Gordon v Gordon

 

Gordon v Gordon

ADMINISTRATION OF JUSTICE; Contempt of Court: FAMILY; Children

COURT OF APPEAL

LORD GREENE MR, DU PARCQ AND TUCKER LJJ

17, 18, 21 JANUARY 1946

Contempt of Court – Attachment and committal – Order for custody of child – Failure to hand over child – Service of order – Order to be complied with on or

before stated time – Order served out of time – Intention not to comply with order – Knowledge of order by person affected immaterial – Process of committal

– Enforcement only if rules strictly complied with – RSC, Ord 41, r 5 – Matrimonial Causes Rules, 1944, r 62(2).

The appellant was the husband of the respondent, and the marriage was dissolved by decree absolute on 25 August 1943, on the ground of desertion by the

respondent. There was one child of the marriage, born on 14 November 1937, and an order was made for custody of the child in favour of the respondent,

with access to the appellant. The appellant, while the child was living with him, took out a summons asking that the order giving the custody to the respondent

should be rescinded. The summons was heard on 19 December 1945, and the appellant was ordered to hand over the child on 20 December 1945. The

appellant admittedly made up his mind to disregard the order and did not hand over the child on the following day. As a result of an ex parte application for

custody made by the respondent, the appellant was ordered to hand over the child to the respondent by or before 7 pm, on 21 December 1945, the copy of the

order, however, being served on the appellant at 8 pm. The respondent, by reason of the appellant’s failure to comply with the order of 21 December 1945,

served a notice of motion on 22 December 1945, to the effect that she intended to apply for an order of committal or attachment. On 31 December 1945, the

appellant was committed for contempt of court. It was contended for the appellant that the order made on 21 December 1945, was bad on the ground that it

was served after the time for its compliance had expired. It was contended for the respondent that there was no necessity for service of the order because (a)

the appellant was evading service; (b) the court had inherent jurisdiction to commit a person for contempt:—

Held – (i) Since orders for committal and attachment affected the liberty of the subject, proceedings for contempt by disobedience of an order to do something

outside the court could only be enforced if the rules relating to the process of committal or attachment had been strictly complied with.

(ii) on the facts, the service of the order in due time was necessary for the purpose of founding proceedings in contempt, the court having no power to

dispense with the formal requirements of the rule.

Iberian Trust Ltd v Founders Trust & Investment Co Ltd applied.

Notes

Strict compliance with Rules relating to service of an order is necessary, even if the person to be served is aware of the pending service, and service out of

time cannot, therefore, be made the basis of proceedings for attachment and committal.

In the course of their judgment their Lordships express their views upon two points of importance in which reform of existing practice is apparently

needed. The first is the desirability of specifying in orders which may have to be enforced by proceedings for attachment or committal the place at which the

act required is to be performed. The second is the need for providing by Rules that orders which are made for the benefit of infants may be enforced by

attachment or committal notwithstanding the accidental failure to comply with the strict technical requirements of the Rules. Tucker LJ, indeed goes further

and suggests that as the case under consideration shows that it may be impossible on the grounds of urgency to serve an order in time before it has to be

carried out some alteration in the Matrimonial Causes Rules, 1944, r 62, and RSC, Ord 41, r 5, is desirable where the person to be served is well aware that the

order had been made.

As to Service of Order, see Halsbury, Hailsham Edn, Vol 7, pp 42–54, para 59; and for Cases, see Digest, Vol 16, pp 49–57, Nos 527–644.

Cases referred to in judgments

Iberian Trust Ltd v Founders Trust & Investment Co Ltd [1932] 2 KB 87, Digest Supp, 101 LJKB 701, 147 LT 399.

Duffield v Elwes (1840), 2 Beav 268, 16 Digest 56, 631.

Gordon v Gordon [1903] P 141, 16 Digest 65, 750, 72 LJP 33, 89 LT 73.

Hyde v Hyde (1888), 13 PD 166, 16 Digest 55, 607, 57 LJP 89, 59 LT 529.

􀂭 247􀀉

Re Tuck, Murch v Loosemore [1906] 1 Ch 692, 16 Digest 50, 534, 75 LJCh 497, 94 LT 597.

Appeal

Appeal by the petitioner from an order of Lynskey J dated 31 December 1945, committing the petitioner to prison for contempt of court. The facts are fully

set out in the judgment of Lord Greene MR.

