Private Law
October 2023

27 November 2023
Non-compliance with an interim child arrangements order is NOT a trivial matter - Imprisonment for 28 days for a Mother in contempt of court
Raza v Gall [2023] EWFC 181
  • An unusual case whereby HHJ Case actively proceeds to a contempt of court hearing in respect of a Mother who breached an interim child arrangements order (alongside many other breaches!).
  • The substantive proceedings arise out of the Father’s application for a CAO to spend time with his child. There was local authority involvement with the child in Mother’s care but no proceedings. These proceedings were therefore private proceedings.
  • The Mother was Hungarian however at all stages it appears that the Court accommodated for that with interpreters and the translation of documents.
  • The Mother’s compliance with Court orders had been poor:
    • FHDRA – Mother does not attend. Interim order for 2 hours a week contact and a s.7 report ordered.
    • Application hearing for PSO – Mother does not attend. PSO made.
    • DRA hearing – Mother does not attend. HHJ Case orders personal service and adjourns DRA.
    • Adjourned DRA – Mother attends. Interim CAO that Father will have contact on alternate Saturdays 2-4pm. Mother informs the Court she will not make the child available. A penal notice is attached to the interim CAO and the Mother was warned of the consequences of a breach.
    • 2 further hearings that Mother does not attend despite having been directed to attend with penal notices.
    • 22 May 2023 – Mother does not attend. HHJ Case issues a warrant for her arrest. The Mother is arrested and released on bail on the condition she attends the next hearing on 16 June 2023.
    • 16 June 2023 – Mother attends. Lists matter to CMH on 20 June 2023.
    • 20 June 2023 – Mother attends. Directions made listing to a DRA. Interim child arrangements order made that the Father has 2 hours contact in a contact centre for 2 hours then progresses to 3 hours. The Guardian to make the referral to the contact centre. Penal notice attached to the contact order.
    • By the hearing on 21 July 2023 – the Guardian (through her solicitor) had reported to the Court that the Mother had failed to attend the introductory meeting with the contact centre therefore no contact had occurred. HHJ Case on 21 July 2023 makes a further order directing the Mother to attend the meeting (and for the contact to follow on). A penal notice was attached to both elements of the Order.
    • 14 August 2023 – the Guardian contacts the Court to inform them that the Mother has not attended the meeting with the contact centre. The Judge ordered an N601 be completed and the Guardian to file a witness statement regarding the breaches. This was done.
  • This hearing therefore took place regarding the Mother’s alleged breaches of the Order (21 July 2023 Order) and whether she was therefore in contempt of court. The hearing was held in public in accordance with FPR 37.8 (and no one having made an application for it to be private).
  • The Judge sets out comprehensively the procedure re: contempt hearings and sets out that her two tasks are:
  • Consider if the alleged breach is proved to the criminal standard; and
  • If so, consider the appropriate sanction
  • The Judge was satisfied on the basis of the written evidence and Guardian’s limited oral evidence, that the Mother was in breach of the Order dated 21 July 2023 and has committed contempt of Court.
  • In deciding the appropriate sanction, the Judge comprehensively sets out the 10 points made by Hale LJ in dealing with committal in family cases, as per Hale v Tanner [2000] 1 WLR 2377. She also considers Liverpool Victoria Insurance Co. v Khan [2019] EWCA Civ 392.
  • The Judge comes to the conclusion that the appropriate sentence is 28 days. She considered 14 days to not reflect the seriousness of the breach and that non-compliance with an interim CAO is not a trivial matter:
  • “Insofar as this case is concerned, non-compliance with an order which was required in order to give effect to an interim child arrangements order is not a trivial matter. It is not a minor procedural breach. It is more serious than a failure to attend court when directed to do so or a failure to file evidence. It is fundamental to the whole nature of this application which is to determine arrangements for this child because the non-compliance with an order to attend at the contact centre for a meeting to arrange interim contact effectively renders the whole purpose of these proceedings pointless. That seriousness must be marked and in my judgment the only appropriate order is a term of imprisonment.”
  • The sentence of 28 days was suspended provided that the Mother attended the next contact centre meeting so that interim contact could commence. If she does not attend, she will be imprisoned for 14 days.
