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M (Children) [2005] EWCA Civ 615

Appeal by father against commital order in contact case

B4/2004/1260

Neutral Citation Number: [2005] EWCA Civ 615

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM OXFORD COUNTY COURT

(HIS HONOUR JUDGE CORRIE)

Royal Courts of Justice

Strand

London, WC2

Monday, 11th April 2005

B E F O R E:

LORD JUSTICE WARD

LORD JUSTICE CLARKE

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M (CHILDREN)

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(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

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The Appellant appeared on his own behalf

MR SIMON MILLER (instructed by Messrs Whetter Duckworth Fowler, Oxford OX5 2DH) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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Crown copyright©

1. LORD JUSTICE WARD: This is an appeal against the committal order made by His Honour Judge Corrie in the Oxford County Court on 21st May 2004, when he sentenced the appellant to a term of seven days' imprisonment, suspended until 21st November 2004, on terms that the respondent husband, the appellant, did not breach any order in those proceedings or any part of any order to which a penal notice has been attached.

2. The proceedings there referred to are tumultuous proceedings relating to the children of this family, and in this case in particular their daughter, who is a young girl of I think 12½ years of age. There has been an ongoing battle about her care. She has shown a degree of reluctance, for whatever reason, to live with her mother. The appellant has championed her cause and has applied regularly and continues to apply for a residence order in her favour, no doubt wanting also to sweep up residence in respect of the other two children of the family.

3. Because of the heat engendered in this case, various orders have been made by Judge Corrie. The relevant order, having been made on 24th March 2004, was that Mr M was to collect the child straight from school on 25th March, that is the following day, and return her forthwith to her mother's house and in any event no later than 4.00 pm, so that the child might continue to reside with her mother.

4. In fact the child did not go to school that day. She also, according to the father, made it abundantly plain that she was not going to return to her mother. The father had to book her into a local hotel, though as I recollect the facts of the case, she soon moved to live with a school friend and may still be living with them or her godmother, I know not, but it does not much matter.

5. The mother was concerned about various breaches of the judge's order. As a result she commenced proceedings for committal maintaining that there were four breaches of the judge's order, namely (1) in keeping her away from school all day on 25th March; (2) in failing to return her forthwith after school and by no later than 4.00 pm; (3) by failing to promote the child's return so that she may continue to live with her mother by booking her into the hotel; (4) by failing in any way to encourage, cajole or support the child returning to her mother's care and returning her to the home.

6. When the matter first came before the court on 14th May, it appeared to counsel who represented the mother, Mr Miller, who has assisted us today, that the father was willing to admit two of those four allegations of breach, but he denied two of them, including denying that he failed to return her by no later than 4.00 pm (breach number 2).

7. In those circumstances, the pragmatic course was taken by counsel to seek his client's instructions and Mr Miller informed the judge as follows:

"I have taken instructions from [Mrs M] and she is content on the fact that [Mr M] has accepted two breaches of the order and to leave it at that and not actively to pursue the other alleged breaches."

8. When that fact was drawn to my attention when I extended time for this appeal, and when I heard Mr M say that he may have been able to produce other witnesses to support him, I was troubled whether there might have been some procedural irregularity lulling him into a sense of false security.

9. I now have the full transcript of what occurred on 14th May. The judge, acceding to the mother's willingness to confine the case to the two breaches it was thought were being admitted, wished to hear Mr M in mitigation of sentence. In the course of that discussion it became plain to the judge that there was confusion as to what the father was admitting and what he was denying, with the result that Judge Corrie eventually, and perhaps in understandable desperation, said this:

"... I am beginning to think I had better hear the evidence in this, and I shall hear evidence about all the allegations today and for however many other days it may take. It is clear that you are not admitting any breaches. I thought you were, and were you represented you might take a different approach, but I am afraid I find myself unable to explain to you what your position may be."

So the committal proceedings were stood over until the afternoon on 14th May.

10. When the matter resumed, the evidence was called. The case could not conclude that afternoon. It resumed on 21st May and the judge made his decisions. He repeated in his judgment the passage I have just read how he decided to hear evidence in relation to all of the allegations. He found, for reasons that are immaterial, that breaches 1, 3 and 4 were not proved to the requisite criminal standard, but he found, adopting that standard of proof, that breach number 2 had been established to his satisfaction.

11. The father's case was that he delayed his return in order not to return too early to the home, and that he returned at 3.58, within the time limit required by the order made the previous day. The mother's case was that he did not return by 4.00 o'clock, that on being asked by the social worker who was present what the time was, turned on the television and saw the time was after 4.00 o'clock. The social worker said, when they had just about given up hope of the girl coming back, Mr M and the girl arrived in the driveway. It was then about ten past four.

12. The judge found as follows:

"Given that I regard both those two witnesses as credible and consistent, who were unshaken by cross-examination by [Mr M], and given that [Mrs M's] evidence is supported by that given by Susan Fisher [the social worker], I equally have no hesitation in disbelieving [Mr M's] account of this event and in concluding that he did not arrive, and was thereby in breach of paragraph 5 of the order, until somewhere around 4.10pm on 25th March. I, therefore, find that breach proved to the requisite standard."

