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B (A Child) [2013] EWCA Civ 166

Father’s appeal against a suspended sentence imposed upon him for six breaches of an injunction preventing publicity and harassment/interference with his daughter who was in a foster care placement.

The appeal was brought by the father of a young girl ("M") who was 16.  M had been adopted by the father when she was a much younger child. M was now the subject of a care order and was residing in the home of the parents of a school friend that had become a foster home for her. The father was not allowed any unauthorised contact with M and he was also restrained form harassing or interfering with the placement of M with the foster carers. 

The father had never accepted this placement or indeed the validity of the process adopted by the local Authority or the court. He believed he and M had been subjected to injustice and maladministration and had sought at times to raise these matters publicly, and an injunction against publicity was made at the same time that the non-harassment injunction was put in place. 

The Local Authority initiated committal proceedings against the father in respect of six alleged breaches of the orders. The father accepted five breaches. The sixth breach was the subject of a fact finding hearing and the judge at first instance determined that the father had committed this breach. The father was then sentenced to a custodial sentence of three months suspended on the basis that the father did not breach either of the two injunction orders and the period of suspension was to run until M's 18th birthday.

The father appealed the findings of fact and the sentence imposed in the contempt proceedings.

He sought to raise his wider case relating to perceived injustice and maladministration at the appeal but the court declined to consider this. In light of the fact that the father accepted five out of the six breaches, the appeal primarily concerned the trial judge's finding in connection with the alleged sixth breach which related to the assertion that the father had breached the injunction by sending a "friend request" to M via Facebook.

The father disputed any attempted communication with M via Facebook. M had deleted the message after reading it and therefore was unable to evidence this message from her Facebook account. At trial, the father had applied for M to be called to give evidence but the judge refused this application. This decision was upheld by the Court of Appeal. The father also argued that the judge at first instance should not have relied upon the hearsay evidence of M to make a finding in respect of the "approach" via Facebook. The Court of Appeal rejected this argument and stated that hearsay evidence is admissible but it is for the court to assess the validity of the material and weigh it in the balance. They accepted that the trial judge had sufficient evidence before him to make such a finding and would not interfere with his approach to the evidential balancing exercise.

In respect of the second ground of appeal which was against the sentence imposed, the Court of Appeal described the judge's determination of the penalty as "merciful".

Summary by Alison Easton, barrister, Coram Chambers


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Case No: B4/2013/0001,
B4/2013/0111
Neutral Citation Number: [2013] EWCA Civ 166

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COMBINED COURT
(HIS HONOUR JUDGE DUGGAN)

Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 14th February 2013

Before:

LORD JUSTICE THORPE
LORD JUSTICE MOSES
and
LORD JUSTICE McFARLANE
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IN THE MATTER OF B (A CHILD)
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(DAR Transcript of WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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The Appellant father appeared in person.
Ms J Moseley (instructed by Staffordshire County Council) appeared on behalf of the Respondent local authority.
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Judgment
(As Approved)
Crown Copyright©

Lord Justice McFarlane:  
1. This is an appeal brought by the father of a young girl in her teens who I will refer to as M, who was born on 4 December 1996.  There is a very substantial history to this matter, to which we have been exposed, to a degree, in particular by reading the fact-finding judgment of HHJ Duggan sitting in the Stoke-on-Trent County Court at an earlier stage in proceedings.  The outcome of the proceedings was that a care order was made, and a care plan endorsing the continued placement of M in the home of the parents of a school friend of hers that had become a foster home for her.  M's father has never accepted the validity of the process adopted by the local authority, or that adopted in the Stoke-on-Trent Court by HHJ Duggan.  An early attempt to appeal decisions made at an earlier stage was refused at the permission stage, when Lady Justice Black, refused the father's application for permission to appeal.  Part of the court's earlier determination was that it was not in M's interests to have any unrestricted or unauthorised contact with her father, and also that he should be restrained from harassing or interfering with the placement of M with the foster carers.  The father feels very strongly about the injustices that he sees have been visited upon him and more particularly M, and he has sought at times to raise these matters publicly, and an injunction against publicity was also imposed upon him at the time that the non-harassment injunction was put in place.  Both of those injunctions, although there had been earlier hearings to consider them, were made by the court at a hearing attended by the father when he was represented by counsel, and in the end they were orders made by consent.  I therefore conclude that the father through his counsel was able to contribute to the details of the orders that were made.

