Judge wrong not to sanction mother for breach of court orders
It goes without saying that court orders should be obeyed. If they are not, then this will obviously damage the authority of the court, and it will also frustrate any other party to the proceedings, possibly preventing them from obtaining the remedy to which they are entitled.
Unfortunately it is not unusual for family court orders to be breached. When this happens, the other party can ask the court to take enforcement action. Depending upon the situation, there are various types of enforcement action that the court can take, but the ultimate sanction is committal to prison.
Obviously, committal to prison is a very serious step for a court to take, and the court will only usually make a committal order as a last resort, after all other methods of enforcement have been tried.
And in family proceedings the court will often be particularly reluctant to make a committal order, especially where it may affect any children involved.
But sometimes the reluctance of the court to make a committal order will fundamentally undermine the authority of the court, as occurred in a recent case that took place in the Family Court at Oxford.
The background to the case was somewhat complicated, but essentially it concerned an application by the father, who lives in Slovakia, for contact with his daughter. The child had been born in Slovakia, but was brought to this country by the mother in 2017, without the father’s knowledge or consent.
The mother responded to the father’s application by making various allegations of domestic abuse against the father, but the court found that the allegations were not proved.
In May 2023 the court made an order that the child live with the mother in England. There was no order for the father to have direct contact with the child, but the court made two other orders.
Firstly, the court ordered the mother to provide a monthly written update on the child’s welfare to the father, via his solicitors.
Secondly, the court ordered the mother to allow the child’s Guardian to meet the child to carry out storyboard work with her. The idea behind this was to help her to know the identity of her father, and to understand something of her life story and personal identity, before the court gave any consideration to whether any direct, or two way indirect, communication between her and the father was in her best interests.
The mother has been and remains utterly opposed to complying with these orders, saying that to do so would cause harm to the child.
Numerous attempts have been made to force the mother to comply with the orders, including fining her, but she still did not comply. On no fewer than three occasions the father applied to the court for the mother to be committed to prison, but on the first two the court tried other methods to achieve compliance. On the third occasion the judge decided not to impose any sanction upon the mother because she found that it would have no effect on the mother’s attitude, or secure future compliance with the court’s orders.
The father appealed, to the Court of Appeal.
The Court of Appeal found that the judge had been wrong, in two respects.
Firstly, she should not have accepted that the mother would not comply with the orders even if a custodial sentence were imposed, based only on the mother’s current assertion that that was the case. If a sentence of imprisonment was imposed the mother would have to make a decision as to whether to follow court orders that had been made in the child’s best interests, or go to prison. Notwithstanding her repeated defiance of the court’s orders, the mother had not yet had to face that decision.
Secondly, the judge was wrong to rely on the mother’s continued refusal to co-operate as a reason not to punish her for her continuing contempt of court.
The Court of Appeal concluded:
“It cannot be the case that a parent can repeatedly refuse to comply with orders made in the best interests of their child, knowing that a judge may well in those circumstances dismiss the committal proceedings as serving no purpose. To do so would undermine the authority of the court and have significant implications for other cases. Punishment for breach of court orders serves as an essential aspect of upholding judicial authority as well as ensuring compliance.”
Accordingly, the father’s appeal was allowed, and the case was remitted to the High Court for reconsideration of the sentence.
You can read the full judgment of the Court of Appeal, here.
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