Wilkinson v Lord Chancellor's Department & Anor [2003] EWCA Civ 95

Case No B1/2002/0006[2003] EWCA Civ 95
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mrs Justice Bracewell),
Venue MANCHESTER COUNTY COURT
(HHJ David Harris QC)
LIVERPOOL COUNTY COURT
(HHJ Morgan, HHJ Duncan)
Venue Royal Courts of JusticeDate Tuesday 4 th February 2003
Strand,
London, WC2A 2LL
Before
THE LORD CHIEF JUSTICELADY JUSTICE HALELORD JUSTICE LATHAM
Between
ALAN WILKINSONAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in person for The 1 st respondent mother did not appear and was not representedClive Sheldon (instructed by Lord Chancellor’s Department) for 2 nd RespondentHugo Keith (instructed by Official Solicitor) for Intervenor
JudgmentAs Approved by the CourtCrown Copyright ©
[1]This is the judgment of the court. There are before us one substantive appeal and eleven applications for permission to appeal, although for reasons which will appear, in our judgment one of these should have been listed as a substantive appeal. [They all arise directly or indirectly out of proceedings between a father and mother relating to their children. We therefore direct that nothing calculated to lead to their identification may be published. This does not include the name of the appellant, their father, whose surname they do not bear.]

The main appeal

[2]This is an appeal against two committal orders made by Bracewell J, in the Family Division of the High Court sitting in Manchester on 18 and 22 October. It raises issues of principle and practice concerning the powers of the High Court to deal with contempt in the face of the court.[3]On Thursday 18 October 2001, Bracewell J was giving judgment in a directions hearing in proceedings under the Children Act 1989 and under the Family Law Act 1986 relating to the children. She had decided that the two be consolidated and heard in the county court. While she was attempting to deliver her judgment, the appellant interrupted with foul and abusive language directed at the mother and her solicitor. The transcript records the following:
'You are fucking dead . . . You are fucking dead. She's fucking dead . . . I'll be fucking dead 'cause I'm going to the fucking devil and I'll take that bitch with me. . . '
There was more in that vein until the judge announced that she would retire for five minutes for him to decide whether or not to be quiet. He continued:
'Get me fucking taken out'
. Then after the court adjourned: 'You're fucking dead. I'll kill you, you - . . . You fucking bastard. You think I'm laughing. Listen, I know where you live up fucking Sandbach and I'll burn your fucking house down and cut your (inaudible) off as well'.[4]The transcript then records that the appellant left court but returned to it.

The judge described what happened next in the course of the hearing on 22 October:

“He was plainly out of control. He swept away the carafe of water, threatened the respondent's solicitor, and moved to attack the solicitor and the respondent, both of whom were obviously extremely frightened, and they covered their head with their hands in order to protect themselves. A police officer and two security guards by this time were in attendance, and they attempted to physically restrain [the appellant], with the assistance of [counsel for the respondent] and my clerk. I observed what happened during the course of a very violent struggle. [The appellant] had his arm round the neck of the police officer in such a tight arm lock that he was plainly unable to breathe and was in danger of losing consciousness. That was apparent from the change in his colour and demeanour and the way he was gasping for breath. It was a very violent and somewhat protracted struggle, and it required five people eventually to contain [the appellant] and to subdue him.”

The judge therefore ordered that he be arrested and continued:

'He is remanded in custody forthwith and I shall assign a barrister to represent him and he will be dealt with for contempt in the face of the court.'
She then continued with her judgment.[5]Mr Devlin, a very experienced and highly regarded solicitor, was assigned to represent the appellant and went to see him in the cells. Mr Devlin describes his state as 'catatonic', unable or unwilling to speak. He had been banging his head against the wall of the cell. It was not possible to get instructions from him in that state. The Official Solicitor has been informed that the court staff were of the view that he could not properly be contained in a court cell.[6]It was in those circumstances that the judge made the first of two orders under appeal. This was a warrant committing the appellant to HMP Manchester 'for a period yet to be determined for contempt of court. At the present to be remanded in custody.' The judge intended to hear the case as soon as possible and had arranged for it to be fitted in as soon as he and his solicitor were ready. Mr Devlin tried to arrange to see the appellant in prison but for reasons we do not know was unable to do so. The Official Solicitor understands that he was distressed in prison and so was not brought to court on Friday 19 October. On the Saturday he asked to see a solicitor with a view to applying for bail and seeking medical attention.[7]The case came back before Bracewell J on Monday 22 October. The judge acknowledged that she would be relying on her own recollection, but stated that counsel for the mother and the judge's clerk, both of whom had made witness statements, and the police officer involved were available to give evidence that afternoon if required. The judge also made it clear that the appellant had the right to give evidence if he wished. Mr Devlin assured the court that the appellant did not wish to do so or to challenge any description of what had occurred. The judge then gave the account quoted in paragraph 4 above so that Mr Devlin could address her on it.[8]Mr Devlin reiterated that, although the appellant could not recall saying or doing everything described, he did accept that his behaviour was absolutely and completely unacceptable. In mitigation Mr Devlin argued that the appellant had been so encouraged by appearing before a family judge of her eminence in a long running children dispute where he felt that his voice was not being heard. He was overcome by disappointment when it was sent back to the county court. He had recognised over the weekend that over the years the case had been going on he 'has become totally and utterly obsessed with the litigation, that it has become a campaign which has taken over his life . . . he realises that his behaviour will have caused his ex-partner to be terrified and that she will continue to be terrified of him. He feels that there are times when she is deliberately obstructive towards him, but even then he was able to say that he recognised that this may be his own perception of her, because he is so eaten up with the desire to see his children, which he is eventually realising is not going to happen.' Mr Devlin urged upon the judge that the appellant had learned his lesson and that further immediate imprisonment was not required.[9]The judge went on to sentence him to six months' imprisonment. She explained:
“Mr Devlin has said everything that could possibly be said on your behalf . . . I have no doubt that you are obsessed with your litigation, as Mr Devlin has said, and that the litigation has been ongoing since 1998. It is, however, totally unacceptable for the business of the court to be disrupted in the way which occurred last Thursday. It was an extremely frightening incident for everyone who was in the court, and not just for those who were directly having to participate in order to try to restrain you. It was a prolonged piece of conduct on your part, and it was only because there were five people present that they eventually were able to subdue you . . . ”
[10]The appellant appears to have tried to launch an appeal while in prison but there was confusion over the appropriate court and forms. The Official Solicitor wrote informing him of his right to apply to purge his contempt. This he did and his application was granted on 19 November 2001. He was released that day. His application to this court for permission to appeal out of time was granted by Ward LJ and myself on 16 April 2002, in part because of the importance of the issues raised.[11]The Official Solicitor has intervened in the proceedings because of his role in relation to those imprisoned for contempt of court. We are most grateful to him, and to Mr Keith who represents him, for the helpful information and arguments he has put before the court. He does not, however, act for the appellant and has not taken instructions from him.[12]The appellant's grounds of appeal allege breaches of articles 5 and 6 of the European Convention on Human Rights and he seeks an award of damages for his wrongful detention. Accordingly the Lord Chancellor's Department has been joined to the proceedings pursuant to section 9(4) of the Human Rights Act 1998. Evidence has been filed both from Mr Devlin and from Mr Solly, a solicitor in the Department who met with the judge to discuss what had happened. Mr Sheldon, for the Department, has made representations on both the article 5 and article 6 aspects of the appeal, although in respect of a judicial act done in good faith there is only a claim for damages for breach of article 5.