2. That is background; the matter that we are concerned with relates to committal proceedings taken by the local authority against the father alleging breach of those two orders.  The committal proceedings were dealt with in two stages by HHJ Duggan.  First of all, at the conclusion of a hearing on 12 December 2012, the judge made findings of fact establishing that the father had breached the two injunction orders in various ways, and I will turn to the detail of that in a moment.  The question of sentence for those breaches was adjourned to early January. 

3. During the interim period, the father filed his first Notice of Appeal on 2 January, and  Lord Justice Rix, sitting as a judge in the vacation, directed that no steps should be taken in relation to that application for permission until HHJ Duggan had completed the committal process by determining what, if any, sentence he was going to impose.  HHJ Duggan did that two days later on 4 January and imposed concurrent sentences for each of the five breaches that were established, in total amounting to 86 days or three months.  The total prison sentence was however suspended, provided that the father did not breach on any future occasion either of the two injunction orders, and the period of suspension was to run until M's 18th birthday, when of course she would cease to be a child, cease to fall within the protective arm of the court, and cease to be subject to a care order.

4.  The father filed a second Notice of Appeal dated 15 January 2013 challenging the sentences that were imposed.  Although there are two Notices of Appeal, and although strictly speaking the father requires permission to appeal in relation to the first notice, I take the view that this was really one set of committal proceedings undertaken by the judge in two stages.  Because these are contempt of court proceedings, the father has a right of appeal as of right to this court, and I would therefore, if needed, grant permission to appeal on the first Notice of Appeal.

5. The matter is therefore now before this court, and in preparation for this hearing I have been assisted by a bundle of material prepared by the father, and also a bundle put together by the local authority.  In addition, the father has furnished the court with a number of emails, numbering in the clip I have to six substantive emails, although as with any email trail, each one has a tail behind it which includes emails of other dates and from different people.  Those emails seek to raise the wider case that the father has, and this, as it seems to me, having read that material and hearing him today, is the case that really preoccupies his thinking.  He has a world view which sees injustice, maladministration and downright wrong decisions being made by people in the justice system (be they the court service or judges) Cafcass, in the local authority, in the fostering service, and in particular a matter that he turns to on a number of occasions in the adoption arm of the local authority, in failing to recognise the adoption element in the circumstances of this case, because although I have not mentioned it M is in fact a child that he adopted very many years ago.

6. At the beginning of this hearing, I sought to focus the father's attention on the very limited, but nonetheless important, role that this court has today in looking only at the decisions of HHJ Duggan in December and in January in relation to the committal order.  Whilst I, along with my Lords, have had access to his wider case, I hope he understands that our focus has to be as narrow as I have described it to be, and I for my part am grateful to the father, who in the latter stages of his address to the court did focus upon the committal proceedings.

7. The factual background can be taken shortly, because all save one of the breaches was accepted by the father before the judge, and accepted before us today.  In the main those breaches relate to the fact that the father set about a modest campaign of communicating with schools and other bodies, giving to those agencies information about the foster carers that look after M.  In particular, and as the judge found it to be, by far the most significant of these communications was one sent to a school that was soon to be the school at which one of the foster carer's children would attend as a pupil.  The letter is in the bundle before us, and we have read it.  It is a letter which starts off in fairly conventional terms, indicating the concern that he has with the generality of human rights and responsibilities for the system as a whole, and the schools in particular.  But the letter goes on to spell out in detail a number of serious allegations that cover really the full spectrum of family life within the foster carer's home.  I am not going to read that material into this judgment, which will be a public judgment, but the allegations are at the high end of possible allegations, and cover health, criminality, domestic violence and other matters.  The letter goes on to say this, and I remind myself that this is to the school to which the foster carer's child is due to go:

"I do not want my beloved child to remain associated in any form with these people as I can see no benefits."

The letter then carries on in similar terms and acknowledges towards its end that what he has written may place him in breach of the injunction orders.  The father says in terms:

"I know that Staffordshire County Council may try to put me in prison again for speaking out and blowing the whistle of the perverting of justice by organisations mentioned, but I want my rights respected as a Dad and to encourage my child to return home.  She needs to be in a safe, adoption-trained environment, away from Staffordshire County Council, and at a school [and then he names a school] that is more accountable than the one that she currently attends."

