“1 not allowing M to have contact with his mother on [those] dates 2 not encouraging and ensuring M attends for contact on [those] dates 3 not having a reasonable excuse for not allowing contact or ensuring M attends for contact 4 taking M out of the country for contact on10 April 2010 without consulting with mother or offering an alternative date for replacement contact.”
“M said ‘it was pointless for the Court hearings to go ahead as he will not be seeing mummy until she can show that she has changed. I want my mummy back from when I was younger not what she has changed into’ ... He said ‘I will go to contact but only when I am ready and not before, if she .does not grant me this one wish then I don’t want to see her, I want her to be the mummy she was until I was about 3 years old.’”
“I found no direct evidence of M being placed under any duress or influence by his father regarding his views and feelings about his mother. However, his sophisticated use of language was evident together with an overt reliance on analogies [which] appears to be sophisticated for his age ... I observed a very confident young person expressing his own views, some of which did not appear to be shared by his father, such as his wish not to see his mother on contact.”
“The fact is that M does want to have contact with his mother ... He ... wants an ongoing relationship with her. The father’s attitude does not promote that, certainly not in any sustained way. It is the father’s underlying mind set that creates a home environment for M where lasting resolution cannot be achieved and progression in it other than on father's terms. It is telling how the child’s views are controlled and distorted by unhealthy involvement of the child in adult issues and overwhelmingly the disproportionate power and responsibility heaped upon M by the father. The clear central point that has struck me forcefully over the days of listening to this case is that the father must give M his childhood back. For three years now M has been given the power of an adult which his years and his emotional level of development do not want and cannot cope with.”
“In truth, M actually wants to see the mother and have a good relationship with her. The adults – and in particular the father as the resident parent – must get behind the talk of not wanting to see mother and remember what he really wants and needs. He gives mixed messages: sometimes the outward talk is “I don’t want to see mother” but inside he really does and when people get through to him he admits that. There is no reason apart from M’s mind set and the attitude and mind set of the father why he should not go on regular contact with the mother. There is no proper reason that has been put before me as to why he has not been going on those occasions when there has been a contact order for him to go on contact and the father, for whatever reason, has failed to produce him. It is the father’s privilege to have a residence order in respect of M. He is in the powerful position of being able to influence M in what he thinks and does, but it must not be abused. He can if he wishes bring proper influence on M to make sure that he goes to contact. If the father wants to I am quite sure that he will achieve that; just as he gets the child to go to school every day, no doubt sometimes when he does not want to go ... Contact is not optional to M or to the father as the resident parent. How does the father do that when M objects? It is part of his parenting skills – reasoning, persuading, cajoling, probably in the end sanctions. I appreciate that he does not believe in any form of physical chastisement. But how he does it is up to him using his parenting skills. It is not for me to advise him as to how to do it. He is the parent and he should know how to handle his child. But there comes a point when the child has to do things even though he does not want to do them, and this sometimes is one of them.”
“(1) The contempt which has to be established lies in the disobedience to the order to return rather than in the original abduction ... (2) Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. Whatever the traditional form of notice to show cause may say, the burden of proof lies at all times on the applicant. (3) Contempt of court involves a contumelious, that is to say a deliberate, disobedience to the order. If it be the case that the father cannot cause the return of the child he is not in contempt of court, however disgraceful and/or criminal the original abduction may have been. Nor is it enough to suspect recalcitrance, it has to be proved: see London Borough of Southwark v B[1993] 2 FLR 559 . That the onus remains on the applicant throughout is clearly demonstrated by Mubarak v Mubarak [2001]1 FLR 698.”
“There was in the course of the judge’s ruling no finding that the father was able to achieve return. Without that finding it seems to me that it was not justified to hold him in contempt of court. I have asked myself with some anxiety whether such a finding is implicit in what the judge said given that he would undoubtedly have been extremely familiar with both the onus and the standard of proof in a case of contempt of court, but it seems to me that in the absence of any evidence whatever from the mother it is simply not safe to assume a finding which has not plainly been made. In a case of imprisonment for contempt of court it is necessary that there be a clear finding to the criminal standard of proof of what it is that the alleged contemnor has done that he should not have done or in this case what it is that he has failed to do when he had the ability to do it. There must, as it seems to me, be a clear finding not only of breach of the order but that the breach was deliberate.”
