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Gibbs v Gibbs [2017] EWHC 1700 (Fam)

Committal application against a mother for breaches of orders prohibiting her from disclosing, disseminating or publishing any information regarding private law proceedings, in which she had made allegations against the father.

Hayden J records this case as having a 'dispiriting history'. Private law proceedings concerning the couple's two children commenced in 2001. The central issue concerned contact by the father to his children, which was strenuously resisted by the mother. Before making determinations as to contact, the Judge had to determine a series of allegations brought by the mother. The judge did not find the allegations proven and his decision was upheld on appeal.

The following year, the matter returned to court, this time the High Court. At the door of the court, the mother's counsel conceded that the available evidence filed in the proceedings, taken at its highest, had no prospect of establishing the allegations that the mother had initially sought to pursue. A Consent Order was placed before the Judge, which recorded, inter alia, that the mother accepted that contact should proceed on the basis that the allegations she had sought to make were unfounded and that she "should not seek to raise any allegations of emotional, physical or sexual abuse" against the father in "any other forum with any other person or body", specifically including the father's employers.

Six months later, the matter returned to court again, contact having broken down. Having heard evidence from the mother, Johnson J found that the mother had never intended to abide by the agreement for contact. Johnson J was satisfied that "the mother continued to repeat the allegations not only to [B] but also to friends and people in the local community." Johnson J repeated that the allegations were unfounded. 

After this hearing, the arrangements for contact once again foundered, "on the rocks of the mother's intransigence". The application came before Ryder J (as he then was) in October 2004. At this stage, the father reluctantly abandoned his application for direct contact with his daughter.

The termination of the direct contact, along with a PSO which carried a penal notice, brought a significant hiatus to the litigation. The matter, however, re-materialised before Roberts J in June 2017.

Hayden J records that from early 2017, or a little earlier, the mother had begun to step up her campaign of vilification against the father. She issued a number of emails to thousands of individuals all of which either accused the father directly of physical, sexual and emotional abuse or inferred in the most unsubtle of ways that he was an abuser. The mother accepted that she had sent these emails and stated that she believed it to be "her bounden duty to expose" her allegations of 'perjury' and 'sexual abuse'.

In this judgment, Hayden J repeats that "there has been no finding of sexual abuse; no finding of perjury against the father; no evidence produced either in 2003 or in the years that followed that would be likely to establish such findings."

On 19 June Roberts J made orders, reinforced by penal notices, prohibiting the mother from disseminating, disclosing or publishing any information (including allegations made) about the proceedings concerning the father, or any proceedings in the Family Court that had involved the parties. The mother was also prohibited from copying in any third party in her correspondence with the father's solicitor.

By 6.45am on the day after the hearing, there were a hundred further email recipients to the mother's allegations. The judgment sets out the various breaches of the order. The schedule shows that the mother continued to send emails (of a nature prohibited by the order of Roberts J) to hundreds of recipients. Each of those breaches were admitted by the mother.

The father applied to commit the mother to prison for the breach of those orders. Hayden J advised the mother of the options available to the court, which included a suspension of a sentence of imprisonment on her undertaking to comply with Roberts J's order. The mother declined to do so unless the court "could give assurance that it can require a judicial review of the background facts of the case."

Hayden J reminded himself of two recent authorities regarding proper procedure on committal applications (L (A child) [2016] EWCA Civ 173; Re: Whiting [2013] EWCOP B27). Hayden J concluded that "in light of of the mother's continued defiance, unwillingness to change, lack of insight on the impact of her behaviour… [he was] left with no opportunity other than to impose an immediate custodial sentence which reflects the nature and consequences of the breach." The court committed the mother to prison for a period of 9 months.

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

__________________________

Neutral Citation Number: [2017] EWHC 1700 (Fam)
Case No: ZC17P00627

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/06/2017


Before :

MR JUSTICE HAYDEN

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Between :

Charles Ronald Gibbs
 Applicant
- and - 
Jean Patricia Gibbs Respondent
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Ms Illsley  (instructed by Metcalffe Copeman & Pettefar LLP) for the Applicant
Mrs Gibbs
  appeared unrepresented

Hearing dates: 29th June 2017
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Judgment Approved
MR JUSTICE HAYDEN

This judgment was delivered Open Court.   The judge has given leave for this version of the judgment to be published.

