Re M (A Minor) (Contact order: Committal)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE EVANS,LORD JUSTICE WARD
Judgment Date16 December 1998
Date16 December 1998
Docket NumberCCFMI 98/0579/CMS2

[1998] EWCA Civ J1216-18

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CROYDON COUNTY COURT

(HIS HONOUR JUDGE CONINGSBY QC)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Evans

Lord Justice Ward

CCFMI 98/0579/CMS2

M (Minors)

DENNIS SHARPE (Instructed by Beverley Gordon, Hampshire, SO40 4UE) appeared on behalf of the Appellant (Mother)

The Respondent (Father) appeared in person

MS ALICE ROBINSON (Instructed by the Attorney General) appeared as Amicus Curiae

LORD JUSTICE WARD
1

One of the thorniest of the problems which face the judges exercising the "private law" jurisdiction of the Children Act 1989 is how to cope with the irrational, unjustifiable hostility shown by one parent towards the other which has the effect of alienating the children from the other parent and thus obstructing their contact with that parent. The courts have become sadly familiar with the troublesome question of whether or not a contact order should be made. Then the problem arises as to how the court should react when a party openly defies that contact order and the judges are being constrained on rare occasions to commit a parent to prison for breach of such orders. The questions which arises in this appeal are even more unusual. They are whether or not the judge should of his own motion initiate the committal proceedings, and if he does so and acts as prosecutor, should he also sit in judgment and sentence if the breach is established?

2

The facts which form the backcloth to this appeal are these. The parties married in 1982. They have four children, Guy who is fifteen and a half years old, Rowan who is thirteen, Briony, who, remarkably, shares the same birth date as her elder brother but is exactly five years his junior, and Alistair who is six. The marriage broke down in March 1995 when the husband left home. At first there was contact but it broke down after about six months. There was an attempt to revive contact in November 1995 but then it ended. The reasons for that cessation were explored in depth in a four day hearing in April 1997 at the conclusion of which His Honour Judge Coningsby Q.C. delivered a careful and thorough judgment, the transcript of which runs to 80 pages. Even so counsel for the mother (not Mr Dennis Sharpe who appeared before us) complained that the judge had not dealt adequately with the psychiatric evidence called by the mother to support her objections to contact. Since the hour was close to 7 p.m., the judge did not then and there deal with those objections but, a few days later, he handed down an 11 page addendum in which he explained that he had declined to follow the conclusions of the psychiatric team because those conclusions were "based on upon false assumptions with regard to the underlying facts of this case." He said:-

"My findings have been based upon a detailed consideration of the history of the case, including what is said in the statements of both parties with regard to the later stages of their married life, the way in which it broke down, and what thereafter happened with regard to contact.…This is a case in which in my view it is essential to see what has been happening in past twelve months or so in the context of the married relationship, the personalities of the parties as displayed in that marriage, and the way in which contact was first approached after the father left. I have done that exercise but it was not done by the (psychiatric) team."

3

He summarised the findings he had made in his main judgment and emphatically rejected the mother's case that the father had been violent to the mother, that he had a drink problem which had led to violent and aggressive behaviour, and, importantly, that he had been violent to the children. He held that there was no justification for those allegations. He found that the mother had influenced or manipulated the children to make allegations against their father, that the mother was not an honest person whose word could be trusted, that her protestations that she really did wish to see face to face contact taking place between the father and the children was false. He dealt with an alternative submission that the children were aware of what counsel called "the mother's pain" and were responding to that in their unwillingness to see the father. He held:-

"In my view this submission does not go far enough towards the finding of fact which I have made. In my view this is not a case of a mother who is suffering "pain" and distress as a result of the breakdown of her marriage or other "pain" associated with the situation. It is a mother who harbours a committed hostility against the father and committed hostility against the idea of direct contact. It is not right in my view to describe her condition as "pain". I would have to describe it as selfishness, a desire to hurt the father and a need to dominate the entire situation. I realise that these are strong findings to make, but I have no doubt that they are established by the evidence before.…My conclusion about this case is that the present situation is not a question of the children and mother needing to feel more secure or more in control. The situation has arisen because the mother is determined to put an end to direct contact and has imposed those views on the children. I do not find that this is a case in which the father is seeking contact as part of a need on his part to control the situation. He seeks no more than any reasonable father in the circumstances would seek, i.e. that the court should have control in the situation where the mother has been acting unilaterally and arbitrarily.…I could find no evidence that the father has been misusing the contact application because he wants to keep some sort of relationship with the mother."