Arguments in the appeal

[13]Of the various arguments raised by the appellant, two are supported by the Official Solicitor and clearly have more substance than the others. While they can be put in terms of the European Convention on Human Rights, it was common ground between counsel that the common law on contempt in the face of the court has now developed to a point where the Convention adds nothing to the common law: see R vDodds [2002] EWCA Crim 1328; R vMacLeod, unreported, 29 November 2000. They disagreed, however, as to the position at common law. (1) The lawfulness of the detention from 18 to 22 October[14]The order of 18 October might be seen either as a remand in custody pending summary determination of an alleged contempt of court or as a remand after it had been determined that a contempt had been committed but pending determination of how long a sentence should be imposed. The appellant saw it as the latter but it is clear from the way in which the judge conducted the hearing on 22 October that she regarded it as the former. In either event there would be a justification under article 5(1) for the detention, whether under (a), after conviction by a competent court, or (c) for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but in each case only if the detention was 'lawful'.[15]In general, there is no power to remand pending the hearing of an application to commit for a civil contempt of court: see Delaney v Delaney [1996] QB 387. That is why express provision is made, for example in the Family Law Act 1996, for a power to remand those arrested on reasonable suspicion of breaching orders made under that Act. However, as an aside during his judgment in Delaney, Sir Thomas Bingham MR said this, at p 401b-c:
"I should make absolutely plain that in the course of his submissions Mr Munby put entirely on one side contempts in the face of the court. Those are the subject of special provisions in the lower courts, section 118(1) of the County Court Act 1984 governing the position in the county court and section 12(1) of the Contempt of Court Act 1981 governing the position in the magistrates’ court. A power has long been exercised by the superior courts to detain those committing or apparently committing contempts in the face of the court until the rising of the court on the day of the alleged contempt and there is no reason to doubt the existence of that inherent power. It has, however, no bearing on the present situation which was not such a contempt"
[16]The question, therefore, is whether the High Court has power to order detention for longer than the end of the day before dealing with the alleged contempt. This question has never previously been addressed by this Court. Our attention has been drawn to five cases. In Morris v Crown Office [1970] 2 QB 114, a group of Welsh language protesters made a disturbance in court; some were detained until the rising of the court and those who did not apologise were sentenced to three months' imprisonment; in dismissing their appeal, Lord Denning MR said this, at p 122c-d:
“The phrase 'contempt in the face of the court' has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power - a power instantly to imprison a person without trial - but it is a necessary power.”
In Balogh v St Alban's Crown Court [1975] QB 73, a solicitor's clerk who stole a canister of laughing gas and planned to enliven the proceedings at St Albans Crown Court by releasing it into the court was detained overnight and dealt with next day. Although it was held on appeal that he was not guilty of contempt of court and that immediate punishment was in any event unnecessary because he was already detained on a charge of theft, no complaint was made of the overnight detention. But Stephenson LJ remarked of the summary procedure, at p 90a:
'It must never be invoked unless the ends of justice really require such a drastic measure; it appears to be rough justice; it is contrary to the rules of natural justice; and it can only be justified if nothing else will do.'
However, the appearance of rough justice has been mitigated by the guidance given in later cases. In Moran (1985) Cr App R 51, a prisoner serving a sentence for burglary was sentenced to a further six months for refusing to give evidence against a person implicated in the same offence. The Court of Appeal stated, at p 53a-e:
"These situations are always difficult for judges to deal with. The trial judge is in a much better situation to assess what is required to be done than this court some months afterwards. The following principles should be borne in mind. First, a decision to imprison the man for contempt of court should never be taken too quickly. The judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extent to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the judge should consider whether the contemnor should have some advice . . .. Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which is in many ways Draconian."
This approach was taken further in R v Hill [1986] Crim LR 457, where a woman who had made a disturbance in the public gallery was detained overnight and then committed to prison for seven days. The Court of Appeal held that this was a classic example of contempt and it was for the judge to take steps to safeguard the court's authority. These would in appropriate cases include (1) the immediate arrest and detention of the offender; (2) telling the offender directly what the contempt is stated to have been; (3) giving a chance to apologise; (4) affording the opportunity of being advised and represented by counsel and making any necessary order for legal aid for that purpose; (5) granting any adjournment that may be required; (6) entertaining counsel's submission; and (7) if satisfied that punishment is merited imposing it within the limits fixed by statute. As in Balogh, however, no complaint was made of the decision to detain her overnight.