Mr Justice Hayden :
1. This is an application made on behalf of the Reverend Charles Ronald Gibbs to commit his ex wife, Jean Patricia Gibbs, to prison for breach of the order of Mrs Justice Roberts dated 19th June 2017.  It is a case with a dispiriting history, some of which is necessary for me to set out in this judgment so that the orders made by Roberts J may have context.

2. I start with the hearing which took place before District Judge Hayes in the Norwich County Court now as long ago as 13th March 2001.  Those were private law proceedings, concerning the couple's two children.  The central issue concerned contact by the father to his children, which was strenuously resisted by the mother.  Before the judge was able to determine what the progression of contact should be, it was necessary for him to resolve a series of allegations brought by the mother.  Over a period of two days the judge addressed that task assiduously and was able, on the 13th March, to provide the parties a written judgment in which he set out the evidence that he had heard and the conclusions he had arrived at.  In the final passages of his judgment he noted that there was 'a lot of evidence before him'.  He identified significant aspects of it and, in particular, what he found to be helpful corroborative support from 'third parties and outside documents'. It led him to an unambiguous conclusion which he expressed as follows:

"I have no doubt that the evidence I prefer is that of the applicant father. I simply cannot recognise and reconcile the demeanour of Mr Gibbs and what I saw, with what he is alleged to have done. On conflicts of evidence I prefer Mr Gibbs, I am satisfied he is doing his best to tell the truth, although he says he is not perfect."

3. He continued:

"The difficulty is that I don't think Mrs Gibbs is right in her version of the facts, but she believes she is right. She indicated that if I don't think he is guilty of emotional abuse I will have made a mistake. I don't think I have. She said she might appeal, she has the right but she must bear in mind I make my decision on the wealth of evidence I have read and heard. I think both may have abused emotionally. Children should be protected from the battle of wills. Both parties need to put the interests of the children first."

4. The judge expressed what proved to be an entirely forlorn hope that the 'unfinished business now having been aired would assist the parties to move on'.  Sadly, it did not. The judge indicated the mother had a right to appeal and she elected to pursue it. The appeal came before HHJ Barham sitting at the Norwich County Court.  In a concise written judgment, dated 16th May 2001, the Judge analysed the Grounds of Appeal which were drafted by the Appellant personally.  I note that the Judge had sight of the typed Note of Judgment drafted by District Judge Hayes.  The appeal was rejected as disclosing no error of law, fact or procedure.

5. One might have hoped that that would have been the end of the matter but, again, it was not.  Barely 12 months later the case found itself back before the Court, this time before the High Court, Family Division.  At that hearing, before Mr Justice Munby, as he then was, the mother was represented by counsel and solicitors, so too was the father.  By this stage the children were also represented.  The local authority had intervened.  Events took an unanticipated turn.  At the doors of the court the mother's counsel conceded on her behalf that the available evidence filed in the proceedings, taken at its highest, had no prospect of establishing the allegations that the mother had initially sought to pursue.  A Consent Order was placed before the Court which was scrutinised by the Judge in a short judgment which has been transcribed and filed in this application.  The preface to the order records that it was acknowledged specifically by the mother 'that she was afforded the opportunity to pursue the allegations but did not seek to do so'.  Secondly, it was recorded that the mother:

"accepts that by not raising any allegations of emotional, physical or sexual abuse against Mr Gibbs the contact between [B] and her father should proceed on the basis that all the allegations are unfounded"

6. Thirdly, the Order recorded that the mother 'should not seek to raise any allegations of emotional, physical or sexual abuse against the Reverend Gibbs in any other forum with any other person or body and specifically including Mr Gibb's employers', the Methodist Church.  Finally, it was expressly acknowledged that 'contact between the younger child B and her father should proceed on the basis of the concessions made by the mother that day'.

7. Though the case had in effect settled, by the agreement of the parties, Mr Justice Munby nonetheless delivered a short judgment. Aspects of that judgment require to be highlighted:

"The advice which mother has received and the decision which the mother has taken seem to me to be entirely appropriate in the circumstances. These matters must now once and for all finally be laid to rest. That, as I understand it, is the basis on which I am being invited to approve this order. I am sure that I do not have to say this, but it is important for the parties to appreciate that this is intended to be a final order which maps out into the foreseeable future the pattern of father's contact with B and, equally importantly, B's contact with her father."

