P (A Child) [2006] EWCA Civ 1792

Case No B4/2006/2373[2006] EWCA Civ 1792
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TEESIDE COMBINED COURT CENTRE
(HIS HONOUR JUDGE MICHAEL TAYLOR)
Venue Royal Courts of JusticeDate Thursday, 16 November 2006
Strand
London, WC2
B E F O R E:
THE PRESIDENT OF THE FAMILY DIVISION
(Sir Mark Potter)
LORD JUSTICE NEUBERGER
LORD JUSTICE WILSON
P (a child)
(Computer-Aided Transcript of the Stenograph Notes of
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MR ROBERT GILBERT (instructed by Watson Woodhouse) appeared on behalf of the Appellant
MR STEPHEN AINSLEY (instructed by Donnelly Adamson) appeared on behalf of the Respondent
J U D G M E N T
[1]THE PRESIDENT: This is an appeal by the mother of a child, C, now aged just under 7 years, against the order of His Honour Judge Michael Taylor made in the Teeside Combined Court Centre on 24 October 2006. The judge made an order for the mother to be committed to prison for seven days for contempt by her breach of a previous order of the judge, dated 1 September 2006, ordering the mother to give contact of C to her father, the mother's former partner, from 6 pm on Friday to 6 pm on Sunday of each weekend.[2]The mother's breaches of the order were that she had failed to produce C for contact for four successive weekends from 8 to 29 September 2006 inclusive. The judge suspended the committal order provided that the mother complied thereafter with the order of 1 September. We have been informed that, since the date of that order, contact has properly and successfully been resumed on three successive weekends. The order was made on the application of the father, dated 6 October 2006. That application, and the father's sworn statement in support attesting to the mother's breaches, was served on the mother on 12 October 2006, thus giving her some 12 days' notice of the hearing date. The mother did not attend in person on the appointed day.[3]However Mr Gilbert of counsel, who appears on this appeal, appeared before the judge on 24 October 2006, instructed by the mother's solicitors. He informed the judge on that morning the mother had attended at her solicitors' office and told her solicitors that she had no child-minding arrangements in place in respect of C and so she would not be attending court. Mr Gilbert applied for an adjournment, but the judge refused it. He observed that there was a "history" in the case and, without giving any formal judgment, made the order which he did.[4]It is at this stage important to refer to what was the history of the case which the judge must have had in mind and, in particular, the pattern of the mother's previous failures to comply with orders of the court. The early history appears outlined in the CAFCASS report on 14 October 2004:
"The parties were acquainted before their relationship started in 1997. Two weeks into their relationship [the father] moved into [the mother's] home, which she shared with her daughter, [A], who was then two years old. The relationship started to unravel in 2000, when arguments and aggression took place. [The father's] employment as a long distance lorry driver required him to spend long periods away during the week ..... plans were being made to bring the relationship to an end [at the end of 1999]. [The mother] then became pregnant with [C], who was born on Christmas Day [1999]. The father was present at the hospital when she was born ..... The relationship between the parents again deteriorated [soon after the birth] ..... The relationship ended after [an incident of violence] ..... [the father] left the home on 9 March 2003 ..... ..... He [went] to live with the paternal grandmother. He is usually away during the week, due to his employment."
[5]Following the father's departure the mother experienced troubled and violent relationships with subsequent partners. She became dependent on state benefits. She lives with C in a local authority house. Her older daughter by a previous relationship - A - left her to live with her maternal grandparents in August 2004 following a dispute between the mother and A.[6]The father had no contact with C for 11 months after the break-up of the family. Contact then resumed for six weeks until it was stopped by the mother when she found that the father had taken C to see her sister, A, in Blackpool where A was then living with A's father. According to the father, A and C were pleased to see each other. The father issued a contact application in September 2003 because of the cessation of his contact with C.[7]In fact contact did not take place for some time. On 20 2004, at a hearing at which both parties attended and were represented, an order was made for interim contact each weekend, as already mentioned, and such other contact as the parties should agree. In fact contact did not take place for several weeks. On the first occasion the mother attended on her own, saying that C had said she did not wish to go to the contact appointment. The father attended on subsequent weeks but the mother and C did not. Eventually, contact took place on 20 August, and thereafter continued up to the date of the CAFCASS report in October 2004 to which I have referred.[8]That report referred to certain social service concerns over the mother, in particular her involvement with drugs and her failure to attend appointments with the social worker and the addictive behaviour service. By that time A had gone to live with the maternal grandparents. It was observed in the report that C received different styles of parenting. The father tended to spoil her and to make her the main focus of his attention during contact when he liked to maintain her interest. He did homework with her and was interested in her schooling. He had routines and boundaries in place to which C responded.[9]On the other hand, there appeared to be a lack of structure provided for C when in her mother's care. The mother had a propensity to disregard appointments and court orders which concerned the CAFCASS reporter. Welfare issues raised in respect of C had some foundation and the recorder was anxious that they should be addressed by the mother. The report stated:
" ..... if there is no improvement, then [the mother] needs to be aware that a re-arrangement of residence in respect of [C] may need to be considered. [C's] contact with her father has been intermittent and this cannot be in her best interests. Contact needs to be consistent as periods of no contact cause confusion for the child and frustration for the parents."