“It would, as it seems to me, be sufficient for her to make the judge sure that the father could achieve the return of the child, for example through the siblings if not through the grandfather, and she might be able to do that without calling specific evidence to refute each obstacle successively raised by the father.”
“if ... the order ... was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing – see (inter alia) Federal Bank of the Middle East Limited v Hadkinson and Others[2000] 1 WLR 1695 ; D v D (Access: Contempt: Committal)[1991] 2 FLR 34 and Harris v Harris, A-G v Harris[2001] 2 FLR 895 at para [288].”
“(2) If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement. (3) But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order. (4) The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.”
“the enforcement applications have to be kept separate from the substantive hearing, following the Court of Appeal guidance in Hammerton v Hammerton[2007] EWCA Civ 248 . That is because the focus and outcomes of the enforcement proceedings are different to the general welfare considerations under section 8 and there are differential standards of proof – the enforcement of proceedings being more akin to quasi-criminal proceedings.”
“M had quietened down. They had got to her parents’ home and he was just harrumphing and stamping his feet and so on, but was getting through it. I accept that he would have got through it completely if the father had not then turned up ... In the presence of the father, the child then started to get upset again. The father took the child off to the police station. It was around that time, as he left, that the father made observations to the mother – in his own anger – that she was not going to be seeing the child again. So contact, which should have been for six hours ... was cut short in that way as the father had taken the child away ... He should never have taken the child off to the police station after that. It was just making the situation worse. That has been the watershed of contact for the moment because there has been no contact since13th June 2009 . At all of the times in which contact should have taken place under the order it has simply not taken place.”
“M did not want to come. The father takes the view that if M, an intelligent and articulate child, says that he does not want to see Dr H, then he is not going to force him to do so ... He did his best to persuade him, but unsuccessfully, and so he did not come.”
“The father opened the door and simply told her that M was not coming. M was then brought to the front door and the child said, “I’m not coming. I don’t want to come. Why would I want to come after last weekend?” ...The mother ... said something along the lines that M ought to come, and then, trying to persuade him: “If not for me, then for E”
“Well, I don’t need to come and see you to see E. I can see E when she comes here to us”
“There was no answer at all when she, together with her sister, brother-in-law and E, came to the door. They came back an hour later and the father answered the door. He said he had been ill. They said they were there to collect M and he simply told them that M was not there and did not know where he was. I accept the father’s evidence that he was indeed unwell on that day, had taken to his bed and, as far as he was aware, M had gone off with the father’s wife ... “shopping or whatever” … He felt there must have been a misjudgement by his wife in not having M there at a time when they knew perfectly well that the mother would be coming for contact, even though of course M was not likely to want to go.”
“M came to the door on his own and simply said he was not coming and shut the door on them. They knocked again, he opened it, and the mother, and indeed her sister, both asked if they could talk to him, but he refused and said he was not coming. They report that he looked embarrassed, that he had his head down and did not make eye contact and then he shut the door. They did not press the issue and left. The father did not appear. The father says that he had decided on this occasion that he would allow M to go to the door and do the talking, as it were. He played no part in it.”
“I must consider separately each of the five occasions alleged. The contact order required him to allow the mother to have contact with M, and make him available accordingly ... Clearly, on each of the five dates involved the father has failed to comply with the order. So far as the points raised by the father are concerned, it is as a matter of law no defence to say that producing the child for contact is difficult or, as he would put it, impossible because of the child’s refusal to come. That is not a defence; it is still a failure. The only sensible answer to the question “Has he failed to comply?” is “Of course, clearly he has”
“the requirement is to fully comply with the order; that is to allow the child to have contact and make him available accordingly, not just at the beginning of contact, but for the period of contact specified ... by intervening and then taking the child away again part way through the contact period, he certainly was failing to comply with the order from that point onwards.”