Astell Burt for the appellant.

Alban Gordon for the respondent.

Cur adv vult

21 January 1946. The following judgments were delivered.

LORD GREENE MR. This is an appeal by the petitioner in the suit against an order by Lynskey J dated 31 December 1945, obtained on the application of

the respondent in the suit, and ordering that the petitioner, Louis David Gordon:

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‘… be committed to His Majesty’s Prison, Brixton, in the county of London, for contempt of court in that he failed to comply with the requirements

of the order of the HON. SIR CHARLTON HODSON, Kt., one of the judges of the High Court sitting at the Royal Courts of Justice, Strand, in the

county of London, dated Dec. 21, 1945, requiring him to hand over to the respondent by or before 7 p.m., on that date the child of the marriage, namely,

Helen Frances Gordon.’

The order was directed to lie in the office, and it is still in the office pending the hearing of this appeal which we expedited having regard to the fact that the

liberty of the subject was concerned, and which we thought proper to hear in open court for the same reason, notwithstanding the fact that the argument has

necessarily referred to various matters connected with this infant which normally would have been heard in camera.

The petitioner was the husband of the respondent, and the marriage was dissolved by decree absolute on 25 August 1943, on the ground of desertion by

the respondent. There was one child of the marriage, Helen Frances Gordon, born on 14 November 1937. I do not find it necessary to go into the history of

these matters save in order to set out the nature of one or two orders which must be understood before the position can be appreciated.

On 29 November 1943, an order was made in the Divorce Division for custody of this little girl in favour of the respondent, with liberal access to the

petitioner, the father. On 9 November 1945, the father, having then possession of the child under the access provisions, took out a summons asking that the

order giving the custody to the mother should be rescinded, and various other matters. A good deal of evidence was filed on that summons. It was adjourned

from time to time. There was an application to this court, and eventually the summons was heard by Barnard J on 19 December. Barnard J then made an

order to the following effect, that the petitioner should take proceedings in the Chancery Division forthwith to make the infant a ward of court. He ordered:

‘… that the petitioner do hand over the said child to the respondent on Thursday, Dec. 20, 1945, [that was the next day] by 6 o’clock p.m., the child

to remain in the respondent’s care and control until further order, without prejudice to any application by either party as to access or otherwise and

without prejudice to any proceedings in the Chancery Division directed to be taken as aforesaid the respondent by her counsel undertaking not to bring

the child into contact with [a named person].’

That is the substance of that order. It asserted, so to speak, the mother’s right to custody under the previous order of the Divorce Division which the father had

unsuccessfully attempted to attack.

The father apparently took the view that the order of Barnard J was not the right order to make, and he appears to have thought that the substance of his

case had never really been properly brought to the mind of the judge. He therefore, admittedly and manifestly, made up his mind that he would disregard that

part of the order which directed him to hand the child over to the mother on the following day. He accordingly did not do so. I should say that at this time the

child was living with the father under the access provisions which the father was attempting to replace with a permanent order for custody in his own favour.

She was living at the father’s house at Seal, near Sevenoaks, in Kent.

There is one thing I want to say about this order, and the same observation applies to the later order of Hodson J that neither order specifies the place

where the child is to be handed over. It is of great importance, especially in cases where parties are likely to be in controversy and make difficulties and

perhaps be contumacious and hostile, that orders which may have to be enforced 􀂭 248􀀉 by proceedings for committal or attachment should be of a perfectly

precise nature so that there can be no controversy about the duty which has to be performed under them. Both in the case of this order and in the case of the

subsequent order of Hodson J—and my reasons for saying this will appear, perhaps, more clearly presently—it would have been very much better if the orders

had said the child was to be handed over at a definite place, either at the father’s house or at some other place.

To proceed with the history: the mother not having obtained the child proceeded to make an application, which was at any rate in the first instance ex

parte, to Hodson J. I may point out that having regard to the time of year these matters were thought to be of urgency, because both parents were concerning

themselves with the question of where the child should spend Christmas. The application before Hodson J was granted, and the order made was to this effect:

‘Upon the application of counsel for the respondent it is ordered that by or before 7 o’clock today [that was Dec. 21, 1945] the petitioner do hand

over to the respondent the child of the marriage namely Helen Frances Gordon.’