8. Later the Judge recorded that both the mother and father:

"have taken a brave decision, and a decision which in many respects and for different reasons must have been difficult for each of them, [they] are to be congratulated and thanked for agreeing to this order. I hope that each of them will join with me in thanking the lawyers collectively, and indeed the other professionals involved, whose input and assistance I have little doubt has done much to bring this about. "

9. There was therefore no doubt that the mother had received clear advice, that it was identifiably, on the available evidence, correct, and that the understanding of the parties as to the significance of the order was investigated and established to the satisfaction of the Judge. 

10. Just as DJ Hayes had hoped that this corrosive litigation might end with him, Mr Justice Munby expressed the view that the case would conclude there.  It did not, it next came before Mr Justice Johnson scarcely 6 months later, in November 2002.  The arrangements made in respect of contact had already fallen into difficulty.  In his judgment dated 3rd July 2003 Mr Justice Johnson expressed himself with characteristic lack of ambiguity.  He said this:

"Having seen the mother give evidence now on more than one occasion, I do not find it at all surprising that she did not abide by the agreement she had made. In my judgment, and I find, she never intended to abide by the agreement. The inference that I draw from what has happened is that the allegations against the father were without any substance and were unfounded. I find that the mother had no genuine belief in them."

11. Johnson J went on to say he was satisfied that:

"The mother continued to repeat the allegations not only to B but also to friends and people in the local community. I am told that prior to this hearing it was said by some in her community that 'truth would out at this hearing'. The truth is that these allegations are unfounded, as the mother had agreed. They have always been vehemently denied by the father. They have been investigated and the outcome is clear. These allegations are false. The mother knows it but continues to publish them because she wishes to hurt the father. At the beginning of this hearing the father told me that the mother had attended court with a number of supporters, one of whom had threatened to take steps to deprive the father of his office in Holy Orders. I caused that person to be brought into court to take the oath. He denied having threatened the father, but from the manner in which he spoke and his demeanour I did not accept his denial. It needs to be made plain that those who attend court are entitled to the protection of the court. These cases relating to children are full of emotional tension, and anyone who could speak in the way that that man spoke demonstrates their lack of understanding of human nature." (my emphasis)

12. Johnson J's message was entirely unequivocal but in common with the Judges who had preceded him he too was unable to effect an end to the litigation.  Though the Court had been determined to ensure that B had a relationship with her father, the orders for contact, foundered, once again, on the rocks of the mother's intransigence.  On 11th October 2004 the case came before Mr Justice Ryder, as he then was.  His Order of that date is prefaced by the following recording:

"And upon the court accepting that the agreement by the applicant father to the making of an order for indirect contact does not at all adversely reflect upon his integrity nor upon his proper wish to work towards the restoration of direct contact with B."

13. It is plain that the father had reluctantly abandoned his application for direct contact with his daughter.  The above recital was specifically intended to underscore that which had already been established in the previous litigation namely that the limited order for contact did not in any way reflect an adverse judgment by the Court on the father himself.  For the avoidance of doubt, there were no findings of physical, emotional or sexual abuse made against the father. 

14. Ryder J in approving the order also delivered a short judgment. He noted

"the parties are so far apart that were I to proceed further in the face of objection I have no doubt I (as the court) would cause significant harm to the child at this stage."

15. He continued:

"absent cogent reasons to the contrary it cannot be right that a young woman grows up in the absence of one of her parents' care when that parent is alive. It is morally and legally offensive. I say these words in the clearest way I possibly can. But, to impose upon her something that she cannot, at this stage, receive would be just as offensive. I decline to do so for the time being".

16. The termination of face to face contact by Ryder J and the prohibited steps order which carried a penal notice alongside, brought if not a conclusion at least a significant hiatus to the litigation.  It was not until 19th June this year that the case re-materialised, before Mrs Justice Roberts.

17. From early in 2017 and perhaps for a little time before that, the mother had begun to step up her campaign of vilification against the father.  She issued a raft of emails to thousands of individuals all of which either accused the father directly of physical, sexual and emotional abuse or inferred in the most unsubtle of ways that he was an abuser.  The father had undoubtedly become used to his character being traduced by the mother in this way but this bombardment against his reputation was, as the mother herself frankly acknowledges, beyond anything that she had undertaken before.  She had, she told me, visited her lawyer 'some time in approximately 2014'.   She discovered that the prohibited steps order made in the Children Act proceedings was not life long, as she had understood it to be but in fact expired when B turned 18 years of age.  This in part explains, in my view, the liberation she felt in being able to pursue her campaign more vigorously.

