England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(His Honour Judge Farnworth
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Monday 5th February, 2001

1. THE PRESIDENT: This is an extremely sad case in which a father appears before us today on, I think, the fourth occasion that he has been committed to prison for breach of orders in relation to the former matrimonial home and to his family. He is unable to appreciate that orders have to be obeyed, and he is unable to come to terms with the fact that the situation before the family parted in 1998 will never be the same again.
2. The parties were married in March 1984. They had three children: a girl who is now 16, a girl who is now 13 and a boy who is 11. The marriage was volatile, and the mother alleged that the father beat her from time to time. As a result of a serious incident which was witnessed by the children, the mother and their children left the former matrimonial home on 2nd December 1998. I understand there is now a divorce petition, which was filed some time during the summer of 2000, and that probably will go into the special procedure list.
3. But in the meantime there have been endless proceedings between the parties. The mother, having left with the children, sought a non-molestation order and an occupation order. That order was made on 19th April. Both those orders were made with a power of arrest attached. The father appealed the order and on 21st May 1999 Connell J made the first of the important orders which have governed this case. He found that the violence of father was not other than modest, and that some other very serious allegations were not proved. He made an occupation order in favour of the mother, he ordered the father to leave 14 days ahead and he made a non-molestation order. To his credit, at that stage the father did leave on 4th June 1999; he tells us for the sake of his children. The mother and the children returned home, and they have lived there ever since.
4. The father was in a considerable state of emotion, as indeed so was the mother and the children, and he went to stay with his mother in the United States. There was then a period of relative peace.
5. In December 1999 Cazlet J extended the power of arrest. The application by the father to set aside the order of Connell J of 21st May 1999 was dismissed. There were applications to commit the father for breaches of the 21st May order and, on 17th January 2000, Mr Coleridge QC dealt with these applications for breach. The father did not dispute the various incidents, but said he was there in order to see the children. The father was not committed for contempt, but Mr Coleridge altered the orders so that it was without any doubt as to what was the order which Mr L had to obey. He was not to go to the former matrimonial home for any purpose whatsoever, and not to communicate with the mother save through solicitors. The deputy High Court judge said - and he must have been unduly hopeful - that he wanted there to be no further applications in this matter.
6. The order of Connell J, so far as the exclusion order was concerned, expired on 18th April. But in addition Connell J had made a declaration that:

"... applicant wife is entitled to occupy the matrimonial home ..."