That order was made during the afternoon of the day on which it had to be carried out. I need not go into the question of the extent to which the presence of

counsel and solicitors on behalf of the respondent on that occasion might affect the matter, because in my judgment it is not necessary to do so. It is said, and

said, I think, with obvious correctness, that the petitioner was undoubtedly aware of the order of Barnard J. In fact—I think my memory is right—he was in

court when that order was made. It is said by counsel on behalf of the wife that the court ought to draw the inference that in the case of the order of Hodson J

also the father knew of it at the time it was made, or shortly afterwards on the same day, with the result that, had he been minded to do so, he could perfectly

well have complied with the order to hand over the infant at 7 o’clock that evening. We were invited to draw the inference that he had that knowledge, and

that he had it before 7 o’clock. The facts which were brought to our knowledge with a view to supporting that inference did not appear to me to be sufficient,

but having regard to the subsequent history, and the law and practice relating to these matters, I do not think it matters, for a reason which will presently

appear. I am quite content to deal with this case on the footing that the father, the present appellant, knew of the order of Hodson J before 7 o’clock and could

quite well have complied with it had he been so minded. We are told that in the presence of counsel who had been appearing for him on previous occasions,

and who appears for him now (but who was on that occasion not appearing as counsel but more as amicus curiae, because the application to Hodson J was ex

parte) it was made perfectly clear (and we are asked to assume that the appellant knew all about it) that the mother was proposing to go down in a motor car

and take delivery of the child. It is said that the circumstance that that was mentioned as being her intention makes it necessary, or possible, to construe the

order of Hodson J as an order to deliver the child before 7 o’clock at the father’s house at Seal.

Some question has been raised in this court as to where precisely he was to hand over the child. If you look at the face of the order it is not mentioned. If

the intention was that he should hand it over at his house the order ought so to have specified. It did not do so. I will assume in favour of counsel for the

respondent what I do not myself think for the moment is established, that the father knew about this order before the time appointed, and that the

understanding was, and that he was a party to it and was well aware of it, that delivery should be made to the mother at the father’s house at Seal. Let me

assume all that. What happened was this. At 8 o’clock that evening the mother was present at the house with somebody who was acting apparently as a

process server, though he is described in his affidavit as a producer of films employed by the Gaumont British Picture Corporation. A copy of the order of

Hodson J was then served on the appellant, who arrived at 8 o’clock. Counsel for the respondent informed us that the mother had in fact arrived before 7

o’clock. It was 8 o’clock when the father turned up at the house, an hour after the time appointed for handing over the child. There is no evidence as to when

the mother arrived, whether she arrived before 7 o’clock 􀂭 249􀀉 or not. We were asked to infer from the fact that the father did not arrive home until 8

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o’clock, in that, as it was assumed, he knew of the existence of this order in plenty of time, that he was evading service. That inference I must entirely decline

to draw. It seems to me that the evidence relied on to support it is quite insufficient. The order contained what is referred to as a penal endorsement, although

it was not in the precise form required by the relevant rule. Counsel for the appellant was proposing to make some point on that, but we did not hear him upon

it. Therefore I express no view as to the adequacy of that endorsement.

The mother having failed to get possession of the child proceeded then to serve a notice of motion on the following day, 22 December to this effect:

‘Take notice that the respondent by counsel intends to apply to LYNSKEY, J., in his room at 12.15 p.m., on Monday, Dec. 24, for an order your

committal or attachment on the ground that you have failed to comply with the order of this honourable court dated Dec. 21, 1945.’

That was addressed to the appellant. As a result of that Lynskey J made the order which I have already read and which is the subject of this appeal.

One thing stands out in this case with the utmost clearness. The appellant made up his mind deliberately and with full knowledge of the possible

consequences to defy the orders of the court. There was the order of Barnard J. That he deliberately defied. Whether he knew or did not know before 7

o’clock on 21 December that Hodson J had made his order, he determined that he would not hand over the child at any time pursuant to that order. We were

told that the child has been since made a ward of court. Cohen J made an order that the child should go to boarding school, and reaffirmed the order of

Hodson J for delivery of the child to the mother in time to enable it to go to school.

