Kimber v Kimber

Factual and Procedural Background

The husband, a UK citizen who relocated to France around 2003, faced ancillary relief proceedings initiated by the wife, who remained resident in the UK. The wife obtained an ancillary relief order on 20 July 2004, requiring the husband to transfer interests in the matrimonial home and make significant financial payments. The husband failed to comply with key parts of this order.

In December 2004, while temporarily in England, the husband was arrested and brought before the Family Division, where Coleridge J imposed an undertaking preventing him from leaving England and Wales. This undertaking remains in force, and the husband has stayed within the jurisdiction since then.

The husband applied on 26 August 2005 to be released from this undertaking, seeking permission to leave England and Wales. His application was heard on several occasions, including before Singer J and Coleridge J, with proceedings focusing primarily on whether he could make a single short trip abroad to Liechtenstein and Switzerland to manage funds he claimed were held in a foundation there.

The wife contested the husband's claims regarding the disposition of matrimonial assets, including significant funds moved without her consent, and sought disclosure and enforcement of the ancillary relief order. The husband’s application to appeal against the refusal of his release was refused permission initially for procedural reasons and later on substantive grounds.

Meanwhile, the wife initiated committal proceedings for alleged breaches of the ancillary relief order, which have been adjourned pending the outcome of the appeal application. The court emphasized the need for final resolution of the ongoing and protracted litigation.

Legal Issues Presented

1. Whether the Family Division had continuing jurisdiction to restrain the husband from leaving England and Wales following ancillary relief proceedings.
2. Whether the husband was entitled to be released from his undertaking restricting his movement, including the right to travel abroad indefinitely.
3. The scope and limits of the court’s power to detain or restrain a party in family law proceedings, particularly in light of European Union free movement rights.
4. Procedural propriety regarding the husband’s failure to seek permission to appeal at the appropriate time and the court’s jurisdiction to entertain an appeal on issues not previously argued below.

Arguments of the Parties

Appellant's Arguments

• The husband contended that the court had no continuing jurisdiction to detain him in England and Wales and that he should be released from his undertaking not to leave the jurisdiction.
• He argued that his detention violated various human rights under the European Convention on Human Rights, including Articles 3, 5, 6, 7, and 8.
• He asserted that the judge’s refusal to release him was an improper use of coercive powers akin to civil debt collection.
• The husband sought to rely on the qualified right of European citizens to free movement within the EU, arguing that restraint of movement was only permissible in the short term and ancillary to proceedings that would be frustrated by his absence.
• He maintained that he should be allowed to travel abroad, initially seeking permission for a single short trip to Liechtenstein and Switzerland to manage funds held in a foundation.

Respondent's Arguments

• The wife opposed the husband's release, emphasizing ongoing enforcement proceedings related to the ancillary relief order, including disclosure of financial documents and payment of sums owed.
• She argued that the husband had failed to comply with court orders and that his application for release lacked merit.
• The wife relied on the court’s jurisdiction to restrain the husband’s movement pending enforcement and committal proceedings.
• She expressed skepticism about the husband's claims regarding the disposition of funds to a Liechtenstein foundation, noting a lack of documentary evidence and alleging attempts to frustrate enforcement.
• The wife sought to proceed with committal proceedings for breach of court orders and to avoid the disposition of assets to the foreign foundation to enforce the lump sum payment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the procedural history and the nature of the husband's application to be released from his undertaking not to leave England and Wales. It noted that the husband had consistently framed his application narrowly as seeking permission for a single short trip abroad, rather than challenging the broader restraint.

The court observed that the husband did not invite the judge to consider the wider legal arguments about the court's jurisdiction or the European free movement rights at the hearings below. Consequently, these important issues had not been addressed by the trial judge, and the court was not in a position to consider them on appeal.

The court emphasized the procedural requirement that permission to appeal must be sought at the hearing where the decision is made, which the husband failed to do. The husband's attempt to raise broader issues on appeal was therefore premature and procedurally improper.

The court also noted the ongoing enforcement proceedings, including the wife's application for committal for breach of court orders, which provided a proper forum for the husband to raise his wider arguments about restraint and jurisdiction.

The court expressed concern about the protracted and costly nature of the litigation and urged the parties to seek a final resolution, possibly through mediation or agreement, to settle outstanding financial claims.

Judges Hallett and Brooke concurred, reiterating the need for the matter to be resolved promptly and affirming that the husband must remain within the jurisdiction pending the committal hearing. They acknowledged the importance of the broader legal issues but agreed that they had not been properly argued below and should be addressed by the trial judge first.

Holding and Implications

The court refused the husband's application for permission to appeal.

The direct effect of this decision is that the husband's undertaking not to leave England and Wales remains in force, and he must remain within the jurisdiction pending the wife's committal application. The court made clear that the wider legal questions regarding the court's jurisdiction to restrain movement and the husband's rights under European law were not properly before it and should first be addressed at the trial level.

No new precedent was established by this decision. Instead, the court underscored procedural compliance and the importance of addressing substantive issues in the appropriate forum. The judgment also highlighted the need for final resolution of the parties' financial disputes to avoid ongoing litigation and hardship.