H (A Child)

Under the Civil Procedure Rules 1998, the exemption from permission to appeal applies only where a committal order has actually been made. A refusal to make such an order requires permission. In child-contact proceedings, committal should be assessed by reference to whether it would secure compliance and its likely effect on the child and the parent-child relationship. Where the parent is not deliberately defying the court and imprisonment is likely to worsen matters, refusal of committal may be proper. A suspended sentence should not be imposed unless the court is prepared to impose immediate custody for breach.

The father applied for permission to appeal against Sheffield County Court’s refusal on 22 May 2006 to commit the mother for her admitted breach of a contact order. The order required her to deliver their son to the father for direct contact and carried a penal notice. Earlier contact arrangements had also failed, and the father had issued committal proceedings.

The judge found that the mother was no longer openly defiant, had begun cooperating with the proceedings, and was unable sufficiently to encourage the child to attend contact. The guardian opposed imprisonment because it would damage the child and his relationship with his father. The father argued that permission was unnecessary under CPR rule 52.3(1)(a)(i) and challenged the judge’s refusal on the merits. The central issues were whether permission was required and whether the refusal had any real prospect of being overturned.

Permission to appeal was refused. Wall LJ gave the judgment, with Thorpe and Latham LJJ agreeing.

1. The exemption in CPR rule 52.3(1)(a)(i) concerns a committal order actually made. A refusal to make a committal order is not itself a committal order, so permission was required. The court relied on Barnet London Borough Council v Hurst [2002] 4 All ER 456 and clarified the distinction drawn in Wood v Collins [2006] EWCA Civ 743.
2. HHJ Jones was entitled to refuse committal. He had heard the mother and had ample material for finding that she was not openly defiant and could not sufficiently control or encourage the child’s attendance. The guardian’s evidence supported the conclusion that imprisonment would not secure contact and might cause irreversible damage to the child’s relationship with his father.
3. A suspended sentence of imprisonment should not be imposed unless the court is prepared to enforce it by immediate custody if its terms are breached. The judge was therefore entitled to conclude that committal was neither justified nor appropriate at that stage, and the proposed appeal had no prospect of success.
4. By consent, the relevant papers were released for a Transformative Assessment, with a report and further directions to follow. The court encouraged both parents to approach that process constructively, but this was practical case management rather than a separate legal test.

• Court of Appeal (Civil Division) — On 19 July 2006, refused permission to appeal against the refusal of committal: [2006] EWCA Civ 1163.
• Sheffield County Court — HHJ Peter Jones refused on 22 May 2006 to make a committal order against the mother for breach of the contact order.