8. The father accepted that he had sent that material to the school, as he accepted that he had made similar communications to other similar agencies.  Of the allegations, the one that the father did not accept, and which falls into a different category, is an allegation that on 13 May 2012 he sought to communicate via the Facebook network with M.  The court had an affidavit from M which said that on that date, she had received "a Facebook invitation", and then it describes the father's name, and saying it was that name "of South Africa"; the father has a previous connection, as does M, with South Africa.  She said, "I believe that this was" from the father.  M goes on to describe how she wanted to delete the message as soon as she saw it, and achieved deletion of it before she told the foster carer or the social worker about it.  So from, as it were, M's side of the technology, there was no record of that receipt that could be put before the court.  The father denied sending the Facebook invitation.  He did not raise, as he has suggested to this court, some sort of technical request to the Facebook organisation to see if they had any record in their system of the transmission, but he did ask for M to be called to give live evidence at the hearing. 

9. The judge refused that request.  The judge, as the judgment shows, took the view that it was not in M's interest to be called to give evidence, and little was to be gained if she were to attend.  For my part I can well understand the judge's reason.  M simply reported receiving the message.  Unless her attendance to give oral evidence resulted in the father, through questioning, achieving a retraction of the totality of the allegation, the court would be likely to be none the wiser as to who sent that message, and would simply be left as it is, if it reads the affidavit, with the bald fact that M has made that assertion.  For my part, the decision of the judge to decline requesting M to give live evidence is one that was within his discretion, and cannot now be challenged on appeal.

10. In relation to this matter, the father makes short points in support of his Notice of Appeal.  The grounds of appeal run to a page and-a-half of handwritten points.  The points in relation to the Facebook allegation are, first of all, that M's needs were neither met nor understood; secondly, that a Facebook investigation was requested by him; thirdly, that robust scrutiny and/or evidence of hearsay was requested and much more accountability/transparency is required and then he says "as highlighted before, and which courts ignored in previous appeals".  The other six points that the father seeks to raise are, in my view, to do with the bigger case that he has in his mind, the "worldview" that I have described, and do not take the matter further.  His final ground of appeal, which seems to have been added at a slightly later stage, relates to the Office of Judicial Complaints concerning maladministration, and seemed to me to take the matter no further than simply to assert that human rights breaches had not been effectively addressed, and he has had no remedy for them.

11. Before us, the father has once again denied being responsible for, or having any knowledge about, the Facebook transmission that M says she received.  He says that the judge should not have relied upon the hearsay evidence to make a finding.  As a matter of law, hearsay evidence is admissible in these proceedings, and that is well-established by case law going back to as long ago as 1995.  Once admitted, the judge's role is to assess the validity of the material, and weigh it in the balance.  The judge deals with this aspect of the case in paragraph 16, 17 and 18 of his judgment:

"16.  CONTESTED ISSUE ONE.
BB25 at paragraph 1 contains the allegation that the father sent what is described as a 'friend request' to [M] on Facebook.  The allegation is made in [M's] affidavit at BB115 and the social worker's affidavit at BB62.  The father denies the allegation.  He accepts that he has a Facebook account containing his name, [Mr B].  He told me last time that he did not really know but it was possible that his account was marked [Mr B] of South Africa as alleged.  He would, of course, love to re-establish contact, but he told me that he recognised that it would be unhelpful to send a message of this kind.  He knew that it would put him in breach of the injunction order and accordingly he was clear that he had not sent the message alleged.  He speculated as to whether it might have been sent to [M] by one of her friends.  He speculated as to whether [M] was making an entirely untruthful allegation against him.

17.  I have to be cautious about this allegation.  No-one else has seen this friend request, apart from [M].  Her evidence for good reason is hearsay evidence, but that means that it has not been actively tested before the court.   The father says that [M] can be deceitful, as a consequence of attachment difficulties, he quoted examples, but these were not the social worker's experience of her dealings with [M].  I only have [M's] evidence in the form of an affidavit but there is a reference to her skin crawling which has a convincing tone about it.  In earlier hearings I have had to address credibility issues in this case.  There is, of course, here a different standard of proof and I have reminded myself of the fact that [Mr B] has been found to have lied in the past does not mean he is an untruthful witness today on other topics. 

18.  My conclusion is that sending a friend request on Facebook to [M] is an action totally consistent with this father wanting to re-establish contact with [M].  Totally consistent with a father who has sought to cause trouble for her before.  The alternative that [M] has invented this allegation is for me totally inconsistent with a young girl who is wanting to make a life without him.  I am sure that [Mr B] did send this request and that he knew it represented a breach of the injunction order.  I accept that the effect has been to shock and frighten [M].  It is clear that this finding represents a breach of paragraph 1.3 of the harassment order, in that [Mr B] was contacting M in breach of that provision."

