Re L-W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Jacob,Lord Justice Sedley |
| Judgment Date | 04 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1253 |
| Docket Number | Case No: B4/2010/1718 TN07P00125 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 2010 |
[2010] EWCA Civ 1253
His Honour Judge Caddick
Before: Lord Justice Sedley
Lord Justice Jacob
and
Lord Justice Munby
Case No: B4/2010/1718
B4/2010/2077
TN07P00125
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAIDSTONE COUNTY COURT
Mr Grant Armstrong (instructed by Alison Fielden and Co) for the Appellant (father)
Mr David Walden-Smith (instructed by Berry &Berry) for the First Respondent (mother)
Mr Stuart Fuller (instructed by Stantons) for the Second and Third Respondents (children)
Hearing date: 27 August 2010
Lord Justice Munby:
These are appeals by a father from various orders made in the Maidstone County Court by His Honour Judge Caddick in the course of exercising his jurisdiction in private law family proceedings.
The first appeal is against five orders made by the Judge pursuant to sections 11J-11P of the Children Act 1989 (as amended by the Children and Adoption Act 2006): (i) a compensation order made pursuant to section 11O on 15 December 2009, (ii) an enforcement order made pursuant to section 11J on 8 January 2010; (iii) a further enforcement order dated 27 January 2010; (iv) a further compensation order also dated 27 January 2010, and (v) a further compensation order dated 24 June 2010. For that appeal the father needs permission to appeal (and permission to appeal out of time), which we grant. The other appeal, for which permission is not required, is against a committal order made by the Judge on 24 June 2010.
In my judgment each of these appeals succeeds. With minor exceptions each of the orders of which complaint is made must be set aside.
The background
The father, Mr L, and the mother, Ms H-W, have two children: M, a boy, born in 1999, and E, a girl, born in 2001. M lives with his father, E with her mother. There have been protracted proceedings in relation to contact, in particular in relation to M's contact with his mother. The proceedings have been heard throughout by Judge Caddick. On 15 December 2009 he said that the litigation “is fairly described as an intractable contact dispute, with an element of parental alienation, and persistent failure to comply.”
The proceedings
For present purposes I can begin with an order which Judge Caddick made on 13 May 2009 (it was not the first). So far as material, paragraph 5(ii) of that order, to which a penal notice was attached, provided as follows:
“The father shall allow the mother to have contact with M, and make him available accordingly, as follows: From 12 midday until 6.00pm on each of [various dates], 25th July, 22nd August, 19th September 2009 and every fourth week thereafter; mother to collect from and return to father's home.”
September 2009 was a Saturday, so in substance the order provided for there to be contact between M and his mother on Saturday afternoon every four weeks. I note that the language of the order –“father shall allow the mother to have contact with M”– followed the language of the definition of a contact order in section 8(1) of the 1989 Act. Properly so: see Re S [2010] EWCA Civ 705. The additional words –“and make him available accordingly”– were a permissible direction made in accordance with section 11(7).
On 15 September 2009 the mother issued an application for an enforcement order and an order for compensation for financial loss (her petrol costs of attending contact), alleging that M was “not available for contact” on 25 July 2009 and 22 August 2009.
On 28 September 2009 Judge Caddick started a lengthy hearing dealing with issues in relation to contact, that is, the mother's contact with M and the father's contact with E. The matter had to be adjourned part heard after three days and resumed for a further two days on 24 and 25 November 2009. Judge Caddick had the assistance of evidence from a consultant clinical psychologist and from the children's guardian, Mr Bill Stevens of CAFCASS, who had produced a detailed report filed on 21 September 2009 and further reports filed on 23 November 2009 and (two more) on 2 December 2009. Judge Caddick also heard oral evidence from Mr Peter West of CAFCASS, who had been the children's guardian until July 2009.
