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 MIDDLESBROUGH COUNTY COURT
(His Honour Judge Taylor)

		Royal Courts of Justice Strand London WC2 Monday 19 March 2001

Monday 19 March 2001

1. LORD JUSTICE SIMON BROWN: This is a mother's application for permission to appeal against the order of Judge Taylor at Middlesborough County Court on 27 February 2001, refusing her application to commit her 19-year-old son, the respondent, to prison for breach of an order of 6 November 2000, and instead revoking that earlier order.
2. The order of 6 November 2000, the last in a long succession of such orders, had enjoined the respondent against using or threatening violence against the applicant, against intimidating, harassing or pestering her, and against entering or attempting to enter the house which the applicant and her husband, the respondent's father, shared at 155 Westbury Street, Thornaby, Stockton on Tees, or to go within 100 metres of that house. A power of arrest was attached to those injunctions. The order was to remain in force until 31 October 2001 unless earlier revoked.
3. That the respondent came within 100 metres of the applicant's house (and, indeed, entered it) on Sunday 25 February 2001, and thereby, on any view, breached the order of 6 November 2000, is not in doubt or dispute. That, however, is very far from the whole story.
4. This case has a long and unsatisfactory history, dating back to July 1999. The respondent has, alas, for some time been a drug addict. He has plagued his family. The first injunction was made against him on 15 July 1999. Time and again he breached these orders and time and again he was committed for such breaches. At first the committals were suspended but then a number were imposed with immediate effect. On 17 September 1999 the respondent was committed to prison for three months and 28 days, on 11 February 2000 for eight months and on 6 November 2000 for two months; the injunction on this last occasion being extended, as I have already indicated, to 31 October 2001.
5. A great part of the problem has been that the family, perhaps unsurprisingly, has been much torn in their attitude to the respondent. As the judge below made clear in his judgment, interspersed amongst the incidents where he has been unwelcome and where his behaviour has, as the judge put it, "gone beyond the pale", have been:

". . . occasions when he is allowed into the house with consent, he is offered meals, he is offered a bed for the night, and he is offered support. Then there are further arguments, and they pull apart. It was apparent to me on the last occasion that the courts were never going to see an end to this matter unless an attempt was made to break the chain."

6. Having served his two months' sentence of imprisonment following the committal order of 6 November 2000, the respondent again breached the injunction and was brought back before the court on 16 February 2001. The judge on that occasion was the same Judge Taylor whose later order of 27 February it is now sought to appeal.
7. On 16 February the respondent was committed for a suspended term of three months' imprisonment. The circumstances in which that order came to be made, and the remarks made by Judge Taylor on that occasion, form the essential backdrop to the judge's subsequent decision to discharge the injunction rather than commit the respondent to prison. They are conveniently conveyed by quoting from the judgment now subject to this application:

"I addressed counsel for the mother on the last occasion, and I said there had to come a time when you have to be hard and you have to be firm with the hope that something might improve, and Mrs Trebell was going to have to choose between the protection of the court and her son, because she could not pick and choose the days when she had contact and the days when she did not have contact with him.

On the last occasion I was faced with a situation similar to that that had been faced before in this case; he had been invited on Christmas Eve to spend Christmas Eve and Christmas day with the family into Boxing Day, and he had been on another couple of occasions. It had been a festive time of the year, and they had felt sorry for him. After all that, he was told then to get on with his life again, and he was not able to do it because he was getting mixed messages. It was quite apparent that he, being a pathetic individual with the problems that he had, got those mixed messages and could not handle it. Therefore, I addressed him, and I told him that he had to keep away from his house, and unless he got his head straight there was no prospect of him ever having any meaningful contact with his family again because they did not want to have anything to do with him.

I said to mother that she had to choose between the protection that I could give her on behalf of the court and her son, and she could not blow hot and cold, as I put it to her on the last occasion, and she agreed with me. I suggested an extended period away from him, and I specifically said 'For the next three months my suggestion would be that there is a cut off of all links and he gets on and tries to prove himself and you let him get on with it."

8. A little later he said this:

"I said on the last occasion there had to come a time when the court took firm action. I made it plain that if mother said 'No,' and resolutely said that, and he deliberately breached it, he could face two years' imprisonment."

9. There is now before us an agreed note summarising what is described as "the indication" given by Judge Taylor on that previous occasion, 16 February 2001. It reads thus:

"If there are any further invitations by Mum, for Owen to visit home I will discharge the Order.

If Mum blows hot and cold I will discharge the injunction.

Mum must choose whether she takes the hard line or the soft line.

I suggest she takes the hard line.

If Owen goes back home uninvited I will extend the sentence.

If you do go back uninvited I promise two years in custody, 3 months that are suspended today and 21 months consecutive."

