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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H v H [2001] EWCA Civ 653 (2 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/653.html Cite as: [2001] 3 FCR 628, [2001] 3 WLR 765, [2001] EWCA Civ 653

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Munby)

		Royal Courts of Justice Strand London WC2
		Wednesday, 2nd May 2001

1. LORD JUSTICE WALLER: I will ask Lady Justice Hale to deliver the first judgment.
2. LADY JUSTICE HALE: There are two matters before the court. They both relate to committals of a father for contempt of court. The prime purpose of the orders which were broken was to protect his children from the harm that they suffered by unauthorised contact with him and his continued harassment of them and their mother. There must, therefore, be an order that nothing shall be published which may identify those children. They all have the same first initial and so I will refer to them by the initials of both their first names.
3. The parents married in 1986. Their oldest daughter, LM, was born on 14th December 1986 and so she is now 14. Their middle daughter, LC, was born on 12th May 1989 and so she will soon be 12. Their youngest daughter, LJ, was born on 1st May 1991 and so she was 10 yesterday. The parents separated in November 1993. The mother left the former matrimonial home with the children, who were then aged six, four and two. She began divorce proceedings immediately and the parties were divorced in December 1994. The mother began a new relationship with her present partner early in 1994.
4. The father first applied for residence orders in November 1993. It appears that he still wants his children to live with him or at least to have a shared residence order that they live with each of their parents in their different households. That is an order which is quite appropriately made from time to time; and recently, in Re D (Children) (Shared Residence Orders) [2001] 1 FCR 147; [2001] 1 FLR 495, the President of the Family Division and I have emphasised that there is no need for exceptional circumstances to exist for such an order to be made. Nevertheless, in this particular case the many courts which have considered the future of these children have always ordered that the children should live with their mother. The evidence is that she is a good mother, doing a good job in bringing up three delightful children.
5. The courts have, however, also made many orders providing for contact between the children and their father. In November 1993 there was an order for contact every Saturday and after school on Wednesdays. In January 1994 there was an order for contact every weekend, apart from alternate Saturday afternoons, and on Wednesdays after school. The father was then, in 1994, sent to prison on unrelated criminal matters. In December 1994 there was an order for contact one night each weekend, on Wednesdays after school and for half the school holidays. However, the local authority then developed concerns that the father was misusing his contact and the children were suffering harm. In June 1996 there was an order that contact be supervised for six weeks, to be followed by unsupervised contact each weekend and on Wednesdays after school. In September 1996 there was an order for two nights on alternative weekends and again on Wednesdays after school. In November 1996 there was an order that contact be supervised by the local authority and reviewed in June 1997. I say all that to indicate just how many times the courts have made good contact orders in this case, providing for what in many cases would be regarded as generous contact between these girls and their father.
6. However, in February 1997 the local authority indicated that they could no longer supervise the contact and they applied, very unusually, for care orders - not so as to remove the children from their mother, but so that contact could be denied to the father because of the harm which in their view it was doing to the children. In April 1997 the case was transferred to the High Court and the Official Solicitor was invited to act for the children, which he has done ever since. There was also a standard non-molestation injunction until 14th July 1997 that the father was not to harass, molest or interfere with the mother. The mother later applied for an order that there be no contact and for the committal of the father for breaches of that injunction.
7. There was a hearing before Mr Justice Wilson on 15th May 1997. At that hearing the father gave three undertakings: (a) not deliberately to follow the mother and/or the children, whether by car, on foot or otherwise; (b) not to enter or attempt to enter their home in a particular road in Plymouth or the precincts thereof; and (c) not to loiter outside the said property or, whether in a car or otherwise, at any point along the route of the children to and from school. In addition to that undertaking, the judge made an order that until 21st July 1997 the father be restrained, whether by himself or instructing or encouraging any other person, from having or seeking any contact or communication with any of the three children, with certain exceptions as to telephoning and sending cards or notes to a limited extent.
8. The mother's and others' applications were heard by Mr Justice Wilson in July 1997 and then adjourned part-heard until November. Mr Justice Wilson had the benefit then of a characteristically full report for the Official Solicitor from an eminent child psychiatrist, Dr Boothroyd Brooks. This is extensively quoted by Mr Justice Munby in the judgment which is currently under appeal. I do not propose to repeat any of that, save to say that in the course of his oral evidence Dr Boothroyd Brooks made a characteristic plea to the father to recognise the damage that his behaviour was doing to his children and to mend his ways, so that he could enjoy the relationship with them which both he and they wanted.
9. The outcome of the case was on 7th November 1997, when Mr Justice Wilson gave judgment and made orders. He ordered that the children should live with their mother and have only indirect contact with their father. He prohibited the father from making applications to the court without leave and he also made injunctions against publicity and injunctions against molestation. He found the father guilty of 30 breaches of the non-molestation injunction made in April and the undertakings made in May which he had committed between April 1997 and July 1997. The judge sentenced the father to four months' imprisonment for those breaches.