When the application was made to this court to expedite the appeal it transpired that the appellant was still defying all the orders of the court and

determined to keep the child. That was stated by his counsel in court. When it appeared that the court would not be disposed to grant the indulgence of an

immediate hearing of the appeal at a time when the appellant was proclaiming his intention to continue his conduct he thought better about it and undertook to

hand over the child and to obey—I will not call it an order—the suggestion of this court that he must show his bona fides by bringing the child up and

delivering it in the registrar’s room that very evening. That was done. The mother had the child, and the child went to school. I only mention that in order to

show that what I am about to say is abundantly established, that this appellant has throughout been entirely contumacious and put himself in a position where,

on the merits, the orders of the court called as loudly as in any case I have ever known for enforcement by the appropriate process.

Attachment and committal are very technical matters, and as orders for committal or attachment affect the liberty of the subject such rules as exist in

relation to them must be strictly obeyed. However disobedient the party against whom the order is directed may be, unless the process of committal and

attachment has been carried out strictly in accordance with the rules he is entitled to his freedom. I am not speaking now of contempts in the face of the court,

but contempts by disobedience of an order for something to be done outside the court.

In the present case the summons or notice of motion before Lynskey J asked for committal or attachment. That is a common form nowadays, since both

remedies are open in the case of disobedience to an order, be that order a prohibitive order for which committal used to be the appropriate remedy, or an

affirmative positive order for disobedience of which attachment was the remedy. Either remedy is now possible, but there is still a certain procedural

difference, and, speaking quite generally, the procedure in the case of attachment is more technical than in the case of committal. Accordingly, when before

Lynskey J counsel was asked to elect which remedy he sought, feeling no doubt in difficulty with regard to attachment owing to non-compliance with the

technical rules relating to attachment, he elected to ask for committal, and committal he obtained.

The only matter that we have heard argued is a purely technical matter, which is that the order of Hodson J requiring delivery by 7 o’clock was not served

until that time had elapsed, that is to say 8 o’clock in the evening. The 􀂭 250􀀉 relevant rule in the Matrimonial Causes Rules, 1944, is r 62(2):

‘A decree or order requiring a person to do an act thereby ordered shall state the time within which the act is to be done, and the copy to be served

upon the person required to obey the same shall be endorsed with a notice in accordance with Form 13.’

That rule in the Divorce Division follows in substance, with some verbal modifications, the corresponding Rule of the Supreme Court, Ord 41, r 5, which

provides that:

‘Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service

of the judgment or order, within which the act is to be done …’

Then there is a provision for the indorsement of the penal memorandum. It is to be remembered that the process of enforcing orders in civil litigation made for

the benefit of a party against the other party by committal or attachment is nothing more than a form of execution. It is that form of execution by which the

successful litigant enforces his right against his unsuccessful opponent. If he fails to comply with the strict rules he is the sufferer, because he has not

succeeded in protecting or enforcing his right by this very effective means. When one comes to deal with the case of an infant the position is fundamentally

different, because orders in respect of infants are not made for the benefit of any litigating party, such as a party to a divorce suit. They are made for the

benefit of the infant and, therefore, one would expect to find that the rules relating to the enforcement of orders in the matter of infants by committal or

attachment would recognise that fundamental difference. When the Court of Chancery is dealing with a ward of court it has certain powers, which I need not

deal with here. We are dealing with a case where what is sought to be enforced is a custody order made in the Divorce Division. The enforcement of such an

order is perhaps necessarily left to the interested party, the parent to whom custody has been given, and it may be that no serious inconvenience comes from

that. But when it comes to enforcing an order made for the benefit of the infant at the instance of one of the parties to the litigation who may make a mistake

in procedure and may not comply with all the rigours of the rules, the person who suffers is not merely the interested party, as it would be in ordinary

litigation, but is the unfortunate infant, who does not get the protection of the enforcement of the order which has been made in its interest, merely because the

parent who has taken upon himself or herself the burden of trying to enforce that order has made some slip or been prevented by some accident from carrying

out the strictness of the rules.

