Re M (Minors) (Breach of Undertaking)
| Jurisdiction | England & Wales |
| Judgment Date | 18 September 1990 |
| Court | Court of Appeal (Civil Division) |
255
CA
[1991] FCR 272
Re M (Minors) (Breach of Undertaking)
COURT OF APPEAL
18 SEPEMBER 1990
BUTLER-SLOSS, STAUGHTON AND BELDAM, L JJ
Contempt – mother giving undertaking to court – children to receive and acknowledge communications from father – mother breaching those undertakings – Judge announcing matters found proved – suspended committal order – individual acts of contempt not stated in order – whether order should be set aside – need for injunctions and undertakings to be expressed in clear and precise terms.
The parties married in 1976 and separated in 1985. The two children of the family, who were now aged 12 and 9, remained with the mother. There were difficulties over access. The mother made allegations against the father but on several occasions the court had found those allegations to be unfounded and groundless. In May 1986 the welfare officer found that the children enjoyed seeing the father. In December 1988, however, the welfare officer found that the children did not want to see the father. At that time the father had applied for defined access but in view of the children's attitude an order for reasonable access was made although the father accepted that, for the time being, he could not see the children. At the hearing in December 1988 the mother gave an undertaking to the court that the children would receive presents and written communications sent by the father, and that suitable acknowledgements would be sent by the mother.
In January 1989 the father sent parcels for the children with letters on top. The mother said the letters were lost in the wrapping paper when it was thrown away. In July 1989 the mother returned a package containing letters to the children from the father to the post office. On two subsequent occasions the father sent a package to each child by recorded delivery. On each occasion, whilst the postman was at the door, the child was asked by the mother whether or not the package would be accepted, and when the child said not, the package was handed back to the postman.
The father commenced committal proceedings which came before a Judge on 29 June 1990. The Judge found that the mother had breached the undertaking she had given in December 1988. He committed her to prison for 28 days but suspended the committal so long as the mother used her best endeavours to ensure that all communications and parcels addressed to the children by the father were received by them and that the presents were suitably acknowledged.
[1991] FCR 272 at 273
The mother appealed.
Held – (1) The Judge found that in January 1989 the mother either threw the letters away or allowed the children to throw them away. He did not make a specific finding that the children did not receive the letters. Therefore it could not be said that the mother had failed to comply with the undertaking on that occasion. There was evidence on which the Judge was entitled to find that the mother had breached the undertaking on the subsequent three occasions. However, athough the Judge had set out in his judgment the four matters which he found proved, the order of suspended committal did not specify the individual acts of contempt. Therefore the order was defective and would be set aside.
(2) The wording of the injunction made on 29 June 1990 lacked precision. It was important that injunctions and undertakings should be expressed in terms which were sufficiently precise and clear to enable a breach to be clearly stated and, if established, to be specified with sufficient particularity to enable the party to know precisely what the court had found proved against him and had resulted in an order for his committal.
Martin Pointer for the mother.
Tina Harrison for the father.
LORD JUSTICE BUTLER-SLOSS.This is an appeal from an order of His Honour Judge Hunter sitting as a deputy High Court Judge on Friday 29 June 1990 when he made a committal order for 28 days in respect of the mother of two children. The committal order was suspended on certain orders being complied with. This was after three separate days of hearing and indeed it appears from the Judge's judgment that it must have gone on late into the evening.
There is a long history of difficulties over the contact between the father and his two children: a boy born on 4 May 1978, so that he is now 12½, and a girl who was born on 18 Sepember 1981, so she is 9 today. The parents were married on 14 February 1976, the father having been previously married with one child. They separated in 1985. The mother took the children with her and moved to Dorset. There has been endless trouble over access ever since and there were two court welfare officers' reports on 27 May 1986 as a result of an order of Anthony Lincoln, J of 31 January 1986 and a second report on 28 March 1988.
To begin with the children went for staying access to their father and then there was some visiting access and eventually the access has dwindled, the situation deteriorated and the children no longer see their father. It is a very sad but not altogether uncommon story where mother makes allegations which court after court has found to be utterly unfounded and groundless but mother continues to hold those views and to take the view that the father is unsuited to see the children although there is no reason whatever for her to have that view.
On the first welfare officer's report the children, then aged 8 and 4 (and the welfare officer found them to be attractive and intelligent children) confirmed what they had told the welfare officer previously at the grandmother's house, that they enjoyed seeing daddy in London. By the time the welfare officer saw them on the
[1991] FCR 272 at 274
third occasion in December of 1988 when she was called in to meet the children at the Royal Courts of Justice, by which time she had met them several times, it became painfully clear to her, and she passed it on to the Judge, that at that stage the children did not want to see their father.
His Honour Judge Hunter, in June 1990, took the view, and there was certainly evidence upon which he could come to it, that this was a calculated and continuing process by the mother to prevent this father, against whom, as I have already said, allegations had been made which had been found by the Judge (as he puts it) to be utterly groundless and mother has managed to detach the children from their natural affections to their father to a state where they do not want to see him. The question is: what on earth can a court do about it? In one way the court can do very little. In another way efforts have to be made both conciliatory and from time to time a great deal firmer to try to bring a mother to her senses as to how it is she should behave towards her children for it is their right – not the right of the parent, not the right of the father, but the right of the child – to have a continuing relationship with the non-custodial parent. Indeed this mother might bear very well in mind that she may be storing up for herself the most appalling difficulties for these children and for her own relationship with them if, as they grow into teenagers and, in particular...
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