18. In contemporary society it is difficult to think of any allegation against a man or a woman which attracts greater public opprobrium than one of sexual abuse against a child.  Where these allegations are proved that public censure is entirely understandable. Here allegations are not proved.  The responsibility of mature adults is to take such complaints seriously, but to avoid rushing prematurely to judgement. The Reverend Gibbs believes that, faced with the onslaught of his ex wife's allegations, his Church, his friends and his colleagues have done precisely that, moved ultimately to judgement against him.  They have, he believes, succumbed to the openly malevolent objectives of his ex wife to discredit him publicly and to attack his position in the Church.
19. Mrs Gibbs does not deny any of this.  She accepts that she sent the emails, she asserts, unequivocally that she does not think her husband should be part of the Church.  She believes that there has been 'perjury' and 'sexual abuse' and she believe it is her bounden duty to expose that, notwithstanding the history of the litigation that I have taken time to set out. 

20. Like DJ Hayes, now 16 years ago, I have no doubt that the mother has come to believe that what she asserts is true.  Again, it requires to be said: neither of the party's children, both well into adulthood, has ever made a complaint to the police or been subject to investigative ABE interview; neither has appeared before, or presented written evidence to a Court alleging abuse.  There is no extraneous medical evidence pointing to abuse. Mrs Gibbs, when represented, as I have said, by experienced counsel before a judge of this division, readily accepted that the evidence before the court could not, even on the civil standard of proof, establish a finding.  At risk of repeating myself: there has been no finding of sexual abuse; no finding of perjury against the father; no evidence produced either in 2003 or in the years that followed that would be likely to establish such findings.

21.  On 19th June Mrs Gibbs appeared (in person) before Roberts J in response to the father's application for permission to disclose material from the Children Act Proceeding into the public domain and to prohibit the mother from further defamatory publication.  Paragraphs 10 and 11 of the Orders made that day, which were reinforced by penal notices, state:

10: Until further order, the Respondent must not disclose, disseminate, or publish any information about these proceedings concerning the Applicant, or any proceedings in the Family Court that have involved the parties, and any allegations made within the context of proceedings in the Family Court, whether by print, electronic form, or on the world wide web and should not instruct, encourage or in any way suggest that another person should do so.

11: Until further order, the Respondent shall not copy any third party into her correspondence with the Applicant's solicitor, save her own legal advisor.

22. These provisions make it clear that the respondent (mother) must not disclose or publish any information generated from any Family Court proceedings.  The objective of the order was to disable Mrs Gibbs from further denigrating the father's reputation.  She is unapologetic about what happened thereafter. Within 24 hours of Roberts J's order Mrs Gibbs was barraging rafts of individuals with her unsubstantiated allegations.  There were, by 6.45am on 20th June, a hundred further recipients to her allegations.  The schedule below sets out the breaches of the order, each of which is admitted by Mrs Gibbs.

In respect of paragraph 10

i) Email at 06:45 on 20.06.17 to circa 100 recipients  (at C309-C310);

ii) Email at 07:08 on 20.06.17 to Rev Horton and copied to circa 100 others (at C311);

iii) Email at 20:11 on 20.06.17 to Mrs Poxon and copied to circa 100 others (at C332-C333);

iv) Email at 20:16 on 20.06.17 to President of Methodist Conference and copied to circa 100 others (at C334-C335);

v) Email at 06:56 on 21.06.17 to Prof Jay and copied to circa 100 others (at C324-C325);

vi) Email at 07:05 on 21.06.17 to George Freeman MP and copied to circa 100 others (at C326-C327);

vii) Email at 22:58 on 21.06.17 to President of the Methodist Conference and copied to circa  100 others (at C336-C337);

viii) Email at 08:43 on 22.06.17 to circa 100 recipients (at C338-C339);

ix) Email at 02:39 on 23.06.17to circa 100 recipients (at C340-C341);

x) Email at 03:00 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C342-C344);

xi) Email at 06:47 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C344-C345);

xii) Email at 11.23 on 24.06.17 to Rev Horton and copied to 100 others (at C346-C347);

xiii) Email at 16:45 on 24.06.17 to Mrs Poxon and copied to 100 others (at C348-C349);

xiv) Email at 05:57 PM on 24:06.17 to circa 100 recipients (at C329-C330);

xv) Email at 17:36 on 25.06.17 to circa 100 recipients (C355-C356);

xvi) Email at 17:43 on 25.06.17 to Mrs Poxon and circulated to circa 100 others (C357-C358);

xvii) Email at 18:42 on 25.06.17 to circa 100 recipients (C359-C360);

xviii) Email at 06:14 on 26.06.17 to circa 100 recipients (C352-C354).

