Re G (A Child) (Contempt: Committal Order)

JurisdictionEngland & Wales
Judgment Date2003
Date2003
CourtCourt of Appeal (Civil Division)

Family proceedings – Contact – Committal for contempt – Prohibition on further applications – Father placing details of case on website – Judge taking own initiative to make committal order – Judge prohibiting father applying for contact for five years – Whether judge in error – Children Act 1989, s 91(14).

The parents met in 1998 and married in 2000. They separated approximately five weeks after marriage. The child lived with the mother. The mother obtained a residence order with reasonable contact to the father. The father made applications for residence and for contact which led to five court welfare or CAFCASS reports. Until the end of 2000, there was infrequent and informal supervised contact. The court then directed two occasions of contact observed by the court welfare officer in February 2001, which went well. Fortnightly contact was set up at a contact centre, which initially was successful. However, following continuing acrimony between the parents, they were unable to co-operate at the contact centre and contact was terminated after the child became distressed. The mother applied to terminate contact, and for prohibited steps and non-molestation orders, and the father applied for contact. The father represented himself, without legal assistance, at the proceedings. The judge ordered that there should be no direct contact but set out a regime of indirect contact. He then made an order under s 91(14) of the Children Act 1989, prohibiting the father from making any application for contact for five years, without the leave of the court. Although no contempt proceedings had been initiated, the judge found the father to be in contempt of court for placing details of the case between himself and the mother on a website, and he sentenced the father to 14 days’ imprisonment suspended for six months. The judge further made a prohibited steps order, designed to prevent the father from publishing any information about the case on the Internet or elsewhere, and ordered that the father should contribute £500 towards the mother’s costs. The father appealed against those decisions.

Held – (1) Although circumstances varied widely, a committal order was a last resort normally reserved for serious, intentional and in most cases repeated contempt of court which had been established by due process. Where a party might be in contempt of court by virtue of a breach of the general rules of confidentiality, but there had been no breach of a specific court order, there might be more than one method available for the court to deal with it. Committal on the court’s own initiative was an exceptional course, particularly in family cases

where time should normally be taken for reflection. The instant case was not an exceptional one of clear contempt which could not wait to be dealt with. Therefore, the judge had erred in making a committal order on his own initiative. Furthermore, there had been several procedural flaws in the process leading to the suspended committal order, including, inter alia: (i) that the father had not been afforded the protection required by the relevant Practice Direction; (ii) the father was not represented nor given the opportunity of an adjournment to enable his representation and preparation of a defence, thus he was not afforded the minimum rights to which he was entitled under art 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998); and (iii) the father was not informed that he was not obliged to give evidence for the purpose of a finding of contempt, nor was he given the formal opportunity to submit that what was alleged did not constitute contempt. Therefore, the process which lead to the suspended committal order was seriously flawed and substantially unfair. For those reasons alone the suspended committal order had to be set aside, though in addition the order was defective as it failed in detailing the acts found to have constituted the contempt; Danchevsky v Danchevsky [1974] 3 All ER 934, Ansah v Ansah [1977] 2 All ER 638 and Re M (minors) (breach of contact order: committal) [1999] 1 FCR 683 applied.

(2) A s 91(14) order which imposed a restriction upon the right of a party to make an application under the Children Act 1989 was a discretionary power that was to be used in the best interests of the child concerned. The use of the draconian order had to be proportionate to the harm it was intended to avoid. In the instant case, the imposition of a five-year ban was clearly disproportionate to the circumstances of the case. A period of five years for a child under three was tantamount to closing the door permanently on direct contact. Furthermore, such an order should not have been imposed without giving all the parties a proper opportunity to make submissions, particularly when one of the parties was a litigant in person. In those circumstances, and where the father agreed to give some breathing space until the following year before making a further application for contact, permission to appeal would be granted, the appeal would be allowed and the s 91(14) order would be set aside.

(3) The wording of the prohibited steps order made by the judge had been in very general terms, and had not distinguished between publishing any information and publishing any identifying information. The order would therefore be set aside and a more detailed prohibited steps order would be made making clear to the father the limits of his dissemination of information about the case.

(4) In contact disputes, the Court of Appeal could not substitute its view for that of the trial judge unless he was plainly wrong. In the instant case, the judge had applied the criteria in s 1(3) of the 1989 Act and had balanced the factors in the exercise of his discretion. It could not be said that he had reached a conclusion to which he was not entitled to come. There were, accordingly, no grounds upon which to grant permission to appeal against the order prohibiting direct contact.

(5) In the light of the conclusions on other aspects of the appeals, an order for costs was not appropriate and the order that the father should contribute to the costs of the mother would be set aside.

Accordingly, the appeals would be allowed.

Cases referred to in judgments

Ansah v Ansah [1977] 2 All ER 638, [1977] Fam 138, [1977] 2 WLR 760, CA.