10. One of the applications currently before us is by the father, acting in person, for permission to appeal long out of time against that committal order. In essence, the father argues that the initial injunction and undertakings were too vague in their terms and that the mother had changed the route by which she took the children to school after the undertakings had been given. However, it is clear, as I have pointed out, that there was a comprehensive order against the father having any contact or communication with his children save as provided in the order and that he had for some reason found it is necessary to spend time in the very road in which their home was situated at a time when they were likely to be going to school. In that eventuality, therefore, it is scarcely surprising that breaches were found.
11. However, the order itself has already been the subject of an appeal. This was dismissed by consent on 8th January 1998. Incidentally, the father also applied for permission to appeal against the contact order, and that was refused on 13th January 1998. It is perhaps not surprising that the appeal was dismissed by consent because the President of the Family Division had already ordered the father's release in December 1997. In any event, this court has no jurisdiction to entertain a further appeal when there has already been one appeal to this court which has been dismissed by consent. It is not surprising that the father considers that there may be jurisdiction to entertain a second appeal, but what is meant by a second appeal is an appeal which comes for the first time to this court on appeal from a court which was itself hearing an appeal from another court. That is what is meant by a "second appeal". There is no second appeal in the sense in which the father wishes to pursue it today. In any event, there would be no justification for giving him permission to appeal so long after the event. So that application, in my view, must be refused.
12. After that set of events, the father very soon set about trying to have the contact order revisited. He made a flurry of applications and the mother made another application for his committal for contempt. In July 1998 His Honour Judge Cottle found 30 breaches of Mr Justice Wilson's order proved. He sentenced the father to nine months' imprisonment for one of those breaches and six months' imprisonment concurrent for the others, all suspended for 18 months. The Court of Appeal, in October 1998, reduced them to six months' imprisonment and three months' imprisonment respectively and shortened the suspension. That sentence was therefore never put into effect. At the same time, in July 1998, His Honour Judge Cottle replaced the injunction with a new order to similar effect. This order contained an exclusion zone.
13. The father again applied for permission to make a contact application. It is an indication of the sympathy that the courts have shown towards this father and, more particularly, towards his children (who would like to have contact with him if only he would change his ways) that Mr Justice Holman gave him permission to make that application in November 1998, thus subjecting the family to a fresh round of litigation. The Official Solicitor this time instructed another eminent child psychiatrist, Dr Hamish Cameron, and for a while things seemed to calm down a little.
14. That application came before Mr Justice Kirkwood in March 1999. He made an order for six periods of contact, the first three to be supervised by the local authority, and also for indirect contact. The oldest daughter, LM, refused to go. The other two, however, did go, and there is evidence that they enjoyed themselves, although there is also evidence that the negative features of this contact began to emerge in due course. In May 1999 the mother again applied to commit the father. In June 1999 Mr Justice Kirkwood found two breaches proved and fined the father a total of £140. The visits continued. By this time the negative factors were becoming more apparent.
15. On 7th February 2000 the Court of Appeal varied the exclusion zone in the order, but the President, Dame Elizabeth Butler-Sloss, gave a clear warning to the father that it must be respected and that if he did not respect the new exclusion zone he would suffer because he would lose that depleted exclusion zone and it would be extended back to where it had originally been. He would then have no possibility of getting it changed again for a very considerable period, for the simple reason that he would not be able to be trusted.
16. In March 2000 the contact matter came before Mrs Justice Bracewell. She ordered that the two youngest children were to visit their father six times a year and the oldest could go too if she wanted to do so. In June 2000 the Court of Appeal refused permission to appeal this order.
17. The father's pressure once again intensified, both in and out of court and on the children themselves. By August 2000 the youngest, LJ, stopped attending contact. She was really upset because of a note that her father had left in a school book after visiting her school.
18. There was a flurry of applications by the father. Directions were given by Mr Justice Munby in October 2000. The mother again applied for his committal. Eventually these and other applications came before Mr Justice Munby on circuit for five days in January to February 2001 and then for two days in London in March 2001. By this time the middle daughter, LC, had also had enough and no longer wanted to visit her father.
19. Mr Justice Munby gave a substantive judgment in chambers on 22nd March 2001. This judgment is confidential to the parties. It is 475 paragraphs long. It consists of 174 single spaced pages. It deals in detail with the history which I have only briefly summarised. Anyone looking at that judgment would conclude that the evidence and the history which he related amply justified his principal conclusions, which he stated at the outset:

"1.This is an immensely saddening case. It is also a tragedy - a tragedy all the more tragic because the outcome was, as it seems to me, unnecessary and almost entirely avoidable.

2.It is in essence the story of a loving and devoted father and his three daughters. The daughters do not live with him following his divorce from their mother. Mother has residence. The daughters wanted and enjoyed contact with their father. That contact was supported by Dr Hamish Cameron, the eminent consultant child psychiatrist, and by the court. It was, as I find, in no significant way opposed or thwarted by the mother. But all three daughters have ended up opposed to and refusing to participate in contact. The virtually total breakdown of the relationship between the father and his daughters is not, in my judgment, the consequence of anything done or not done by the mother. It has in overwhelming part been brought about by the father himself. Therein lies the tragedy.

3.All too often a child's non contact with the non-residential parent is brought about by the residential parent's opposition, opposition sometimes amounting to implacable hostility. Here there is, as I find, no such opposition and certainly no implacable hostility on mother's part. Here, as it seems to me, the non-residential father's estrangement from his daughters has been directly brought about by his own obstinacy, pig-headedness and blindness. He is, if truth be told, the author of his own immense misfortune. He is also, even though he probably cannot recognise it, the cause of the blighting of his daughters' lives."

20. It has to be said that this was not the first judge who had reached essentially those very same conclusions. This case has been visited now by a great many judges of considerable experience. They have all found that the difficulty lies in the father's own attitudes, behaviour and obstinacy, and not elsewhere.
21. Mr Justice Munby made findings in that judgment on the alleged breaches of the orders. The following day he gave a sentencing judgment in open court. He imposed fines totalling £500 and imprisonment totalling ten months. The current appeal is against those sentences.
22. To complete the history, I should briefly refer to later events. The father has made applications to purge his contempt. One was dismissed by Mr Justice Munby on 12th April 2001; and again, on 27th April 2001, Mr Justice Munby gave a further very full and detailed judgment in open court. He repeated (suitably anonymised and abridged) the substance of his judgment of 22nd March, but added additional discussion, in particular of certain human rights issues. He explained why he was taking this perhaps unusual step as follows:

"[The father] has cheerfully cast himself and allowed and encouraged others to cast him in the role of martyr. I believe that there is a public interest in the public knowing just what kind of people have sometimes attached themselves to these organisations and just what some of these organisations on occasions get up to. I believe there is a public interest in the members of these organisations knowing just how they have been bamboozled and cynically manipulated by a man, devoid of all moral scruple, who is singularly ill-suited either to assume the martyr's crown or to act as an ambassador for such organisations."

23. I quote that passage principally to indicate that there are of course many cases in which one parent or another (and it is often the father) feels let down by the system, and deeply let down by the system. Sometimes that feeling is very sincere and genuine. The reasons why the situation has come about may not involve any fault on the part of the person who feels so let down. The courts recognise that the judgments that have to be made in family cases are sensitive and difficult; and sometimes the courts' paramount duty to the welfare of the children means that they cannot do what the parties want them to do; and the depth of the feeling involved in these cases is always such that people feel deeply aggrieved. These courts recognise, and have always recognised, that children have two parents and need two parents, and they go to extraordinary lengths to ensure that they continue so to have. The history of this case indicates that that is so. It would be a shame if those parents who quite rightly wish to ensure that that issue is maintained as an important point of principle and policy and who are meritorious in their claims should allow themselves to be attached to people or organisations which are the product of others who are not in any way as meritorious as so many are. It was for that reason that I quoted what Mr Justice Munby said last Friday about this case.
24. However, it is not strictly germane to the issues in this appeal. This appeal is about the sentences imposed on 23rd March and the reasons for imposing those sentences. As is already clear, there were three categories of breach involved. There were two occasions: one on 2nd April 2000, when the father met all three of the children in a superstore; and another occasion on 7th October 2000, when the father met the oldest child in the street. The judge accepted that those meetings were not premeditated and he fined the father £250 for each of them. It was a feature of each of those occasions that the father had approached the children when it was perfectly clear that he should not have done so. These were in circumstances when he was not supposed to be having any contact unless as ordered by the court.
25. The second category were four occasions when the father communicated with the mother or the children directly rather than through, respectively, the solicitors or the local authority. The first of these was the sending of a post-dated cheque for £900 to the mother, quite clearly as a bribe or inducement for the oldest child to attend the contact visits. The second was presents for the younger two. The third was the note left in the school book for the youngest child, to which I have already referred, which so much upset her that she no longer wished to go to contact. The fourth was an article from Families Need Fathers for the oldest child to read, which again upset her. He was sentenced to four months' imprisonment concurrent on each of those occasions. The judge explained his reasons in this way:

"... these contempts simply cannot be condoned. Not merely did each of these actions involve a clear contempt. In each case it is the very fact that you were communicating, in the one case with your former wife and in the other cases with your children, when they did not wish to receive your communications and when they believed they were to be protected from your unwanted attentions, that makes these matters so serious. These four contempts, I have little doubt, contributed powerfully to their feeling of being stalked and harassed."

26. In the third category were four occasions on which the father had entered the exclusion zone. Indeed, he admitted in evidence that he had done so and that he had done so on other occasions as well when he thought he would not be seen. He was sentenced to six months' imprisonment concurrently with one another on each of those breaches, but consecutive to the other sentence. Again the judge explained his reasons:

"You have admitted entering the exclusion zone `on a number of occasions'. In the course of giving evidence before me you casually and without the slightest sense of shame, embarrassment or remorse, admitted to having done so on occasions other than those complained of by mother, having gone in, as you claimed `when I thought I would not be seen'. You have sought to justify or extenuate your actions by claiming that your work as a driving instructor necessitates your going into the exclusion zone. That merely demonstrates your quite deliberate defiance of the injunction, your cavalier contempt for the court and its orders, and your total disregard of the very clear warning given to you by the President when she refused to accept your work as a driving instructor as any reason for discharging this part of the injunction."

27. Mr Sharpe has appeared for the father to argue this appeal against those sentences with his customary clarity, eloquence and, if I may say so, moderation and good sense. He argues, in essence, that the judge must have given too much weight to the antecedent history rather than to the gravity of what the father actually did in the breaches in question. There was no violence involved, although he accepts that stalking and harassment can be as detrimental as violence; but, when what was actually done is analysed, it was not of the most serious kind.
28. Mr Sharpe is kind enough to refer to the case of Hale v Tanner [2000] 3 FCR 62; [2000] 2 FLR 879 para 29, in which the basic principle is stated thus:

"... the length of the committal has to depend upon the court's objectives. There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity."

29. Mr Sharpe has drawn our attention to the tables of cases, particularly in Volume 1 of Hershman and McFarlane, Children Law and Practice, which gives some indication of the sorts of sentences which have been imposed in those cases which have reached the law reports. However, as was made clear in Hale v Tanner, there are no guidelines as to the length of sentence for particular types of contempt of court in family cases. There is no tariff for particular types of contempt. Given the many circumstances of these cases and, on the one hand, the great sensitivity there often has to be in dealing with them (bearing in mind the strong emotions and continuing relationships that they entail) and, on the other hand, the objectives of the court in imposing punishment for contempt, which may pull in different directions, it would be surprising if there were such a tariff.
30. Mr Sharpe correctly states that it is by no means easy to reconcile the different cases and deduce any guidelines from them. He compared the case of Brewer v Brewer [1989] 2 FLR 251 with the case of G v G (Contempt: Committal) [1992] 2 FCR 145. In the first of those cases a sentence of two months' imprisonment had been upheld for breaches, including violence, which had taken place shortly after an injunction had been imposed. In the second of those cases a total period of 16 months' imprisonment had been imposed in a case where there had been no violence but there had been a prolonged history of breaches of injunctions, harassment and defiance of court orders. In that case Thorpe J (as he then was) referred to the case of Brewer v Brewer and mentioned that it was a sentence of 24 months' imprisonment. That must have been a slip, because in Brewer v Brewer the sentence was two months' imprisonment. It is more likely that he was referring to the different case of Mesham v Clarke [1989] 1 FLR 370, in which a sentence of two years' imprisonment was upheld. That too was a case of a prolonged campaign of breaches of non-molestation and exclusion orders and express warnings from the judge, although there was also some violence in that case.
31. The principle is as was stated in the case of Lightfoot v Lightfoot [1989] 1 FLR 414. Here it was said that sentences for contempt fell into two categories: first, purely punitive, to punish once and for all breaches, such as that of a non-molestation order; but secondly, coercive, to persuade the contemner to do something which he is refusing to do or, one might say here, to persuade the contemner to refrain from doing something which he is persistently continuing to do in spite of all court orders to the contrary. That principle is on all fours with the paragraph from Hale v Tanner which I have already quoted.
32. The significant factors in this case are the persistence of the father's defiance of all judgments and orders of the court which do not conform to his view of the reality of the case. I have tried to point out how consistent have been the views of many judges over the years, how frequently the case has come back to court and how deep has been the father's defiance of the courts' orders.
33. The other significant factor is the harm that this father is causing to his children by what he is doing and has been doing, and again this has been a consistent finding by the courts. I need only quote a little from the judgment of Mrs Justice Bracewell, when she said that:

"... there is a much more difficult aspect which has to be weighed in the balance. That is the pressure which I have no doubt that these children are under from the father, and the effect which it is having on their emotional welfare.

I do not consider that the father applies pressure wittingly. He does not do it consciously in order to discomfort the children, but, unfortunately, he has a tendency to view these applications as part of a campaign in an ongoing battlefield. He has a complete absence of trust in relation to the mother, and he is blind to the damage which he is occasioning these children. He has, I find, little or no respect for boundaries, and he will go to any lengths to pursue and try to achieve his object, as demonstrated by the flurry of applications which mark the background to this case."

34. I quote that to demonstrate that Mr Justice Munby was not alone in considering, on expert evidence, that this father's behaviour is causing harm to his children. It is as a result of that harm that they have been deprived of that which they would dearly like, which is a proper relationship with their father.
35. It is those two features, the persistence of the defiance of the courts' orders and the harm which it is causing to his children, which in my view amply justify the sentences that were imposed in this case. It cannot be said that they were manifestly excessive, either in isolation or in their cumulative effect, and I would dismiss this appeal.
36. SIR PHILIP OTTON: My Lady has referred to the previous decision of this court in Lightfoot v Lightfoot [1989] 1 FLR 414. This case was not cited to, or considered by, the court in Hale v Tanner. On that occasion an appeal against 18 months' imprisonment was dismissed. It might be helpful to note what Lord Donaldson MR said on that occasion:

"For my part, I cannot see that that can possibly be faulted, but I would like to say a word about sentences of this sort. Sentences for contempt really fall into two different categories. There is the purely punitive sentence where the contemnor is being punished for a breach of an order which has occurred but which was a once and for all breach. A common example, of course, is a non-molestation order where the respondent does molest the petitioner and that is an offence for which he has to be punished. In fixing the sentence there can well be an element of deterrence to deter him from doing it again and to deter others from doing it. That is one category.

There is a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it. Of course, a sentence in that case also has a punitive element since he has to be punished for having failed to do so up to the moment of the court hearing, but, nevertheless, it also has a coercive element.

Now, it is at that point that it is necessary to realise that in earlier times the courts would in such circumstances have imposed an indefinite sentence. That is to say a man would be committed to prison until such time as he purged his contempt by complying with the order. Under the Contempt of Court Act 1981 a limit has been placed on such sentences, that limit being 2 years. It would be consistent with the previous practice of the courts and give full effect to the modification required by statute if courts considered imposing a 2-year sentence when the contemnor was in continuing and wilful breach of court orders. Whilst there might be cases in which such a sentence would be disproportionately severe, any wilful defiance of the court and its orders is necessarily a very serious offence ..."

37. These dicta are clearly apposite to the present case. The principles were properly reflected in the sentence imposed. I am satisfied that the sentence of ten months in total was neither wrong in principle nor manifestly excessive. I too would dismiss the appeal.
38. LORD JUSTICE WALLER:I agree and there is nothing I can usefully add.
Order: appeal against sentence dismissed; application for permission to appeal out of time against committal order of 7.11.97 dismissed; detailed public funded costs assessments for both the mother and the father.