Heathcote v Crackles

An appellate court should not interfere with a committal sentence unless the judge was wrong in principle. In assessing seriousness, the court may consider the contemner’s failure to accept responsibility or apologise, particularly where the conduct involves serious violence and breaches a protective injunction. Section 91(14) of the Children Act 1989 is not an absolute bar on a future application. It requires an application for leave. The power is exercisable when disposing of an application for an order under the Act. Where no such application is before the court, a section 91(14) order cannot be made. Such restrictions should not generally be imposed in committal proceedings without an application before the court.

The father appealed from orders made by Leicester County Court on 10 October 2001. Following serious violence at a contact centre, he was committed for contempt for breaching an injunction and received a 12-month sentence for ramming the mother’s car, with a concurrent one-month sentence for throwing a cup at her.

The judge also purported to make a 12-month order under section 91(14) of the Children Act 1989, restricting the father from applying for contact. The issues were whether the committal sentence was excessive and whether the section 91(14) order was lawfully made. The court also dealt with an extension of time for the contempt appeal.

The President, Dame Elizabeth Butler-Sloss, gave the substantive judgment. Lord Justice Thorpe agreed.

1. Extension and sentence. The court granted an extension of time because the delay occurred while the appellant was imprisoned and was not his fault. The appeal against the 12-month committal sentence was dismissed. The judge had not erred in principle, and the sentence properly reflected the exceptional seriousness of the deliberate violence, the risk and emotional harm caused to the children, the breach of a protective injunction under Part IV of the Family Law Act 1996, and the absence of any acceptance of responsibility or genuine apology.
2. Section 91(14). The provision does not absolutely prevent a person from making a later application. It requires that person first to apply for leave to make an application under section 8. More importantly, the power arises when disposing of an application for an order under the Children Act 1989. The father had made no application for contact, so there was no relevant application before the county court. The judge therefore could not make the section 91(14) order.
3. Inherent jurisdiction and procedure. The court did not decide whether the circuit judge might have acted under the High Court’s inherent jurisdiction. It declined to transform the invalid statutory order into such an order or to impose a restriction itself merely to provide a period of respite. The President stated that section 91(14) or an inherent-jurisdiction restriction should not generally be imposed during committal proceedings unless the court is also considering substantive applications. Such an order should not ordinarily be made without prior notice and should preferably follow an application by one of the parties.
4. Final order. The sentence appeal was dismissed. The appeal concerning the section 91(14) order was allowed and that order was discharged. There was no order for costs, save for assessment of publicly funded costs.

• Court of Appeal (Civil Division) — Extension of time granted. The appeal against the committal sentence was dismissed. The appeal against the section 91(14) order was allowed and the order was discharged.
• Leicester County Court — On 10 October 2001, His Honour Judge Victor Hall QC imposed concurrent custodial sentences of 12 months and one month for two breaches and made a 12-month restriction under section 91(14) of the Children Act 1989.