Richards v Martin

A committal court may enforce a contact order where the respondent had actual knowledge of its requirements and deliberately failed to comply. The court must assess whether compliance was within the respondent’s power, having regard to the terms of the order and the surrounding circumstances. Repeated and deliberate breaches, without good reason and despite repeated opportunities to comply, may justify imprisonment. Procedural defects concerning the display of a penal notice or notification of the media do not necessarily prevent the court proceeding where the respondent understood the order and the hearing could properly be dealt with.

The applicant sought the committal of the respondent, the father of three children, for repeated breaches of orders requiring him to facilitate their contact with their mother. The respondent contended that the children refused to attend and raised preliminary objections concerning the penal notice, court listing and media notification. The court heard evidence from the mother, a relative involved in collecting the children and the respondent.

The central issues were whether the breaches were proved, whether compliance was within the respondent’s power, whether the procedural objections prevented enforcement, and what punishment was appropriate.

1. Preliminary objections. The requirement for a penal notice did not prevent enforcement in the circumstances. The respondent had attended court on earlier occasions, had been warned about his conduct and was aware of what the orders required. The fact that the notice was not on the first page did not justify abandoning the committal application.
2. The court accepted that the hearing had not been listed and publicised as it should have been, including the failure to notify the media. However, the court considered that the defect did not require an adjournment in the circumstances of a respondent brought before the court at short notice.
3. Breach and power to comply. Taking into account Re LW (Children) [2010] EWCA Civ 1253, the court examined what the order required and whether compliance was within the father’s power. The order required him to take the children to the library for contact and retrieve them afterwards. It was not onerous. His success in facilitating contact on one occasion demonstrated that he could have done so on the other occasions.
4. The court rejected the father’s evidence that the children did not wish to attend. It found that he had deliberately and persistently disobeyed the orders, without good reason. Allegations of sexual abuse were unsupported by evidence, and the father’s conduct was found to have been motivated by anger towards the mother and by his wish to influence contact with the eldest child.
5. Sentence. The breaches were serious, had continued for too long and had occurred despite repeated opportunities to comply. The father was committed to prison for 28 days.