Guidelines on Sanctions for Breach: Hale v Tanner
| Date | 01 July 2001 |
| Author | Roger Kay |
| DOI | http://doi.org/10.1111/1468-2230.00340 |
| Published date | 01 July 2001 |
CASES
Guidelines on Sanctions for Breach: Hale vTanner
Roger Kay*
Introduction
Part IV of the Family Law Act 1996, which came into force in October 1997,
reformed the law on personal protection. As well as consolidating the law, at least
to some extent, the Act widened the categories of person entitled to apply for
protection under its provisions and increased the extent of that protection,
particularly relating to applications to the court to deal with an alleged breach of an
order or undertaking. However, the crucial test was always going to be how the
courts would deal with a respondent who had been found to be in breach of an
order or undertaking. It is essential, if trite, to point out that an order or undertaking
is, in the end, a piece of paper and a protectionary regime is only as tough and
effective as the ultimate sanctions imposed for non-compliance. Previously, and
partially anecdotally, it was perceived that the courts were too hesitant to apply the
ultimate sanction of committal to prison.1Some support for this proposition can
also be gained from the decisions reviewed in ‘The guidelines in context’ section
of the commentary below.
In the past three years a number of cases have indicated that the courts were
readier to commit or order a suspension of committal than previously and not to
allow a mere technical defect in an order for committal to defeat that order.
However, those decisions were made in a piecemeal fashion and there was no
judgment to give guidelines and establish a precedent. In Hale vTanner2the Court
of Appeal laid down such guidelines as well as guidelines on the attachment of a
power of arrest to non-molestation orders. Further, their lordships and ladyship
commented on the role of committal in civil proceedings and compared it with the
role of committal in criminal proceedings. There has always been a debate about
whether and/or when the civil or criminal law is apt to deal with domestic
violence3but little discussion concerning the possible differences of policy and
philosophy in considering whether to commit to prison in each system.
The case also provides, more peripherally in the context of this piece and in
passing, a useful example of when the Protection from Harassment Act 1997 can
provide a remedy in a domestic context in the absence of jurisdiction under the
Family Law Act 1996. Finally, the case is revealing in showing what other factors
may be relevant to a court on considering an application to commit.
ßThe Modern Law Review Limited 2001 (MLR 64:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.595
*Principal Lecturer in Law, Coventry University.
3See, for instance, M. Hayes and C. Williams, Family Law Principles, Policy and Practice (London:
Butterworths, 2nd ed 1999, 412–413) and S.M. Cretney and J.M. Masson, Principles of Family Law
(London: Sweet & Maxwell 6th ed 1997, 240–244).
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