10. That, then, is what the judge was saying to mother and son just eleven days before the eventual order of 27 February 2001, the order which mother now seeks permission to appeal.
11. What had happened in the meantime?
12. According to mother's affidavit of 26 February, what happened can be summarised essentially as follows. On 19 February a lady from social services (and I note that they became involved for the first time on 16 February) brought the respondent to mother's house and, whilst he remained in the car, collected from mother the son's laundered clothes. On 21 February, following an agreement reached between their respective solicitors, mother met son at a cafe in Stockton town centre. Having had a drink together, they then agreed to meet again at the same place on 24 February, and went their separate ways. On 24 February they duly did meet again, and once more agreed to repeat the meeting on 1 March. Before 1 March, however, came the incident which led to the hearing on 27 February. Mother describes it as follows:

"On Sunday 25th February 2001 I was at home alone at around 4.00 pm. The dog wanted to go out so I opened the back door to allow the dog out into the back yard. I then shut the back door but did not lock it. I then went upstairs and went into the front bedroom which is my bedroom and put away various clothes including a number of my husband's shirts. I do not know how long I was upstairs for, perhaps 10 minutes. Once I had finished upstairs, I went downstairs. I was shocked to find that when I got downstairs there were a number of Police Officers in the dining room. I therefore immediately went into the dining room and it was then that I saw the Respondent who at that time was sat in the dining room table with a plate of food in front of him talking to the Police Officers."

13. How the police officers came to be there is explained in Mr Trebell's affidavit, also of 26 February. It comes to this. On that Sunday afternoon he chanced to be driving one of his daughters back to his house when they saw the respondent walking in that direction. Mr Trebell stopped his car and waited to see what the respondent would do. Father saw him knock at the front door, get no answer and then go round to the back of the house. Having seen that, he at once drove off and telephoned the police. When finally he himself arrived home, the police were already there.
14. The respondent for his part swore an affidavit saying that his visit to his parents' home on 25 February was in fact the third time that he had been home since 16 February. He said that after the first Stockton meeting on 21 February his father had taken him home to Westbury Street before finally driving him back to his lodgings, and he said that his father had in fact taken him home again on the following day, 22 February. As to 25 February, the respondent said this:

"On Sunday 25th February 2001 I went to my mother's address at Westbury Street, I went round to the back and knocked on the back window, she answered the back door and invited me in. I told her I was hungry at first she offered me some cornish pasties from the fridge but I told her I didn't like them so instead she give me a sausage roll. She also agreed to wash the clothes I was wearing, I was sitting in the dining room eating my sausage roll whilst my clothes were being washed when the police arrived and arrested me for breaching the Injunction. I have since been informed that they were called by my father and sister Emma who had seen me going to the back of my mother's property and contacted the police.

I did not make any threats to her, I have not intimidated or harassed her. Whilst I accept that by attending the property uninvited I was invited in to her house and given food while I waited for my washing to be done. I intended to wait until my father arrived home and ask him for a lift back to my accommodation in Middlesbrough.

I do accept that I should not have gone to the house on Sunday, but I was confused, I thought it would be ok to get my washing since she had taken it for me on Saturday and we were getting on well. She had allowed me to be at the house on Wednesday after we had been in to Stockton and I therefore assumed it wouldn't be a problem me calling around for 10 minutes to collect my washing."

15. Then a little later he deposes as follows:

"When the police arrived on Sunday I did tell them at first that I had not been invited in, that was because I didn't want to get my mum into trouble after hearing what the judge told her not to invite me in, and because when she invited me in she said, if your Dad comes back tell him you were not invited."

16. The judge below dealt with the matter as follows. Having indicated to the parties that if the oral evidence that would be called was merely a repeat of the statements then he did not need to hear it, he gave judgment as follows:

"Within a day or two, I accept it is organised between solicitors, there is an approach from son's solicitor to mother's solicitor asking for a meeting. It does not matter what advice mother was given about the matter, but mother agreed to a meeting. It was not the only meeting that took place. A subsequent one was arranged, and she agreed to take his washing home. He felt that the corner was turning.

There is a dispute, I am told, as to whether he went with consent or did not go with consent to the family home on Sunday afternoon. There is an issue as to whether he was invited into the house or not, whether he was offered a sausage roll or whether he took it from the refrigerator. But this drug-crazed young idiot (which is what he is) felt that what he was doing was in line with what the family had been agreeing to on and off over the last few months, because he was in a pathetic state on Sunday, he had no money, his benefit was not due until Thursday of this week, and on occasions like that in the past his family had offered sustenance. He saw no difference. That was because of the way the family had welcomed him in those difficult times in the past. I am now asked to commit him to prison."

