O (Committal: Legal Representation)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Moylan |
| Judgment Date | 17 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1721 |
| Docket Number | Case No: B4/2019/2449 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2019 |
[2019] EWCA Civ 1721
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2019/2449
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
Mr Justice Cohen
FD17P00634
Royal Courts of Justice
Strand, London, WC2A 2LL
Francis Wilkinson (instructed by NR Legal Solicitors Ltd) for the Appellant
Mother Caroline Harris (instructed by Stock Denton Solicitors) for the Respondent Father
Hearing date: 11 October 2019
Approved Judgment
On 2 October 2019, the appellant Adriana Ortega Zeifert was imprisoned for four weeks for disobedience of a High Court order. On 11 October we allowed her appeal and ordered her release. The appeal succeeded on the single procedural ground that the appellant, who ostensibly wished to be legally represented, was unrepresented at a hearing on 13 June at which a suspended committal was made and at a later hearing on 2 October when the suspension was lifted.
The case is a reminder that respondents to committal proceedings are entitled to be provided with legal representation if they want it and that they will qualify for non-means-tested legal aid. There is an obligation on the court to ensure that this protection is made available. Where this does not happen any resulting order for committal may be procedurally irregular.
PD37A of the Family Procedure Rules contains, in the same manner as CPR PD81, a list of matters to which the court must have regard at the hearing of a committal application. These include:
“12.5 The court will also have regard to the need for the respondent to be —
(1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;
(2) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
(3) given the opportunity, if unrepresented, to obtain legal advice; and
(4) if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing.”
The issue of representation and legal aid in committal proceedings has been considered in a number of cases, including:
King's Lynn and West Norfolk Council v Bunning and The Legal Aid Agency [2013] EWHC 3390 QB; [2015] 1 WLR 531 (Blake J)
Brown v London Borough of Haringey [2015] EWCA Civ 483; [2017] 1 WLR 542 (CA)
CH v CT [2018] EWHC 1310 (Fam); [2019] 1 FLR 700 (Baker J)
In Brown, the absence of legal representation and the failure of the court to sufficiently consider that issue, led to a committal order being set aside. In the course of his judgment, McCombe LJ said this:
“39. Clearly, the right to a fair trial at common law and under the ECHR is squarely engaged on any application to commit an individual to prison for contempt of court. It is highly desirable that such an individual should be legally represented, if he or she so wishes. …
…
41. … One must have sympathy with the judge who was confronted with a litigant who, in the earlier parts of the proceedings before him had not behaved well and who had displayed from time to time a tendency to extreme truculence. However, when it came to the committal application, the proceedings had moved to an entirely different phase. They were no longer civil proceedings, but had obtained a quasi-criminal character; the tenant's liberty was at risk. It was necessary to isolate the quasi-criminal application before the court from what had passed before and to make full inquiry (a) as to whether the tenant wanted legal representation and (b) whether he had applied for the necessary funding to do so and with what results. For my part, I do not think that the judge's short inquiry about representation, which I have quoted above, went nearly far enough in this respect.”
In CH v CT at [37–47], Baker J gave detailed consideration to the statutory scheme concerning entitlement to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘ LASPO’) and its associated regulations. At [42], he 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.”
Turning to the present case, the underlying proceedings are in the Family Division, the appellant being the mother and the respondent the father. They came here from Mexico with their three children in 2010, but the parents' relationship ended and the father returned to Mexico in 2013. The mother remained under a student visa, but since January 2016 she and the children have been refused an extension and are now overstayers. An appeal to the First-tier Tribunal was dismissed in May 2018; permission to appeal to the Upper Tribunal was refused in December 2018; and permission to apply for judicial review was refused in January 2019.
In November 2017, the father issued an application under the Hague Convention 1980 seeking to enforce his right of access to the children. The mother agreed that the children wanted to go, and should be going, to Mexico for their summer holidays and at other times, but she said that this could not happen until the immigration position was settled. However, she soon engaged in what judges of the Division considered to be tactical manoeuvring to prevent the children returning at all. In December 2018, Cohen J ordered her to return the children to Mexico by 30 January 2019, but she did not do so. The matter came before Francis J on 7 March 2019, that being the ninth hearing in the proceedings. The mother had notice of the hearing, but she did not attend. Francis J ordered her to return with the children to Mexico by 8 April. She did not do so, and on 11 April, the father issued a committal summons.
The committal proceedings came before Cohen J, who conducted no fewer than six hearings. The number of hearings reflected the court's patient efforts to secure compliance with its orders without the need to impose sanctions.
At the first hearing on 30 April, the mother had not obtained legal advice and the matter was adjourned to allow her to do so. On 17 May, she was again unrepresented because, although she had approached specialist solicitors, they informed her that she had not been granted legal aid on the basis of her means. The judge described the mother as having been apparently frustrated in her efforts to obtain representation. He adjourned until 13 June.
On 13 June, the mother once again appeared in person. The judgment given on that date includes these passages:
“24. … The mother still has not got legal aid and apparently, again, there is an issue as to whether or not she is financially eligible.
25. I have reservations as to whether the Legal Aid Agency has in fact applied its own rules appropriately, because my reading of the relevant regulation is that such legal aid is not means tested and is available as a right, and I will, following this hearing, ask my clerk to email both parties with the relevant link.
26. I have considered carefully whether or not it would be appropriate to adjourn the matter yet again. I have determined that it would not be appropriate. The mother has had two months and she does not pretend that there is any defence to the allegations that she is in breach. When I asked her today whether she accepted she was in breach, she said she was, but it was not intentional. That was hardly an acceptable answer.”
The judge then commented on a number of positions taken up by the mother: attempts to remove the father's parental responsibility in Mexico, a fresh immigration application, allegations that the father had been abusive to the children, and continued:
“29. … This is yet more tactical jockeying and manoeuvring on the part of the mother. She has ducked and dived repeatedly for over eighteen months and, in my judgment, these proceedings must now be brought towards an end.
…
32. As I say, the contempt is blatant and admitted. She has done everything to frustrate court orders over a long period. What I intend to do is I sentence the mother to four weeks' imprisonment. The implementation of the order is suspended until 31 July 2019. If the mother has returned the children to Mexico by that date, I will discharge the committal order on 31 July. …”
After the hearing, as he said he would, the judge forwarded references to relevant authority to the parties for their assistance on the legal aid issue. On 11 July, non-means-tested legal aid was granted to the appellant's solicitors to represent her in the committal proceedings.
The children were not returned and on 31 July, a further hearing took place at which the mother was represented by a solicitor who, it is now said, did not have higher rights of audience. The mother was granted a further suspension until 9 August after she had, though only after some prevarication, bought tickets for the children to fly on 8 August.
On 8 August, an application for a stay and for joinder was made by a different specialist solicitor on behalf of the oldest child, aged 15. A stay was refused and, having read the judgment of 13 June, the solicitor did not renew the...
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