CW & Ors v TW

In determining contact with extended family, the decisive question is whether contact serves the children’s interests. A grandparent’s strong desire for contact is insufficient. Hostility towards the children’s primary carer and wholesale support for a parent may weigh strongly against contact where it risks embroiling the children in the adults’ dispute.

Contempt must be proved to the criminal standard. The court must establish breach of a clearly identified order or undertaking by strict proof. Procedural defects may be overlooked where they do not prejudice overall justice, but sentencing should allow proper opportunity for mitigation.

The proceedings concerned two children living with their mother and having no direct contact with their father. The father had been prohibited from entering or approaching the children’s school and from attending places where they were likely to be present. The mother sought his committal for contempt after an alleged breach.

The children’s paternal grandparents sought direct contact. The court also dealt with the father’s appeal against an order made by District Judge Hurley and the continuation of an order excluding him from Wiltshire. The father did not attend or appear at the hearing. The central issues were whether contempt had been proved and whether direct grandparental contact was in the children’s interests.

1. Disposition. The father’s appeal was dismissed and the order banning him from Wiltshire was retained. His breach of the order prohibiting him from entering or approaching the children’s school was proved. Sentence was adjourned to a date to be fixed. The grandparents’ application for unrestricted direct contact was refused, but a single supervised visit was authorised subject to further assessment.
2. Contempt. The court had to be satisfied beyond reasonable doubt that the father had breached a positive order or undertaking. The relevant order contained clear prohibitions and penal notices. The evidence of two police officers and the mother’s cohabitee, together with the father’s admission that he had been present, established breach of paragraph 9. The court made no further findings because strict proof was required.
3. A formal committal summons was absent, which was a serious procedural defect. Nevertheless, the father had been fully notified of the allegations and had had abundant opportunity to meet them. The defect therefore did not prevent determination of the application. In sentencing, the court followed the caution in Hammerton v Hammerton [2007] Civ 248; [2007] 2 FLR 1133, concerning the need to hear mitigation before imprisonment.
4. Grandparental contact. The children’s welfare was paramount. Contact could be ordered only if it was in their interests. The grandparents’ hostility towards the mother and vigorous defence of the father created a risk that contact would draw the children into the family conflict. The court nevertheless concluded, cautiously, that the grandmother might keep the father away and avoid promoting his case to the children.
5. Any visit was therefore to take place once only, for no more than two hours, at a Wiltshire contact centre, under supervision, and independently of the father. He was prohibited from being present, nearby or in telephone contact. The children’s representative was to reassess the position and report to the court, which retained the case and gave liberty to apply.

• High Court (Family Division): retained the Wiltshire exclusion order, dismissed the father’s appeal against District Judge Hurley’s order, found one breach of the contempt order proved, and gave directions for a single supervised grandparental contact visit.