1.By a letter dated 16 September 2020, the Committee sought a memorandum on the following points:
In relation to the Schedule, explain:
(1) whether the reference in new rule 37.8(4)(e) to “any respondent” is intended to include the defendant, having regard to the definition of “defendant” in new rule 37.2;
(2) what the phrase “under the law” in new rules 37.2, 37.4(2)(p), 37.9(1) and 37.10(3) is intended to add (compared, for example, to existing rule 37.12 or 37.31); and
(3) what difference in meaning is intended between a thing being permitted by “the substantive law” in new rule 37.9(4) and a thing being permitted “under the law” in the new rules listed above.
2.The Ministry of Justice’s response is set out below.
3.In relation to the first question, as the Explanatory Memorandum to this instrument explains (in paragraph 7.4), the amendments to the Family Procedure Rules (FPR) made by this instrument mirror, for Part 37 of the FPR, the new Part 81 of the Civil Procedure Rules (CPR) substituted by S.I. 2020/747, save for changes considered necessary to reflect differences between the civil and family courts. One such change relates to the provision made for hearings of contempt proceedings to be in public and the circumstances in which that general rule may be departed from. The new rule 81.8 of the CPR (to which new rule 37.8 of the FPR corresponds) makes provisions for hearings by stating that “In accordance with rule [CPR] 39.2”, hearings of contempt proceedings are to be listed and heard in public unless the court otherwise directs. That imports by reference the provisions of CPR rule 39.2(3) for matters of which the court must be satisfied if a hearing or part of it is to be in private.
4.For the FPR, however, there is no equivalent to CPR rule 39.2, and there is a clear preference for making the FPR freestanding and self-contained as far as possible, which tells against importing provisions in rules outside the FPR by express reference. The approach adopted was therefore to provide in paragraph (1) of new FPR rule 37.8 that hearings must be in public “applying the provisions of paragraph (4)”; paragraph (4) then “importing” CPR rule 39.2(3). Paragraphs (5) and (6) of FPR rule 37.8 were then drafted to contain supplementary provisions corresponding to paragraphs (4) and (5) of CPR rule 39.2.
5.The wording so “imported” includes in paragraph (4)(e) the wording to which the Committee draws attention, referring to its being unjust to “any respondent” for there to be a public hearing. That paragraph corresponds to CPR rule 39.2(3)(e). In CPR rule 39.2, which is of broad application to hearings under the CPR, the term “respondent” will include parties beyond a defendant in contempt proceedings (for example, a respondent to an application made in existing proceedings which is to be dealt with at the hearing in question). “Respondent” in that context will therefore bear a broader meaning than “defendant”; but that meaning will be conditioned, in its application in relation to contempt proceedings, by the nature of contempt proceedings and who may be parties to them. In relation to contempt proceedings under FPR new Part 37, the wording is of course not appearing in that more general context, but within the bounds of Part 37; but the Ministry does consider that it includes “defendant” in the sense of the person against whom the contempt application is made.
6.In relation to the second question, the wording “under the law” is intended to make it clear that sanctions against a contemnor under the law generally, whether procedural or substantive, are not affected and continue to be available. This is with a view to covering the possibility of exercise of powers not covered by “fine”, “period of imprisonment” or “confiscation of assets”, such as a “Hadkinson order” (Hadkinson v Hadkinson  2 All ER 567; and see also Assoun v Assoun [No 1]  EWCA Civ 21 and, for a recent exercise of this power, HR v DS  EWHC 2425 (Fam)), or for a contemnor aged 18–20, an attendance centre order or committal to be detained, under section 60 or 108 of the Powers of Criminal Courts (Sentencing) Act 2000.
7.In relation to the third question, the reference to a power of arrest being able to be made by the court to the extent that “the substantive law” permits is intended to draw the distinction between the rules of procedure, which cannot create a power of arrest, and the substantive law. The distinction is drawn with a view to making it clear that the rules do not affect the court’s powers regarding arrest (and in particular do not give the court any power which it does not have outside the rules).
Ministry of Justice
22 September 2020
Published: 2 October 2020