B v S

An immediate committal sentence for deliberate and repeated breaches of child-contact orders may be justified even where the contemnor is a child’s carer. Later breaches may inform the gravity of the contempts charged, provided that no punishment is imposed for uncharged contempt.

However, where imprisonment will separate a breastfeeding baby from the mother, the court must assess the actual interference with the baby’s Article 8 rights and decide whether it is proportionate and justified. A sentence imposed on the mistaken assumption that the baby can enter prison with the mother requires reconsideration.

The mother admitted three contempts arising from failures to make her daughter available for contact with her father and to attend a contact hearing. The Epsom County Court imposed three concurrent terms of 28 days’ imprisonment and listed a later hearing at which she could seek to purge her contempt.

The mother appealed after it emerged that HMP Bronzefield would not immediately admit her three-month-old, exclusively breastfed baby with her. The appeal also challenged the judge’s use of later breaches of contact orders when sentencing for the three contempts specified in the notice to show cause.

The central issues were whether the judge had punished the mother for uncharged contempts and whether the unanticipated separation of mother and baby rendered the immediate committal sentence unlawful.

1. Appeal allowed. Wilson LJ, with whom Ward LJ agreed, held that the judge had not sentenced the mother for the three later breaches of his order of 2 April 2009. The judge had directed himself to sentence only for the three contempts in the notice to show cause. He was nevertheless entitled to treat the mother’s continued disobedience as part of the context when assessing their gravity.

2. The immediate committal sentence could not stand because the judge had proceeded on the assumption that the baby could accompany the mother to prison. The baby, who was three months old and exclusively breastfed, had potent rights under Article 8 of the European Convention on Human Rights. In fact, imprisonment would separate him from his mother while the prison considered a written application for admission.

3. That separation was a grave interference with the baby’s private and family life. As the judge had not appreciated that it would occur, he had not considered whether the interference was proportionate and justified. The error concerned the baby’s rights, rather than any immunity of the mother from imprisonment.

4. The court rejected the proposed substitution of a suspended sentence. The judge had a wider understanding of the facts and a broad sentencing discretion. In principle, the serious, repeated and deliberate breaches could justify immediate imprisonment; a mother’s role as carer does not protect her from such a sentence.

5. The court directed an immediate application to HMP Bronzefield for authority for the baby to accompany the mother during any imprisonment. It vacated the hearing fixed for 22 May 2009 and remitted sentencing for the three admitted contempts to the judge at the first available date in June 2009, after the prison’s response and subsequent contact arrangements could be considered.

• Court of Appeal (Civil Division) In [2009] EWCA Civ 548, allowed the mother’s appeal, set aside the immediate committal sentence and remitted sentencing to the county court.
• Epsom County Court On 13 May 2009, ordered the mother’s immediate committal for three concurrent terms of 28 days for three contempts arising from breaches of contact-related orders.