“The nub of the father’s position on that is quite simple and permeates through each one of these occasions. He cannot produce M for contact because, while he has tried, M – being an intelligent and articulate boy – has his own mind … It is his decision on each occasion and the father will not interfere with that. He says that he has tried, as far as he can, “by persuasion and by saying to him such things as ‘Well, come on, let’s get it over with’. But really, when M makes his own mind up and he says what he has decided, I cannot move him from that.”
“The little fellow … doesn’t want to go and so I won’t make him.”
“What is plain is that the father has not got anywhere near establishing, on the balance of probabilities, a reasonable excuse for failing to produce M on those five occasions.”
“without any effective sanction behind the contact order, the danger is that the father will not have a change of attitude, a change of firmness with M, a change so that he ensures that the child does do as he should be doing.”
“the child does not have to know, and indeed should not know, about such order being made.”
“I asked M if he was going to contact to which he responded ‘no’. I said to M everyone including me expected him to attend contact with his mother to which he replied ‘I am not going I do not want to.’”
“M repeatedly told me he does not want contact with his mother and that he did not intend to go to the next scheduled session due over the weekend of [22 May 2010 ] ... Throughout my visit to M he remained resistant to changes and entrenched in his wishes not to have contact with his mother .... his reasons ... are largely based on his past experiences ... the trust has gone in his relationship with his mother. Some of the language M used was quite sophisticated ... However, it was clear from my meeting that M is expressing a wish not to have contact with his mother.”
“The impact on both children emotionally of this information and therefore on their respective long term relationships with their parents must surely be nothing but negative and could be very damaging.”
“it is likely that both children will be affected emotionally”, adding that: “given M lives with his father the impact is likely to be more profound with feelings of loss and separation that may well also affect his behaviour and other relationships.”
“I have to be sure that there have been, on each date we are concerned with, clear breaches of the contact order. That is that the act of the father, or the failure to act, was deliberate on his part in terms of a failure to do as required by the order. Further, although it is not always spelt out in that way, it is relevant to think in terms of reasonable excuses just as it is in the framework of enforcement orders. Again, I keep in mind the principle that committal orders are remedies of last resort. I will leave that for further discussion later, as I will the impact of welfare. Welfare considerations as to what kind of order to actually make do impinge on both considering a committal order (though it is not spelt out in the statute in that case) and enforcement orders (as is specifically set out in section 11). In either case it is relevant as a consideration to be borne in mind; but it is not paramount, as it would be in section 8 issues.”
“That in my judgment is an overly legalistic view of the ordinary terms that one expresses contact orders in and indeed the terms of section 8 itself ... It is not enough to simply bring the child to the doorstep and stand there while the child says “No, I don’t want to come”, anymore than it is enough to go to the doorstep oneself and say, “No, he sends the message that he doesn’t want to come.”
“the reality is that nothing has changed ... We have now another six occasions of failure to comply with the contact order in force. I do not propose to go through all six in great detail because they are really more of the same as before. On each of those dates – bar the last one – we have the mother going to the house with an agreed family member and the child does not go for contact.”
“On each of those occasions I have no doubt that the father did fail to comply with the order. It is a question of whether the father had a reasonable excuse for not complying. Certainly he did not comply and I am afraid I reject the interpretation placed by counsel for the father on the wording of the contact order. If he were right, then of course that in itself would drive a coach and horses through the whole notion of contact orders and how they can be enforced. The submissions made go to reasonable excuse in my judgment, not to the basic fact of a prima facie non-compliance.”