The report referred to the need to give consideration to the father being granted parental responsibility. It concluded:
"In order to safeguard [C's] relationship with her father, it is necessary to make a Reasonable Contact Order in his favour, which would incorporate the current arrangements for weekend contact and also any other contact during school holidays."
The report stated that the author would support making a Parental Responsibility Order in the father's favour.[10]On 19 August 2004, the court made an order in accordance with that recommendation. However, after a while contact broke down, the mother stating that, despite encouragement, C did not want to go to her father. On 10 March 2006, as a result of difficulties in contact, the father issued an application for a residence order.[11]There is a further CAFCASS report before us of 20 July 2006. It is recorded in that report that there were difficulties in contact, and that, if C remained in mother's care, she would be denied reasonable contact with her father. It was recorded that despite various court interventions the case had not settled to a level at which C could benefit from appropriate contact with the father.[12]On 3 August 2006 the court ordered that there should be observed contact sessions, and three were arranged by the CAFCASS officer. However only two of those meetings took place. The details appear from a CAFCASS report of 25 August 2006 which reads as follows:
"With Court Direction [the mother] has brought [C] to the office twice out of three times that an invitation was offered. During these two contacts [C] has shown no reluctance to go to her father and they seem to drop back into what, presumably, was the previous comfortable companionship. It was only when mother became angry and upset that the child cried. During the first session she was reduced to tears and asked to go to grandfather who I suspect is a significant person in her life. Due to mother's change of mood, the second session went well, even though there was clearly an 'atmosphere' between the parties. [C] needed her mother's permission and encouragement to go to her father. When this is not forthcoming she takes her mother's lead and backs off from the meeting. [The mother] seems to be very inconsistent. She missed one contact out of three. This seems to reflect the pattern of past contact in that there has been no routine or pattern. Equally in her comments she is not consistent. While she says that she feels [C] should see her father she does not actively promote it. Such mixed messages will give problems to a young child."
The recommendation at the end stated:
"[C] is very close to her mother and to her maternal grandparents. She also seems to have a good relationship with her father and his family. Ideally she would have the benefit of both. It seems that mother's uncertainty transmitted to [C] may be preventing the contact with which in theory mother approves of. In the past, although contact has been ordered and the order has been reinforced there has been little success in establishing a regular pattern. A penal notice attached to an order would be a consideration and would emphasise the authority of the courts."
[13]On 1 September 2006, His Honour Judge Taylor made an order reinstating contact and attaching a penal notice in accordance with the suggestion of the CAFCASS reporter. That notice made clear on its face that, if contact was not made available as ordered, the mother would be guilty of contempt of court and might be sent to prison. In fact on 8 September the mother failed to make C available for contact as the order required. On 15 September she was personally served with the contact order of 1 September at 8.05 in the morning following repeated unsuccessful attempts by process servers. It is plain from the court file that the mother was actively evading service. Despite service upon her of the contact order on the morning of 15 September, she failed to make C available for contact that day as required under the order and again failed on 22 September and 29 September.[14]Accordingly on 6 October 2006, the father made an application for substituted service in respect of a notice to the mother to show good reason why an order for the mother's committal to prison should not be made. The notice to show good reason states on page 22 under a series of bullet points:
"• Important instructions about what you should do are set out below. ..... Important notes • The court has the power to send you to prison if it finds that any of the allegations made against you are true. Full details of the allegations are contained in the applicant's sworn statement (the affidavit). • You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring any witnesses and documents with you which you think will help you put your side of the case. • If you can show good reason why you should not be sent to prison you must tell the court. • If you need advice you should show this document at once to your solicitor or go to a Citizens Advice Bureau."