[17]Those were all cases in which the trial judge had exercised the summary power to punish for contempt of court of his own motion. In the Divisional Court case of R v Secretary of State for the Home Department, ex parte Stevens and Holness, unreported, 21 May 1997, the applicants were alleged to have threatened a witness for the prosecution in a trial for armed robbery to try and get her to retract her evidence. The judge found that there was prima facie evidence of contempt but decided not to exercise his summary powers. He wanted to keep them in custody for the duration of the trial. To do so, he remanded them in custody to await the decision of the Attorney General whether to proceed against them for contempt. It was agreed that the judge had no power to do this.[18]The Official Solicitor argues that a remand can only be for such period as is necessary(1) to bring the act of alleged contempt to an end;(2) to reflect on the position and make arrangements, if thought fit, for a summary hearing, and perhaps(3) where the matter is part heard, to ensure the continued attendance of the alleged contemnor: for this last proposition he relies upon an observation of Butler Sloss LJ, as she then was, in Re B (Child Abduction) [1994] 2 FLR 479, at p 484a, although that case concerned civil rather than criminal contempt. He argues that there is no authority for any power to detain longer than overnight. The liberty of the subject is at stake. Even if the contempt cannot be dealt with next day, the contemnor should still be brought back to court and the question of whether he should be granted bail considered. The principles of the Bail Act 1996 are of general application in all criminal cases.[19]In our judgment, it is necessary to distinguish between jurisdiction and good practice. A judge faced with the sort of serious disturbance which took place here is placed in a very difficult position. After the immediate disorder has been quelled, the first decision to be made is whether to invoke the summary procedure or whether to refer the matter to the Attorney General for him to decide what action to take. It cannot be left to the other party to the case, here the mother, to take action. Although she was the immediate victim of the appellant's aggression, the offence lay in the contempt thereby shown to the court and to the proper administration of justice. This was not something that the court could overlook. Although the summary procedure is a Draconian step which should never be embarked upon lightly, it is not limited to cases where it is necessary to preserve the integrity of a trial which is in progress or about to begin (the observations in Director of Public Prosecutions v Channel Four Televisions Co Ltd [1993] 2 All ER 517, at p 521a - c, were not intended to cover all eventualities). In a serious case such as this, particularly where there are ongoing proceedings between the same parties, it may be entirely proper to invoke the summary procedure even though the immediate hearing is over. No-one has suggested otherwise.[20]Once a judge has decided that it is proper to invoke the summary procedure, she has to secure that the process is as fair as possible for the alleged contemnor, consistent with its being a summary procedure. Arrangements must be made for him to be legally represented. A short period of reflection is valuable. The contemnor is given the opportunity to contain his anger, consider the situation, apologise to the court and assure it of his good behaviour in future. The judge is also given the opportunity to recover from a disruptive or even, as in this case, frightening experience and consider what, if anything, needs to be done about it. The question is how long she can or should wait before bringing the case back.[21]In many cases, it need take no longer than the remainder of the court day (as it appears was originally envisaged in this case) or overnight. But where the delay is no longer than necessary in order to make arrangements for a summary trial in which the rights of the alleged contemnor can be properly protected, it cannot be unlawful. It would be illogical to hold that a judge can impose up to two years’ imprisonment virtually on the spot but not wait a short time in order to achieve a fairer procedure. As a matter of good practice, however, if the case cannot be heard the next day, the judge should ensure that the alleged contemnor is brought back to court in any event, or if this is not possible, that inquiries are made and the case is mentioned in open court, so that the reasons for any further delay are both known and recorded and the question of bail can be considered.[22]In this case, it is regrettable that that was not done. We can only draw inferences as to why it did not proceed on the Friday, but there is material from which we can infer that it was because the appellant was still not fit to instruct his lawyer. We can also infer that if the appellant had been brought back to court, or the case mentioned, the next day, the judge would not have released him. In those circumstances, a delay until the next working day was not unlawful. But in our view that is the very limit of what could be either lawful or acceptable. (2) Referral to another judge[23]Both the appellant and the Official Solicitor question whether the judge should have dealt with the matter herself. The Phillimore Committee (1974, Cmnd 5794, para 30) saw three advantages in the matter being dealt by the same judge: she would be in the best position to deal with it, because she had witnessed what had taken place; she might well be more inclined to take a lenient view after a period of reflection than another judge who simply read the transcript and would be naturally anxious to protect a sister judge; and the threat of immediate punishment is an effective deterrent. To these may be added the necessity for prompt action in cases where the trial is still going on and the impracticability of arranging for another judge to deal with it if there is still a risk that the contempt hearing will itself be disrupted.