“despite the contact being arranged ... as set out in the order of 4th December, he then some three months later announces that actually M will be on holiday that day in the Far East and so will not be able to have contact. Thus it was of course that the child was not available at all literally. He was at the other end of the world”
“it seems to me as a matter of law (and in this case certainly as a matter of fact) it is not a reasonable excuse to say: “Well of course I want him to go but you know he is so intelligent and articulate. He says he will not go and I can not make him. I can not be responsible for his failures and refusal to go. I’ve done my best and it’s really down to him; it is his decision”
“We have reached a point of what seems to be last resort ... we really get to a position on the present applications where it seems to me that I have to have a committal order uppermost in my mind, unless of course even now it can be said that some lesser order may meet the objects of enforcement action. Those objects are firstly, to secure compliance with the contact order and secondly, to punish for deliberate and persistent disobedience of the orders of the court.”
“I have no doubt that the appropriate order to make in this case does involve a committal order. We are really at the end of the line with attempts to persuade, cajole and exhort this father into making sure that his son has the contact with the mother as he should.”
“That puts the father firmly in the saddle in this sense. Going to prison or not will entirely depend on him, and obviously to a much lesser extent on M, and how he the father decides to act. I hope that it will at last galvanise the father into a period of responsible exercise of parental responsibility, which is required of him as the parent with the privilege of being the resident parent at the present, even if that does involve some “tough love” and firm handling of M.”
“To accede to the father’s application for the committal order would not conceivably be in the best interests of the children. It would mean two things: first, if committed, that their mother would be taken away from them for a time and their father would be branded in their eyes as the man who had put their mother in prison. That is a brand from which no parent in my experience can ever hope to recover. It is the most deadly blow a parent can inflict on his children. There is no doubt and it should be clearly understood – I am speaking for myself now – throughout the legal profession that an application to commit for breach of orders relating to access (and I limit my comments to breaches of orders relating to access) are inevitably futile and should not be made. The damage which they cause is appalling. The damage in this case which they have caused is obvious. To apply for a legalistic but futile remedy, because it is the only thing left to do, is, in my judgment, the last hope of the destitute. The court is only concerned with the welfare of the children and ought not to trouble itself too much about its own dignity. These cases are exceedingly intractable. They can only be dealt with by tact not force. Force is bound to fail.”
“The usual problem in this type of case where the custodial parent resolutely refuses to obey an order for access by the court is that the court has no effective sanction to enforce that order ... it is a rare case – although I would not go so far as to say it can never happen – that the welfare of the child requires that the custodial parent be sent to prison for refusing to give the other parent access.”
“The stark reality of this case is that this is a mother who has flagrantly set herself upon a course of collision with the court’s order ... In my judgment, it is time that it is realised that against the wisdom of the observations of Ormrod LJ is to be balanced the consideration that orders of the court are made to be obeyed. They are not made for any other reason ... it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed upon him by Parliament.”
“the court has been placed by the mother in a situation in which it either has to yield to her obstinacy and back down from its own order or it has to enforce it. If the court were to yield to such persistent intransigence, respect for its orders and for the administration of justice would be at an end.”
“The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders.”
“proper judicial control and judicial case management requires what Wall J referred to in Re M at para [115] as ‘consistency of judicial approach’ within the context of a judicially set ‘strategy for the case’. This must form what he described at para [118] as ‘part of a wider plan for [the] children, which … needs to be thought through’.”
“It may be that committal is the remedy of last resort but, as Wall J recognised in Re M at para [115], the strategy for a case may properly involve the use of imprisonment. Interestingly he seems to have accepted (see at para [117]) that imprisonment, even for a day, might in some cases be an appropriate tool in the judicial armoury. I agree. A willingness to impose very short sentences – 1, 2 or 3 days – may suffice to achieve the necessary deterrent or coercive effect without significantly impairing a mother’s ability to look after her children.”
“the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent.”
“It is … most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt.”
“M told me he would not go to see his mother, at which time I reminded him the Court expects his father to ensure he does attend. M replied ‘I don’t care’. M told me he did not feel his mother was being ‘co-operative’.”
“Proceedings will not normally be suitable to be dealt with in the High Court merely because of … intractable problems with regard to contact.”