Contempt of court is a mechanism by which court orders are enforced. The primary purpose is to protect the integrity of the judicial process and ensure that court orders are not “toothless”. The law of contempt protects proceedings from interference, safeguard the fairness and integrity of proceedings and ensure that orders of the courts are obeyed.
Contempt proceedings in civil and family law are governed by Civil Procedure Rule (“CPR”) 81 and Family Procedure Rule (“FPR”) 37 respectively. Contempt proceedings are treated as quasi-criminal in nature and are subject to strict procedural and evidential safeguards such as the right to silence, the burden and standard of proof and the need to ensure that the proceedings are in the public interest. Committal proceedings must take place in public and advocates and the judge shall be robed.
This article focuses on contempt arising from breaches of family and civil orders. Particular attention is drawn to penal notices, permission requirements, procedural rules, evidential standards, available sanctions, and the rights of defendants.
In civil and family contexts, contempt most commonly arises by: breach of a court order or undertaking given to the court; failure to comply with injunctive relief (e.g. non-molestation orders, occupation orders, freezing injunctions); and Interference with the administration of justice (less common in private disputes). Interfering with the administration of justice could be in the form of providing false statement to the court, for example, in a witness statement verified by a statement of truth.
The purpose of civil contempt proceedings is both coercive in terms of securing future compliance with a court order and punitive, that is, to mark the seriousness of the disobedience or breach.
Importantly, the absence of a penal notice on the face of a court order, is fatal to contempt proceedings but this does not render the order unenforceable altogether: the order may be enforced by other means or varied to insert a penal notice. A penal notice is a prominent warning, usually displayed on the face of a court order, stating that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law. Its purpose is to ensure that the person bound by the order is fully aware of the potential penal consequences of non-compliance. The absence of a penal notice is not a mere technicality; it goes to procedural fairness and compliance with Article 6 of the European Convention on Human Rights (ECHR). A penal notice is different from a warning notice that is automatically attached to a child arrangements order pursuant to section 11I of the Children Act 1989.
Permission to Commence Contempt Proceedings
In civil and family cases, a party seeking to bring committal proceedings is not required to obtain the court’s permission except where the application relates to interference with the due administration of justice (except in relation to existing High Court or county court proceedings) or to an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement. The court may on its own initiative proceed against the defendant in contempt proceedings. Even where permission is not required, the claimant must nonetheless strictly comply with CPR Part 81 in drafting and serving the application. Similar requirements apply under FPR Part 37.(3)(4)(5)(6).
A court considering an application for permission to bring contempt proceedings must have regard to the factors in the case of Stobart Group v Elliott [2014] EWCA Civ 564 at [44]:
- In order for an allegation of contempt to succeed it must be shown that “in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice”;
- The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt;
- A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false but carelessness will not be sufficient;
- Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor;
- Before permission is given the court should be satisfied that
- the public interest requires the committal proceedings to be brought;
- The proposed committal proceedings are proportionate; and
- The proposed committal proceedings are in accordance with the overriding objective;
- In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective;
- In assessing whether the public interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker’s understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements; and
- In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application.
The above requirements were laid down in the context of allegations of deliberate and fraudulent lies in witness statements verified by statements of truth but they apply equally, with appropriate modifications, to other contempt applications. Additionally, the order allegedly breached must be clear, unambiguous, and properly served.
Where an order lacks a penal notice, committal may not be immediately available. However, alternative enforcement mechanisms may still be pursued:
- Variation or Re-Issue of the Order
The court may re-issue or vary the order under FPR 10.5-10.7 and CPR 3.1.7 to include a penal notice, enabling future breaches to be enforced by committal. The order will not operate retroactively but it is submitted that previous breaches may be adduced as evidence of the defendant’s bad character pursuant to section 101(1) of the CJA Act 2003. The defendant may seek to exclude such evidence under section 101(3) of the same act or under section 78 of PACE, prejudicial effect being greater than the probative value. - Enforcement Orders (CAO)
Where it is alleged that a person did not comply with a child arrangements order, the court will consider the application under section 11J of Children Act 1989 and PD 12B (21.1). the court may make an enforcement order imposing unpaid work requirement on the person provided the allegation is proved beyond reasonable doubt. The court may not make an enforcement order if it is satisfied, on a balance of probability, that the person had a reasonable excuse for failing to comply with the provision.
- Civil Enforcement Methods
Depending on the nature of the order, enforcement may proceed by:
-
- Writs or warrants of control.
- Charging orders.
- Third party debt orders.
- Attachment of earnings orders.
- Confiscation of Assets
In some cases, the court may order confiscation of assets as a coercive measure short of imprisonment. - Declaratory Relief
The court may make declarations as to non-compliance, which can lay the groundwork for future enforcement.
Rights of the Defendant
Because contempt proceedings in civil and family courts are quasi-criminal, the defendant enjoys significant procedural protections, including:
- The right to a fair hearing under Article 6 ECHR.
- The right to legal representation, including publicly funded representation in appropriate cases.
- The right to remain silent, and not to incriminate themselves.
- The right to be informed clearly of the allegations and the potential consequences.
- The right to cross-examine witnesses and challenge evidence.
- The right to appeal against findings of contempt and sentence.
The court must ensure that the defendant understands the seriousness of the proceedings, particularly where they are unrepresented. A Qualified Legal Representative may be appointed to ask questions on behalf of a litigant in person or the judge may ask questions on their behalf.
Sentence is dealt with by the Contempt of Court Act 1981 section 14 and the maximum sentence application depends on whether the court before which the proceedings take place is a superior or an inferior court. For superior courts, the maximum sentence is 2 years imprisonment while it is 1 month imprisonment for inferior courts.
Superior court means the Supreme Court, the Court of Appeal, the High Court, the Crown Court, the Employment Appeal Tribunal and any other court exercising in relation to its proceedings powers equivalent to those of the High Court (CCA section 19). For the purpose of contempt proceedings sentence, the County Court is treated as a superior court under CCA 1981 and the Family Court has High Court Powers, that is, the Family Court may make any order which could be made by the High Court if the proceedings were in the High Court (31E(1)(a) of the Matrimonial and Family Proceedings Act 1984).
Conclusion
Contempt of court proceedings play a vital role in ensuring compliance with civil and family orders, but they are subject to exacting procedural and evidential standards. The presence of a penal notice is central to committal for breach, though its absence does not render an order toothless. Claimants bear the burden of proof to the criminal standard and defendants are afforded robust protections reflecting the gravity of the potential consequences. Courts consistently emphasise clarity, proportionality, and fairness when exercising their contempt jurisdiction.
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