[24]On the other hand, the power to impose summary punishment for actions which one has oneself witnessed and is oneself the victim does appear to place the judge in the position of being witness, prosecutor and judge. As was said in the Channel Four case, the judge should not appear to be a prosecutor acting in his own cause (see also Schot and Barclay [1997] 2 Cr App R 383.) The appellant therefore argues that she could not be an impartial tribunal for the purpose of article 6(1).[25]In many cases where there has perforce to be a delay between the alleged contempt and the summary trial, it will be wise for the judge to refer the matter to one of her colleagues if for no other reason than to avoid the risk that this argument will be run. However, as Borrie and Lowe point out (The Law of Contempt, 3rd edition 1996 at p 522), strictly speaking the procedure does not offend against the rule of natural justice, nemo iudex in sua causa (no-one shall be judge in his own case), since the prosecution is not aimed at protecting the judge personally but protecting the administration of justice. The issue is one of the appearance of bias. The test which must now be applied in deciding whether a tribunal is impartial for the purpose of article 6 is that set out by this Court in Re Medicaments and Related Classes of Goods [2001] 1 WLR 700 at paras 85 and 86:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility… that the tribunal was biased. The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances.”
This test was approved by the House of Lords in Porter v Magill [2001] UKHL 67; [2002] 1 All ER 464, paras 102, 103.[26]In this case, the evidence from Mr Solly's conversation with the judge is that she did indeed consider whether it was appropriate for her to decide the committal hearing. She did so because it appeared that the appellant's guilt was not in question, so that the only issues would be mitigation and sentence. As we have seen, this was correct. At the time there was no question of contradicting the transcript or the accounts of the witnesses and these corresponded with the recollections of the judge which she recounted in court.[27]In those circumstances, the Official Solicitor takes the view that, even if it might have been preferable for the judge to ask another judge to hear the case, he cannot contend that her exercise of discretion was clearly wrong. There was no dispute as to the essential facts of what had occurred and it was accordingly open to her to continue to deal with the matter herself. A fair-minded observer would not conclude that there was a real possibility of bias. We agree. (3) Other points raised by the appellant[28]The appellant contends that he was not informed promptly in language which he could understand of the reasons for his arrest and any charge against him, contrary to article 5(2), or in detail of the nature and cause of the allegation against him, contrary to article 6(3)(a). The Official Solicitor does not support those contentions. It is clear from the transcript of the 18 October that he was told why he was being detained and what was alleged against him. Insofar as the warrant may have been wrongly worded, it is open to this court to correct it where no prejudice or injustice has been caused: see Nicholls v Nicholls [1997] 1 WLR 314. The transcript of what took place on 18 October and the witness statements of the judge's clerk and the mother's counsel were made available and the judge herself gave a clear account of the alleged contempt during the hearing on 22 October. He did not challenge it then either in person or through his lawyer.[29]He also alleges a breach of the presumption of innocence contained in article 6(2). But there was ample evidence before the court to prove his guilt and in any event he admitted it. The court does not have to insist on hearing all the relevant evidence in the face of clear admissions from the accused.[30]He also alleges that he was not given adequate time and facilities to prepare his defence. Again, no complaint was made at the time. His guilt was admitted. Mitigation was advanced on his behalf. The judge commented that Mr Devlin had said all that could be said on his behalf. The transcript of the hearing on 22 October bears this out. It was not through any lack of preparation that he failed to persuade the judge to take a more lenient view.[31]The appellant also complains that he was not given a choice of representative. He feels that Mr Devlin was in a difficult position having been appointed by the court to represent his interests in a case brought by the court. Article 6(3)(c) requires that a person accused of a criminal charge be allowed to defend himself through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require. If given it free he does not have the right to insist upon a lawyer of his own choosing. The European Court of Human Rights will not interfere with the choice of lawyer assigned by the court if there are relevant and sufficient reasons for the appointment. It is clear that Mr Devlin was well qualified to represent the appellant and did an excellent job for him. We have absolutely no reason to believe that he was not acting on the appellant's instructions when he made the admissions he did. The appellant made no complaint at the time.[32]There is therefore nothing in these additional grounds. Nor is there anything in the argument put before us today that the sentence was excessive. The maximum penalty for contempt of court is two years' imprisonment. The contempt in this case is one of the most serious that could be imagined: a violent and prolonged attack by one party aimed at the other party to the litigation while a hearing is going on, disrupting the proceedings and causing fear and alarm to everyone in court, and leaving the other party, as was acknowledged on his behalf at the hearing, with a continuing fear that he might be violent towards her in the future. Such conduct subverts the whole object of the litigation process, which is that disputes should be determined in a peaceful and civilised manner and not by force.[33]For those reasons, we dismiss the substantive appeal.

