Greensill & Anor v Greensill

Committal proceedings for breach of a family injunction are akin to criminal proceedings. Before imposing custody, the judge must address legal representation and give the alleged contemnor a proper opportunity to make submissions on sentence, including mitigation. Representation cannot be compelled, but it must be offered; if accepted, the hearing should be adjourned where necessary. A court may proceed in the person’s absence where representation was offered and would plainly have been refused. Repeated minor breaches may justify custody because their cumulative effect can seriously undermine the protection the injunction was intended to provide. On appeal, a procedural failure at sentencing permits the appellate court to reconsider the sentence afresh. Appeals involving liberty should be expedited.

The appellant appealed from an order of Her Honour Judge Hughes in the Wolverhampton County Court dated 27 March 2007. The judge found 19 breaches of injunctions made under Part IV of the Family Law Act 1996 and imposed concurrent sentences of six months’ imprisonment. The appellant had appeared without representation, as she had chosen to do on earlier committal applications. The appeal concerned the fairness of the committal and sentencing process, including the absence of a specific invitation to address the court on sentence, and the proportionality of the immediate custodial term.

1. Appeal allowed. The Court of Appeal held that the committal hearing could properly proceed. Representation could not be compelled, but it had to be offered. In the circumstances, the judge was entitled to proceed without an advocate because an offer would plainly have been refused ([2007] EWCA Civ 248).
2. Committal proceedings are akin to criminal proceedings, so procedural fairness is central. The judge should consider the need for representation and must give the alleged contemnor a specific opportunity to address the court on sentence. The appellant had been invited to speak about costs but not specifically about sentence. The Court of Appeal therefore reconsidered sentence afresh.
3. The judge was entitled to find that repeated breaches had occurred and to impose immediate custody. Although individual allegations were comparatively minor, their cumulative effect could be seriously demoralising and the court had to enforce its injunctions. The court nevertheless reduced the custodial term so that the appellant was released immediately.
4. Lady Justice Arden agreed, adding that some school-related allegations might have required further findings, although other breaches were clear. She stressed that the injunctions remained valid and binding until discharged or varied, and that the appellant had to apply to the court rather than take the law into her own hands.
5. Lord Justice Thorpe endorsed the guidance in Hammerton v Hammerton, including the need to hear mitigation and allow time for quiet reflection before custody. He stated that appeals against findings of breach or sentences for breach should be expedited because each day’s delay may unjustifiably prolong detention.

• Court of Appeal (Civil Division): allowed the appeal from the Wolverhampton County Court’s order of 27 March 2007, discharged the six-month custodial term and substituted an order ending on the day of judgment.
• Wolverhampton County Court: Her Honour Judge Hughes found 19 breaches of injunction and committed the appellant to concurrent terms of six months’ imprisonment.