Hale v Tanner (Practice Note)

In family contempt proceedings, an application to commit does not make imprisonment automatic, although custody may be appropriate for a first breach. The court must consider the available alternatives and fix any custodial term by reference to the seriousness of the breach, the objectives of marking disobedience and securing future compliance, the family context, and any parallel proceedings.

The term must be selected independently of any decision to suspend it. Suspension is commonly an appropriate means of securing compliance. The court should briefly explain the sentence, its length, and the terms of any suspension.

The appellant had been made subject to a non-molestation order in the Oxford County Court. A power of arrest was attached. After service of the order, she made repeated telephone calls to her former partner in breach of it.

The Recorder committed her to prison for six months, suspended for compliance with the underlying order. She appealed on the ground that the sentence was manifestly excessive. She relied on her admission, the fact that this was her first breach, her absence from the original hearing, the lack of prior legal advice, and her family circumstances.

The central issue was the proper approach to sentencing contempt for breach of a family non-molestation order.

Appeal allowed unanimously. Lady Justice Hale gave the judgment, with which Sir Christopher Slade and Lord Justice Swinton Thomas agreed. The six-month committal order was manifestly excessive and was reduced to 28 days. Its suspension was to continue until 21 January 2001, the expiry date of the underlying non-molestation order.

1. An application to commit is the only available procedure for breach of such an order, but it does not make imprisonment automatic. There is no rule preventing imprisonment for a first breach: see Thorpe v Thorpe [1998] 2 FLR 127. The court must nevertheless consider whether another available course, including no order, adjournment, a fine, requisition of assets, or a mental health order, is appropriate.

2. The court declined to import generally the statutory sentencing principles applicable to ordinary criminal offences. In family contempt proceedings, a custodial term must be fixed without regard to whether it will be suspended. It must reflect both the court's disapproval of disobedience and the need to secure future compliance, and bear a reasonable relationship to the two-year maximum.

3. Suspension need not be exceptional in contempt proceedings. It is usually the first means of seeking compliance. Its duration requires separate consideration and may appropriately be tied to continued compliance with the underlying order.

4. The court must take account of the wider family context, including aggravating or mitigating circumstances and overlapping proceedings arising from the same events. It should also give a brief explanation of the choice of custody, its length, and any suspension.

5. Here, the breach involved unpleasant telephone calls but no immediate threat. It was a first breach, promptly admitted, and the appellant had not attended the hearing at which the order was made. Those matters, together with her family circumstances, made six months excessive. The Recorder was, however, right to link the suspension to the underlying order.

Lady Justice Hale also observed, obiter, that under section 47(2) of the Family Law Act 1996, the presumption in favour of a power of arrest does not remove the court's discretion to select which provisions of a non-molestation order should carry it.

• Court of Appeal — Allowed the appeal and reduced the suspended committal from six months to 28 days: [2000] EWCA Civ 5570.
• Oxford County Court — On 3 April 2000, the Recorder committed the appellant to prison for six months, suspended for compliance with a non-molestation order made on 21 January 2000.