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The Commital-ments

Two recent cases on committals – one resulting in a suspended sentence, one resulting in the commital being dismissed on some interesting techicalities.

The first :-  Re Roberts 2013

http://www.bailii.org/ew/cases/EWCC/Fam/2013/1.html

A warning shot across the bows, in relation to parents publishing material on the internet that would identify their child as being the subject of care proceedings.

In this case, Mr Roberts undertook some filming at Derby County Court, and also published on the internet documents which identified that his child was the subject of care proceedings, which is unlawful.  He had also given an undertaking not to do this sort of thing and breached that undertaking.

He was given a sentence of 6 weeks custody, suspended on the basis of him undertaking not to do this again.  (if he does it again, he will serve 6 weeks, plus whatever additional sentence is imposed for the later offence)

Of course, there is a lively and spirited debate at present as to whether parents should be able to do that, but unless and until the law is changed, doing this sort of thing presents a very serious risk to the parent of committal proceedings.  It is particularly worth noting the judicial comment here that breaches of this kind are bound to attract a prison term.

I’m not going to get into the merits of whether the law should change to allow Mr Roberts to do this, to publicise his case and speak out about whatever injustice he considers has been done to his family – the judgment is a cautionary tale that the law STILL applies to people even where they consider it to be unfair or foolish, and that there are serious risks attached to breaching the law.

I would add that as more and more litigants in person come into the family law system, the more vital it is to have clear and easy to follow rules about what can and cannot be said by a parent about the ongoing court case. The President’s direction of travel towards more openness is going to make it even more important that parents know exactly what the rules are.

It is such a short judgment, I can publish it in full. Note in particular, my underlined passages for emphasis.

RE MR PAUL ROBERTS

1.     On the 19 June 2013, Mr Paul Roberts appeared before His Honour Judge Orrell at the Derby Combined Court Centre; Mr Roberts was assisted by Mrs Jacque Courtnage, acting as a McKenzie friend.

2.     Mr Roberts admitted breaches of an order made by Mr Justice Hedley on the 14 June 2012 and breaches of an undertaking given by Mr Roberts on the 12 April 2013, namely:

3.     He allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified W by name as a child who had been removed from her parents’ care and been subject of proceedings under the Children Act 1989.

4.     He published on the Internet images and letters from the local authority which identify W by name as a child who had been removed from her parents’ care and been made the subject of proceedings under the Children Act 1989.

5.     On the 1 May 2013, he allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified J by name as a child who had been removed from his parents’ care and had been the subject of proceedings under the Children Act 1989.

6.     The above matters were breaches of the order made by Mr Justice Hedley.

7.     In breach of his undertaking, on the 1 May 2013, Mr Roberts disclosed information about the proceedings under the Children Act 1989 concerning J to a third party whilst allowing himself to be filmed including filming in the court building before the hearing in these proceedings on that day.

8.     In respect of the breaches, Mr Roberts was committed to 6 weeks custody to run concurrently in respect of each breach; the term of committal was suspended on condition that he complied with the terms of each of the following: [i] the order made by Mr Justice Hedley on the 14 June 2012, [ii] the order made by His Honour Judge Orrell on the 1 May 2013 within these proceedings and [iii] the undertaking given by Mr Roberts on the 12 April 2013.

9.     The sentencing remarks were as follows. The order and the undertaking were to protect a child in care. Any breach of that sort of undertaking is bound to attract a prison term. Breaches by talking to the sort of people you did was extremely reckless. On this occasion I will suspend the inevitable sentence in the hope you will not again risk going to prison.

His Honour Judge Orrell

And now, the second

In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court 2013

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/application-matter-of-jennifer-jones-21082013.pdf

And this involved a mother who defied orders of the High Court that the children should be handed over to the father, who proposed to live with them in Spain.  She not only did not hand them over, she in effect went on the lam, and was finally found hiding out in a guesthouse in Gwent.

The two older children refused to go to their father, and even though the order transferring residence remained in force, they continued to live with their mother in Wales.

An application to commit the mother for contempt was brought, the trial Judge having asked the Attorney General to consider the case.

An issue arose as to whether there had in fact, been a breach of the order made by Hedley J, that underpinned the committal application. That order was as follows :-

“It is ordered that:

1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2 Paragraph 1 above shall be given effect as follows

(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”

Paragraph 1 does not place any obligation on the mother to do this, para 2 (a) relates only to the father, leaving only para 2 (b).  It is clear that the mother DID NOT deliver up the children.

 

18.  The Solicitor General does not base any allegation of contempt on a breach of paragraph 1 of Hedley J’s order. He was right to adopt that stance, for paragraph 1 was not an injunction, whether in form or in effect. First, paragraph 1 was not addressed to anyone in particular. It directed, in the abstract as it were, that something was to be done. But it did not order the mother, or anybody else for that matter, to do something: see the analysis in Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. Secondly, paragraph 1 did not specify any time for compliance, and that omission is fatal: Temporal v Temporal [1990] 2 FLR 98.

 

19        In relation to paragraph 2 of Hedley J’s order, the Solicitor General, as we have seen, puts his case on two different footings. First, he says that the mother was in breach in failing to deliver up the children by 4pm on 12 October 2012. Secondly, he says that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012, which breach, he alleges, continued until 17 October 2012

That seems, on the face of it, to be a legitimate argument. The mother was aware that she had to deliver the children into the father’s care at Cardiff Railway station, no later than 4pm on 12 October 2012. And she didn’t do that. That looks and smells like a breach. But wait.

20    There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.

 

 

The President ruling therefore that mother could not have been in breach for not surrendering up the children AFTER 4pm on 12th October, as the order did not require her to do so.  So she was NOT in continued breach, and her actions in going on the run with the children wasn’t any part of the breach for which she could be committed. And she couldn’t be breaching the order by not delivering up the children BEFORE the deadline. That meant that the only possible breach was her not delivering the children to father’s care AT 4pm.

(So, she was possibly only in breach of the order for a minute, as by 4.01pm, the requirement on her had lapsed.)

22. The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff

Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

23.I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order: see Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133.

24.  It follows that the only question which properly arises on the present application is whether the mother was in breach of paragraph 2(b) of Hedley J’s order by reason of events down to 4pm on 12 October 2012.

At this point, one suspects that those bringing the committal application were beginning to quail. They probably considered that the mother was “bang to rights” but that sense of confidence was dissipating.

The next issue was then, whether the mother was actually flouting the order of Hedley J, or whether through forces beyond her control, she had been unable to comply with the order by getting to the train station at 4.00pm.

As luck would have it, before the mother had set off on the journey, the children had run away and the police were called and her departure was delayed, making it impossible for her to get to Cardiff train station by 4pm (or at worst, there being a reasonable doubt that it was impossible)

The Judge found therefore, that it was not proven to the criminal standard of proof that it had been physically possible for her to comply with the order to deliver up the children at 4pm, the mother had NOT breached that order, and that the order as drafted placed no obligation on her to do anything subsequent to 4pm (i.e she didn’t have to deliver the children to father’s care after that time), so the committal application had to fail.

It is therefore, a very important lesson in drafting terms in an order that might be enforced – one has to be clear what the mandatory obligation on the party is, and what the timescales for compliance are. Had the order been that mother must deliver the children to father’s care by 4pm on 12 October 2012 or in the event of that not being possible, that there was an obligation for her to deliver the children into his care at any time after and by the latest by 4pm on 19th October 2012, she might well have been in breach.

The events of 12 October 2012 – the facts

29. I turn at last to the central issue in the case: the close and careful scrutiny of the events of the crucial day, 12 October 2012. In fact, as I shall explain, the relevant inquiry focuses on an even narrower time-span: the period from 1.39pm to 2.56pm on the afternoon of 12 October 2012.

30. The unchallenged evidence of the mother, based on a Google printout, is that her home in Llanelli is 54.4 miles from Cardiff Railway Station, and that the journey by car along the M4 takes about 64 minutes. So, in order to get to Cardiff by 4pm they would have had to leave by 2.56pm at the latest. Also unchallenged was her evidence that she had arranged the loan of a friend’s 8-seater people carrier at 2.30pm to take herself and the four children to Cardiff and that, having herself packed the younger children’s luggage, at about 1pm she told the two older children to go upstairs to pack. At 1.37pm (the time is fixed by his mobile phone) Mr Williams received a telephone call from his daughter, who was driving past the house, to say that she could see Jessica on the flat roof outside her bedroom window and Thomas outside the house with his bag (apparently he had jumped down off the flat roof). Mr Williams went upstairs and pulled Jessica back into the house. She gave him the slip and ran out of the house and away with Thomas, Mr Williams in pursuit. He telephoned the police: the call was logged at 1.39pm. None of this is challenged by Ms Cumberland. So the crucial inquiry narrows down to the 77 minutes or so between 1.39pm and 2.56pm.

 

31. In relation to what happened during that period I am dependent in large part on the accounts given by the mother and Mr Williams. Both, as I have said, made witness statements and gave oral evidence. Their accounts can be summarised as follows: Mr Williams set off in pursuit, giving the police a running commentary on the phone: this is borne out by the police log. The children were found in the public library and collected by the police; the police log records them as being in the process of being taken back to the police station at 2.1pm. While they were being taken to the police station Mr Williams returned home and told the mother she was needed at the police station. Her friend Allyson Thomas took her there in her car. On her arrival – at about 2.30pm she thinks, perhaps a little earlier – she had to wait some time on her own. She then had a conversation with a police officer, who told her what the children had been saying. Only then was she able to see the children herself. Eventually they all returned home. A police log records at 4.59pm that they had left the police station “approx 1 hour ago” but the mother and Mr Williams think this is wrong and that they had in fact left somewhat earlier; the mother recalls her friend being anxious to get back in time to get her son to work by 4pm.

32. Having heard both of them giving evidence and being cross-examined, I accept this account as given by the mother and Mr Williams. They were, I think, being honest and doing their best to be accurate in what they said. Partly, this is a conclusion I arrive at having seen the way in which they gave their evidence. This was not some glib rehearsed account. The mother in particular was thoughtful, giving every appearance of trying to recall – to visualise – what had been happening that afternoon. Nor did she seek to put any kind of ‘spin’ on her account. If anything, quite the reverse. She did not seek to use the entry in the police log as showing that she had left the police station later than the time she recalled. And, significantly, she made no bones about the fact that as soon as she was reunited with the children in the police station she made it clear to them that they were not going back to Spain, nor about the fact that she repeated this to all the children at or soon after 4pm once she and the two older children had returned from the police station.

33. It is clear, both from her own account and from the police logs, that the mother told the police that she had to get the children to Cardiff by 4pm, and that she explained why. The police logs show that she was told it was a matter for her, and not the police. The mother’s account is that, whilst she was at the police station talking to the officer before being reunited with the children, he gave her an account of what they had told him and expressed his own opinion as being that Jessica was a danger to herself and others on the plane.

34. Apart from the police logs I have no account from the police of events at the police station. None of the officers gave evidence.

            Mr Hames submits that in these circumstances there is a clear answer to the critical question, Was it within her power to comply with the order, could she do it, was she able to do it? She could not. Through no fault of her own, and having made every effort to arrange a timely departure that would get them all to Cardiff by 4pm, the mother’s plans were frustrated: two of the children ran away, and whenever precisely it was that she left the police station it was on any footing well after 3pm, and probably nearer to 3.30pm – too late to get to Cardiff in time. As a fallback position, Mr Hames points out that it is for the Solicitor General to prove the case, and, moreover, to the criminal standard of proof. He submits that I simply cannot be sure that it was within the mother’s power to comply.

             

36. Ms Cumberland points to the mother’s frank admission of what she said to the children, to the fact that the mother, on her own account, made no effort to get the two younger children to Cardiff, and to the fact that, again on the mother’s own account, by shortly after 4pm she had embarked on a course of conduct that, far from trying to make alternative arrangements with the father, led to them all going on the run.

37. I can see the force of what Ms Cumberland says, and cannot help thinking that the mother has, quite fortuitously, been able to take advantage of two things that are unlikely to re-occur: one the serendipitous happenstance that the children ran away; the other that nothing which happened after 4pm is capable of being a contempt of court. So I have to come back to the critical question: Was it within the mother’s power to get the children back home from the police station in time for them all to leave for Cardiff no later than 2.56pm? Ms Cumberland says that it was: no-one had been arrested, everyone was free to leave the police station whenever they wished, and in any event there was nothing going on in the police station that would have prevented the two younger children being taken to Cardiff.

38. At the end of the day I am concerned with what is essentially a question of fact arising in most unusual circumstances. I have to put myself in the mother’s shoes as she is in the police station during the half hour or so between her arriving there at about 2.30pm and the time – 2.56pm – by which she has to leave for Cardiff. Two of her children have run away and been taken by the police to the police station. She has to wait, before receiving worrying information from the officer and only then being able to see her children. However the lawyer might subsequently analyse what had happened, the reality is that the mother was, metaphorically if not literally, in the hands of the police and having to work to their timetable. It is far from clear on all the evidence that the mother had been reunited with the children by 2.56pm – perhaps, but then perhaps not – and on that fact alone, in my judgment, the Solicitor General fails to prove his case.

 

Standing back from the detail, it is for the Solicitor General to prove that, as events worked themselves out on the afternoon of 12 October 2012, it was within the mother’s power to leave Llanelli by 2.56pm so that she could get the children to Cardiff Railway Station by 4pm. In my judgment he has failed to do so. The application must accordingly be dismissed

[Postscript – this is yet another one of those cases where a hugely important point was being litigated and the party did not obtain public funding. The mother was represented by pro bono counsel, who probably kept her out of prison, and hence at least some of her children still with her. The President spoke out afterwards about how unacceptable it is that such important issues are litigated relying on good will of lawyers acting for free.  http://www.lawgazette.co.uk/news/family-judge-criticises-reliance-free-representation  ]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

7 responses

  1. Article 10: Freedom of Expression

    (1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or RIGHTS of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary

    Surely there is a case for declaring that restrictions on parents preventing them from identifying their own children are in breach of article 10 above?I Suppose lawyers would argue about the children’s rights to privacy but a newborn baby would hardly be concerned with such a thing but would definitely miss a loving mother if one was removed thus disturbing family life contrary to Article 8;

    • An interesting idea, Ian, and the balance of article 10 and article 8 is something which has been very testing for courts in recent times. Of course the qualification under article 10 (2) “may be subject to such formalities, conditions or restrictions as are prescribed by law and are necessary etc” is what continues to permit the restrictions, but it would be interesting to see how ECHR would feel about the universal application of them to care proceedings, rather than testing it on a case by case basis. I think the President will continue to move towards more transparency, it is a major feature in a lot of the judgments he gave when sitting in the High Court. Many might say that the time has come for it.

  2. Jerry Lonsdale

    One stickler of a pickle is when Parents involved in Care Proceedings publish pictures of their children on Social Media then through the Courts they are forced to have them taken down,

    Okay, one would say yes of course, that should be the case, looking at the whole of Section 97, CA-89, Privacy for Children in CERTAIN proceedings, [Note the use of the word Certain]

    97 Privacy for children involved in certain proceedings.

    (1)Rules made under section 144 of the M1Magistrates’ Courts Act 1980 may make provision for a magistrates’ court to sit in private in proceedings in which any powers under this Act or the Adoption and Children Act 2002]F1 may be exercised by the court with respect to any child.
    (2)No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—
    (a)any child as being involved in any proceedings before the High Court, a county court or] a magistrates’ court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
    (b)an address or school as being that of a child involved in any such proceedings.
    (3)In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child.
    (4)The court or the Lord Chancellor] may, if satisfied that the welfare of the child requires it and, in the case of the Lord Chancellor, if the Lord Chief Justice agrees , by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.
    (5)For the purposes of this section—
    “publish” includes—
    (a)include in a programme service (within the meaning of the Broadcasting Act 1990);]
    (b)cause to be published; and
    “material” includes any picture or representation.
    (6)Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
    (7)Subsection (1) is without prejudice to—
    (a)the generality of the rule making power in section 144 of the Act of 1980; or
    (b)any other power of a magistrates’ court to sit in private.
    (8)[Sections 69 (sittings of magistrates’; courts for family proceedings) and 71 (newspaper reports of certain proceedings) of the Act of 1980] shall apply in relation to any proceedings (before a magistrates’ court)] to which this section applies subject to the provisions of this section.
    (9)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (4).

