CJ v Flintshire Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Aikens,Lord Justice Sedley |
| Judgment Date | 15 April 2010 |
| Neutral Citation | [2010] EWCA Civ 393 |
| Docket Number | Case No: B4/2010/0727 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2010 |
[2010] EWCA Civ 393
IN THE HIGHCOURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION,
RHYL DISTRICT REGISTRY
HHJ Farmer QC, Sitting as a Judge of the High Court
Before: Lord Justice Sedley
Lord Justice Wilson
and
Lord Justice Aikens
Case No: B4/2010/0727
Lower Court No: RL09C00163
Mr Anthony Scrivener QC and Mr James Gatenby (instructed by Hogans, Rainhill, Merseyside) appeared for the Appellant.
Miss Gillian Irving QC and Mr Michael Sellars (instructed by the Solicitor to the Council) appeared for the Respondents.
Hearing date: 14 April 2010
Lord Justice Wilson:
The appellant is a contemnor, presently committed to prison; and he appeals against the refusal of HH Judge Farmer QC on 4 March 2010 to order his early and indeed immediate discharge from prison. The judge was sitting as a judge of the High Court, Family Division, Rhyl District Registry, albeit in Cardiff.
On 17 November 2009 the same judge had ordered that the appellant be committed to prison for 21 months for contempt of court. Of those 21 months, three months represented the activation of a sentence of committal which the judge had passed on the appellant on 18 April 2008 on a suspended basis for breach of an injunction made by HHJ Davies on 15 June 2005; and 18 months represented a sentence for various subsequent breaches of the same injunction which HHJ Farmer found proved.
When a person committed to prison for contempt of court has served one half of the term for which he was committed, he must be discharged from prison unconditionally: s.258(2) of the Criminal Justice Act 2003. Unless discharged earlier by order of the court, the appellant will be discharged pursuant to the subsection on 1 October 2010.
It is common ground that the appellant does not require permission to appeal to this court from the judge's refusal to order his earlier discharge. Although it is hard to describe the appeal as being against “a committal order” within the meaning of CPR 52.3(1)(a)(i), s.13(1) of the Administration of Justice Act 1960 provides that (i.e. without permission) an appeal shall lie “from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court”. Within that wider, statutory, rubric, the current appeal clearly falls; and, for that matter, it is brought within the exception to the need for permission set out in paragraph 4.2 of the Practice Direction supplementary to Part 52.
Even when, by virtue of s.14(1) of the Contempt of Court Act 1981, it became no longer possible to commit a contemnor to prison on an indefinite basis, the inherent power of the court to order a prisoner's discharge from prison on a date earlier than is dictated by the necessarily fixed term of his sentence was expressly recognised by words placed in parenthesis in the subsection; and it is also recognised by RSC Order 52 Rule 8(1), which is set out in Schedule 1 to the CPR and applies by virtue of Part 50 thereof.
An application for an order for early discharge is often described as an application to purge the contempt. Speaking for myself, I regard the terminology of “purging” a contempt as not particularly helpful, at any rate in the present context. To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v. Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.
The judge's committal order was made in family proceedings brought by Flintshire Borough Council (“the local authority”) in relation to the four younger of the appellant's seven children. All of them were born to the same mother, whom the appellant married but from whom he is apparently now estranged. The children are all girls. The oldest daughter is now aged 24; the second is now aged 23; the third is now aged 22; the fourth is now aged 18; the fifth is now aged 14; the sixth is now aged five; and the seventh is now aged nearly two. The three minor children are subject to care orders in favour of the local authority and are placed in foster care; but the mother is in the course of applying for discharge of the care orders.
At the heart of the case is the fact that the appellant presents a grave risk of sexual abuse to his children. In 2004, in the Chester Crown Court, he pleaded guilty to one act of unlawful sexual intercourse with the oldest daughter when she was aged 18 and he received a sentence of six months' imprisonment.
In care proceedings relating to the minor children which were thereupon launched by the local authority HHJ Davies found, by a judgment dated 6 June 2005, that the appellant had not only committed the act of incest with the oldest daughter, when no longer a minor, of which he had been convicted but had also sexually abused her on a regular basis from about 1992 onwards, i.e. from when she was aged only about seven. On 15 June 2005 HHJ Davies, sitting as a High Court judge, issued injunctions, one of which prohibited the appellant from having contact with any of the children who then remained minors, namely the fourth, fifth and sixth daughters, save such as the local authority might arrange. The seventh daughter was, of course, not then born.
The orders for committal against the appellant arise out of his breaches of the injunction dated 15 June 2005. The suspended committal order dated 18 April 2008 was made upon a finding that, otherwise than as arranged by the local authority, the father had had contact with the fourth daughter in February 2008. At the hearing on 17 November 2009 the judge found proved further breaches of the injunction dated 15 June 2005, namely (and all otherwise than as arranged by the local authority) that the appellant had had contact with the fourth daughter in February/March 2009, i.e. when she was aged 17, by allowing her to stay with him for a week in a caravan; that on eight other occasions between October 2008 and April 2009 he had allowed her to stay with him in the caravan; that in December 2008 he had had contact with the fifth daughter, then aged 13, and with the sixth daughter, then aged 4, at the home of the second daughter; and that on another occasion prior to 11 March 2009 he had also had contact there with the fifth daughter.
The appellant admits that he was given notice of the hearing on 17 November 2009 and that he failed to attend it.
It seems that, notwithstanding his history of transient living or, as the local authority describe it, of living below the radar, the appellant was arrested and imprisoned on the day when the committal order was made. On 19 November, i.e. only two days later, he signed a notice to the effect that he wished to purge his contempt and be released from prison; that he apologised to the court for breaking the injunction; and that he would undertake to comply with it in future. At the near-insistence of the judge, the appellant secured publicly funded legal advice and representation in respect of his application. At an interim hearing in February 2010 the local authority readily acceded to the judge's invitation to appear at the substantive hearing and, in effect, to assist the court in testing the case for discharge to be put forward on behalf of the appellant; and, at the judge's direction, the local authority filed a statement, by Mrs Foulkes, the children's allocated social worker, in that regard. At the hearing the appellant gave oral evidence, as did Mrs Foulkes.
In the judgment by which he refused the appellant's application for early discharge, the judge, in reciting the history, recorded that the appellant continued to deny the findings of sexual abuse of the oldest child which HHJ Davies had made in 2005 save for the one act of incest of which he had been convicted. The judge noted, however, that the appellant acknowledged all the breaches of the injunction which on 17 November 2009 he, the judge, had, in the appellant's absence, found to be established. The judge recorded the concession of the appellant that he knew that he was thereby breaking the injunction and had done so because of his fondness for the children with whom he had had contact. The judge went on to survey the only realistic proposal which the appellant made for his accommodation in the event of early discharge, namely that he should return to the home in North Wales of his girlfriend who had been present on some of the occasions when he had had unauthorised contact with the children and who, as the appellant conceded, had been aware that he was thereby breaking the injunction. The judge proceeded to record that the appellant accepted that he constituted a danger to children; that, in the pending care proceedings, he intended to seek an order, on some basis or other, for his contact with them; and that he proposed to seek help with a view to altering the court's perception of him as someone who continued to pose a risk of sexual abuse towards his children. The judge thereupon said:
“Both counsel helpfully addressed me on the focus of the wide discretion which I have in this case and … agreed that [it] should be the need to protect the children and consideration of whether the...
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