The applications for permission to appeal

[34]Some of the applications for permission to appeal relate to later orders made in the proceedings about the children and some to orders made in proceedings under the Family Law Act 1996 after the applicant was released from prison. The last of these was a suspended order of committal, which in our judgment should have been listed as a substantive appeal. The applicant has asked us to deal with all of these on the basis of his written submissions. It will clarify matters if we set out the history in chronological order.[35]The parties have two children, Joseph, born on 23 March 1994 and Shannon, born on 5 August 1997. The mother also has three older children by different fathers: the younger two of these were also the subject of proceedings at an earlier stage. The parents separated in 1997 after the father had assaulted Shannon who was then only ten weeks old (for which he was convicted of common assault). In 1998 the father applied for contact and parental responsibility. The case was heard over three days before District Judge Shaw, who heard evidence from, among others, a Mr Bland, who had conducted a psychological assessment of the father. She made findings of fact, which included findings about the extent of the bruising suffered by Shannon in the assault. On 17 November 1999, she delivered a very full and careful judgment and made an order that there be no direct contact but limited indirect contact in the shape of letters, cards and presents and also providing for a review. The application for parental responsibility was adjourned. The father appealed unsuccessfully to HHJ Eaglestone and his application for permission to make a second appeal to this court was refused by Thorpe LJ on 12 February 2001.[36]The appeal process had set back the review which was finally completed only in May 2002. There have been numerous hearings along the way, some of which the father has attended and some he has not, but most of which the mother has felt obliged to attend because she never knows what new point is going to be raised or what previous concession withdrawn. The father has, as was admitted before Bracewell J, become obsessed with the litigation. In addition to the Children Act proceedings, he issued an application under section 55A of the Family Law Act 1986 for declarations of parentage, even though this is not in dispute, apparently for the purpose of getting himself registered as their father.[37]It was this that came before Bracewell J for directions on 18 October 2001. Her direction that it be consolidated with the Children Act proceedings and heard in the county court precipitated the violent incident which led to his imprisonment for 6 months for contempt of court. On 20 November 2001, the day after he purged his contempt, the mother applied ex parte for a non-molestation order under the Family Law Act 1996. HHJ Allweis granted an order that he keep away from the mother's home, refrain from using or threatening violence towards her, and refrain from intimidating, harassing or pestering her. He attached a power of arrest to the first two orders. All were to last until 20 May 2002, but the father was given the opportunity to return to court to contest them. It appears that they were confirmed at an inter partes hearing on 28 November 2001. There was no appeal.[38]Meanwhile the proceedings about the children continued, mainly in front of HHJ David Harris QC. Directions were given on 25 January 2002 (although the order was not drawn until 1 March 2002). These included a direction that there be two security officers appropriately positioned in court so as to be able to restrain the father should he become violent. The case was set down for a 3 day hearing on 8 April 2002. The father was not to be allowed to challenge DJ Shaw's findings as to nature and extent of the bruising to Shannon unless fresh evidence was produced. But the father was given permission to write to the GP seeking his comments on the district judge’s findings.[39]Further directions were given on 4 March 2002 when the father did not attend. Their main object was to get the father to explain why he wanted a parentage declaration.[40]Further directions were given on 11 March 2202. Their main object was to give the father an opportunity of satisfying HHJ Earnshaw, who would be sitting on 19 March 2002 at Salford County Court, that his parents were willing to fund a further psychologist's risk assessment which could be obtained within three months: if so the April hearing would be vacated and refixed as soon as possible. The father was also given permission to withdraw his application for declarations of parentage (and for the removal of the power of arrest from HHJ Allweis' order of 20 November 2001).[41]The father wrote to the court on 15 March declining the court's offer to allow the instruction of a further expert witness. There was therefore no issue remaining for HHJ Earnshaw to decide on 19 March 2002. He made an order that the case should remain in the list for 8 April. The father turned up late at Salford county court. He wanted the case mentioned again but the judge refused. An incident then took place between the father and the mother outside the court building, witnessed by a court usher, which was allegedly in breach of the Family Law Act order. It was expected that the police would invoke the power of arrest in the order, but this did not happen. Accordingly the mother issued a committal application. This was served on the father at court on 8 April 2002 with a return date of 10 April 2002.[42]The hearing of the children case proceeded before HHJ Harris on 8 April. By then the father had withdrawn his parentage applications and indicated that he did not seek direct contact. But he did want enlarged indirect contact to include video and audiotapes. The mother meanwhile had applied for an order under section 91(14) of the Children Act 1989 (which would prohibit further applications by the father without leave of the court).[43]HHJ Harris gave judgment on 7 May 2002. This contains a full and helpful account of the proceedings to date and some sensitive insights into the harmful effects of these protracted proceedings, not only upon the mother and the children but also upon the father. The judge dismissed the father's application to redefine indirect contact. He made an order under section 91(14) to last until 7 May 2004. He gave directions in the event that the father made any further application for declarations of parentage. The father seeks permission to appeal that order along with the directions given on 25 January (drawn 1 March), 4 March, and 11 March. (2002/1305; 1308; 1309; 1310). All these applications were sealed by this court on 20 June 2002 and so an extension of time is also required.[44]Also on 10 April 2002, the mother’s application to commit the father for breach of the Family Law Act 1996 order was adjourned to 19 April 2002 for directions. The father applied for it to be struck out or stayed. On 19 April 2002 (when the father did not attend) HHJ Harris gave directions for that application to be heard by him on 7 May 2002 (when he was due to give judgment in the Children Act proceedings). On that day (the father again not attending) HHJ Harris did not expressly deal with the application to strike out but transferred the committal application to Liverpool county court, with a directions hearing fixed for 20 May (when the order made by HHJ Allweis was due to expire) and a final hearing fixed for 7 July. The object was to have the case decided in a court where the judges did not know the usher concerned. The father seeks permission to appeal the orders made on 10 April, 19 April and 7 May (2002/1306, 1307). These applications were also sealed on 20 June 2002 and so an extension of time is also required.