13. In seeking to appeal that, Mr M seeks to rely on the confusion occurring on 14th May. I am quite satisfied that the judge explained to him perfectly clearly that he was dealing with all charges and the hearing proceeded on that basis, with the judge focusing attention on the narrow issue, when it came to breach number 2, of whether the time was two minutes to four or approximately ten minutes past four.

14. Mr M says he was not ready. I cannot accept that submission because the case proceeded without any application to adjourn it. He says he could have called other evidence that was material. But now having seen what the teacher says who has a vague memory of him approaching the teacher at "approximately 15.30", there is such imprecision about the timing that it will take the case no further. It takes, says the mother, 25 to 30 minutes to walk from the school to the house. That teacher will not enable the court to be any more precise. Mr M says that an employee of the hotel will help, but on analysis her evidence does not go anywhere near establishing what time he returned the child, only what arrangements he made for her, bearing in his mind his knowledge that the girl was simply not going to go across the threshold of her mother's home.

15. So there is nothing, in my judgment, in the procedural irregularity. It boils down to a harsh finding of fact. The judge was entitled to find the facts against the father. It is not for this court to speculate whether it is probable or improbable. It is not for this court to speculate why he should delay ten minutes, or delay his return and arrive at the very last minute. The judge found the facts and, for my part, I cannot interfere with that.

16. The question then arises as to the appropriate penalty. The judge dealt with that in this way. He said:

"The breach itself might be seen out of context as trivial. But it was not, in the court's judgment, a mistaken breach. There was nothing wrong with your watch -- you were not claiming that -- you simply, on my finding, deliberately brought her late ... In context, this breach, though apparently trivial, shows that you have a great contempt for orders of the court with which you do not agree. I, therefore, have to consider, bearing in mind that you contested the allegations, having apparently at first admitted two of them, what to do with you."

17. What then followed is in my view crucial. The judge said this:

"A fine is not, in my judgment, appropriate because you are known to be of very limited means and there is at the moment a costs order against you of some substance. No order is not appropriate because of the attitude you have, as I have just described it, to this order and indeed any order which does not fit with your view of what should happen; a view not shared by CAFCASS or Social Services or indeed the court hitherto. So I do take a serious view of this.

The appropriate sentence is, in my judgment, a custodial one, but suspended. The sentence will, accordingly, be one of seven days' imprisonment, suspended for six months on terms that you comply with whatever orders of the court may have penal notices attached to them."

18. As my Lord pointed out in the course of argument, that approach seems to be contrary to principle. The judge clearly considered that a fine would be appropriate but for the lack of means to pay it. He therefore resorted again to the question of a custodial sentence and imposed that.

19. There are two errors in his approach. The court does not impose a suspended custody material sentence unless first satisfied that a custodial sentence would be justified, and Secondly, you should not impose imprisonment simply because the defendant has not the means to pay a fine. For that reason, the judge erred and his sentence should be quashed.

20. It is slightly worse than that. On 14th May the judge, dealing with what he thought would be a sentencing exercise, said this (on page 16 of that transcript):

"... I have not heard any mitigation from [Mr M] yet, but, as I said before, I regard the committal application as, in a sense, a sideshow. I am not minimising it because it is a serious matter when court orders are not obeyed, but I rather doubt whether it would be appropriate to impose any or any significant penalty now ..."

He then went on to ask counsel for the mother's views on disposal. Counsel indicated that she did have a view. The judge asked if he wanted to take instructions and said this:

"I am certainly not going to send [Mr M] to prison for this.

MR MILLER: That was one option I discussed with the mother.

JUDGE CORRIE: I can understand she may have thought that that would be appropriate at the time."

21. I am slightly troubled about that. It is not in my experience usual to invite comment from the applicant for a committal sentence as to the appropriate penalty. That is usually a matter between the court and the contemnor. But it is equally apparent that the judge was reaffirming that a sentence of imprisonment was not appropriate in the circumstances of the case, given this breach. That reinforces the fact that the judge erred in principle and that the sentence should be quashed.

22. The question then is: what does this court do? In my judgment the only appropriate remedy is to impose no order for the breach which the judge has found. Even though Mr M is an extremely difficult customer, I would still have thought that this committal was taking a sledgehammer to crack a nut.

23. I would therefore discharge the suspended committal sentence and substitute no order. I add parenthetically that this has all been a dreadful waste of time and money, given that the six months has passed without any further breach of the order. But the liberty of the subject having been involved, I took the view we had no option but to deal with it.

24. LORD JUSTICE CLARKE: I agree.

ORDER: Appeal allowed; the finding of contempt to stand, but the suspended committal sentence discharged and no order substituted; detailed assessment of the respondent's Community Legal Services Funding costs.

(Order not part of approved judgment)

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