Re K (Contact: Committal Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lady Justice Hale,LADY JUSTICE HALE,LORD JUSTICE MANCE |
| Judgment Date | 22 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1559 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2002/2136 |
| Date | 22 October 2002 |
[2002] EWCA Civ 1559
Lord Justice Peter Gibson
Lord Justice Mance
Lady Justice Hale
B1/2002/2136
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MRS JUSTICE BRACEWELL)
Royal Courts of Justice
Strand
London, WC2
MISS ROHAN AULD (Instructed by the Bar Pro Bono Unit) appeared on behalf of the Appellant
MISS AYESHA HASAN (instructed by Ian Guyster & Co, 98a Belsize Lane, Belsize Village, London NW3 5BB) appeared on behalf of the Respondent
Tuesday, 22nd October 2002
I will ask Lady Justice Hale to give the first judgment.
A mother appeals against the order of Bracewell J made on Wednesday 16th October 2002 in the Family Division of the High Court. The judge lifted the suspension on a committal order which she herself had made on 20th September 2002 and ordered that the appellant be committed forthwith to prison for 42 days. This was subject to her not appealing to the Court of Appeal by 11.00 a.m. on Friday 17th October. The appellant filed her notice on 16th October and on 18th I granted a stay of the warrant until 4.00 p.m. today.
The mother does not need permission to appeal that part of the order. She does, however, need permission to appeal against paragraph 3 of the order, which was that in the event that the mother did not apply to the Court of Appeal by the Friday deadline, there be a residence order in favour of the father in relation to the two children in question. Given that the mother has now made that application, it may be that, on a strict reading, that order has no effect. It may be, on the other hand, that Bracewell J intended that the children should live with their father in the event that the warrant was executed. The committal order, and the orders for further consideration of residence and contact on 24th October and 25th November which Bracewell J also made, should be seen in that context.
It is plain that Bracewell J regarded this as a very serious case of contempt of court. It is not difficult to see why.
The parents met and formed a relationship in 1993. At that stage I believe the father was an asylum seeker from Iran. Their eldest daughter, L, was born on 21st December 1994, so she is now approaching eight. Their younger daughter, S, was born on 6th March 1997, and so she is now five and a half. They separated in April 1998, when L would be three and a half and S just over one year old. In July 1998, according to a chronology with our papers, the mother married her husband, a Mr McCarthy. She has since had two children with him, one who is now two and a half years old and one who is now nine months old, and she says that she is pregnant again. They all live together and her husband works part-time.
In December 1998 the father took S to Iran without the mother's consent. Johnson J, in a judgment of 22nd May 2002, to which I will return, said this about it:
"He did it in a thoroughly nasty and deceptive way, telling the mother lies. In her judgment, to which I have referred, Bracewell J. described this as 'a very grave error of judgment'. I express myself in more robust terms. By what he did on that occasion the father showed himself to be cruel and selfish and unthinking. His behaviour was by any standard despicable."
However, the mother eventually managed to get S back to this country in February 1999, and she has lived with her mother and family ever since.
The father applied for contact and parental responsibility in March 2000 and added a residence application in May. There is very little in the information before us today about the level of contact that he had had before that and what motivated that application.
There was a court welfare officer's report from Miss Lumsden on 24th July 2000, which we have not seen. The result was an order of Kirkwood J on 1st August 2000 that the mother make the children available for contact on two occasions in the presence of the court welfare officer for the purpose of preparing her report. The mother did not do so—an early indication, perhaps, of her attitude to the proceedings—and so the welfare officer was unable further to assist the court. She suggested dealing with the mother's concerns about abduction first.
There was a three-day hearing before His Honour Judge Davies on 17th January 2001 which appears only to have resulted in a narrowing of the issues and an order for the mother to attend a contact centre for supervised contact sessions.
The first final hearing was before Bracewell J on 9th April 2001. We have not seen the judgment which she delivered on that occasion, but it was to that judgment that the passage I have just quoted from Johnson J refers. He quoted another passage from her judgment relating to her findings about the possible risk of abduction stemming from the events in December 1998:
"Despite the abduction, the father thereafter had considerable contact to the children which was unsupervised. The mother has sought to give the impression that the father had very little contact with the children, that in essence he only saw the children by virtue of the fact that he lived close by and he ran into the mother and children when she was shopping and these were opportunities for him to see the children occasionally.
I find the mother was less than frank and, indeed, was endeavouring to deceive the court in relation to the level of contact which these children have had with the father. The reason the mother is doing this is because she, for some reason known herself alone, has started to indoctrinate the children against wanting to see their father. I have no doubt at all that he had frequent meaningful contact with his two daughters and that at this stage the mother was not raising issues about fear of abduction. The mother, in my judgment, is doing her children a grave disservice in seeking to alienate them from their father."
Bracewell J ordered indirect contact for a month, then supervised contact with a view to deciding whether it could progress to unsupervised contact. There was to be a further court welfare officer's report to assess progress in six to nine months' time.
The mother did not rush to make arrangements with the contact centre in accordance with that order. The father first applied for a penal notice to be attached in June 2001. There was a further order from Kirkwood J in July that she attend with the children on specific dates in August, September, October and November 2001. Later dates were added for December 2001 and January 2002. A penal notice was added in September because the mother did not attend in August, nor did she attend in September. She did, however, attend in October, November, December and January.
There was a report from a child and family reporter (a Mr Walker) on 7th January 2002, who noted significant progress in the children's initially guarded interaction with their father but stated that further progress would have to be at their pace. He acknowledged the father's frustration but the children might need the supportive and safe environment of the contact in order to maintain the progress made and overcome their resistance.
There was then a hearing on 14th January 2002 at which further contact was ordered and the matter came before Johnson J on 27th May 2002. The father had made an application to commit the mother, but withdrew that at the prompting of the judge. There was another report from a child and family reporter (a Mrs Stringer) dated 16th April, which we have not seen, but we know that both the mother and the father gave evidence, as did Mrs Stringer. She reported that the children showed no fear of their father and no reluctance see him, but there was a reluctance to engage with him:
"Their stance seems to be deliberate rather than an emotional reaction".
Those observations are borne out by reports from the contact centre which we have seen, in particular about the children not taking the toys which he had brought for them away with them and the mother's contradictory accounts of her attitude towards this.
Johnson J found that this was in keeping with Bracewell J's findings:
"The fact is that the mother does not have a real fear that the children will be abducted. That was the conclusion of Bracewell J. who found that the mother had in fact allowed unsupervised contact and it accords with my own impression of the mother's oral evidence this morning. The real motive of the mother in her objection to what the father seeks is that which was described by Bracewell J. It is very sad, but it is very wrong …. Nothing that I have read or heard casts any doubt on those findings."
I get the distinct sense that Johnson J was mildly surprised to find himself in that situation, with a family where there had been acknowledged instances of abduction but nevertheless agreeing with a previous judge's finding that the fear of future abduction was not a real one. He determined that he had to balance the risk of abduction against the opportunity for the children to develop a proper relationship with their father. He ordered alternate Sundays from 2.00 to 5.00 pm at the contact centre, starting in May and continuing until July, and then, starting at the beginning of August, 10.30 am to 5.30 pm on alternate Saturdays unsupervised, or unobserved. The father was to hand over his passport to the mother when the children were handed over.
There is reference in the correspondence before us to an incident on 23rd June 2002 where mother alleged that the father had become aggressive and had frightened the...
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