V (Children), Re

In child contact proceedings, the governing question is whether contact, in the circumstances as they exist when the order is made, is in the children’s interests. Preventing a family feud is not a proper substitute for that welfare assessment. A committal order for breach of a contact order is a remedy of last resort. The court must consider the effect on the children of imprisoning their primary carer, keep contact and committal issues distinct, and explain any departure from the children’s guardian’s recommendation. Material changes in risk or family circumstances require the contact arrangements to be reviewed. Any sentence for contempt must also be proportionate. The contact and committal orders were therefore set aside.

EV appealed against orders made by HHJ Briggs in the Teesside County Court on 29 February 2008. The judge had made a further contact order, endorsed with a penal notice, and ordered her committal to prison for three months, suspended on compliance with the contact arrangements. The proceedings concerned contact between her two children and their paternal grandparents.

The application followed earlier unsuccessful attempts to arrange supervised contact. By the February hearing, the children’s father had been released early from prison after serious criminal offending against the mother. The children’s guardian opposed both the contact and committal orders. The central issues were whether contact had been assessed by reference to the children’s interests in the changed circumstances, and whether committal was an appropriate and proportionate means of enforcement.

Lord Justice Wall gave the leading judgment. Lord Justice Lloyd agreed and added observations. The appeal against the committal order was allowed, permission to appeal the contact order was granted, and that appeal was also allowed.

1. Contact. The proper criterion for a contact order was whether contact, in the changed circumstances, was in the interests of the children. The desire to prevent the continuation of a family feud was the wrong test. The judge had failed to reassess the position after the father’s unexpected release, despite the risks arising from his conduct, possible collusion by the grandparents, and the mother’s genuine fear. The children’s wishes and feelings also required consideration.
2. Committal. Committal orders in contact proceedings are remedies of last resort and require the greatest care. This case was nowhere near that stage. The matter should have been reviewed earlier, rather than escalated through repeated penal notices and committal proceedings. Contact and committal issues had to be kept distinct. The reasoning used to justify the defective contact order had wrongly been carried into the committal decision. The approach was inconsistent with the warning in Hammerton v Hammerton.
3. Welfare and the guardian. Although the children’s welfare was not paramount on a committal application, it was a material consideration. The judge had failed to consider the effect on the children of imprisonment of their sole carer. He had also failed to explain his departure from the guardian’s recommendation against contact and committal.
4. Sentence. The judge had imposed the sentence without allowing the mother’s counsel to mitigate. A suspended sentence remained subject to the requirement of proportionality. Applying the guidance in Goldsmith v Goldsmith [2006] EWCA Civ 1670, the three-month sentence was manifestly excessive. Hale v Tanner [2000] 2 FLR 879 provided a further illustration of the need for restraint in contempt sentencing.
5. Additional guidance. Lord Justice Lloyd observed that non-compliance with a contact order did not automatically require immediate imprisonment. A genuine reason for non-compliance, including circumstances in which the children’s attendance was not entirely within the mother’s capacity, could be relevant.

The committal order was discharged and the contact order for 3 April was set aside. The issue of contact was remitted for an urgent fresh review before the designated family judge or another judge, not HHJ Briggs, with an updated assessment of the children’s wishes and feelings by the guardian.

• Court of Appeal (Civil Division). On 28 March 2008, allowed the appeal against the committal order and, after granting permission, allowed the appeal against the contact order. Both orders were set aside. [2008] EWCA Civ 635.
• Teesside County Court. On 29 February 2008, HHJ Briggs made a contact order with a penal notice and ordered the mother’s committal for three months, suspended on compliance with the contact arrangements.