M (A Child), Re [2013] EWCA Civ 743

Case name: B4/2012/1528[2013] EWCA Civ 743
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE ROSE)
Venue Royal Courts of JusticeDate Wednesday, 22 May 2013
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
LORD JUSTICE DAVIS
and
LORD JUSTICE RYDER
IN THE MATTER OF M (A CHILD)
(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Applicant father appeared in person
The 1 st Respondent mother appeared in person
Venue Mr Elliott (instructed by Leeds City Council) appeared on behalf of the 2 nd Respondent, the local authority.
J U D G M E N T
Between
Applicant fatherApplicantRespondent motherRespondent

Lord Justice Ryder:

[1]I make an order that the identity of the child concerned in these proceedings shall not be published.[2]On 5 October 2011 HHJ Rose sentenced IM to three months' imprisonment, suspended for two years on each breach concurrently, for the breach of two undertakings given by him to the Leeds County Court on 7 July 2011. The contempt proceedings arose out of private children proceedings before that court, which continue. The proceedings concern contact between Mr M and his daughter, who is now five years old.[3]Mr M made an application for permission to appeal the refusal of direct contact, which was made on the same day as the committal determination, in circumstances where he had failed to attend that court without any apparent reason and where the evidence on the merits was of some concern.[4]The application for permission was refused by Black LJ on 23 October 2012, and father has subsequently issued a fresh application for contact in the County Court.[5]The question of the merits of contact are not before this court. Mr M's separate complaint relates to the contempt proceedings themselves and would not have needed permission to bring the matter to this court had he not been bringing an appeal out of time. Black LJ gave Mr M permission to appeal the contempt determination out of time, and that is accordingly the issue before this court.[6]The background circumstances are of some note, but can be taken quite shortly. On 7 July 2011, and in the context of a contested contact issue, Mr M gave four undertakings to the court as follows:(1) to remove all reference in his Facebook account in words as in pictures to the child (who is named) and to the case (which is numbered) and any reference to any employee of Leeds City Council;(2) not to post anything further by way of material as defined in (1) above in Facebook or elsewhere;(3) to leave his Facebook account open throughout the life of these proceedings so that it may be inspected by Leeds City Council and others from time to time; and(4) not to suggest to any third party nor to pursue nor to encourage any third party to do any of the above acts.[7]The undertakings relate to an alleged history of Mr M posting material concerning his daughter, the proceedings and a social worker from Leeds City Council who prepared a report for the court.[8]The subject matter of the proceedings themselves had, by 7 July 2011, involved consideration of residence, contact and prohibited steps orders under the Children Act 1989, and also whether a non-molestation order was necessary under the provisions of the Family Law Act 1996.[9]It is plain that the undertakings were accepted without prejudice to the factual allegations and in lieu of orders which the court could have made had it found the allegations proved. Those orders would most likely have been prohibited steps orders to limit the exercise of parental responsibility by Mr M in publishing material which was arguably detrimental to the welfare of his daughter.[10]I stress that this court makes no findings of fact about Mr M, but the evidence that was before the court on 7 July 2011 included a detailed report from the local authority setting out an alleged course of conduct by father, which included the presentation of his daughter to a hospital on two occasions for her to be medically examined for suspected sexual abuse and in circumstances where no abuse was found.[11]Furthermore, on the face of the report that was presented to the court, there were details of an allegation made by father in respect of an alleged rape upon him which were specifically contradicted by corroborative and CCTV evidence from third parties.[12]Finally there was an allegation of assault against the child's mother. The paediatric consultant who was involved in the medical examination of his daughter expressed concerns about father's mental health, and one part of the order made by the court on 7 July 2011, which was not and is not appealed before this court, was for a report to be prepared in respect of father by an expert psychologist.[13]Father subsequently complained about the local authority, and it is plain from the content of the Facebook material that was put before court that he has or at least had quite a strong conspiracy world view about their advice.[14]Some time in August 2011, Ms S, the child's mother, issued a notice to show good reason why an order should not be made for Mr M's committal to prison. The notice set out the terms of the undertakings given on 7 July 2011 and the breaches alleged. The notice warned Mr M of the penalties available to the court. The application was supported by a witness statement from Ms S, which dealt with the particulars of breach, and a statement from the local authority was filed in support.[15]Exhibited to that evidence filed are the screen shots of Facebook pages, known as a wall, which demonstrate that Mr M had not removed the material he was required to remove, had not closed his Facebook account and had opened a private account in breach of his undertaking which neither mother nor the local authority could read.[16]Mr M responded to the allegations in a witness statement of 1 September 2011. Aside from his pursuit of all allegations related to the suspected abuse of his child, in that statement he denied setting up a second account, although it is by no means clear that he was then denying failure to remove the first account or the material posted on it.[17]On 8 September 2011, HHJ Kaye QC adjourned the committal application to 5 October 2011. Father was present and represented in court and was therefore aware of the adjourned hearing date. His solicitors applied to withdraw, but that application was refused by the judge. On 5 October 2011 the hearing proceeded before Judge Rose. Father did not attend and he has not in the papers before this court explained why. He submits today that the reason that he failed to attend was because of the pressures that there were upon him. He certainly does not say that he was unaware that the hearing was going to take place, quite the contrary. His solicitors have no instructions, and asked again to withdraw. On this occasion, they were permitted to do so. The judge makes it clear that Mr M did not want to be represented by those solicitors, and indeed that is a matter confirmed by Mr M before us today. Accordingly, he had little option but to accede to this listed application.[18]The judge heard oral evidence from Ms S and the social worker, which was tested, and found as a fact to the criminal standard that the breaches, as alleged, were proved. He then proceeded to sentence Mr M in his absence.