The Court of Appeal allowed the appeal of a mother against the dismissal of her application to strike out committal proceedings for contempt of court initiated by the judge of his own motion in respect of her breach of an order for contact between her children and their father.
The judge had taken the view that, although the father was not contemplating taking steps to commit the mother for being in breach of the order, it was his responsibility to ensure that the issue be tried. He had himself drafted particulars of the breach, and a notice was drawn "upon the direction of the court of its own motion" that the mother show cause why she should not be found to be in breach in failing to hand the children over "in a fit and proper state to have contact with the father".
The mother applied to strike out the notice on the grounds that it was not within the proper exercise of judicial power or discretion for a judge to issue such a notice of his own motion and/or that the matters complained of could not amount to contempt of court.
The judge dismissed that application. Leave to appeal was granted and the committal proceedings were stayed.
On the appeal, the following issues arose:
i) whether the judge had power to initiate committal proceedings of his own motion;
ii) if so, how that power should be exercised, and whether the judge had been in error in the instant case.
Dennis Sharpe for the mother; the father in person; Alice Robinson (instructed by the Attorney General) as amicus curiae.
Lord Justice Ward said that the judge had had jurisdiction to act of his own motion. Pursuant to section 38 of the County Courts Act 1984, the circuit judge might make any order which could be made in the High Court if the proceedings were in the High Court.
There was no doubt that the High Court had power to make an order of committal of its own motion when the contempt was committed in the face of the court. Further, RSC Order 52, rule 5 was wide enough to apply to the present case had it been in the High Court and, by virtue of section 38 of the 1984 Act, it applied in the county court as well.
In the case of civil contempt the court had to bear in mind the extent to which knowledge of the breach had become a matter of public concern, amounting to scandal capable of diminishing the authority of the court such as might lead to an increased flouting of its orders, and also the extent to which some interest other than that of the litigant was in need of protection.
The contempt had to be clear as well as flagrant. Pursuing a committal ex mero motu was a highly exceptional course to follow, particularly in family cases. The judge should always take time to pause for reflection, and should give an opportunity for the Official Solicitor to be invited to represent the child, or to report on the child's position. If the Official Solicitor saw a potential conflict, but the contempt was none the less clear and flagrant, there was no reason why the Attorney General should not be asked to prosecute the committal as amicus curiae.
All remedies should be exhausted before the weapon of committal was wielded. The danger in initiating a committal which the affected party did not seek was that the judge was at risk of being seen to be acting to preserve his own dignity and to punish for the affront to him. That would distort the justification for the condign power of committal, which existed only to serve the ends of justice.
In the instant case the judge had misdirected himself and was wrong to have proceeded on his own motion, and the committal application would accordingly be struck out.