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Home > Judgments > 2011 archive

C (Children) [2011] EWCA Civ 1230

Appeal against a sentence of 6 months imprisonment against a mother for breach of an injunction granted in care proceedings. Held that the sentence was excessive. Appeal allowed.

Upon the making of final care orders in care proceedings, the court also granted an injunction restraining M, the mother, from contacting her children (save for arranged contact), approaching them while they were at school, or from going within 200m of their foster carer's home. 

On a subsequent date M parked 40m from the foster carer's home for a number of hours, and then returned in the early hours of the following morning with a baseball bat.  Having informed the police of her intention to do so, she then smashed the car belonging to the foster carers, and the glass in the front door of their home.  There had also been two minor breaches of the order a month before.

The court imposed no separate penalty for the two minor breaches, but imposed a custodial sentence of 2 months for being within 40m of the home, and 4 months for the incident where the property was damaged. The sentences were to run consecutively.  M admitted the breach, apologised and said that she would not do it again.  She claimed to have been motivated by  concern for her children.

M appealed against the 6 month sentence.  Her two children aged 11 and 13 were joined in the committal proceedings

The Court of Appeal held that although this was the first occasion on which the court had come to sentence a breach, the breach was serious enough to merit an immediate sentence of imprisonment.  The appeal turned on whether this was a manifestly excessive sentence.  In sentencing for contempt in a domestic situation, the court should have regard to the fact that emotions run high and cloud good judgment.  It was also appropriate to consider the impact upon the children and the carers.  The court below had not expressly dealt with M's admission and contrition as mitigating factors.  In any sentence imposed there needed to be an element of punishment and an element of coercion to ensure that the order would be obeyed in future. When proper allowance was made for i) M's admission, ii) her emotional state and iii) the fact that this was the first custodial sentence, 6 months was too long.  The appeal was allowed and a sentence of a total of 3 months was substituted.  The court indicated that it was most unusual for the children to be joined as parties to such an application for committal, and did not think that the joinder had been necessary.  However the judge's concern with how the children might react to the committal application was a proper one.

Summary by Martina van der Leij, Barrister, Field Court Chambers


______________________
 
Case No:  B4/2011/1648
Neutral Citation Number: [2011] EWCA Civ 1230
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE RUNDELL)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 14th July 2011

Before:

LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE HUGHES
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In the matter of C (Children)


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(DAR Transcript of
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Mr Mark Jarman and Mr Michael Edwards (instructed by Gillian Radford and Co) appeared on behalf of the Appellant Mother.

Miss N Bache (instructed by Worcester County Council Legal Services) appeared on behalf of the First Respondent, the Local Authority.

The Second and Third Respondents, the Children acting through their Children's Guardian, did not appear and were not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Ward:
1. This is a mother's appeal against the order of her committal made by HHJ Rundell in the Worcester County Court on 20 June of this year when the judge found that the mother had breached an injunction on four occasions.  There were two incidents which occurred in May: one on 18 May, the other on 20 May in the afternoon after the judge had handed down a long judgment in this unhappy care case.  The other two breaches occurred on the afternoon of 3 June when the mother breached the injunction by approaching within the 200-metre limit of the foster parents' home.  She parked herself 40 metres away for some period in the afternoon.  Most seriously, she returned in the early hours of the next morning, this time armed with a baseball bat and having warned police of what she was about to do.  She smashed the car of the foster parents and the glass in the front door. 

2. The judge imposed no separate penalty for the breach of the two incidents on 18 and 20 May, but in respect of the June incidents he sentenced her to a term of two months' imprisonment for her attending near the home of the foster parents in the afternoon of the 3rd, and he sentenced her to four months in prison for her actual going to the house and damaging the property there. Those two sentences were ordered to run consecutively so the total sentence was of six months in prison.

3. This case has a long and unfortunate history.  The children were placed in care in 2008.  In October of 2008 the judge made final care orders and it was then that he made the injunction which is the source of the breach.  That injunction was made when the mother was acting in person.  It restrained her from contacting her two boys -- the elder is now 13 and the younger is not quite 12 -- so she was restrained from contacting them directly or indirectly save for and in accordance with contact agreed with the local authority.  Secondly, she was restrained from approaching at any time within 200 metres of the foster carers' accommodation, of which she had by then learnt.  And thirdly, she was restrained from approaching the boys while they were at school.