HHJ Vincent refusing the Father’s application to vary a Child Arrangements Order made three years earlier due to his lack of insight, feigned compliance and the children’s wishes and feelings.
A and B (No 3)(domestic abuse - no direct contact - s91(14)), Re [2023] EWFC 192
  • Judgment linked to two previous cases: A and B (No. 1)(domestic abuse no contact to father) [2019] EWFC B87 (01 February 2019) and A and B (No. 2)(SGO)(domestic abuse no direct contact to father) [2020] EWFC B15 (06 March 2020)
  • The relevant children were 12 and 9 years old. The first respondents, CC and DD were friends of the Mother who she had moved to stay with after separation from the Father.
  • By way of relevant background, in April 2017 the Father had first applied for a Child Arrangements Order (CAO). A fact find had taken place whereby serious findings were made against Father including rape and physical abuse. He had sought permission to appeal those findings and such permission had been refused.
  • HHJ Vincent had the matter transferred and conducted the welfare hearing in January 2019. A judgment was in draft that provided for no direct contact between the Father and the children. A s.91(14) order had been refused. The judgment was due to be handed down in February 2019.
  • Very sadly, on the 29 January 2019 the Mother attempted to take her own life and as of 6 February 2019 she had died.
  • The children remained with CC and DD (whom they were living with along with their Mother) and HHJ Vincent made a prohibited steps order (PSO) to prevent the Father from removing from their care.
  • Only weeks later, the Father renewed his application for a live with in his favour. CC and DD were joined as parties and they applied to be Special Guardians (SGs). The Local Authority assessed them positively. Therefore, on 6 March 2020, the Judge made a Special Guardianship Order (SGO) in their favour and ordered indirect to Father only (by way of cards and letters).
  • Of relevance, the Father had at this stage completed a DAPP however the report from that had been concerning: the Father did not accept the findings of the Court and showed no insight into his behaviours.
  • Just over a year later, on 18 June 2021, Father applies to review the CAO. Such application was not pursued however, in October 2022 the Father applies again for variation of the CAO. At this time, the Father had completed further work – the After Change Project Domestic Violence Perpetrators Programme.
  • The children were joined as parties and a Guardian appointed. The previous expert (from the initial proceedings), Professor Perkins was instructed to provide an updated assessment. The outcome of that was that contact is only slightly less risky and challenging than it was in his 2020 assessment.
  • In considering this application, the Judge referred to her previous conclusions in her 2019 judgment and her March 2020 judgment (in considering whether the Father had made any progress). Whilst the Judge gave the Father credit on doing another DAPP, she noted that the report from that course provided that, still, his insight was limited (he had actually been suspended from the course and when readmitted his behaviour had regressed, he had continued to blame other factors and use minimisation and denial however after completing some one to one sessions he did show some progress and ability to reflect but this was close to the end of the court and further work was needed and recommended).
  • The Judge also noted that dynamic psychotherapy had been recommended by Professor Perkins in 2020 and whilst the Father presented a case that he would be willing to do so at this hearing, he had not yet undertaken such therapy.
  • The Judge was of the view that there was still significant work to be done and the Father was still in the same place at this hearing as he had been previously and it was ‘clear’ that he did not accept the findings in a meaningful way.
  • The children at this stage were settled in their home with the Special Guardian’s and had stability there for some 3 years. Their wishes were also given weight, those being that they did not want to see their Father. Some issues with the indirect contact was also noted.
  • The Judge refused the Father’s application to vary the CAO.
  • There was a further application to change the children’s surname which the Father opposed – HHJ Vincent sets out a very helpful reminder of the law in that respect. The children wished to have their Mother’s surname. The Judge that there was ‘strong reasons’ in the context and history of this case for those wishes to be respected and she made an order removing the Father’s surname and replacing it with the Mothers (it being noted the Father had rather unreasonably refused to agree to a double-barrelling).
  • As opposed to her judgment in February 2019, at this hearing the Judge considered a s.91(14) Order and provides a comprehensive analysis as to the law and her decision making in respect of the same. The Judge accepted the evidence that the Father’s applications have had an impact on the children – causing them anxiety and distress, and, the Special Guardians and their family. Given that the Father had sought to relitigate the same issues as previously, and that he was likely to make further applications, s.91(14) Orders were made for each child until the child is 16 years old (which appears to be 4 years for A, and 7 years for B).
