L-W (Children), Re

A parent ordered to allow

For committal or an enforcement order under the Children Act 1989, the court must identify the order’s express obligation and determine whether it was breached on the particular occasion. The applicant bears the criminal burden of proving both non-compliance and the parent’s ability to comply. Impossibility goes to breach, not reasonable excuse.

Committal remains available in contact cases, but it must be proportionate and must not become counterproductive to the child’s welfare.

The father and mother had two children. Their son lived with the father and had become strongly resistant to contact with the mother. In private-law proceedings, the Maidstone County Court made contact orders requiring the father to allow contact and make the son available.

The judge made enforcement and compensation orders for alleged non-compliance, and later imposed concurrent suspended sentences of imprisonment for contempt. The father appealed the enforcement, compensation and committal orders.

The central issues were the meaning of the contact orders, whether the father’s conduct amounted to breach, and whether enforcement or committal remained appropriate in light of the child’s entrenched resistance and the guardian’s evidence.

1. Appeals allowed, subject to a limited preservation of findings. The court set aside the January 2010 enforcement order, most of the earlier enforcement order, all compensation orders, and the committal order except insofar as it recorded a breach on 10 April 2010.

2. The orders required the father to allow

3. For contempt, the court must construe the express obligation, decide whether it was not performed, and decide whether performance was within the alleged contemnor’s power. The applicant bears the criminal burden throughout. The same distinction applies under section 11J: breach is a logically prior issue to reasonable excuse. An inability to perform the mandatory obligation prevents a finding of breach; it is not merely a reasonable excuse.

4. The father was properly found in breach on 13 June 2009, when he removed the child during contact, on 25 July 2009, when the child was absent when collection was due, and on 10 April 2010, when the child was abroad. The remaining findings could not stand. On those occasions the child was at home and the judge had not determined whether the father had failed to permit contact or make him available under the orders’ actual terms.

5. The retained breaches justified the limited enforcement response, but no further unpaid work was required. The lower civil standard for compensation did not preserve the compensation orders because they rested on the same erroneous approach to breach.

6. Committal is an available last-resort remedy and may sometimes need timely use. Here, however, the guardian’s later evidence showed that imprisonment was unlikely to change the child’s attitude and risked giving him a damaging sense of responsibility for his father’s imprisonment. It had become counterproductive and was no longer proportionate.

7. The case was to remain in the County Court. Judicial continuity in an intractable contact dispute outweighed the proposed transfer to the High Court.

• Court of Appeal (Civil Division): Allowed the father’s appeals in [2010] EWCA Civ 1253. It set aside the committal and compensation orders and varied the enforcement consequences.
• Maidstone County Court: Judge Caddick made enforcement, compensation and committal orders in private-law contact proceedings.