On 4 December 2009 Judge Caddick delivered a lengthy judgment dealing with the issues of contact and describing events since a previous judgment he had given on 7 November 2007. In the upshot, he made an order the same day, 4 December 2009, which, using the same form of words as in the earlier order of 13 May 2009, ordered that the mother have contact with M on 26 December 2009, on Saturdays 2, 16 and 30 January 2010, 13 and 27 February, 13 and 27 March and 10 April 2010 and for the weekend (Saturday to Sunday) on 24–25 April and 22–23 May 2010 “and each fourth weekend thereafter.” A penal notice was again attached. Mindful of what this court had said in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, Judge Caddick adjourned the hearing of the mother's application for enforcement and compensation orders to a date later in December 2009.
That hearing took place on 15 December 2009. At the end of the hearing Judge Caddick delivered a judgment explaining why he proposed to make both an enforcement order and a compensation order. He made an order the same day, 15 December 2009, deciding that “in principle” an enforcement order should be made, but adjourning the matter for further consideration to enable CAFCASS to obtain certain further information required under section 11L(2). He ordered the father to pay the mother £180 “as financial compensation for losses incurred as a result of his failure to comply with” the contact order of 13 May 2009. He refused the father permission to appeal against the compensation order and “prospectively” against the enforcement order, though extending time for appeal so that it did not run in the case of the compensation order until 23 December 2009 and in the case of the enforcement order until it was actually made.
On 5 January 2010 the mother issued a further application for an enforcement order and an order for compensation for financial loss (petrol costs), alleging that M was “not available for contact” on 24 December 2009 and 2 January 2010.
On 8 January 2010 Judge Caddick, having obtained the further information from CAFCASS, made an enforcement order which recited the father's “failure” to comply with the order of 13 May 2009 on 13, 20 and 27 June 2009, 25 July and 22 August 2009. He ordered the father to carry out 120 hours of unpaid work in respect of those failures, the work to be completed no later than 7 January 2011. The order contained a penal notice. At the same time Judge Caddick extended the father's time for appealing against the compensation order so that it ran, as in the case of the enforcement order, from 8 January 2010.
On 27 January 2010 Judge Caddick heard the mother's application for a further enforcement order. He made another enforcement order which recited the father's “failure” to comply with the order of 4 December 2009 on 26 December 2009 and 2 January 2010 (the court “also taking into account your further failure” on 23 January 2010). He ordered the father to carry out 80 hours of unpaid work, the work to be completed no later than 26 January 2011 and to be additional to the work ordered on 8 January 2010. The father was also ordered to pay the mother £45 financial compensation for losses incurred as a result of his failure to comply with the contact order of 4 December 2009. This order again contained a penal notice.
On 20 April 2010 the mother issued a further application for an enforcement order and an order for compensation for financial loss (petrol costs), alleging that M was “not available for contact” on 13 March 2010, 27 March 2010 and 10 April 2010. At the same time she issued a notice to show good reason why an order for committal should not be made, alleging that the father had breached the order of 4 December 2009 on 30 January, 13 and 27 February, 13 and 27 March and 10 April 2010 by:
“1 not allowing M to have contact with his mother on [those] dates
2 not encouraging and ensuring M attends for contact on [those] dates
3 not having a reasonable excuse for not allowing contact or ensuring M attends for contact
4 taking M out of the country for contact on 10 April 2010 without consulting with mother or offering an alternative date for replacement contact.”
On 7 May 2010, there was a further hearing to consider contact issues. Judge Caddick had the benefit of a further report from Mr Stevens filed on 7 May 2010. He made an order the same day, 7 May 2010, providing, in the same words as the previous orders, for the mother to have contact with M every fourth weekend on Sunday from 11am to 5pm commencing on 22 May 2010. The order further provided that “the father shall take M to the home of the maternal grandparents to arrive at 10.30am … [and] shall return to collect M at 5pm.” A penal notice was again attached.
On 15 June 2010 Judge Caddick heard the mother's applications for a further enforcement order, a further compensation order and a committal order. There were further reports from Mr Stevens dated 8 June 2010 and 14 June 2010. Judge Caddick gave a judgment explaining the order he made the same day, 15 June 2010, recording his decision in principle to make a suspended committal order but adjourning further consideration of the enforcement proceedings and of the precise conditions of suspension...
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