The High Court was faced with this very unusual question when a mother did not seek to sequester the father's property to pay the money she was owed, but rather to fund the costs of her litigation in the United Arab Emirates (UAE), following the abduction of her daughter and the failure of the father to comply with the return orders issued.
Background:
The mother, AB, and father, CD, were married and have a daughter, EF, who was born in 2018. On the 21st of April 2023, a Family Court made a final child arrangements order to the effect that EF was to live with the mother. Provision was made, however, for EF to spend some time with her father. In July 2023, the father took EF abroad to Florida for a previously agreed holiday. The father provided details of the hotel where they would be staying and it was agreed that he should return to England with EF in August 2023. However, the father did not return to the UK with EF at the end of this holiday. Instead, he abducted her to live abroad with him in breach of the terms of the order.
The mother issued proceedings to seek a return order which was made on the 1st September 2023, requiring the father to return EF to the UK by the 8th September. The father failed to comply and was found to be in contempt of court orders in February 2024 and did not purge his contempt.
In May 2024, the mother discovered that the father was living with EF in the UAE and she travelled there to resolve the matter. The father however owns a property in the UK which the mother sought to be sold to fund the mother's legal costs in pursuing EF's repatriation from the UAE.
Decision:
The High Court dismissed the application as the Court does not have the power to make confiscation of assets order under Rule 37.9 of the Family Procedure Rules 2010 (FPR) pursuant to an application under Part 18 of FPR without following the contempt procedure requiring notice to the father. Mr. David Lock KC noted that "The law relating to the use of sequestration orders to assist parties give effect to a High Court order where a child is abducted abroad has some history. Sequestration has long been used as a method of enforcing monies which ought to have been paid as part of family orders". However, in this case, the mother did not seek to sequester the property in order to pay monies that are owed to her, instead, her intention is to fund the costs of her litigation in the UAE. Such application must be made under Part 37 of the FPR and not under Part 33.
Referring to Richardson v Richardson [1989] the Court agreed with the decision that sequestration is a drastic remedy, one which is normally only available to enforce English Courts' orders in serious and clear cases. However, that case did not answer the question as to whether a court has the power to order the sale of a property. The powers of the Court to sequestrate assets arise as part of the common law powers of the High Court and not as part of any statutory framework as held in re HM (Vulnerable Adult: Abduction) [2010].
Due to a change in the rule, sequestration "can be used as a method of enforcement of money orders, as distinct from sequestration as sanction for contempt".
The Court granted dispensation with the need for personal service of contempt proceedings but instead allowed service by email. The mother was invited to make a fresh contempt proceedings. Additionally, an injunction restraining the father from dealing with the property pending the contempt hearing was put in place. The father is still under a legal obligation to return EF to the UK even if the date on the order has passed.
Implications:
This decision confirmed that sequestration is a drastic remedy
available to enforce English Courts' orders in serious and
clear cases. Despite a change in the rule and dramatic
circumstances, the courts are not willing to give in to the
necessary procedural safeguards.
The judgement also clarifies that the father is still under a legal
obligation to return the child to the UK even if the date on the
order has passed. A contempt of the Court is not taken lightly and
can have far-reaching consequences, including the sale of
assets.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