Balogh v Crown Court at St Albans [1974] 3 All ER 283, [1975] QB 73, [1974] 3 WLR 314, CA.

Bush v Green [1985] 3 All ER 721, [1985] 1 WLR 1143, CA.

C (children: contact), Re[2002] EWCA Civ 292, [2002] 3 FCR 183, [2002] 1 FLR 1136.

C (procedural error), Re [1989] FCR 648, [1989] 1 FLR 288, CA.

Chiltern DC v Keane [1985] 2 All ER 118, [1985] 1 WLR 619.

Clarke v Chadburn [1985] 1 All ER 211, [1985] 1 WLR 78.

Danchevsky v Danchevsky [1974] 3 All ER 934, [1975] Fam 17, [1974] 3 WLR 709, CA.

F (a minor) (publication of information), Re [1977] 1 All ER 114, [1977] Fam 58, [1976] 3 WLR 813, CA.

K (children: committal proceedings), Re[2002] EWCA Civ 1559, [2003] 1 FLR 277.

M (minors) (breach of contact order: committal), Re[1999] 1 FCR 683, [1999] 2 All ER 56, [1999] Fam 263, [1999] 2 WLR 810, [1999] 1 FLR 810, CA.

Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 2 All ER 814, [2000] 1 WLR 2559, CA.

Nicholls v Nicholls[1997] 3 FCR 14, [1997] 2 All ER 97, [1997] 1 WLR 314, CA.

P (a child) (residence order: child’s welfare), Re[1999] 2 FCR 289, [1999] 3 All ER 734, [2000] Fam 15, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.

W (wards) (publication of information), Re [1989] 1 FLR 246.

Wilkinson v S[2003] EWCA Civ 95, [2003] 1 FCR 741, [2003] 2 All ER 184.

Appeal

The father appealed against the decision of Judge Mitchell whereby he (i) ordered that there should be no direct contact between the father and child; (ii) made an order under s 91(14) of the Children Act 1989 prohibiting the father from making any application for contact for five years; (iii) found the father to be in contempt and sentenced him to a suspended prison term; (iv) made a prohibited steps order to prevent the father publishing more information about the case; and (v) made an order against the father by way of contribution towards the costs of the mother. Permission to appeal the suspended committal and prohibited steps orders was granted by Hale LJ on 15 October 2002, who adjourned the applications for permission to appeal on the issues of direct contact, the imposition of the s 91(14) order and the contribution towards the costs of the mother. The facts are set out in the judgment of the court.

Peter Horrocks for the father.

Anita Thind for the mother.

Michael Nicholls for the Official Solicitor.

DAME ELIZABETH BUTLER-SLOSS P.

This is the judgment of the court.

[1] The issues before the court arose from the breakdown in the relationship between the parents of a little girl, I, born on 2 February 2000. On 4 and 5 July 2002 Judge Mitchell heard applications, by the father for contact, by the mother to terminate contact, and for prohibited steps and non-molestation orders. He ordered that there should be no direct contact but set out a regime of indirect contact. Counsel for the mother, Miss Thind, did not ask for a restriction on making further contact applications. The judge, none the less, made a s 91(14) order, prohibiting the father from making any application for contact for five years, without leave of the court. Although no contempt proceedings had been initiated, the judge found the father to be in contempt of court for placing, on the website of the organisation ‘Families Need Fathers’, details of the case between himself and the mother and sentenced him to 14 days’ imprisonment suspended for six months. The judge also made a prohibited steps order, designed to prevent the father from publishing any information about the case, on the Internet or elsewhere. He made an order against the father by way of contribution towards the costs...

To continue reading

Request your trial
3 cases
  • Hammerton v Hammerton
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 April 2007
    ...ECt HR. C (procedural error), Re [1989] FCR 648, [1989] 1 FLR 288, CA. G (a child) (contempt: committal order), Re[2003] EWCA Civ 489, [2003] 2 FCR 231, [2003] 1 WLR 2051, [2003] 2 FLR Goldsmith v Goldsmith[2006] EWCA Civ 1670, [2006] All ER (D) 380 (Oct). H v O (contempt of court: sentenci......
  • Re S (A Child) (Contact)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...3 FCR 156, [2003] 2 FLR 1095. Elsholz v Germany[2000] 3 FCR 385, ECt HR. G (a child) (contempt: committal order), Re[2003] EWCA Civ 489, [2003] 2 FCR 231, [2003] 1 WLR 2051, [2003] 2 FLR L (a child) (contact: domestic violence), Re; Re V (a child) (contact: domestic violence); Re M (a child......
  • Re S (A Child)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 January 2004
    ...et seq; re C (children: contact) [2002] EWCA Civ 292; [2002] 3 FCR 183; re G (a child) (contempt: committal order) [2003] EWCA Civ 489; [2003] 2 FCR 231 paragraphs 35–37. I said in re P, at page 310, that section 91(14) should be read in conjunction with section 1(1) . In re G, I summarised......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT