M (Children)

A suspended custodial sentence for contempt may be imposed only if the court first concludes that custody itself is justified. Imprisonment cannot be imposed merely because the contemnor lacks the means to pay a fine.

Where a minor but deliberate breach does not justify custody, the court may make no order while leaving the finding of contempt intact. An appellate court will not disturb a trial judge’s properly available factual finding merely because another view of the probabilities is possible.

A father appealed against an order of Oxford County Court committing him to prison for seven days, suspended for six months. The committal arose from his deliberate failure to return his daughter to her mother by 4 pm as required by a family proceedings order.

The county court rejected three alleged breaches but found the late return proved to the criminal standard. The father challenged that finding on grounds of procedural irregularity and evidential insufficiency. He also challenged the suspended custodial sentence.

The central issues were whether the contempt finding could stand and whether the judge had lawfully selected custody after deciding that a fine was unsuitable because of the father’s limited means.

1. Appeal allowed as to sentence. The finding of contempt remained in force, but the suspended committal sentence was discharged and no order was substituted.

2. The committal hearing was not procedurally irregular. Once confusion arose over which alleged breaches were admitted, the judge clearly stated that evidence would be heard on every allegation. The father proceeded without seeking an adjournment. His proposed additional witnesses could not establish the material time at which the child was returned.

3. The county court was entitled to accept the evidence of the mother and social worker and to find, to the criminal standard, that the father returned the child at about 4.10 pm. It was not the appellate court’s function to speculate about the probability of that account or the father’s reasons for arriving late. The factual finding therefore stood.

4. The sentence involved two errors of principle. A court must not impose a suspended custodial sentence unless it first decides that a custodial sentence is justified. Nor may it impose imprisonment simply because the contemnor lacks the means to pay a fine. The county court’s reasoning showed that it moved to custody because a fine was financially inappropriate.

5. The judge had earlier indicated that imprisonment would not be appropriate. That indication reinforced the conclusion that the later custodial sentence was erroneous. Ward LJ also observed that it is unusual to invite the applicant in committal proceedings to express a view about penalty, which is ordinarily a matter between the court and the contemnor.

6. The proportionate disposal was no order. Although the breach was deliberate and the father’s conduct was difficult, committal for this limited breach was excessive. Clarke LJ agreed.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 615 , unanimously allowed the appeal as to sentence. It preserved the finding of contempt, discharged the suspended committal sentence and substituted no order.
• Oxford County Court: His Honour Judge Corrie found one alleged breach proved to the criminal standard and imposed seven days’ imprisonment, suspended for six months.