B (A Child)

In contempt proceedings arising from family injunctions, hearsay evidence is admissible. Once admitted, the judge must assess its reliability and weight in the context of the whole case. An appellate court should not interfere with factual findings unless the judge adopted an erroneous approach or reached a conclusion unsupported by the evidence. A decision whether a child should give live evidence is a discretionary case-management decision and is not open to challenge merely because another course might have been taken. Sentencing for breaches of injunctions requires assessment of seriousness, aggravating and mitigating features, the offender’s knowledge and conduct, and the protective purpose of the orders. A custodial sentence may be proportionate even where the contemnor asserts a protective motive, but it may properly be suspended where the circumstances justify giving a final opportunity for compliance.

The father appealed against findings of breach and suspended custodial sentences imposed by HHJ Duggan in committal proceedings concerning injunctions protecting his teenage daughter and her foster placement.

Most breaches, involving communications to schools and other bodies, were admitted. The father denied sending a Facebook invitation to his daughter. The judge relied on her affidavit, refused to require her to give live evidence, found the breach proved, and imposed concurrent sentences totalling 86 days, suspended until her eighteenth birthday.

The Court of Appeal considered whether the evidential finding, the refusal to call the child, and the sentence disclosed an appealable error.

1. Appeal dismissed. The father had a right of appeal in the contempt proceedings. If necessary, permission would have been granted in relation to the first notice of appeal because the two notices concerned one committal process.

2. Hearsay evidence was admissible in the proceedings. Once admitted, the trial judge had to assess its validity and weight. The judge had approached the daughter’s evidence cautiously, considered the absence of testing, the surrounding circumstances and the competing possibilities, and was entitled to find that the Facebook invitation had been sent by the father.

3. The refusal to call the daughter to give live evidence was within the judge’s discretion. Her attendance was unlikely materially to resolve who had sent the message, and the decision could not be challenged on appeal in the absence of an error in the exercise of discretion.

4. Appellate interference with a factual finding was justified only if the judge had adopted an erroneous approach or reached a conclusion unsupported by the evidence and material before him. Neither condition was established. The admitted breaches were likewise not open to challenge.

5. The sentencing approach was proportionate. The judge correctly identified the most serious breach, treated the other sentences as concurrent, considered that this was the first committal occasion, weighed four aggravating features and recognised the father’s distress and expressions of regret. A custodial sentence was necessary, but suspension was justified as a final opportunity to comply with the injunctions until the child reached eighteen.

6. The father’s asserted protective motive did not require the court to impose no penalty. The judge was entitled to find that the principal communication was intended to embarrass and undermine the foster carers and to advance the child’s removal from their care.

• Court of Appeal (Civil Division): B (A Child), [2013] EWCA Civ 166. Appeal against the findings of breach and suspended sentences dismissed.
• Stoke-on-Trent Combined Court: HHJ Duggan found five breaches of injunctions on 12 December 2012 and, on 4 January 2013, imposed concurrent sentences totalling 86 days, suspended until the child’s eighteenth birthday.