I cannot help thinking that if this case has shown one thing it has shown the desirability of making some special rules with regard to the enforcement by

committal or attachment of orders made in respect of an infant who requires the protection of the court and who ought not to be prejudiced by finding that an

order, perhaps of an urgent and vital nature affecting its interests, has been flouted by the person against whom it is made and that that person cannot be

committed or attached owing to the fact that the party seeking to enforce the order has not complied with the rules. It becomes more manifestly

unfortunate—I will not say absurd—when one comes across the rule that strict compliance with the rules as to service is required even in a case where the

person against whom the order is made is perfectly well aware of it, is perhaps in court when it is made, and deliberately sets himself to flout it. In the case of

ordinary litigation between parties the strictness of requiring service of the order is a thing one can understand, but why should an infant suffer by a strict rule

of that kind, and why should the court’s order in its favour for its protection be disregarded without remedy when the parent against whom the order is made is

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perhaps sitting in court? I have said that in this case I am prepared to assume that the father knew all about the order of Hodson J in time to comply with it by

7 o’clock, and if that assumption be correct it would be a very unfortunate case, and I am afraid it is an unfortunate case, that owing to non-compliance with

the rules of practice it will be impossible to enforce that order by proceedings for contempt.

The only question, therefore, which we find it necessary to consider, is whether or not the order was enforceable having regard to the fact that it was

served after the time by which it should have been complied with. The essential 􀂭 251􀀉 importance of that time can, I think, be related to what I said earlier

with regard to the place of delivery. To deliver a child to somebody else you must deliver it somewhere. If the person against whom the order is directed is

left in any doubt as to where he is to deliver the child, the order is irregular. If he is to deliver a child at a particular place at a particular hour to a particular

person, then he is entitled to be told and have it brought to his knowledge in time to enable him to take the necessary steps to do it before the time indicated.

After that time is past he cannot be strictly said to be in contempt.

The principle that where a definite time is mentioned in the order for doing something, service of the order after the expiration of that time is not

sufficient to found proceedings for contempt is well established. I need not go into the authorities except to mention the latest, a decision of Luxmoore J in

Iberian Trust Ltd v Founders Trust & Investment Co Ltd, in which he says ([1932] 2 KB 87, at p 96):

‘I think it is quite plain from the decision in Duffield v. Elwes that that order could not be enforced by penal proceedings, because there can be no

default in compliance with an order ordering something to be done within a certain time when the order was not served until after the time within which

the act was to be done has expired. That again would be a complete answer to the application for attachment in this case.’

In my opinion, service of the order in due time was necessary for the purpose of founding proceedings in contempt. It is a misfortune which may happen

to a child, an infant, for whose benefit the order is made if, owing to some dilatoriness or accident, the person who has taken charge of serving the order serves

it out of time. That may be all very well when the person on whom the order is to be served never knew of it, but it becomes unreasonable in a case where he

knows of it and could perfectly well comply with it in time.

Counsel for the respondent did not attempt, and he could not have attempted to argue that, assuming the rules have to be strictly construed and applied,

the service would have been good. He directed his argument to a different contention altogether. He said that in the present case there was no necessity for

service and he put that on two alternative grounds. First of all, he said that this was a case where we ought to infer that the appellant was evading service. I

have already said that is an inference I am not prepared to draw. He then said, alternatively, it was sufficient that the appellant in fact knew of the order, and

he invited us to assume, and, as I have said, I will for the purpose of the argument assume, that the appellant did know of the order. That, counsel for the

respondent said, was sufficient, and accordingly the fact that the order was not served in time did not hurt him. In my opinion that argument cannot be

accepted. Here is a rule of court which has statutory force. It does not provide for any exceptions. It is quite explicit. It requires certain things to be done,

and this court has no power to dispense with the requirements of the rule.

Counsel for the respondent referred us to some authorities which he claimed supported his view. The first one was, curiously enough, Gordon v Gordon,

but that was a case in which an order had been made giving the custody of the child to the father, the petitioner, and directing the mother to deliver the child

up. There was litigation in an attempt to vary that order and an application was made to the court to enforce the order as to custody. The mother was ordered

to give up the child to the petitioner. That order was disobeyed and later a motion was moved for a writ of attachment or for an order for committal upon

affidavits stating that the mother had left the country with the child. The custody order apparently had never been served properly, but the court made an order

for attachment and committal—which is rather curious—upon the ground apparently that the child had been removed out of the jurisdiction. Different

considerations apply in such a case. The report is a very short one and I can find in it no authority whatsoever for any such right in the court as counsel for the

respondent argues for to dispense with strict compliance with the rule as to service in cases where the person against whom the order is made in fact knows of

it.