4. Since that time the mother has on occasions been said to be in breach of that order, making approaches particularly to the children at school.  We are told that an application to commit her was made at some point in the history I have to recite, but following an appeal to this court it was decided not to pursue that committal application.  Nonetheless it seems to be beyond doubt that the mother was fully aware of the injunction and of the restraints placed upon her. That would have been made abundantly plain to her from the hearing that took place before Rundell HHJ, who has had this case before him over the past two or three years.  In the hearing brought by the local authority to obtain an order that they no longer have to provide contact to the children and an order that the mother should make no further applications for that contact, the mother was cross examined about her approaching the boys on 8 April and there is no doubt that that questioning and that investigation proceeded upon a basis which she acknowledged that it was in breach of the injunction. 

5. The second factor which demonstrates that she was fully aware of the injunction comes from a statement which she made to the police who arrested her for the criminal damage committed on 6 June.  In the course of the interview with the police inquiring into that offence, she acknowledged that there was what she called a care order in place that imposed restraints upon her, she seemed to think wrongly, that it may not have had teeth because there was no power of arrest attached to it, but she was certainly aware of the conditions imposed and the restraints placed upon her.

6. Following her arrest on the morning of 4 June, the local authority applied to allege by way of further breaches the events of the 3 and 4 June and the judge seems to have dealt with that matter on the 7 June when the mother was represented by counsel.  The hearing could not be concluded because she became unwell, but in the course of that hearing she appears to have asserted by way of mitigation that she visited the foster parents out of a concern that her boys were the boys who had apparently tragically drowned in a river or canal nearby.  The judge directed that she file a statement setting out the mitigation.  It is significant that in that statement she gave no such explanation but simply explained that she was concerned about her boys, that she:

"…just felt the need to make sure that my sons are safe due to Social Services lack of  information given to me by Social Services regarding my children."

7. Nonetheless the judge dealt and was fully entitled to deal with the story she had advanced as the explanation for her visit that night and he rejected it.  He did not accept for one minute that that was her motive for visiting the foster home.  Her motive was, he found, to harass the foster carer and in doing so that would be a flagrant breach of the injunction.  He was entitled in my judgment to take that view.

8. The judge accepted that she was very upset that she did not see her boys but he felt that the remedy for that was in her own hands, namely to seek professional advice as she had been advised and as had been dealt with in the proceedings culminating in the judgment of 20 May.  Her being upset and unhappy at the court's order is no excuse for such a flagrant breach.  I confess to being slightly troubled by that.  It is true that it is no excuse for the flagrant breach, the judge was perfectly entitled to that view, but in sentencing for contempt in a domestic situation like this the court is entitled to have regard to the fact that emotions run high and that emotions cloud good judgment, that things are done in the heat of passion which is engendered by family proceedings of this kind and this mother was highly emotional, possibly a psychologically disturbed lady by the time that these events took place.  The judge had the psychiatric evidence given to him by a psychiatrist instructed in the contact proceedings he disposed of the month previously.   And so her emotional state is part and parcel of the circumstances that the court can take into account, not by way of excuse but by way of explanation for what had happened. 

9. It goes a little further even.  The mother had said, and there was some medical evidence to support it though not much, that, following the hand down of the judgment on 20 May, she had gone on hunger strike and was not eating at the time she lost control on 3 and 4 June.  There was some evidence, and again not terribly satisfactory medical evidence, that she had twice in the intervening period taken an overdose of paracetamol, had been admitted to the accident and emergency department but had not been detained there.  So it is flimsy.  It was not fully pursued by her at the committal stage because then, as we have been told, she simply wanted the matter dealt with.  And thus her statement placed before the court concludes as follows:

"18. I am very sorry for the trouble I have caused.  I do not intend to act in this manner again.

