Re L-W (Children) (Contact Order: Committal)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Contact order – Penal notice – Committal – Judge making orders for contact between mother and child following parents’ separation – Penal notices being attached to orders – Child refusing to attend contact and expressing entrenched views – Judge granting enforcement and compensation orders upon application of mother – Judge making suspended committal order against father – Father appealing – Whether judge erring in finding contact orders to have been breached – Whether judge erring in making committal order.
The parents had two children, M born in 1999 and E born in 2001. After their separation, M lived with the father and E lived with the mother. The mother’s contact with M was the subject of protracted proceedings. On 13 May 2009, the judge made an order, to which a penal notice was attached, providing that ‘[t]he father shall allow the mother to have contact with M, and make him available accordingly’ on specified dates. On 15 September, the mother applied for an enforcement order and an order for compensation for financial loss (her petrol costs of attending contact), alleging that M had not been ‘available for contact’ on two occasions. On 4 December, following a hearing dealing with contact issues, the judge made an order in the same form of words as the 13 May order, again attaching a penal notice. During the hearing, the judge had had the assistance of evidence from the children’s guardian, who confirmed that M objected to contact with the mother. The hearing of the mother’s application for enforcement and compensation orders was adjourned to a later date. On 15 December, the judge ordered the father to pay the mother £180 as ‘financial compensation for losses incurred as a result of his failure to comply with’ the 13 May order. On 5 January 2010, the mother issued a further application for enforcement and compensation orders, alleging that M had not been ‘available for contact’ on two further occasions. On 8 January, upon hearing the mother’s first application, the judge made an enforcement order which recited the father’s ‘failure’ to comply with the order of 13 May 2009 on certain dates and ordered him to carry out 120 hours of unpaid work in respect of those failures. On 27 January, the judge granted the mother’s application for a further enforcement order, citing the father’s ‘failure’ to comply with the 4 December 2009 order and ordering him to carry out an additional 80 hours of unpaid work. The father was also ordered to pay £45 as financial compensation for losses incurred by the
mother. On 20 April, the mother made a further application for an enforcement order and 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 six particular occasions by, inter alia, ‘not encouraging and ensuring M attends for contact’. On 24 June, the judge ordered the father to pay a further £225 to the mother in financial compensation. He also made a committal order, finding that the father had been guilty of contempt of court by failing to allow M to have contact with the mother on the six dates specified. On each of those breaches the father was sentenced to 28 days’ imprisonment concurrent, suspended for 12 months on the condition that he obeyed further contact orders which had been made in May and June 2010. On all except three occasions where the father had been found to have breached contact orders, M had been at home at the due time but simply refused to participate in contact. The three excepted occasions were: (i) 13 June 2009, when contact had been disrupted by the father after it had commenced; (ii) 25 July 2009, when M had been out with his step-mother at the due time; and (iii) 10 April 2010, when M had been taken out of the United Kingdom on holiday. The father appealed against the committal order, as well as the enforcement and compensation orders. He submitted, inter alia, that (i) the judge had erred in law in finding that there had been breaches of the contact orders because M himself had refused contact as a result of his deeply entrenched views, and (ii) the judge had erred in making a committal order in such circumstances. Before the appeal was heard, the children’s guardian produced a further report, which demonstrated that M had indicated he would refuse contact with the mother even if the father was imprisoned.
Held– (1) It was established that the first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order was to identify, by reference to the express language of the order, precisely what it was that the order required the defendant to do. That was a question of construction and, thus, a question of law. The next task for the judge was to determine whether the defendant had done what he was required to do and, if he had not, whether it was within his power to do it. Those were questions of fact. The burden of proof was on the applicant throughout: it was for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it. The standard of proof was the criminal standard, so that, before finding the defendant guilty of contempt, the judge had to be sure (a) that the defendant had not done what he was required to do and (b) that it was within the power of the defendant to do it. If the judge found the defendant guilty the judgment had to set out plainly and clearly (a) the judge’s finding of what it was that the defendant had failed to do and (b) the judge’s finding that he had the ability to do it
(see [34], below); Re A (a child) (abduction: committal)[2008] EWCA Civ 1138 and Shadrokh-Cigari v Shadrokh-Cigari[2010] EWCA Civ 21 considered.
(2) In the instant case, the approach of the judge to the question of breach in relation to both the committal order and the enforcement orders was erroneous. The father’s obligations under each successive order had been to ‘allow’ contact and ‘make M available’ for contact. To ‘allow’ was to concede or to permit; to ‘make available’ was to put at one’s disposal or within one’s reach. The judge had not treated the orders in that manner. According to him, the father’s obligation had been to ‘make sure’ that he did all that was necessary so that M would go for contact. The father might have been under a parental or moral obligation to do that but, on the wording of the orders, he had not been under any legal obligation such as to render him in breach of the orders for failing to do so, let alone for failing to ‘ensure’ that contact actually took place. Furthermore, the judge had been wrong to take the view that, as a matter of law, it was no defence to say that producing the child for contact was impossible because of the child’s refusal to go. There was, however, no basis for challenging the judge’s findings of primary fact. In relation to three occasions, namely 13 June 2009, 25 July 2009 and 10 April 2010, his erroneous approach had been irrelevant for the father would on any sensible view have been found to be in breach and to have no reasonable excuse. Apart from those three occasions, the judge’s findings of breach could not stand. On all the other occasions, M had been at home at the due time and the father had not done anything active or positive to obstruct contact or to prevent it taking place, even if he had done little or nothing active or positive to encourage or facilitate it (see [76]–[81], [86]–[89], [118]–[119], below).
(3) The first two breaches which were made out had led (in part) to the enforcement order made on 8 January 2010 and the third breach had led to the committal order. Rather different considerations applied to the enforcement order and the committal order. So far as the enforcement order was concerned, the judge had been entitled to conclude that such an order was in the circumstances both necessary and proportionate. Given the nature of an enforcement order, in contrast to a committal order, he had also been entitled to conclude that the enforcement order was compatible with M’s welfare. The father, accordingly, could not complain about the making of an enforcement order on that occasion, nor about the fact that at least some of the unpaid work had been completed. In the circumstances, the enforcement order made on 27 January 2010 and so much of the enforcement order made on 8 January 2010 as was referable to alleged breaches which had not been made out would be set aside. The father would also be discharged from any remaining obligation to carry out the unpaid work he was ordered to perform. The committal order also had to be set aside so far as it related to the alleged breaches which had not been made out. That left the breach proved to have been committed on 10 April 2010, in relation to which the judge had imposed a suspended sentence of 28 days.
Since that sentence was expressed as being concurrent with the sentences imposed for the other alleged breaches, it survived the setting aside of the other parts of the committal order. It was, however, necessary to consider whether committal was appropriate in the circumstances (see [87]–[89], below).
(4) Committal was, and had to be, an essential weapon in the court’s armoury in cases such as the instant. The proper handling of contact cases which had become or were becoming intractable required judicial continuity and effective timetabling as essential components of the necessary judicial case management. In the instant case, however, it was arguable that by June 2010 it had already become too late to contemplate committal as an appropriate remedy because M had become entrenched in his rejection of contact, the prospects of committal achieving the desired objective were by then modest at best, and the potential damage to the children, and to M in particular, was too great to be tolerated. In any event, the...
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