4

These were indeed strong findings to make. There was no appeal against that judgment and the case has to be approached by us in the light of those conclusions. The order he made was for contact with the two younger children Briony and Alistair at a contact centre for two hours on alternate Saturdays, the arrangements to be made by the Court Welfare Officer. He also ordered indirect contact to all the children. He directed there be a review of the case in the autumn. Despite that order the children did not see their father.

5

On the review the judge rejected the mother's application to adjourn matters in order that the Official Solicitor might represent the children and on 8th October 1997 he ordered that:-

"1.(a) Subject to paragraph (e) below the father shall have contact with the two children Briony and Alistair on alternate Saturdays between 12 noon and 2 p.m. at the…Contact Centre.

(b) The first occasion of contact shall be 25th October 1997 at 12 noon and the second occasion shall be 8th November 1997 at 12 noon.

(c) Subject to paragraphs (d) below the mother shall bring the two children to the Centre by 11.55 a.m. and shall leave the Centre by 12.15 p.m. and she shall return to collect the children at 1.55 p.m. and shall collect them at 2.p.m.

(d) On the first occasion the mother may remain at the Centre during the period of contact but she shall withdraw into a separate part of the building after the hand over and shall be out of sight of the children.

(e) After the first two occasions the contact shall take place on such dates and times as are available at the Centre but on the basis of paragraph (a) above…

(2). The mother shall produce the two children Briony and Alistair and shall hand them over to a member of the staff at the said Centre at 1.55 a.m. on 25th October 1997 and at 11.55 a.m. on 8th November 1997.

(3), A penal notice shall be endorsed on this order in respect of paragraph 2 above."

He directed that a further review take place before him on 21st January 1998.

6

What happened then is summarised in the judgment of 21st January 1998 as follows:-

"On the first occasion, the father did have a short period of useful contact with the younger child, Alistair. He also saw Briony, but she was not responsive. Briony was not properly prepared for contact. The second occasion was wholly unsuccessful. I find that one reason for that was that the mother, quite wrongly, brought along with her an older child Rowan, who was very adverse to the father and his presence made it difficult for the contact to take place. I will indicate other reasons why this contact order did not get off to a successful start. There was a third occasion when contact was attempted; that was totally unsuccessful, because the children were in a tearful and tempestuous state and were not settled and ready for contact to take place; contact was impossible."

7

Although the father was deeply concerned by the lack of success, and no doubt blamed the mother for it, he was not contemplating taking steps to commit her. Nevertheless the judge took the view that:-

"One of the matters before me today is whether she is in breach of the order such that the penal notice bites against her. The other matter is that of the review, because that was the express purpose of this matter being listed today. In other words, what order for contact should now be made, if any?"

8

Dealing with "the question of the possible breach by the mother of the previous order," the judge said this:-

"My provisional views, subject of course to being persuaded to the contrary by the mother, are that taking Rowan along on the second occasion was wrong; the mother is at risk, in view of the findings I made about her in April 1997, that I may find that that was done deliberately by her to assist in stirring up a difficult situation and making contact less likely to succeed. It may also be wrong for her to be there after...

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    ...Crown Court [1975] 1 QB 73). I accept as persuasive the decision of the English Court Of Appeal in Re M (Contact Order : Committal) [1999] 1 FLR 810 in which Ward LJ reviewed the authorities and concluded that the court also had power of its own motion to institute civil contempt proceeding......
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1 books & journal articles
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