A helpful reminder from the judgment of Mr Justice MacDonald, that the Court should not be making final orders at a DRA in circumstances where a party opposes the same.
P v F [2023] EWHC 2730 (Fam)
  • This judgment arises out of a successful appeal by the appellant Father against a final order made by HHJ Tolson KC whereby the Judge made a final Child Arrangements Order (CAO) for indirect contact only and imposed a s.91(14) order for a period of two years.
  • The proceedings related to twins L & C who at the time of this judgment had just turned 12 years old. They lived with their Mother, her partner and their ½ sibling. Previous proceedings had resulted in an Order for the Father to have overnight contact on alternate weekends and holidays (made May 2021).
  • As of May 2022, contact had stopped and in October 2022 the Father applied to enforce. A s.7 report was ordered to be completed by CAFCASS. The outcome of that report was that the children’s wishes and feelings were that they did not want contact, it detailed incidents of Father’s behaviour including previous convictions and allegations on ongoing harassing and abusive behaviours (which appear to have been disputed by Father).
  • The recommendations were that the children live with the Mother, have indirect contact by way of letters and cards with the Father and the Mother to provide updates on a 3 monthly basis.
  • At the DRA hearing before HHJ Tolson KC in March 2023, the Judge had sight of such a report. Both parties appeared as litigants in person (LIP) and the Judge entered into discussions with the Father about his position (having set out what a DRA was for).
  • The judgment contains the relevant transcriptions of those discussions. When reading those, it is clear that the Father was not agreeing to the recommendations but was keen for the matter to be resolved. The Judge expressed he thought it the “best option” to end on that Order today and there is clearly (when reading those transcripts) confusion from the Father in respect of a final order, final hearing and trial.
  • Permission to appeal was granted (on differing grounds to what was set out by the Father) but nevertheless this appeal then took place.
  • On appeal and in his judgment, Mr Justice MacDonald sets out clearly PD12B which sets out what the Court will/can do at DRA. He also refers to Article 6 ECHR – right to a fair trial and Art 8 ECHR – right to respect for private and family life. The law and procedure for a s.91(14) Order is also comprehensively set out.
  • Mr Justice MacDonald was satisfied that the Judge was wrong to make a final CAO at the DRA when the Father was clearly not consenting to a final order for no direct contact, and, sought to challenge the CAFCASS report. The Judge found that the hearing had been conducted in breach of the Father’s Article 6 rights to a fair trial and in breach of the procedural protections of Art 8.
  • Whilst accepting that the exchanges with the Father were confused and confusing (which one can note from reading them), and that HHJ Tolson KC would be grappling with this case in a busy court list with difficult developing confusions, it was clear that Father was confused about references to “trial” and “final hearing” and that importantly, he was seeking direct contact.
  • Whilst a Judge undertaking a DRA is required to consider the extent to which the remaining issues between the parties can be resolved at that hearing, and to assist the parties to do so with a frank evaluation of the evidence, this cannot extend to making final orders where it is clear that a party continues to contest the matter and seek a different outcome.”
  • “At the Dispute Resolution Appointment, for the reasons I have set out, the father indicated to the judge that he disputed the contents and conclusions of the Cafcass report, made clear that he continued to seek direct contact with the children and at no point indicated that he consented to a final order for no contact. Notwithstanding this position, the judge proceeded to make an order providing for no contact. This deprived the father of the opportunity to present his evidence and argument with respect to the content of the Cafcass report, which the judge had repeatedly indicated during the course of the Dispute Resolution Hearing provided the evidential foundation on which he based the final order made. In the circumstances, the father was deprived of the proper opportunity to comment on the key piece of evidence on which the court based its decision and to make submissions on the proper outcome of the proceedings more widely.”.
  • The appeal was also allowed in respect of the s.91(14) Order and the Court was satisfied that the imposition of such an Order was wrong in the circumstances where none of the procedural requirements necessary for such an order were in place to establish a fair process for a LIP, and, no judgment was given in support of such an Order.

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