Hammerton v Hammerton

Factual and Procedural Background

On 26th and 27th July 2005, His Honour Judge Collins CBE heard two related applications concerning the Appellant. The first application was by the Appellant for contact with two of his children, and the second was by his former wife for his committal to prison for breach of an undertaking given in December 2004 and for breach of a court order made in February 2005. The Appellant was unrepresented, and the judge chose to hear both applications simultaneously. On the second day, the judge ordered indirect contact and committed the Appellant to three months' imprisonment. The Appellant appealed against the committal order.

The appeal was initially out of time but was extended due to the Appellant’s lack of legal representation while imprisoned and difficulties in obtaining court papers, including the absence of a tape recording of a crucial part of the judgment. The appeal raised serious procedural errors that affected the entire proceedings, stemming from the Appellant’s unrepresented status and the judge’s decision to hear both applications together.

The Appellant and Appellee were formerly married with five children, two of whom were the subject of the contact application. The parties separated in 2002, and the Appellant last had direct contact with the children in December 2003. The Appellant issued an application for contact in January 2004, and the parties divorced in August 2004. The Appellant had given an undertaking not to contact the Appellee, her parents, or her solicitors except through his own solicitors. In February 2005, a court order forbade the Appellant from using or threatening violence or intimidating the Appellee.

In July 2005, the Appellee filed a Notice to Show Cause alleging nine breaches of the undertaking or order, of which eight were found proven by the judge. The breaches included direct contact with the Appellee’s family and solicitors through letters, numerous threatening and abusive telephone calls, forced entry to a property, and abusive conduct. The judge committed the Appellant to prison for three months based on these findings.

Legal Issues Presented

1. Whether the procedural errors in hearing the committal and contact applications simultaneously violated the Appellant’s rights under Article 6 of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998.
2. Whether the Appellant, as an unrepresented litigant facing a criminal charge (committal for contempt), was entitled to legal representation and appropriate procedural safeguards.
3. The appropriateness of the judge’s decision to proceed without adjournment to secure representation for the Appellant.
4. The correctness of the judge’s application of evidential and procedural rules in committal proceedings, including burden and standard of proof.
5. The validity of the sentence imposed without mitigation or legal representation.
6. The implications of hearing contact and committal proceedings concurrently and the effect on the Appellant’s ability to defend himself.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified fundamental procedural errors arising from the judge’s decision to hear the contact and committal applications simultaneously, which placed the Appellant in an untenable position. The Appellant, unrepresented, was required to defend himself against criminal contempt allegations while simultaneously seeking contact with his children, creating a conflict between the differing burdens and standards of proof inherent in each proceeding. The judge failed to inquire into the Appellant’s unrepresented status or to consider adjourning the committal hearing to secure legal representation, breaching Article 6 rights under the ECHR and the Human Rights Act 1998.

The court noted that the judge did not remind the Appellant of his right not to give evidence in the committal proceedings, nor did he distinguish between the evidential rules applicable to contact and committal hearings. The judge also failed to hear mitigation or consider the context of the breaches, including the Appellant’s lack of legal advice and the difficult family circumstances. The judge’s reference to unrelated old convictions was inappropriate and indicative of the absence of proper legal representation.

The court analysed relevant authorities establishing that committal proceedings constitute criminal charges requiring strict procedural safeguards, including the right to legal representation and the burden of proof on the party seeking committal. The failure to comply with these principles rendered the entire process unfair and unlawful.

Furthermore, the court criticised the acceptance of an overly broad undertaking by the Appellant not to contact the Appellee’s solicitors, which effectively hampered the Appellant’s ability to conduct his case as a litigant in person. The court also highlighted systemic failures such as lost court papers, delayed transcription of tapes, and the absence of a recording of the judge’s sentencing remarks, all contributing to the procedural deficiencies.

The court emphasised the importance of separate hearings for contact and committal applications, particularly where legal representation is absent, to ensure fairness and compliance with human rights obligations. It underscored that while there may be exceptional cases where hearings could be combined, such circumstances are rare and require careful judicial management to protect the rights of the parties.

Holding and Implications

The court ALLOWED THE APPEAL and quashed both the findings of contempt and the sentence of three months' imprisonment imposed on the Appellant.

The direct effect is that the Appellant’s committal order and custodial sentence are set aside due to serious procedural and substantive errors violating Article 6 rights. The ruling underscores the critical necessity for legal representation in committal proceedings involving deprivation of liberty, especially for litigants in person, and the importance of conducting separate hearings for contact and committal applications to avoid conflicts of interest and procedural unfairness.

No new legal precedent was established beyond reaffirming existing principles; however, the judgment serves as a strong cautionary reminder to family courts regarding adherence to human rights standards, procedural fairness, and judicial vigilance when dealing with unrepresented parties in contempt proceedings.