[19]The ground of appeal before us, so far as they relate to the committal, are threefold: firstly, that Mr M did not breach his undertakings to the court, that is, that he closed his Facebook account and did not open a new one; secondly, that the evidence of Ms S and the social worker could not satisfy the standard of proof; and thirdly that the judge should have adjourned the committal hearing to allow him to be represented, in respect of which Mr M prays in aid Article 6 of the European Convention on Human Rights.[20]It is to be noted that Mr M makes no complaint about the length of the sentence imposed upon him.[21]Before this court Mr M has made the following submissions: that Ms S and the social worker could not have viewed material on Facebook after 7 July 2011 because the account was dormant, that is, in effect, that their evidence was untrue; and that the screen shots did not represent that which, on their face, they do. He accordingly says that paragraph 7 and 8 of the judge's judgment are wrong, the findings are unsafe and that the evidence of Ms S and SW is fabricated. He goes on to submit further that he was entitled to a representative of his choosing, and the fact that he did not attend the hearing and in essence therefore did not take the opportunity to his right to have a hearing was because he was under great pressure at the time, and the matter should be remitted to the court to reconsider that which he has to say.[22]The judgment of Judge Rose is a model of clarity and is careful and detailed. Mr M knew of the hearing from his previous attendance at court on 8 September 2011 and from the fact that there had been personal service upon him of the order made on that day, and of a witness statement of the social worker, which was served on 3 October 2011. Mr M understood and had knowledge of the undertakings. He signed them at court, and their effect was explained to him. His own witness statement and grounds of appeal make it clear he was well aware of his obligations and the penalties which could be imposed by a court for breach. The judge specifically dealt with procedural issues with some care. For example, he considered the fact that the notice to show good reason was supported by a witness statement rather than an affidavit.[23]The Civil Procedure Rules have changed since the hearing in 2011, and at the time, the application was made under the provisions of the County Court Rules Order 29 which was still in force. In accordance with the Practice Direction relating to those rules, the application should have been supported by an affidavit. But the same Practice Direction at paragraph 10 permits a court to waive a procedural defect if no injustice is caused. That was specifically considered by the judge, and there was no prima facie case of injustice and no sustainable complaint about procedural issues can be brought.[24]The evidence before the court was more than sufficient to establish the breaches to the appropriate standard of proof. Indeed, Mr M's evidence, which was before the court, contained no more than a bald assertion, which he has repeated in submissions to this court this morning, that he is not in breach despite obvious questions that need to be answered if that assertion is true. In essence, Mr M had to fall back upon the allegation this morning that the evidence of Ms S and the social worker was a fabrication. That cannot be a sustainable ground of appeal in the face of the careful consideration by the judge of the evidence that was before him on 5 October 2011.[25]The only question that therefore remains is whether Judge Rose should have adjourned the committal hearing. The judge dealt with that at paragraphs 5 to 7 inclusive of his judgment:
“5. I have dealt already with the procedural issues that arise in this matter. On behalf of the applicant, concessions were made that there have indeed been procedural defects but, as I have already said, I do not myself consider that any of those procedural defects are such as to create an unfairness in these proceedings. I am satisfied that the defendant, firstly, knew that the proceedings were to take place today; secondly, that he knew what his obligations were by way of the undertaking; and thirdly, that he knew the consequences of any breach of his undertaking, that having been made apparent to him by the learned Recorder on 7th July. 6. I remind myself in dealing with the chronology of this case, that this is not the first time that this application has become before the court. It was before the court, I am told, on 8th September before His Honour Judge Kaye QC. On that occasion the matter did not proceed. The respondent sought to dispense with the services of his legal advisers, Henry Hyams Solicitors, an application which was refused by the learned Judge. I have granted that application today, it being perfectly apparent that the respondent does not wish to be represented by those solicitors, and so it creates the unfortunate position that the respondent, facing the possibility of immediate imprisonment, is unrepresented and he is also absent. I have already said that I am satisfied that he not only knew of today’s hearing, the object of today’s hearing and the potential consequences for him, but that he chose not to be represented and indeed it seems to me that he has chosen to be absent from today’s proceedings. 7. I say immediately that an alleged contemnor – a person alleged to be in contempt or in breach of an order – cannot avoid the consequences of his action simply by avoiding the court itself and by failing to attend. In the circumstances of this case, it seems to me that the respondent has deliberately chosen to avoid attending at court on this day. His non-attendance is something, however, that I have very much in mind and I will come to that at a later stage, but it seems to me that I must be satisfied of the following matters: firstly, that the undertaking that was given by Mr M was a valid undertaking, that it was given freely and that he knew of the consequences of the undertaking an indeed of any breach and, as I have said, I am satisfied that that is the case. I must then be satisfied that he had knowingly breached the order, and to deal with that it is necessary for me to return to the evidence that I have now heard.”
[26]The judge decided that Mr M was deliberately avoiding attending court and that an alleged contemnor cannot avoid the consequences of his actions by failing to attend. The hearing had already been adjourned once and all the material was already in written form before the court and the witnesses were present. Although it is a course a court would want to avoid, it is not appealable on the facts of this case that the judge determined that he should proceed.[27]Mr M provides no reasons for his absence other than the effect of pressure upon him. In those circumstances and for these reasons I would dismiss this appeal.[28]By way of note, I agree with counsel, who has attended for Leeds City Council, to whom thanks are due for their preparation for these proceedings, that father, should he accept the contempt, might consider an application to purge that contempt within the proceedings that are presently outstanding before Leeds County Court.

Lord Justice Davis:

[29]I agree. The judge was entitled to conclude, on the evidence adduced before him, that the breaches of undertakings have been proved to the criminal standard. Lord Justice Sullivan:[30]I agree with both judgments.

Order

Appeal dismissed