That notice, in turn, repeated the terms of the contact order of 1 September 2006, set out the breaches complained of, and made clear those matters I have just read out.[15]It is plain that the mother took no steps as advised in the note prior to the day of the hearing, but simply turned up at her solicitors' office in the morning saying that she had no child-minding arrangements in place and would not be attending. Her solicitors told her of the importance of doing so, but she still said that she would not attend. I should perhaps make clear at this point that we have seen on this appeal no statement from the mother as to the reasons for her failure to have made babysitting arrangements, or what efforts she had made, or why it was that she was not prepared to come to court bringing the child with her in the light of the seriousness of the proceedings. Nor do we have any statement from her solicitors setting out the substance of what she told them on that score. All we have before us in this regard and, indeed, as Mr Gilbert has made clear to us, all that the judge had before him in that regard is a brief statement from the lips of Mr Gilbert himself to the effect I have already mentioned.[16]The basis for the appeal, as argued by Mr Gilbert, is that the judge dealt with the matter in an indefensibly summary fashion when it came before him. The account of the matter which we have had from Mr Gilbert and which is not in dispute from the father's side is as follows. As soon as the judge came in, Mr Gilbert stood up to explain the absence of the mother. The father's solicitor/advocate indicated that he would prefer to open the case. He then did so briefly, referring to the history of the matter, the fact that the mother was not in attendance and that she had a history of non-compliance and non-attendance in the past. He then referred the judge to the father's short statement setting out the acts of non-compliance in respect of which the order for committal was sought. At that point, Mr Gilbert stood up and made clear he had only just been instructed and all he could tell the judge as to the non-attendance of his client was that which I have already stated. He then sat down.[17]The judge then stated that what he proposed to do was to impose a custodial sentence of seven days to be suspended on the basis that contact was henceforth afforded as set out in the contact order. Until then, Mr Gilbert was proceeding on the unspoken assumption that, having made clear his position and the state of his instructions, the judge would postpone the matter, either by adjourning it or putting the matter back in his list for the solicitors to get hold of the mother and come with her to court either that day or the next day or two, so that the matter could be dealt with. When the judge indicated that he intended to deal with the substance of the matter by making the order mentioned, Mr Gilbert rose to ask the judge to consider an adjournment. The judge said that he would not do so on the basis of the history of the matter. Mr Gilbert left it there. He did not persist in his application for adjournment, nor did he say - although it is part of his submissions before us today - that the judge should not make the order which he contemplates without having heard from the mother to judge the validity of her excuse for non-attendance.[18]Taken shortly, Mr Gilbert's submissions before us on this appeal are these:(1) he submits that in the light of the position as it presented that day, namely the unexpected absence of the mother on stated grounds that she could not obtain a child-minder, the judge should have adjourned the matter. He submits that the judge's failure to do so was unfairly to deny the mother the right to a fair hearing attended by her at which she could give a personal explanation;(2) he submits that the summary approach of the judge was unfair; it constituted the reflection of a mind already made up with no opportunity afforded to Mr Gilbert, as the mother's legal representative, to make submissions on her behalf;(3) he submits that the judge's decision should, in any event, be set aside on the basis that he gave no reasons for his decision beyond referring to the history of the matter.[19]Mr Gilbert submits it is plain that the judge treated the excuse advanced as not worthy of belief, or at any rate insufficient to avoid the order made, that is to say, he treated the breaches by the mother in not affording custody on four successive occasions as demonstrating her unwillingness and/or refusal to comply with the provisions for contact which had been ordered as being in the best interests of her child. But whether or not that is so, submits Mr Gilbert, it is alone a good ground of appeal that the judge failed to comply with the basic requirement, in the interests of overall fairness, that he should give a reasoned judgment, albeit short, stating why he considered a committal order appropriate.[20]I do not accede to Mr Gilbert's submission (1). It is of course the case that, in an appropriate case, the court may deal with an application for committal in the absence of the party against whom it is sought.[21]The appropriateness of any decision by a judge to proceed in a party's absence does not fall to be assessed in isolation but must be viewed within the factual context of the case as a whole, in relation to which the judge in this case had substantial and detailed knowledge, having been previously, and only recently, concerned with it.[22]The case had a long history dating back to an original application in December 2003. In some eight hearings from that date until 24 October 2006, the appellant had received copies of orders or directions, notices of which contained the following warning - "If a party fails to attend the hearing, the court may make such order (final or otherwise) as appears just according to the evidence available at the time." Thus the mother must have been well aware of the risk of proceedings of this type might proceed to a conclusion in her absence if she chose not to attend, that having been something which had on several occasions happened in the past.