[45]A further non-molestation order was made on 20 May 2002. However, the trial did not go ahead on 7 July 2002 because of the mother's ill-health and the father's non-attendance. HHJ Morgan gave directions. He also transferred the case to Chester for a date to be fixed. At the same time he made a fresh Family Law Act order in the same essential terms as earlier with a power of arrest attached as before. These were to last until further order. The father seeks permission to appeal against that order and against the adjournment rather than the striking out of the committal application (2002/1636, 1637). These applications were sealed on 5 August 2002 and so an extension of time is also required.[46]The committal application was transferred back to Liverpool and eventually came before HHJ Duncan on 30 October 2002. There was an earlier hearing on 18 October 2002 at which the judge had made it clear to the father that he had to attend even if he was not legally represented. The father was neither present nor represented on 30 October but the mother was ready to go ahead. After making inquiries of the solicitor said to be acting for the father (who said that the father did not want them to instruct counsel for him) the judge proceeded to hear the evidence and make the findings of fact recorded on the later committal order.[47]The committal order was made by HHJ Duncan on 25 November 2002. The contempt proved was that on 19 March 2002 outside Salford County Court and on the adjacent M602 roundabout he used threats against the mother and in particular outside court threatened to kill her and slit her throat. The father was committed to prison for eight months, but suspended for one year on the same terms as a contemporaneous new order under the Family Law Act 1996. This was in essentially the same terms as the earlier orders, but this time with a power of arrest attached to all three paragraphs, and all to last until 25 November 2003, the same period as the suspension of the sentence of imprisonment. The father seeks permission to appeal against the orders of 30 October and 25 November (2002/2591, 2592, 2593).[48]The applications therefore fall into three groups. The first concerns the case management and substantive orders in the Children Act case. The father makes many complaints, among them that the direction as to security officers was humiliating and put him at a disadvantage from the outset, that the GP should have been called to give evidence (although he had not responded to the father's letters), that he had been given insufficient time to obtain a psychologist's report, and insufficient notice of the section 91(14) application, that he had absented himself to avoid prejudicial cross-examination on the subject-matter of the committal application, and that the Children Act orders had been made without full and proper evidence.[49]There is no substance in any of these objections or any others raised by the father. It is clear that HHJ Harris bent over backwards to afford the father opportunities which many judges would not have done. There was no basis for challenging the findings of fact made by the District Judge as to the nature and extent of the bruising caused to Shannon by the father's assault, yet HHJ Harris allowed the father to seek the doctor's comments upon those findings. The District Judge had had the psychological evidence of Mr Bland. The father had later undertaken a ten month course of cognitive behavioural therapy. HHJ Harris had the benefit of an optimistic report about that but had been fully entitled to take into account the events of 18 October in finding that the father had been unable to sustain the progress there made. He was careful not to make any findings of fact about the alleged incident on the 19 March. As to further reports, the proceedings had by then been going on for a long time but the father was unable to show that there was a reasonable prospect of his providing a further psychological assessment within a reasonable time. Had he been able to do so, HHJ Harris might well have permitted this, although he would have had to balance the benefits to be gained against the detrimental effects upon the children of further delay in bringing these damaging proceedings to a conclusion. At the hearing the debate was only about indirect contact, as to which the judge was entitled to give great weight to the evidence of the mother, as to the effect upon her of the father’s conduct, and of the CAFCASS officers as to the wishes and feelings of the children. HHJ Harris gave a very full and fair judgment in which he applied the correct principles of law and made findings of fact which were obviously open to him on the basis of the evidence he had read and heard. Even without any findings on the incident of 19 March, he was amply justified in finding that the mother retained a genuine and overwhelming fear of the father, perpetuated by the father’s aggressive conduct of the litigation, and desired some peace so that she could get her life together and devote herself to the care of her children. She could not cope with images and sounds of the father within the household. This would have a detrimental effect upon her ability to care for the children. It would also be damaging for Joe and cause confusion and disruption to Shannon. This could not be overcome until the father was willing to accept the validity of the mother's reactions and views. He was far, far short of that position. The father had had ample notice of the mother's application for a section 91(14) order. The judge correctly directed himself as to the test to be applied in making an order under section 91(14) and concluded that this was just such a case. Given the way in which the father had conducted the litigation, including his frequent changes of mind, and his inability to accept the orders made, that order was amply justified. There is no reason at all to interfere with the judge's findings or the exercise of his discretion and, in the circumstances of this case, every reason not to do so. These children and their mother deserve some peace.[50]The second group of applications relate to the Family Law Act orders made on 7 July 2002 and the directions given in the committal proceedings. The father is concerned that an exclusion order was made about a house in which he has never lived and also that the orders were made for an indefinite period. If necessary to do so in order to protect the mother from harassment or molestation, it is possible to exclude the father from the area near her home as part of a non-molestation order. While orders are normally made for a fixed period, it was sensible not to fix the period in this case because the committal application was expected to come before the court within a reasonable but as yet unknown period of time. The order of 7 July as in fact now been replaced by the time limited order made on the 25 November 2002. There is no substance in these or any of the father’s complaints about either of them.[51]There is also no substance in any of his complaints about the conduct of the committal proceedings. This was a perfectly proper application to make. The father argues that its main purpose was to disadvantage him in the Children Act proceedings. The judges were right to reject that allegation. The mother was entitled to seek such protection as the court can give her against the alleged failure of the father to comply with orders made for her protection and indirectly for the protection of their children. The court took considerable care to avoid prejudice to the father, both in transferring the case to a court where the judge would not know the usher who had witnessed the incident and in providing that the transcript of the hearing on 18 October 2001 and of HHJ Harris' judgment of 7 May 2002 should be kept in a sealed envelope until otherwise directed. The judge was entitled to proceed to hear the evidence on 30 October, given the warning he had given the father on the previous occasion and the inquiries which were made of the solicitor. Indeed it would have been wrong of him to delay the hearing of the mother’s application any longer. Contempt of court, whether civil or criminal, should be dealt with swiftly and decisively. The findings he made were clearly open to him on the evidence.[52]Accordingly, we refuse all these applications for permission to appeal.