17. Then a little later the judgment reads:

"The approach made on behalf of his solicitor, whether it was wise or whether it was not wise, happened, and mother agreed to embark upon offering the olive branch again. I have come to the view that if mother wants to offer the olive branch, she can seek her own protection. If it be in future that this young man comes to the house and she does not want him there, she can seek the same protection as any other citizen does and report the matter to the police. But there has to come a time when injunction proceedings and committal applications, which have been going on for in excess of 18 months, have to be brought to an end."

18. He had earlier said that it was apparent to him on the last occasion "that the courts were never going to see an end of this matter unless an attempt was made to break the chain."
19. The chain was broken and the proceedings were brought to an end in the way I have already indicated, namely by the judge's refusal to commit and his order, instead, revoking the injunction.
20. In seeking permission to appeal against that order, Mr Gilbert for the applicant mother complains that the judge dealt with the application in altogether too cavalier a fashion and that, having failed to hear the evidence and to resolve the undoubted factual issues to which it gave rise, his judgment is to be regarded as flawed and open to challenge in the same way as the first instance judgment was successfully appealed in Manchester City Council v Worthington [2000] 1 FLR 411. The facts of that case can conveniently be taken from the headnote summary as follows:

"Injunctions were granted, backed with a power of arrest, restraining the respondent from using or threatening violence, and from harassing an ex-girlfriend or her family. Following a series of breaches which included two serious assaults on the ex-girlfriend and threats of violence against her family, the respondent was committed to prison. Within 3 days of his release from custody he had breached the injunction again, going on to commit three further breaches, including an attempt to force his way into the parents' home. The police, having arrested him, had to bring him immediately before the court, so there was no notice to show cause, nor any list of the charges of the breaches in respect of which he was brought before the court. However, there were manuscript witness statements as to the three most recent breaches. The judge dealt with the matter very briefly, relying on the respondent's admissions, and refusing to let the council's solicitor put the full history of the case to him. He sentenced the respondent to 6 weeks' imprisonment, suspended for 12 months. The council appealed, arguing that the judge's conduct of the matter denied the council natural justice, in that he had not allowed the council to put its case properly, or to test that of the respondent."

21. As to the judgments of the Court of Appeal, it is I think sufficient for present purposes to cite just a single passage from the judgment of Butler-Sloss LJ at page 416:

"At the hearing on 12 March 1999 of these breaches the hearing was against a background of serious and persistent defiance by this young man of court orders. All committal hearings are proceedings of significance and importance. The liberty of a litigant is at stake and in this case he had already gone to prison and he was in grave danger of going to prison again. While of course the Court of Appeal must recognise the inconvenience to the county court of having to deal immediately with a man or woman brought to court in custody it is crucial that sufficient care is taken by the court to establish the relevant facts, to give time to consider the proper disposal of the matter and, however short it may be, to give a judgment with short reasons for the decision made by the court. This judge manifestly failed to do all of these. He refused to hear the facts; he gave no judgment and from the exceptionally short transcript before us he gave the matter cursory attention. Even though the outcome may be perfectly just, it does not in fact excuse the way in which he dealt with it. He is, in my judgment, to be criticised for the way in which he dealt with the case. I regret that it is necessary for this court to remit the case to the county court for another judge to give the case appropriate attention. Such attention should be consistent with natural justice, not only to the contemnor, as he has admitted he is, but also to the complainants, who are not only the girlfriend but her parents and other members of the family, and also to the wider public who are living in the area."