Counsel for the respondent then referred to Hyde v Hyde, which was a case of evasion of service, and this court held that personal service of the order was

not necessary to give the court jurisdiction to issue a writ of sequestration. Sequestration in that case was the form of execution which was sought. That

􀂭 252􀀉 case contains a dictum, which has been adversely commented on in this court, suggesting that the court can dispense with the necessity of service in a

case where the party against whom the order is made in fact knows of it. The case in which that criticism was made was in Re Tuck, where a trustee had

disobeyed an order to pay money into court, the order not having been personally served upon him. He had been in court when it was made and actually

initialled one of the briefs. In spite of that, it was held that personal service was required unless it was shown that he was evading service. The court consisted

of Sir Richard Henn Collins MR and Cozens-Hardy LJ. Cozens-Hardy LJ in the judgment of the Court said this ([1906] 1 Ch 692, at p 695):

‘The learned judge held that the objection that the order had not been served until after Jan. 1 was not a good objection, because the defendant was

present in court when the order was made, and, therefore, personal service was unnecessary. In support of this view the learned judge referred to Hyde

v. Hyde, where COTTON, L.J., said (13 P.D. 166, at p. 171): “It is true that as a general rule no order will be made for sequestration or attachment

unless it can be shown that there has been personal service of the order disobeyed, but there are exceptions to that rule. If it were proved, for instance,

that the person was actually in court at the time the order was made, service would be unnecessary in order to obtain process for contempt, and personal

service is also dispensed with if it is shown that the reason why there has been no personal service is that the person to be served has evaded service.”

The observation of COTTON, L.J., upon which the learned judge relied was not necessary for the decision of the case in which it was made, but

nevertheless it is a clear dictum by COTTON, L.J., and one which deserves careful consideration. It was not suggested to us that there was any reported

case in which this dictum had been acted upon, and it is not easy to understand on what ground the cases where a defendant evaded service of an order

of which he had notice came to be discussed at all if the fact of notice, apart from evasion, could be deemed sufficient to dispense with service of the

order.’

I need not read any more. It is quite clear that the proposition that knowledge of the order takes the place of service is negatived with the greatest emphasis

and clearness and the very important distinction is brought out between an order directing the doing of an act and an injunction which restrains the doing of an

act. I need not read more of that case. It is the most recent case in this court, and in my opinion we are bound to follow it. If I may respectfully say so, I

cannot see how it ever came to be argued or suggested that the court has got some sort of inherent power to dispense with compliance with a perfectly clear

rule of court requiring an order to be brought in a particularly formal way to a person’s knowledge merely because he knows of the order from a different

source. The requirement of a penal endorsement confirms this view.

Those responsible for the rules in their wisdom have required this great degree of strictness in cases where the liberty of the subject is liable to be affected

and in my opinion the court has got no dispensing power. I have already indicated my view as to the desirability of some relaxation of the strictness of the

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order in cases where the person for whose benefit the order is to be enforced is an infant and not a mere party to litigation. That will be a matter, no doubt, for

consideration by those responsible for the rules. We cannot make rules, we cannot dispense with rules.

In the present case it is perfectly clear that the order was not properly served in time. In view of that, there was no such breach of the order as would

justify proceedings in contempt and the fact, which I am assuming, that the father knew all about the order in plenty of time does not justify us in any way in

departing from the requirements of the rule. I think I have dealt now with all the relevant aspects of this case. The other matters which were adumbrated were

never fully argued and I say nothing about them. In the result this undoubtedly contumacious person succeeds in retaining his liberty, as he is entitled to do,

owing to the fact that the order was not properly served.

The appeal must be allowed.

DU PARCQ LJ. I agree that this appeal must be allowed and I agree with everything that has been said by Lord Greene MR. The case certainly presents

features which are highly unsatisfactory. It is not satisfactory that a man who has stated, not by his own lips but in an affidavit sworn by one of his legal

representatives, that he has no intention of obeying the orders of the court, which at any rate he knew of perfectly well at the time when that affidavit was

sworn, should escape with impunity. I fully realise that no court must 􀂭 253􀀉 ever forget the importance of the liberty of the subject and the importance of the

principle that in this country people are not to be imprisoned without good cause, cause shown according to law. Liberty would never be preserved if the

courts were to have one measure for people whom they think to be deserving and another measure for people whom they think to be undeserving. The law

must be applied strictly. So far as the liberty of the subject is concerned, I am quite satisfied that on the facts of this case it would be impossible for us to do

anything but to allow the appeal.

