Lectures given by Northampton Chambers

Proceeds of Crime Act :  January 2004

With out notice applications : February 2004

Contents
 
Concluded agreements in a nutshell
 
Committal Applications in Family Proceedings (updated January 2004)
 
 
 
 

Concluded Agreements

SCHEDULE OF AUTHORITIES 1. Edgar v Edgar 1981 2 FLR 19 2. Camm v Camm 1983 4 FLR 577 3. Kelley v Cornston 1998 1 FLR 986 4. Xydhias v Xydhias 1999 1 FLR 683 5. Smith v Smith 2000 3 FCR 374 6. X v X (Y and Z Intervening), 2002 1 FLR 508 The starting point on the issue of concluded agreements is with the case of Edgar v Edgar 1981 2 FLR 19. The principles to be decided were set out by Ormrod LJ at page 25 "To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue". In Edgar the agreement was upheld. The next relevant case is Camm v Camm 1983 4 FLR 577 where there is a movement away from the Edgar position. The wife was held to have been under extreme pressure. The agreement was held to be unfair and unjust and the wife should not be bound by it. In the cases of N v N ( consent Order : Variation) 1994 2 F C R and Smith v McInerney 1994 2 FLR 1077 the agreements reached between the parties was held to be binding. The position was considered again in Kelley v Cornston 1998 1 FLR pg 986 where Butler- Sloss LJ remarked at page 1013 "The court retains the duty laid upon it under s 25 in respect of consent orders as well as contested proceedings. It has to scrutinise the draft order and to check, within the limited information made available, whether there are other matters which require the court to make inquiries. The court has the power to refuse to make the order although the parties have agreed it. The fact of the agreement will, of course, be likely to be an important consideration but would not necessarily be determinative. The court is not a rubber stamp" The next case in this area is Xydhias v Xydhias 1999 1 FLR 683 where Thorpe LJ stated at page 692 If the court concludes that the parties agreed to settle on terms then it may have to consider whether the terms were vitiated by a factor such as material non-disclosure or tainted by a factor within the parameters set in Edgar v Edgar. Finally in every case the court must exercise its independent discretionary review applying the s 25 criteria to the circumstances of the case and to the terms of the accord. Then we move to the case of Smith v Smith 2000 3 FCR 374 which held that an agreement between the parties was only one ingredient within a complex equation. It was only one of the considerations to which weight must be given in determining a claim for ancillary relief: the effect of the agreement should not be tried as a preliminary issue. In X v X (Y and Z Intervening), 2002 1 FLR 508 it was held An agreement between the parties was a very important factor in considering what was a just and fair outcome. The court would not lightly permit parties to an agreement to depart from it, and a formal agreement, properly and fairly arrived at with competent legal advice, should be upheld by the court unless there were good and substantial grounds for concluding that an injustice would be done by holding the parties to it. The court must, however, have regard to all the circumstances, in particular to the circumstances surrounding the making of the agreement, the extent to which the parties themselves attached importance to it and the extent to which the parties had acted upon it