12. The judge concluded that M would not have invented this allegation because, from all of the material the judge knew about M, she, to use the judge's words, "is wanting to make a life without her father".  This court can only interfere with the judge's finding of fact if he has approached the matter in an erroneous way, or has come to a factual conclusion which cannot be supported by the evidence and the material that underpins it.  The judge's approach to this conclusion does not fall into that category.  In my view, the judge was entitled to conclude on that material the Facebook message was sent out and that the father was the originator of it.  The judge's approach to the evidential balancing process is not one that can be challenged in this court, and I would therefore dismiss the father's appeal insofar as he seeks to challenge the judge's finding of fact.  As I say, the other findings of breach that the judge made were all based on the father's admissions, and are not open to challenge in this court.

13. Turning to the judge's conclusions as to sentence, the father makes again a more general point orally to us today that this judge, HHJ Duggan, should have recused himself, and stepped aside from any involvement in these proceedings at all.  I refer to the grounds of appeal that the father has put into this court.  They do not refer themselves to an allegation that the judge should have recused himself, and indeed none of the material that the father has put in actually descends to detail to show any basis upon which the judge should recuse himself.  The father has chosen to put in to this court the advice he received from counsel in relation to these proceedings.  I have simply read it because the father put it in as part of the material that he wanted the court to read, but I note the opinion expressed by counsel there, and note that it is entirely in accord with the view that I have just expressed. 

14. Turning then to the judge's disposal, the approach the judge took is set out in the judgment of 4 January and in my view it is a textbook description of the approach that a court should take.  The judge notes the breaches, decides amongst those breaches which is most serious, namely the letter to the proposed school of the foster carer's child, and notes that the other breaches are less serious.  He notes that this is the first occasion that the father has breached the orders for injunction that were made on 22 March 2012, and on the other hand the judge notes the four aggregating features that he identified in the course of his previous judgment.  Those features, in short terms, were: firstly, that the father will have known that the Facebook invitation breached the order; secondly, that he knew that the letter to the school, because he expressly says so in it, might lead to a committal application; thirdly, that he proceeded with his communications despite a warning letter from the local authority dated 18 July 2012; and finally, his action in telling the foster carer's proposed school of the foster father's conviction was a repetition of his action on a previous occasion, and he was criticised for doing in so in a previous judgment by the judge. 

15. The judge notes that there are mitigating features in relation to the father, and in particular that he was "a parent in distress" as a result of the process that I myself have described earlier in this judgment.  The judge concluded that a custodial sentence was necessary, and concluded that for the most serious offence three months was justified, and that the other sentences should be concurrent.  He noted words of regret and contrition from the father, and an assurance that there would be no repetition.  Finally, the judge concluded that he could suspend the sentence because this was the first occasion that committal proceedings had been taken, and he was therefore giving the father, as a last resort, the opportunity to avoid further, more immediate penal consequences were he to breach the order in future.  He therefore imposed the order, suspended as I have described.

16. The attack by the father this morning before us on the judge's decision is effectively to say that he, although these were technical breaches, did not consider that he was doing anything that could be regarded as wrong.  All he was doing was trying to protect his daughter, and achieve a positive result for her, and that the judge should have taken regard to that motive, and shown substantial leniency to the extent of not imposing any penalty at all as a result of the breaches.  Plainly, the judge did not accept that view.  On my reading of the papers, the judge could not have accepted that view.  Nobody reading the letter that the father sent to the school with their eyes open, and without the luggage that knowledge of the detail of the case brings to the father's appraisal of his actions, could be in any doubt that what the father wanted to achieve was the liberation of his daughter from that foster home.  That is the view the judge formed of that letter.  The judge concluded the 12 December judgment by holding in the following terms:

"I am sure that his purpose of doing so was to cause [the foster carers] embarrassment and trouble.  His purpose was to undermine the foster-carers and advance the day when [M] left their care.  In the circumstances I reject his assertion that his motive was benign.  I accept that he did cause harassment and there is an aggravating feature that he was intending to harass for ulterior motives."

In that paragraph the judge encapsulates really the only conclusion that can be drawn from the letter to the school.  On that basis I regard the judge's determination of the penalty as merciful.  This was a proportionate set of penalties imposed by the judge, designed to achieve what he regards as the right outcome for M at the end of the day, which is that the remainder of her minority until the age of 18 should lived out in a way which is not the subject of harassment, either directly or indirectly, by this father, either by contacting people who are named in the order or achieving wider publicity.

17. For all of the reasons that I have expressed I would dismiss the father's appeal.

Lord Justice Moses:
18. I agree.

Lord Justice Thorpe:
19. I also agree.

Order:  Appeal dismissed