The suspended committal order

[53]Under the Civil Procedure Rules, rule 52.3(1)(a), permission to appeal is required against all orders except(i) a committal order,(ii) refusal to grant habeas corpus, and(iii) a secure accommodation order under section 25 of the Children Act 1989. The question therefore arises whether a committal order which is suspended for a period upon terms is nevertheless a committal order for this purpose.[54]Permission to appeal is required against any order other than a committal order even though it is made in committal proceedings, such as an order adjourning the proceedings (see Barnet London Borough Council v Hurst [2002] EWCA Civ 1009) or an order that there be ‘no order’ on the application to commit (see Government of Sierra Leone v Davenport [2002] EWCA Civ 230). In that case, this court defined a committal order as ‘an order which commits a person to prison’.[55]There is no doubt that a suspended committal order is an order which commits a person to prison. It orders that the person concerned 'be committed for contempt to prison' for the period specified. On the other hand, it does not result in the immediate imprisonment of the person concerned. A further order of the court is required. Unlike an immediate committal order, the refusal of habeas corpus, or a secure accommodation order, the person concerned is not immediately deprived of his liberty. It could be said, therefore, that the policy of the exception does not require an automatic right of appeal without the delay involved in having first to seek the permission either of the trial or the appeal judge. The origin of CPR 52.3(1) lies in the Report of Sir Jeffrey Bowman, Review of the Court of Appeal (Civil Division) (September 1997). This recommended that the requirement of leave to appeal be extended to all appeals apart from those which 'fundamentally affect the legal position of minors or the liberty of the subject' (para 23). The exceptions relating to minors were dropped on the recommendation of The Family Appeals Review Group, chaired by Thorpe LJ. None of these documents addressed the question of suspended committals.[56]In other contexts, however, it has often been emphasised that a suspended sentence of imprisonment should always be regarded as a sentence of imprisonment. It should not, therefore, be imposed for an offence which is not serious enough to merit an immediate sentence. Nor should a suspended committal be for longer than the immediate term which would be imposed: see, eg, Hale v Tanner [2000] 2 FLR 879, CA at para 28. The reasons for this are obvious. There may well come a time when the court has to consider whether or not the terms of the suspension have been broken. If they have been broken, the court will be concerned with whether the suspension should be lifted and the committal served: see Re W(B)(An Infant) [1969] 1 All ER 594, CA. Although the court has a discretion whether or not to implement the committal, it will begin with a predisposition to do so once a breach of its terms has been proved, and it will not at that stage be concerned with whether the original committal order was correct. Nor will the Court of Appeal. The time to consider whether the original committal was correct is when it was imposed. It follows that the time to appeal against it is then and not at the later stage. Although that later order will also be ‘a committal order’ for this purpose, the issues will be different.[57]Although a suspended committal does not immediately deprive the contemnor of his liberty, therefore, it hangs a sword of Damocles over his head which puts his liberty at much greater risk than did the order which he has been found to have breached. To the extent that there is any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty is thus put in jeopardy. In our judgment, therefore, a suspended committal order is a committal order for the purpose of CPR 52.3(1)(a) and may be appealed without permission. If, of course, the person concerned delays making an appeal beyond the time allowed by the rules, leave to appeal out of time will still be required. Furthermore, if experience shows that a substantial proportion of appeals against suspended committals are so lacking in merit that they would not have been granted permission to appeal, the rules can readily be amended.[58]Having said all that, however, this was a case in which the appellant may account himself fortunate to have escaped an immediate sentence of imprisonment. He did so because of the length of time which had elapsed without further complaint since the incident in question. But seen in the context of the history of these proceedings, the previous incident in 2001, and the continuing fear that had admittedly caused to the mother, a sentence of eight months’ imprisonment was amply justified. If only the father had been able to sustain the progress made in his therapy in 2000, and the insight shown by Mr Devlin on his behalf in 2001, then not only would he be a great deal happier but his chances of establishing a better relationship with his children in the future would be greatly enhanced.[59]This appeal is also dismissed.

Order

Appeal dismissed; no order for costs. (Order does not form part of the approved judgment)

Cited in 18 later judgments

and 9 more of the most senior