Committal Applications in Family Proceedings

Relevant rules Order 29 County Court Rules Committal proceedings involves the liberty of an individual so strict technical rules apply. Contempt of court "in connection with" county court proceedings which was neither contempt in the face of the court nor disobedience of an order of a county court was only punishable by an order of committal made in the Queen's Bench Division as set out in In re G (A Child) (Contempt: Committal)  www.lawreports.co.uk/civaprc1.2.htm Injunction orders Ensure that the terms of order are enforceable. To be enforceable by committal an order must state what act must be done and by when in precise terms Undertaking enforceable upon being given to and accepted by the court. Sign undertaking form. Hussain v Hussain 1986 2 FLR 271 Penal notice Starting position a penal notice is required. CCR 29r1 Enforcement of judgment to do or abstain from doing any act (3) Where a judgment or order enforceable by committal order under paragraph (1) has been given or made, the court officer shall, if the judgment or order is in the nature of an injunction, at the time when the judgment or order is drawn up, and in any other case on the request of the judgment creditor, issue a copy of the judgment or order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2). On the other hand, an order in the nature of an injunction may be enforced by committal even without a penal notice, if the respondent was well aware of the consequences of disobedience: Sofroniou v Szgetti [1991] FCR 332n, CA. If the respondent was present when order made and aware of contents and consequences court may dispense with need for penal notice otherwise order will not be enforced. Service of the order Copy of signed undertaking given at court. Make a note of service if later disputed. If refuses to take a copy still bound by undertaking. If present at court ensure he leaves court with a copy of the order and make a file note that he has been served. If respondent not present at court will have to be personally served with the order and have proof of service with an affidavit of service. Breaches of the order Decide to bring a committal consider evidence carefully. Criminal standard of proof so need corroboration. One person's word against another may not be enough. Evidence other eye witnesses, text messages, photographs of injuries, proof of complaints to the police. N 78. Application to show good reason why an order for your committal to prison should not be made. Notice must set out the order that has been breached and each point of complaint in detail. Enough information and sufficient particularity to meet the charge from this sheet alone. So dates and times clearly set out with particulars of each breach, what was actually said and done. Harmsworth 1987 2 All E R 816 PDCommittal, para 2.2 The notice or claim form must state the grounds of the application, identifying the provisions alleged to have been disobeyed or broken and listing the ways in which they have been disobeyed or broken. It must be supported by an affidavit which must be served and filed Notice to show cause can be amended with permission of the court. Practice direction (committal) para 2.6(3) This will probably result in an adjournment with a wasted costs order. The supporting affidavit will not cure vague information in the notice. It is good practice to include in the affidavit: (i) the precise terms of the order and where appropriate exhibit copies of the affidavits in support of the original application for the order; (ii) evidence of the respondent's behaviour after the order; (iii) detailed particulars of each of the breaches alleged in the claim form or application notice; (iv) what remedy the applicant seeks and in particular whether she desires that there should be an order for committal and if so why. Must be personally served on respondent with 2 clear days but under CPR in civil proceedings 14 clear days PD (committal) para 4.2 Personal service of adjourned hearings unless respondent was present and told of next hearing date "Any procedural defect in the commencement or conduct by the applicant of a committal application may be waived by the court if satisfied that no injustice has been caused to the respondent by the defect" practice direction (committal applications) para 10; Nicholls 1997 1 FLR 649 Hearing without notice to respondent In exception circumstances the court may deal with an application by dispensing with service of the notice. Example respondent avoiding service. Need evidence. Respondent will apply to set aside order. CCR Order 29 r 1 (7) (7) Without prejudice to its powers under Part 6 of the CPR, the court may dispense with service of a copy of a judgment or order under paragraph (2) or a claim form or application notice under paragraph (4) if the court thinks it just to do so. Arrested under power of arrest. S 47 Family Law Act 1996 and schedule 5. Power of arrest brought before court within 24 hours not including a Sunday. Christmas day or Good Friday. Legal representation If the respondent is already under arrest he may be entitled to advice and assistance pursuant to reg 6(1) of the Legal Advice and Assistance Regulations 1989, SI 1989/340 and, on an application during normal court hours, to representation pursuant to reg 8 of the Legal Advice and Assistance (Scope) Regulations 1989, SI 1989/550. Adjourn for not more than 14 days Remand in custody for a period not exceeding 8 days or remand on bail with conditions. If the court suspects mental illnesses or severe mental impairment court may remand for not more than 3 weeks in custody or 4 weeks on bail for medical examination. Will have to see respondent in court cells. Obtain statements from arresting police officer. Hearing same procedure as on application. Committal proceedings should be dealt with swiftly and decisively and should not be adjourned to await the result of criminal proceedings. Keeber 1995 2 FLR 748. Could argue Human rights violated by not having a fair trial and serious prejudice. Make sure criminal dept know about sentence in county court as can be mitigation that respondent should not be punished twice. Hearing circuit Judge or District Judge but not under Protection Harassment Act 1997 proceedings. Open court robes required. Akin