22. Mr Gilbert duly put that decision before Judge Taylor below, although he says it was not considered in detail. What he submits is that this case is, as he put it, "on all fours in many respects" with that. I have difficulty with that contention. To my mind there are very striking and significant differences between them. So far from the judge in the present case having given no judgment, he gave (as the citations above surely demonstrate) a carefully reasoned judgment in the case. More important still, there was the crucial backdrop to the present application of his warnings, not only to son but also to mother, on the previous occasion, a backdrop which was wholly absent from the Manchester City Council proceedings.
23. Mr Gilbert submits that it was an abrogation of the court's responsibility for the judge not to have heard the evidence and, more particularly, to have taken no action on the son's contempt. He says that there was no proper basis upon which mother could be held, as effectively she was held, to have forfeited her right to the protection of the court by way of this continuing injunction. He sought to draw an analogy between this case and a repeat burglar, although to my mind that seems a misconceived comparison: this respondent was, as the history amply demonstrates, a much indulged son who, on innumerable occasions past, had been specifically allowed back to the family home.
24. For my part, I would reject Mr Gilbert's arguments. It seems to me that this was a case where, to use the various phrases to be found in the judgment below, mother had indeed sought to 'pick and choose' those days when there were and those days when there would not be contact with her son; she had 'blown hot and cold'; she had from time to time 'extended the olive branch' so that in the result, the boy, unsurprisingly in his pathetic state, had got the 'mixed messages' which he was unable to handle.
25. The way I read this judgment, the judge had formed the view that, however precisely the disputed issues of fact fell to be determined, one thing was plain, and that was that mother had failed to heed his warnings given at the earlier hearing and had continued to blow hot and cold in such a way as to make plain the necessity for the chain to be broken once and for all. As Mr Gilbert recognises, despite all the past court appearances, the several suspended committal orders and the several orders for immediate imprisonment, nothing had changed and the injunction had singularly failed to bring about its intended result.
26. In those circumstances, I think the judge was entitled to say that it was unnecessary to hear the evidence and resolve all the detailed issues of fact; that whatever precisely it was that had occurred on the days between the previous order on 16 February and the respondent's arrest on Sunday 25 February, and irrespective of the precise circumstances in which he had gained entry to the home on that occasion, there was only one proper outcome for this application, namely that which was achieved by the order he made.
27. I can find no fault with his approach and, for my part, would accordingly refuse this application.
28. LORD JUSTICE TUCKEY:I agree.
29. I have the greatest sympathy for the mother. The conflict between her agonising concern for the welfare of her young drug-addicted son and the need to protect herself from the consequences of his behaviour under the influence of drugs is obviously acute. But in such circumstances it is often kind to be cruel. Sons or daughters in the position of the respondent in this case will not muster the will to break the habit until they hit the bottom; in other words, until they get to the point when they realise that they will no longer be able to rely on the support of their family unless they get off drugs. He or she will never get this message if the family behaves inconsistently, however understandable such behaviour may be. The judge in this case tried to achieve this state of affairs to "break the chain", as he said.
30. I think this approach was entirely justified. It was spelt out clearly to the mother on at the earlier hearing on 16 February. She did not follow the judge's advice. She blew hot and cold and so the judge discharged the injunction as he said he would. There was no need for the judge to resolve the conflicts between the evidence of mother and son because, on her own evidence, the mother had quite obviously blown hot and cold.
31. LORD JUSTICE BENNETT: I agree. This is, as my Lords have said, a desperately sad case and all must have the deepest sympathy for the mother, as indeed the learned judge was at pains to express in his judgment.
32. On 16 February 2001 the learned judge gave a specific warning to the mother that if her son visited her home and was invited to do so, he would discharge the order. The learned judge went further than that and specifically said that if the mother blew hot and cold, he would discharge the injunction.
33. The mother blew hot for; as my Lord, Lord Justice Simon Brown has set out, meetings were arranged between the mother and the son. As to 25 February, there was a sharp conflict between the mother and the son as to how it was that the son came to be in the mother's house. In my judgment, there was an issue which was to be resolved and I for my part, if I had been trying the case, would have heard the evidence. I would have done that in particular because the mother was in imminent danger of losing the protection of the court, namely the injunctions which had previously been granted. Furthermore, the son was in danger of being committed to prison.
34. However, that is by no means the end of the matter. In his judgment in Manchester City Council v Worthington Auld LJ said at page 415:

"In his argument Mr Fullwood referred to the test of the Divisional Court when intervening in a decision of a committing magistrate as the admissibility of evidence, Neill v North Antrim Magistrates' Court and Another [1992] 1 WLR 1220, 'a really substantial error leading to a demonstrable injustice', as Lord Mustill put it at page 1231G-H. I do not accept that the test for intervention by this court against a final civil order of a county court judge is necessarily the same as that for a Divisional Court in intervening in judicial review to correct incorrect rulings of admissibility of evidence by committing magistrates. But even if I were, I am firmly of the view that the circumstances here show such an error leading to injustice."

35. In my judgment, there was no injustice in the decision to which the learned judge arrived. The learned judge, specifically said at the bottom of page 4 of his judgment that:

". . . this drug-crazed young idiot (which is what he is) felt that what he was doing was in line with what the family had been agreeing to on and off over the last few months, because he was in a pathetic state on Sunday, he had no money, his benefit was not due until Thursday of this week, and on occasions like that in the past his family had offered sustenance. He saw no difference. That was because of the way the family had welcomed him in those difficult times in the past."

36. So it was that the mother had felt it to be, certainly before 16 February and particularly at Christmas, in her son's interests, appropriate to blow hot. After 16 February, and despite very clear warnings by the learned judge, she decided to hold out the olive branch and thereby to blow hot. Thus in my judgment, even if the learned judge had resolved what had happened on 25 February in favour of the mother, that would have been a very small factor in the light of how the mother had behaved towards her son before and, in particular, after 16 February. The mother specifically must have rejected the strong advice of the judge and had acted in such a way that she knew she was running the high risk of having the injunction discharged.
37. Thus in my judgment the failure to hear any more evidence did not lead to any injustice and accordingly, I for my part would dismiss the application.
ORDER: Application dismissed. Public funding orders for both parties. (Order not part of approved judgment)