L-R (Children)

In family proceedings, a parent who is a compellable witness must comply with an order to give evidence, even where concurrent criminal proceedings create a risk of self-incrimination. Section 98 of the Children Act 1989 does not excuse refusal to give evidence. Contempt sentencing may contain punitive, coercive and deterrent elements. The coercive element may operate through the warning and threatened sanction, even if compliance is no longer realistically achievable when sentence is imposed. Serious and deliberate disobedience that hinders family fact-finding may justify substantial punishment. The family judge must sentence the contempt before the court; the possible effect on prison status or later criminal sentencing is for the relevant authorities. Appellate interference is justified only where the sentence is manifestly excessive or plainly wrong.

Care proceedings concerning two girls followed the death of their young half-brother and were heard alongside criminal proceedings against the mother and her partner. The local authority relied on domestic violence, parental substance misuse, the children’s exposure to prolonged abuse, concealment, and failures to protect, in support of the threshold under section 31 of the Children Act 1989.

The partner, Mr K, repeatedly failed to provide ordered evidence and, when called, declined to answer most questions. HHJ Hindley QC found him in contempt and sentenced him to 18 months’ imprisonment. The appeal was confined to sentence. The issues were whether the sentence was necessary and proportionate, whether the absence of a coercive or practical effect made imprisonment inappropriate, and what significance should be given to the impact on the family fact-finding process.

1. Appeal dismissed. The sentence of 18 months’ imprisonment, with half to be served, was not manifestly excessive or plainly wrong. The appellate court would interfere with a contempt sentence only on that basis, applying Slade v Slade [2010] 1 FLR 160.
2. The court noted that parents in care proceedings are compellable witnesses. Section 98 of the Children Act 1989 removes the privilege against self-incrimination for evidence given in proceedings under Part IV or V, while section 98(2) restricts the use of statements or admissions in later criminal proceedings. The concurrent criminal proceedings did not excuse Mr K’s refusal to comply with orders to give evidence.
3. Contempt sentencing may serve punitive, coercive and deterrent purposes. The coercive purpose may arise from the threat of committal when the warning is given, and must be assessed as part of the process as a whole. The fact that little coercion remained by the date of sentence did not prevent a substantial punitive and deterrent sentence.
4. The judge was entitled to treat the contempt as serious. Mr K’s repeated and deliberate refusal hindered the fact-finding exercise and deprived the court and caring professionals of potentially important evidence about the children’s experiences and welfare needs. Establishing the threshold, and making final care and placement orders, did not make the missing evidence immaterial.
5. The family judge’s task was to determine the appropriate sentence for contempt in the family proceedings. Its practical effect on prison arrangements or any later criminal sentence was for the prison authorities and the criminal court. The judge was mistaken about the change from remand to convicted-prisoner status, but that error did not make the sentence wrong.

• Court of Appeal (Civil Division): Appeal from the Principal Registry, Family Division, dismissed: [2013] EWCA Civ 1129.
• Principal Registry, Family Division: HHJ Hindley QC found Mr K in contempt of court for failing to comply with orders to file evidence and to give oral evidence, and sentenced him to 18 months’ imprisonment.