to a criminal trial with hearsay rules applied. Applicant opens case Calls evidence Respondent cross examination of each witness. Respondent may make a submission of no case to answer. Respondent calls witnesses An alleged contemnor cannot be compelled to give information (PD (committal) para 6 and 7 Cross examined by Applicant Respondent closing speech Applicant closing speech. Findings of court Costs serve a schedule 24 hours before hand. Mitigation Obtain information to assist with sentencing such as proof of income. Proof of employment or proof of savings. Admitted any of breaches. Personal circumstances. Any provocation by applicant, not a defence. Children of family and effect on them. Sentence View of applicant considered. No order Fine Suspended sentence of imprisonment. Suspended sentence orders should be personally served on respondent, unless the court directs otherwise. A person under 18 cannot be committed to any form of detention Imprisonment for a maximum of two years including on the same occasion activating a suspended sentence. Hales v Tanner 2000 FLR 879 CA it was held that, in family cases, the court should have regard to the following: (1) Prison should not follow automatically on proof of contempt nor, conversely, was there any principle that prison was inappropriate for a first offence. (2) The range of possible orders includes a fine, sequestration, a mental health order and adjournment to allow a further opportunity to respond. (3) The length of a committal should be determined without reference to the question of suspension. (4) The main objectives of committal were to mark disapproval and to secure compliance. (5) The length of sentence should be reasonable having regard to the maximum of 2 years. (6) Suspension was more frequently appropriate than in criminal cases because of its potential as a way of securing compliance. (7) The length of the period of suspension requires separate consideration. (8) Aggravating and mitigating circumstances should be taken into account. (9) Overlapping proceedings should be taken into account so as to avoid double punishment for the same events. (10) It would usually be desirable for the court to explain very briefly why it had made the choices it had made in a particular case. Early release for a term less than 12 months after serving half the sentence and those committed for 12 months or more will be released after serving two-thirds. (Ss 33 and 45 of the Criminal Justice Act 1991.) A further injunction can be granted with a power of arrest. Purge of contempt apply for public funding. The application on affidavit should state- (a) such mitigating facts in relation to the breach as are appropriate; (b) that he or she fully recognises and apologises for Handwritten letter to the court, apologise to the court for the contempt, acknowledgement that deserves the punishment, remorse, contrition and will obey future orders. Notice to applicant in county court 1 day, reality will ask for an adjournment so defeat application. Applicant can apply for public funding to oppose purging of contempt. Court has power to suspend remaining part of the sentence Harris v Harris 2001 2 FLR 955   Appeals   Need permission to appeal from trial Judge if refused apply to single Judge. Notice of appeal must be filed within 14 days of order. Lodge documents with Court of Appeal including notice of appeal with grounds, skeleton argument, sealed order which is being appealed, trial bundle and any authorities. Practice direction 52 paras 5.6 and 15.11 Application for bail. Made to High Court Judge in Chambers on notice.   Also consider  Lomas v. Parle, The Times, January 13 2004 http://www.bailii.org/ew/cases/EWCA/Civ/2003/1804.html where a substanial number of issues were considered and in particular :    "Guidance As this appeal demonstrates it is not difficult for a persistent course of domestic violence to generate concurrent proceedings in three courts. Furthermore, as this appeal also illustrates, they may not be brought in relation to the same incidents or offences. In other cases, the same incidents are the subject of criminal and of family proceedings. The victim of domestic violence has some choice of civil remedies. Protection may be sought under section 42 of the Family Law Act and under section 3 of the Protection from Harassment Act 1997. In our experience section 42 is the more usual choice. One attraction of the Family Law Act may lie in the court's ability to attach a power of arrest to the non-molestation injunction, whilst s.3(3) of the Protection from Harassment Act necessitates a separate application for a warrant for arrest in the event of breach of the court's injunction. On the other hand s.3(2) of the Protection from Harassment Act offers the prospect of compensatory damages, which may be attractive in cases where the perpetrator has the means to satisfy an award. There would seem to be no bar on concurrent applications under both ss.42 and s.3 of these two Acts. In that event the application should be issued in the same court, consolidated and tried by a judge with jurisdiction in both civil and family. In the criminal justice system the victim has little control of the proceedings. Charges alleging offences under section 3, 4 or 5 of the Protection from Harassment Act may be initiated in either the magistrates' court or the crown court. In a case such as the present where there have been persistent offences some may be the subject of summary proceedings and some may proceed on an indictment. The conduct of the criminal proceedings is a matter for the police and the Crown Prosecution Service. We feel that it would be helpful to offer some guidance on the inter-relationship between the Family Law Act 1996 and the Protection from Harassment Act 1997 as well as on the management of concurrent proceedings in the family, civil and criminal justice systems. The guidance which we give supplements that given by Hale LJ in Hale v Tanner. However effectively the proceedings are managed a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act. Of course the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0 – 24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless there will be a shared deterrent objective in the punishment of domestic violence by imprisonment. Clearly