[23]The notice to show reasons served on the appellant 12 days prior to the hearing specifically stated "you must attend court" (as I have already made clear in the extract which I have read). In spite of being served 12 days prior to the hearing, the mother had only contacted her solicitors on the day before the hearing. Twelve days had elapsed during which she could have given proper instructions, made a witness statement or sworn an affidavit. While it was stated on her behalf that she was unable to attend due to the lack of child care, the judge would have been aware that a lack of child care had not been a sufficient barrier to her attending her solicitors in person on the very morning of the hearing, that she had been aware of the hearing for the previous 12 days, but had not made appropriate child care provision or notified either her solicitors or the court, of any difficulty in this regard. The judge also knew that her older daughter, A, lived in close proximity to her mother with the maternal grandparents under a residence order. CAFCASS had in an earlier report noted the extent of involvement, in particular, of the maternal grandmother in the care of C. In the last resort also, the judge would have been aware that there was nothing to prevent the mother attending court with the child. Indeed the contrary has not been suggested.[24]It seems to me clear that the judge was entitled to take the view, on the evidence before him, and indeed on the basis of what had been said in court on behalf of the mother by counsel, that she had both been served with notice of proceedings and had had the opportunity to obtain, legal advice. It is also clear that the history to which the judge referred, included the pattern of non-attendance at court hearings which I have mentioned. As at the date of the hearing on 24 October, the appellant had failed to attend some five hearings, including two final hearings, and it was open to the judge, in my view, to rely on his knowledge of the history when assessing the validity of the reasons given by the mother for her non-attendance. He plainly considered that the excuse which was advanced lacked substance as a reason for non-attendance and he refused the adjournment on that basis. I consider that he was entitled to do so.[25]As to Mr Gilbert's submission (2), I do not consider that the basic approach of the judge necessarily indicated a closed mind. He had no doubt read the papers in advance, and, following the opening by the father's solicitor, was clear in his mind as to the desirability for an order to be made in the nature of a sword of Damocles if the mother were to have properly impressed upon her the importance of compliance with the court's order and, in that respect compliance was important and urgent in order to ensure that contact took place in the interests of C and of the father, who had done nothing to deserve any severance of his rights to contact which was plainly enjoyable to C and to her benefit. Even on Mr Gilbert's account of matters, he was not shut out from making submissions had he sought to do so. Having failed to procure an adjournment, Mr Gilbert had the opportunity to make submissions if he wished. However he had made clear to the judge that he lacked instructions. In those circumstances the judge no doubt proceeded on the basis that Mr Gilbert did not seek to address the court. However, there is no reason to suppose that he would not have listened if Mr Gilbert had felt that he could be of assistance and had stood up to make submissions on behalf of the mother.[26]Having refused an adjournment within his discretion, the judge was in a position to proceed with the case.[27]It is in relation to the third submission of Mr Gilbert that I feel most concern. These were committal proceedings, and it is incumbent on any judge dealing with such proceedings to deal with them formally and correctly, not least in the absence of the party against whom the order is sought. The judge should clearly (albeit shortly) have stated the reasons for his or her decision.[28]It has to be said that the judge in this case dealt with the case in the most summary manner; he did not articulate his reasons in any formal sense. Nonetheless the purpose of requiring reasons is to ensure that the affected person is left in no doubt as to the reasons for a particular decision.[29]I have felt a certain artificiality in the course of Mr Gilbert's submissions to us. As he essentially accepted in the course of the appeal, and certainly implicitly accepted in the course of his submissions, there is no doubt at all why the judge made the order he did. He did so against the background history of non-compliance with earlier orders, being satisfied that the acts of non-compliance relied on were not in dispute, as they have not been in dispute on this appeal. The reason for a seven-day custodial order, suspended on compliance with the contact order provisions, was plainly the minimum which the judge considered necessary in order to enforce compliance and advance the welfare of the child. In that respect, it is notable that contact has taken place successfully since.[30]Equally, the reason the adjournment was refused was plain in the light of the brief exchanges between the judge and counsel. The mother's non-attendance was not physically prevented and was part of a pattern of failures to appear over a long period of time. She was not prevented from coming to court with her child if necessary, but simply refused to do so despite her solicitors having made clear to her the need to do so. In those circumstances it seems plain, and this appeal has proceeded broadly on the basis that it was plain, what the judge's reasoning was.[31]The gravamen of Mr Gilbert's submission (3) is that there was an improper failure to set out reasons in a clear and succinct fashion. That is a fair criticism in the formal sense, as I have indicated. Furthermore, I would wish to emphasise the need for judges to spell out their reasons clearly when making a decision as to the appropriate penalty in contempt proceedings of this kind. Nonetheless, looked at overall, it seems to me clear that, here, there could have been no doubt whatever about the basis on which the judge made his decision. In all the circumstances I do not consider any injustice has been done to the mother.[32]I would therefore dismiss this appeal.

LORD JUSTICE NEUBERGER: It would undoubtedly have been better if the judge had set out his reasons, which were not explained, for refusing an adjournment and for making a suspended imprisonment order. In most cases that might have been fatal to any attempt to uphold his decision. However on the rather stark facts of this case, as set out in the judgment of my Lord, the President, it seems to me that the judge's reasons for refusing an adjournment, particularly in the light of his reference to "history" of the proceedings, were self-evident and must have been quite clear to the mother. Equally to deal with a contempt application plainly in the absence of the contemnor may, in some cases, render an order such as that made here unsupportable. However once again, on the facts of this case, which were well known to this judge, he was in my view entitled to make the order he did without giving the mother a final opportunity to attend.

[34]Accordingly despite the submissions, I would dismiss this appeal.

LORD JUSTICE WILSON: I agree with both judgments.

Order

Appeal dismissed