In respect of paragraph 11

xix) Email at 20:00 on 20.06.17 to Applicant's Solicitor and copied to circa 100 others (at C321);

xx) Email at 06:41 on 21.06.17 to Applicant's Solicitor and copied to circa 100 others (at C322-C323);

xxi) Email at 07:36 on 22.06.17 to Applicant's Solicitor and copied to circa 100 others (at C328);

xxii) Email at 17:57 on 25.06.17 to Applicant's solicitor and copied to 105 others (at C350-C351).

23. Mrs Gibbs appears before me today unrepresented. I have advised her at least twice that I have it within my power to order that criminal legal aid be provided so that she can be represented by counsel.  She does not, she tells me, wish to be represented by counsel. She only wants to explain to me that it is her duty to stand up to what she perceives to be perjury.  She has looked at the core material with me, she has been sent the bundle of documentation in advance, though she has not brought it with her to court.  She tells me, she hardly needs it for she 'has lived it' and most of the documents relate to material drafted and sent by her.

24. This is an application to commit her to prison for breach of those orders.  The breaches are not contested.  Instinctively, the last thing I would want to do would be to send Mrs Gibbs to prison.  I advised her of the options available to this court, one of which was to suspend a sentence of imprisonment on her undertaking that she would comply with Roberts J's order.  She declined to do so unless, as she put it, and I repeat verbatim, "This court could give assurance that it can require a judicial review of the background facts of the case."

25. This case has been exhaustively litigated.  Three senior judges have reviewed the scope of the protective framework, and Mrs Gibbs has flagrantly undermined or actively disobeyed Court Orders.  She tells me that she has come to Court expecting to go to prison and is 'happy, proud, and completely at peace to be in contempt of court'.  In an email directed to the President of the Family Division she states 'short of killing me or having me killed, you will not silence me…'

26. Mrs Illsley has referred me to L (A child) [2016] EWCA Civ 173 which underscores the importance of proper procedural compliance where the liberty of the subject is engaged.  I am satisfied that the orders made by Roberts J indicated that any breach might result in a committal application.  Moreover, the identification of the breaches and the material in support have been set out in a clear and accessible way.  The hearing has taken place in Open Court, the Press have been present and this judgment is being delivered ex tempore at the conclusion of the case. 

27. In Re: Whiting [2013] EWCOP B27 which involved an application to commit to prison for breach of Court Order , in the Court of Protection, I made the following observations:

"It seems to me to be important to note some crucial features of the committal process:

(1). the procedure has an essentially criminal law complexion. That is to say, contempt of court must be proved to the criminal standard, i.e. so that the judge is sure. The burden of proof rests throughout on the applicant (see: Mubarak v Mubarak [2001] 1 FLR 698);

(2). contempt of court involves a deliberate contumelious disobedience to the court (see: Re: A (A Child) [2008] EWCA Civ 1138);

(3). it is not enough to suspect recalcitrance; it must be proved (see: London Borough of Southwark v B [1993] 2 FLR 559);

(4). committal is not the automatic consequence of a contempt, though the options before the court are limited – for example: (a) do nothing; (b) adjourn where appropriate; (c) levy a fine; (d) sequester assets; (e) where relevant, make orders under the Mental Health Act (see: Jamie Malcolm Hale v Rachel Tanner [2000] 2 FLR 879);

(5). the objectives of the application are usually dual, i.e. to punish for the breach and to ensure future compliance;

(6). bearing in mind the dual purpose of many committal proceedings, they should be brought expeditiously, whilst primary evidence is available and the incidents are fresh in the mind of the relevant witness. This is particularly important in the Court of Protection where there may be reliance on a vulnerable witness and where capacity might have to be assessed."

28. Ms Illsley has taken great care to comply rigorously with each of these important procedural and evidential requirements.  In the light of the mother's continued defiance, unwillingness to change, lack of insight on the impact of her behaviour, not only on Mr Gibbs but, I strongly suspect on her children too, I am left with no opportunity other than to impose an immediate custodial sentence which reflects the nature and consequences of the breach.  In the circumstances Mrs Gibbs should be committed to prison for a period of 9 months. 

Post script

29. As Mrs Gibbs is unrepresented, I have told her that it is open to her at any point to request a hearing before me to purge her contempt.  I do not find it necessary to repeat her defiant response but merely to record that she has been made aware of her rights.