therefore the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. The defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system. There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed and that a transcript of its judgment is made available to the second court, as Judge Harris directed in the present case. Experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system. Therefore the application to commit should be issued promptly after the alleged breach and listed without delay. That discipline will ensure that, if proved, the contempt will have been punished before any sentence in parallel criminal proceedings. Within the constraints of the two year limit on sentences for harassment in breach of protective injunctions granted under section 42 of the Family Law Act and the different scale which this necessarily involves, judges should as far as possible ensure that sentences passed under section 42 are not manifestly discrepant with sentences for harassment charged under section 3, 4 or 5 of the Protection from Harassment Act 1997. The experience of counsel before us is that the level of sentencing under the Protection from Harassment Act is very significantly higher than the present level of sentencing for comparable incidents leading to committal for breach of Family Law Act injunctions. Of course domestic violence may also be subject of other criminal charges varying from common assault to murder. The more serious the offences, the less scope there will be, in view of the two year limit, to maintain any relationship between family and criminal court sentences– if indeed such cases are brought before the family court at all. As this case illustrates, sentences of imprisonment for harassment do not necessarily deter repetition. Those who molest others are usually trapped in an obsessional emotional state derived either from a past relationship (unresolved feelings of hate or love) or from a fantasy (compelling feelings of attachment to a near stranger). For domestic violence, anger management programmes are widely available and referrals from the court have become commonplace. More extensive emotional management programmes might prove effective in helping some offenders to resolve such emotional attachments. The above advice is based upon the existing procedures in the criminal and civil courts dealing with the same issues arising from the violence of one spouse or partner against the other. This appeal shows the unsatisfactory nature of the present interface between the criminal and family courts in such cases. It is expensive, wasteful of resources and time-consuming. It is stressful for the victim to move from court to court in order to obtain redress and protection from the perpetrator. Other jurisdictions are attempting to solve this problem. The State of New York is setting up integrated courts to hear both criminal and civil proceedings before one tribunal. The publication of the Domestic Violence Crime and Victims Bill is an opportunity, we would suggest, for a reconsideration of the present dual system and an opportunity to look into the possibility of integrated courts to see if they might avoid the problems which now arise. " Contact order Must be defined order with express provisions that specifies precisely when a person is to have contact with the child concerned. If the order requires a specific act, for example that the child be brought to a certain place at a certain date and time, it is possible to seek to enforce it by attaching a penal notice. Same procedure applies Rare to impose a prison sentence, order of the last resort. A v N (Committal: Refusal of Contact) [1997] 1 FLR 533. '. . . the question which is before the court is whether there should be a committal for breach of orders of the court and in that inquiry the upbringing of the child is not a paramount consideration. It is obviously a material consideration and every judge who does any family work at all is always alive to the grievous effect the implementation of an order is likely to have on the life of the children whom the mother is unwisely seeking to protect in her own misguided way. I need not express a concluded view because it is, if I am constrained to look at welfare, quite apparent that the judge yesterday made plain that he was dealing with this matter as he had dealt at length with it on the last occasion. On that occasion he was fully mindful of the distressing consequence of imprisonment on the child and indeed the other child of the mother, but he balanced against that the importance of this child knowing her father as she grows up and the long-term damage she will suffer . . . [Counsel] submits, almost as if it is a matter of principle, although I am prepared to treat this as a matter of the exercise of discretion, that a sentence of imprisonment for breach of a contact order cannot or should not be imposed save as a measure of last resort. He submits, therefore, that there were remedies still available through which the court has to plough before giving effect to its contact order . . . I reject that submission.' And further: '. . . it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed upon him by Parliament.' PRIORITY CHECKLIST The burden of proving the allegations against a respondent is to the criminal standard beyond reasonable doubt. Thus the applicant for committal must prove- (a) that the original order (if it was by way of an injunction or undertaking) contained a penal notice warning the other party of the consequences of a breach; (b) that the order was personally served on the other party or brought to his notice; (c) that there has been a breach of the order or undertaking; (d) that the respondent has been served with a notice of application which complies with the requirements as set out in the Practice Direction - committal applications; (e) that no less than two clear days had elapsed between service of the notice on the respondent and the date of hearing. (f) that the application notice correctly specified the order of the court which it is alleged has been broken and clearly lists the ways in which the order has been breached; (g) that the other party was served with a copy of all affidavits which cover the matters set out in the claim form or application notice Make a web site - try ZyWeb for free