairly) discussing the case with family members. The fact that these applications have been made at all illustrates the desperate measures some parties will go to during the most difficult proceedings. Whatever grievance a party may have because of perceived injustice at having their most private matters taken through the family court system, threatening the other party with imprisonment for contempt when there is no arguable case ought to be a non-starter.
When served with these applications, defendants are inevitably petrified about the consequences. They are told that they may face two years in prison and are therefore forced to instruct solicitors and defend themselves against potentially vexatious litigators. They are compelled to answer allegations and recount their story to yet another stranger, discussing intimate details of their relationship and home life, and recounting memories of abuse and harassment.
It can be argued that family courts are especially adept at dealing with these kinds of baseless contempt applications and striking them out or dismissing them at the earliest opportunity. However, there are not sufficient protections for defendants or for the public purse.
Notwithstanding the permission requirements already in place under the Family Procedure Rules, we propose that contempt applications made under the FPR should – before being issued by the court and served on a defendant – be subject to a review by a judge. The judge would certify the application as:
1. Procedurally correct (especially bearing in mind the Article 6 protections that should be in place for contempt defendants);
2. Disclosing allegations, which, if made out, would amount to a contempt of court.
This would be advantageous to both claimants and defendants. Claimants would not be spending time, money and effort on contempt applications that cannot succeed. Defendants would only have to deal with the stress of a contempt application if it had cleared the basic hurdles set out above. There would also be a saving to the public purse, as legal aid would only have to be obtained if an application is arguable. There ought to be no prejudice to defendants should claimants clear the hurdle – they will still have a chance to defend themselves properly as necessary.
There are certainly matters that would need to be addressed before this approach could be adopted. Would a claimant be able to challenge a decision from the judiciary that their application does not pass the threshold? Would any challenge need to be on notice to a defendant?
However, at a time when the Law Commission is considering inserting a permission stage to all contempt applications, consideration needs to be given as to whether we need to go still further, especially in a family law context.
Marc Livingston, head of the civil/contempt department at Janes Solicitors, has acted in a number of high-profile contempt matters. Catriona Virden, an associate at Janes Solicitors, has acted for defendants in contempt cases which have been struck out or dismissed at an early stage
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