19. I accept that my behaviour was wrong and I regret it."

10. The judge did have regard to the fact that she admitted the offences and did not attempt to contest them, but as I read his judgment I do not see him expressly dealing with those admissions as mitigating factors and as mitigating factors justifying some reduction in the sentence that otherwise might be appropriate.  Nor does he expressly avert to her expression of regret, her contrition and her undertaking or rather not intending to act in like manner again.  That too is a relevant matter to bear in mind when reaching the appropriate sentence. 

11. The judge was entitled to take into account that the purpose of the injunction was to restrain her behaviour which, if not restrained, would have adverse impact on the foster carers who had to care for her boys under this care order and as importantly the impact upon the boys themselves.  He was at pains to ascertain how the boys were likely to react to the committal application.  Most unusually, he joined them as parties.  I am not sure why he did so, it does not seem to me to have been necessary to do so, but it cannot be said to have been a procedural irregularity which in any way affects the sentencing exercise. Indeed Mr Jarman who now appears on her behalf was driven to concede that the joinder of the children had no impact on the sentence. 

12. It had no adverse impact on the sentence, but the inquiry into how the children would react was a perfectly proper one.  He was at pains to ascertain whether they would be angry, upset, affected by an order that mother should be sent to prison.  If so, it would no doubt have been borne in mind by him as a mitigating factor.  The fact that the boys expressed no adverse comment to the possibility of her going to prison was therefore purely neutral in the sentencing exercise he had to conduct and the concession made by Mr Jarman was a totally proper one. 

13. The judge was therefore fully entitled to regard the June breaches as flagrant breaches of the injunction.  He was consequently fully entitled to impose a sentence of imprisonment.  It was necessary for him to consider whether that sentence should be suspended.  He did consider that in the exercise of his judgment.  He concluded that the breaches were so serious that an immediate sentence of imprisonment -- even for this if not the first actual breach, the first actual occasion on which the court came to sentence for a breach -- it was serious enough to merit immediate imposition of a sentence of imprisonment.  I cannot see that he was wrong to come to that conclusion. 

14. And so the appeal eventually in my judgment turns upon the single question: was this a manifestly excessive sentence?  Having regard especially to her admission of guilt and her expression of contrition and bearing in mind the overall emotional state in which she was,  a sentence in my judgment should have had regard properly to the effect that the breach had upon the carers and the children, but in looking at it with regard to the effect on the mother it can be said that, given her emotional state at the time, the clanging of the prison gates would have been a short sharp reminder that injunctions are made and are to be obeyed.  There has to be that element of punishment in it.  There has to be an element of coercion, of ensuring that the order will be obeyed in the future and that in my judgment can be recognised by reducing this sentence to one of three months' imprisonment.  If looked at altogether, and I for my part would impose these sentences, reducing them if need be to one of two months to be served consecutively, my preference would be to say three months for the occasion when she actually visited the house, one month for her earlier sojourn outside the house in the afternoon of the 3rd, to be served concurrently with no separately penalty for the April breaches.  But I would allow the appeal and substitute a total sentence of three months.

Lord Justice Richards:
15. I agree.  This was a generally careful sentencing exercise by HHJ Rundell and it is with some hesitation that I have come to the conclusion that this court is justified in interfering with it.  It was plainly a proper exercise of discretion by the judge to impose a sentence of immediate imprisonment.  I accept however that the factors identified by Ward LJ do not appear to have been taken sufficiently into account by the judge and that they do tell in favour of a significant reduction in the total length of sentence.  I am content with the proposed reduction to three months in total and with the proposed make-up, of sentences of one month and three months respectively, to be concurrent rather than consecutive.

Lord Justice Hughes:
16. I also agree in the result.  I am persuaded that the proper sentence is a total of three months once proper allowance is made for (1) the admission, (2) the emotional state and (3) the fact that this was a first custodial sentence.  I would just add that this concentration on the condition of the sentenced person is only part of the sentencing exercise.  The other part of it is the effect of what she did upon others.  The purpose of the injunction was to protect the interests of the children and the care given to them by the foster carers.  The impact on all those people of her quite deliberate breaches of the injunction was considerable.  An immediate sentence of imprisonment was to my mind not only richly deserved but also necessary. 

Lord Justice Ward: 
17. So the appeal is allowed and the sentence of three months substituted.

Order: Appeal allowed