7. That was without limit of time. However, the exclusion order was made until 18th April 2000 with a power of arrest attached. The father knew this perfectly well, and on 19th April he returned to the former matrimonial home with his baggage and clearly indicated he was returning. He says to us the reason was he was so concerned as to what the children were saying and the emotional blackmail that was being exerted upon him, in particular by his older daughter (who at that stage was nearly 16) who clearly had supported the mother.
8. As a result of the father returning, the mother made an ex parte application to the judge, there being in the matrimonial home a considerable degree of high emotion as a result of the unexpected return of the father.
9. The judge, Judge Anwyl QC, granted an ex parte non-molestation order on 19th April and an ex parte exclusion order. That was served on the father in the former matrimonial home. According to the process server - and we have her sworn affidavit - she served it on him, he was not prepared to accept it so she called the police. The police came and arrested him. According to the father, that was not correct. She came with the police. She never showed him the order. The police arrested him and shoved the order into his pocket. I have to say on something as important as this, I find it very difficult not to accept the affidavit of service of the process server.
10. Having been arrested, he was brought before Her Honour Judge Pearce for failing to leave the former matrimonial home. I suspect he behaved to Judge Pearce as he behaved to us, and probably more so. He would have been in a high state of emotion, and I have no doubt that he absolutely refused not to go back to the former matrimonial home. I should say that the ex parte order had a return date of 26th April.
11. No doubt because of the intransigence of the father, Her Honour Judge Pearce made a somewhat draconian order whereby she immediately committed him for contempt for 28 days. He apparently, according to what we are told, tried to escape and was committed for another 42 days for contempt in the face of the court. He tells us that what he was trying to do was leave that part of the building and go to the Court of Appeal office which is the other side of the Royal Courts of Justice.
12. Those two orders, and principally the fact that the 19th April order was ex parte and 20th April order was (as I have said) somewhat draconian and had a marked effect upon Mr L - I do not say he would not have found it difficult to obey orders in any event, I suspect he would. But he has been unable to accept the fact of those orders and the consequences that flow from them. He has also been unable to accept that the order whereby Connell J declared that the mother had rights of occupation continued beyond 18th April, and on the face of the order his objection to that is plainly wrong. But he holds to it with tenacity.
13. With hindsight, though I well understand with the state of emotion why the mother felt she had to get immediate help from the court, it would have been better if that order had been after an inter partes hearing. Again with hindsight, giving allowance for all the way in which the judge on 20th April had to cope with Mr L, no doubt at his most vocal and his most impassioned, she did make an order which was severe, bearing in mind in particular that the return date of six days later might have given him a better opportunity to provide his side of the case.
14. But Mr L is an able man. He is an accountant by occupation. He might have found it quite difficult to appeal while he was prison. However, it was certainly not impossible. No shortage of people appeal or seek permission to appeal while they are in prison, and after release he certainly could have applied in writing to the Court of Appeal for permission to appeal out of time to review the events of 19th and 20th April, and he failed or chose not to do so.
15. He therefore seeks today to appeal every order from 19th April onwards, and every order is out of time except one which I will deal with in a moment.
16. We are prepared to be - bearing in mind he is a litigant in person burning under a sense of injustice, which in my view is unmerited but nonetheless exists - reasonably helpful to him on this question of permission to appeal. But looking at the circumstances of 19th and 20th April, there is no purpose in giving him permission to appeal. I have the gravest doubts if we did give him permission that we would think that it was appropriate that any order other than the one made should in fact have been made, from the perspective of the Court of Appeal and the limitations upon our powers of interfering with the orders of trial judges.
17. Consequently, since there is no purpose in my judgment in appealing the orders of 19th and 20th April which are now well over nine months ago, I do not think it appropriate that such permission should be given to appeal out of time.
18. The father having done his time inside, there were then a series of further orders.
19. I should have said that Connell J made a contact order for reasonable contact with arrangements, in particular, for contact to the son, M, who is the youngest of the three children. Those orders came up to be considered - the occupation order, the exclusion order, and the contact orders - in May, June and twice in July 2000. The father went before four judges seeking to discharge the orders of 19th and 20th April. On each occasion his application was dismissed. He did not appeal any of those orders. Although by then, certainly by June and July, he was no longer in prison.
20. There was a further application to commit the father on 8th August. The father was remanded in custody pending a further hearing. On 15th August Judge Pearce made a further order that the father was not to enter or attempt to enter the former matrimonial home, and a power of arrest without limit of time was attached. There were, in relation to 15th and 18th August, some very unhappy incidents, one in particular relating to one of the children which it has not been necessary to go into today. So behind this drab account of court hearings there was a great deal of emotion arising within the family.
21. On 18th August the mother made an application for injunctions to protect the children as a result of this incident a few days before, and contact was suspended by Wilson J. On 23rd August Bennett J continued the suspension. On 15th September Bracewell J continued the suspension. On 3rd October Bracewell J, on an application to commit the father, adjourned it for him to obtain legal representation and he was remanded in the custody of the police. On 5th October he was discharged from custody.
22. Another application was made on 19th October, when Judge Anwyl heard an application for the order of 15th August to be set aside. That was again refused. On that occasion Judge Anwyl made an order that the father was not to make any further applications for a period of one year, save for ancillary relief or property adjustment applications, without the leave of the court.
23. The father then sought leave, four days later before Hogg J, to make further applications and that was refused. On 31st October His Honour Judge Farnworth found the appellant in contempt of the 15th August order - i.e. the order that he should not enter or attempt to enter the former matrimonial home - and he was committed to prison for four months. He was then forbidden to enter or attempt to enter the former matrimonial home or to go within 50 metres of it, with a power of arrest without time limit attached.
24. Coming up to the present date, there was another application to discharge the order of 15th August before Judge Pearlman, which was adjourned generally. She dealt with contact on 28th November. She made an order that there should be no contact between the children and the father, and that was as result of the welfare officer's reports and a considerable amount of evidence about the effect of the father's behaviour on his children. But she made a review order that after 26th November 2001 there should be a reconsideration of contact.
25. On 5th January Mantell LJ considered the application on paper and ordered there should be an inter partes hearing with appeal to follow. He said that permission was not required for the committal appeal. But in fact, as far as I can see, when the application was made to come to this court in relation to Judge Farnworth's order Mr L was already out of time. So it does require permission to appeal, in the sense that it requires an extension of time. My Lord, my Lady and I consider in the circumstances of this case it is right that there should be such an extension of time.
26. But in the meantime, before this case could get to us, on 31st January Her Honour Judge Mitchell committed the father to prison again - that is to say last week. On that occasion he went to the house and he rang the doorbell.
27. As I have said, the father did not appeal the order of Connell J, although he thought it was wrong. He has sought to appeal almost every order since 19th April, and he is very upset that he should have been deprived of going back into the house when the order was no longer effective. He has not accepted that the subsequent orders made on 19th and 20th April were lawful orders, as he puts it.
28. He has also raised an interesting and absolutely untenable argument that because the mother obtained an occupation order that order overrode her proprietary rights in the former matrimonial home, consequently she has no proprietary rights in the home. Despite the fact that the house is in joint names he therefore is now the sole proprietor of the home. He says that the mother has been trying to get him to apply for an occupation order so as to put him into the same disadvantageous position that he also then would no longer have a proprietary right. He cites a decision of this court which was a decision of Thorpe LJ in Chalmers v Johns [1999] 1 FLR 392. He has wholly misread and misunderstood that part of Thorpe LJ's judgment. It is an argument which he has sought to put forward over a period of months. Repetition when there is no basis in law is a waste of time, and I hope with any luck he will stop saying it. Although, as I say, he tenaciously holds to that particular argument.
29. He is very concerned about the children. He considers that the orders that have prevented him from seeing the children since August 2000 are unjustified, and that on each occasion that he has gone back to the former matrimonial home it has been because he wanted to see the children because he is very concerned about them. It is crucial that Mr L reads the account given in the welfare officer's report of the approach of the children. The girls were not keen to see him. The boy was. They said that they loved their father, but they were in some fear of him. The two elder children did not want direct or indirect contact with him, but M continued to want it. M is now, according to the welfare officer, frightened of his father. That is a tragic situation, and a matter that Mr L must really put his mind to because he is in the gravest danger of losing his son, who loves him and whom he loves, by his behaviour that has caused the son to be frightened of him.
30. But the background to the two occasions when he was in contempt, 31st October 2000 and 31st January 2001, were both involved in going back (he says) to see the children. Before Judge Farnworth the evidence was that he went into the house. He entered, as the judge said, in defiance of the order. He got in somehow and locked the doors and made it impossible for the police to get in.
31. To his credit, as the judge pointed out, he did not seek to dispute any of the facts upon which the judge decided that, firstly, he was in contempt - he was patently in contempt - and the judge said, at page 3 of his judgment:

"... the fact remains that, in my view, this was a deliberate breach of the order, and a deliberate breach of a very clear order."

32. The judge then asked himself what he should do about his contempt. He took the view it could only be dealt with by a committal to prison and he therefore sentenced him to four months' imprisonment.
33. With the history of this case and the fact the father is unable it seems to understand that he absolutely must obey orders that he cannot go back to the house - since January 2000 he was not allowed to go back to the house for any reason whatsoever - it is not, I have to say, an unusual order that the judge made. I cannot, for my part, see that the sentence of four months was out of proportion for an admitted contempt, and indeed in respect of someone from whom there was, so far as I can see, no apology and every possibility that he might do it again. I would therefore dismiss the appeal in relation to the decision of 31st October 2000. That sentence of course has now been served.
34. The sentence of 31st January 2001, last week, is so recent that Mr L, who went immediately into prison, has not had an opportunity, understandably, to put together the appropriate documentation in order to appeal (as he has as of right in liberty of the subject) against the order. We have decided to dispense with all formalities and allow him today to appeal against the order of 31st January. Again he says he went back to see the children. On that occasion he did not go to the house, but he rang the doorbell at 7.00 in the evening, at 7.30 in the evening and then at 9.00pm and several times at 9.00pm, and the mother called the police.
35. The father said that he went to the house, he rang the doorbell, that he had met the children in the street. He said he was calling to M, who was at the window, because he wanted some documents relating to the ancillary relief hearing which, as I understand it and the judge said, was also intended to be last week. The judge found that the father accepted and admitted that he was at the property. But what he said was that because he was appealing against all the orders, the injunction was discharged. That again is an interesting argument which has absolutely no basis in law or in the procedures of the court. I have little doubt that Mr L knew that perfectly well. He is an able and intelligent man, and unless he asks for an order to be stayed it continues. It is clear that orders continue even though he had appealed.
36. Judge Mitchell faced with this admitted contempt and a persistent history of breaches and, she says, by a respondent "who appears to be perfectly articulate". She said, "it is quite clear that this family have effectively been under siege for a considerable period of time."
37. She recognised he had not broken into the house. She then said:

"... he knows full well that injunctions are made to keep him away from the property and that there has never been any question of this order not being in existence because his appeal has not been determined by the Court of Appeal and is due in fact to be determined on 5th February."

38. She was sure that he knew very well he should not be in the property. She took the view that the case was proved and she had to take into account the history when she dealt with him. She also took the view that a court has to deal with persistent breaches of order and take them seriously because, as she said, they are there for the protection of the mother, in this case, and the children. She took the view that the least sentence that she could impose was a sentence of three months' imprisonment.
39. For my part, bearing in mind an admitted breach and an obvious order which Mr L knew perfectly well he had no right to breach, and bearing in mind this long history (some of which I have set out today), a sentence of three months' imprisonment was the very minimum that the judge could possibly award. I would dismiss that appeal as well.
40. I do not think there is anything helpful at this stage in exploring the questions of suspended contact and no contact. I think they are also before the court. In considering whether to give permission to appeal out of time, it is necessary for this court to consider what are the prospects of success of an appeal. If there is a really arguable case, then we would be inclined to grant permission. But if the application is absolutely hopeless, then there is no purpose in granting permission. I have to say with the background of the welfare officer's reports and the history of this case and the way that the boy himself has now been turned against his father - in the sense that, although he loves him he is now frightened of him - I am quite satisfied that to grant permission to appeal would be of no value whatever because if we had granted permission I, for one, would have dismissed the appeal.
41. LORD JUSTICE MANTELL: I agree.
42. LADY JUSTICE HALE: I also agree.
ORDER: Appeals of 31st January and 31st October dismissed; applications for permission to appeal in numerous applications (all of which are permissions to appeal out of time) are refused with costs; those costs not to be enforced, save by the judge who hears the ancillary relief application; permission to appeal to the House of Lords refused. (Order not part of approved judgment)