    One would suggest that, that, is quite straight forward, however, I do not see any section that allows the Publication of details of Children in Care and/or Adoption Proceedings from being advertised on-line and in publications, [BAAF per se] those children are still awaiting their futures to be determined, one would go further that I know of a Judge, I will not mention name who on Bookface has pictures of him surrounded by newly adopted and soon to be adopted Children, he looks like the pied piper of………

    Although there is judicial discretion using 97 (9) surely that does not justify one rule for one side of the equation and another rule for the other,

    I do see the parents frustrations almost daily with this situation, the Court of Appeal is open, the general public come and go freely in and out of the court rooms in that place, no restrictions are given until almost the end of the proceedings during the handing down of judgments,

    I know President Munby is looking at these key issues,

    As you know Sir we are attempting to test these matters again on another case

    it is a grey and sore subject for those who’s justice had been infringed, many Litigants are NOT informed of Section 97 until publication is found, then the harsh realities hit home, I am one who relentlessly seeks fair and open Justice, with the consistent rise in Care Applications month on month it will become a situation where those children not in Care Proceedings or those with Local Authority involvement will be the minority children, then it will be those children needing more protection,

    What purpose does it serve in Jailing Parents who speak out about their believed injustices using the proper platforms and avenues, looking back at the Vicky Haigh shenanigans, publicly speaking out on the right forum caused her to be jailed, without going into detail of Vicky’s case one would now be arguing who’s protecting who,

    Certainly on the above two cases it seems driven by professional protection rather than child protection,

    I don’t normally have such a strong beef on most subjects however this one is deep deep rooted and one that should be debated openly once and for all, lay the foundations correctly and the house will not fall down.

    • Wow Jerry, big comment. I’ve grabbed 3 bits from it.

      1. The publication of photos of children in adoption literature like BAAF – that has to be with the consent of the Court. It is something that I have felt uncomfortable about in the past, and I think it is something which should only be done with care. It isn’t outside the realms of possibility that someone could look at a picture of a 3 year old and recognise them as being a child who used to live in your street. I’m not a big fan of publishing the photos to be honest.

      2. The Vicky Haigh thing – well, it has been litigated, but it does raise an important point about transparency. On the one hand, full transparency would have allowed the father in that case to respond and demonstrate that the ghastly things he was being accused of on the net weren’t true. On the other, removing judicial control over what goes into the public domain means that people’s lives can be blighted by false allegations. Those allegations might be made by former partners in private law, or by professionals within care proceedings. For every reader who sees the allegations and decides not to believe them or to look further into the available information for more facts, there are five more who just think “no smoke without fire”. I have had a number of cases, one recently, and I’m sure I’ll have more, where a non-resident parent is served with court papers, sees the allegation that the resident parent may have injured the child and goes blabbing around Facebook and their social circle about the mother/father being a child abuser.

      3. Agree with you absolutely on the photo and facebook thing. I do not believe that a parent breaches s97 by having photographs of their child on facebook. The breach comes if they then link that photograph to talking about the facts of the case or the existence of a case. If someone has a facebook page or group entitled “social services stole my child” or something similar and THEN posts pictures of their child, that’s a breach of s97. If they have a facebook page and put pictures of the child on their own page, making no mention of court or care, it isn’t.

      I also fundamentally agree that if we are going to have rules about what a parent can and can’t say or publish, those rules have to be really clear and made known. The consequences can be so serious that it isn’t fair to simply expect parents to follow the rules without real clarity.

      I too have wondered why the heck law students can sit in the Court of Appeal on family cases, where everyone uses the names of the children and parents. Always makes me uneasy, that.

    • WHERE can we find the picture jerry with soon to be adopted children looking like the pied piper?? Sounds interesting ……

  3. I hope the chap in Derby was helped by a McKenzie Friend by his own foolish choice and not be cause he was refused legal aid!

  4. The other case since 3rd May that is known about is the Kornas one in Newcastle.

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