There is, of course, another matter of great importance, and that is that the orders of the court should be observed and that no litigant should be permitted

to say that he feels strongly that the order is a wrong order and, therefore, will not obey it. I do, however, derive some satisfaction from the fact that, as Lord

Greene MR has pointed out, the difficulties which may arise under this rule may be removed as a result of this case. The importance of the present case is due

to the fact that we are dealing with the custody of a small child. The hearing of this appeal has been expedited. It was expedited because we were dealing

with the liberty of the subject. There was a stage when counsel for the appellant told us it would be unnecessary after all to ask that the appeal should be

expedited because the respondent was willing, and her counsel agreed that she was willing, that the matter should stand over, because she had no desire to be

vindictive and was not anxious that the appellant should be sent to prison. Upon that this court took a course which very likely we should not have taken if the

matter in dispute had merely been the detention of a chattel. As Lord Greene MR then said, expressing the view of the whole court, we did not think it proper

to postpone the matter, because it did not rest with the parties to say whether mercy should be extended or not. It was not a question whether the respondent

was vindictive or not. It was a question ultimately for the court whether it would be content that its orders should be defied with impunity. That I mention

because it emphasises the public importance of the matter.

In this case I am glad to think that no harm has been done to the child. I think one may say that the attitude of the respondent herself, for which no one

would criticise her, shows that she does not feel that grave harm has been done. It is, of course, a remarkable fact that, although the mother had an order for

the custody of the child and the father only an order for access, he has succeeded in obtaining custody of the child for so long, but it has not been suggested by

anybody that the child has suffered morally or otherwise in his hands. As I have said, good may come out of the case because provision may be made in

future to prevent what may be—I do not use the word to suggest that technicalities are not of importance—a merely technical omission from having the result

of assisting a person who is minded to be disobedient. It is very desirable, and I only say this in order to show that I entirely agree with what Lord Greene MR

has said, that steps of that kind should be taken, because there may be cases where a child might be in the custody of a parent so unfit to have that custody that

it might be a disaster that that parent should be enabled to retain it for a moment after the order of the court had been made. I have no doubt it is not beyond

the wit of man to devise a rule or form of order which will make it impossible that that very undesirable result should ever follow. In the circumstances,

though one cannot help feeling a slight regret that it should be so, I agree that the appeal must be allowed.

TUCKER LJ. I have come to the same conclusion, but with regret. In this case I think the affidavit sworn on behalf of the petitioner, which was used before

Lynskey J shows that the only proper inference to be drawn is that the petitioner at all times was well aware of the order that had been made and was at all

times intending to disobey. In those circumstances the question arises whether this court has any jurisdiction to dispense with the strict requirements of the

Matrimonial Causes Rules, 1944, r 62. I think it is quite clear that no grounds have been established which would justify this court in effect in ignoring the

provisions of that order or dispensing with its fulfilment. In this particular case with a little more expedition perhaps and possibly by the filing of some further

evidence it might have been possible to secure the punishment of this man for his contempt of the order of the court. But this case does show that there may

be cases, not only cases concerning an infant in the Divorce 􀂭 254􀀉 Court but possibly cases in the King’s Bench Division under the corresponding Ord 41, r

5, where it is necessary in an urgent case for an order to be made which has got to be carried out at very short notice indeed. This case shows that where such

an order has been made in cases of great urgency it may be impossible to draw up the order and to serve it on the person concerned in time before the order has

to be carried out. Because of the existence of these two rules, the Matrimonial Causes Rules, 1944, r 62, and RSC, Ord 41, r 5, the result is that cases may

arise where persons can deliberately spurn the order of the court knowing that it has been made. I agree that it would be very desirable that those concerned

with these matters might consider whether or not some alteration in the rules is required. Speaking for myself, I should suggest that Ord 41, r 5, might

possibly also deserve reconsideration as well as the Matrimonial Causes Rules, 1944, r 62. I agree that this appeal should be allowed.

Appeal allowed.

Solicitors: Oscar Mason & Co (for the appellant); Pierron & Morley (for the respondent).

F Guttman Esq Barrister.

[1946] 1 All ER 255

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1