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 NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)

		Royal Courts of Justice Strand London, WC2 Tuesday, 15th October 2002

Tuesday, 15th October 2002

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against the order of His Honour Judge Mitchell in the Northampton County Court on 5th July 2002 made in proceedings concerning his daughter, "I", who was born on 2nd February 2000 and so is now aged two years and eight months. The judge dismissed the father's application for direct contact. He also dismissed the mother's application for a no contact order. He ordered indirect contact, by way of letters, cards and presents four times a year, through the CAFCASS offices. He made an order under section 91(14) of the Children Act 1989 prohibiting the father from making any contact application without leave for five years. He also made a prohibited steps order against publishing any information about these proceedings, with particular reference to the Internet. He did not make an order, on the mother's application, for non-molestation under the Family Law Act 1996, which was aimed at achieving a similar result. He sentenced the father to 14 days' imprisonment for contempt of court in publishing details of the case on the Families Need Fathers website, but he suspended that sentence for six months. He ordered the father to pay £500 towards the mother's costs of the Family Law Act application, but made no order for costs in the Children Act proceedings. The father wishes to appeal against the refusal of direct contact, the section 91(14) order, the committal and costs.
2. Permission to appeal is not required against "a committal order". Rule 52.3(1) of the Civil Procedure Rules 1998 provides:

"An appellant or respondent requires permission to appeal-

(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against-

(i) a committal order."

3. In London Borough of Barnett v Hurst [2002] EWCA Civ 1009 on 17th July 2002 the Court of Appeal held that permission to appeal was required against any other order made in committal proceedings. In that case there was an appeal as of right against a nine-month committal order for proven contempt of court and a cross-appeal against the judge's decision to adjourn the remainder of an application to commit. The Court of Appeal held that the cross-appeal against the adjournment required permission to appeal but granted permission. In reaching its decision the Court of Appeal referred to an earlier decision of this court, Government of Sierra Leone v Davenport [2002] EWCA Civ. 230, where it was held that permission to appeal was required against a judge's decision to make no order on a committal application other than an order for costs. It was held that neither of these was a committal order, as a committal order is "an order which commits a person to prison". Neither of those two cases was therefore concerned with whether a suspended order for committal to prison is a committal order for the purpose of rule 52.3(1)(a)(i).
4. My preliminary view is that a suspended committal order is indeed a committal order. It does not result in immediate detention in prison, which requires a further order of the court, but it is in the same form as an immediate order: it commits the person to prison but provides that that is suspended for a particular period and on particular terms.
5. If my preliminary view is right, this applicant father does not need permission to appeal against the committal order and the matter can proceed. That being the case, just in case permission is required -- in other words, if I am wrong -- I will, of course, grant permission. I would want the matter to proceed so that the full court can consider the legal position which I have just been discussing.
6. If I am wrong about it and permission is required, I would, in any event, grant it on the merits. The criterion for granting permission to appeal is that an appeal has a real, as proposed to a fanciful, prospect of success. This was a penalty imposed not for the breach of a specific court order with a penal notice attached to it, but for breach of the general rules as to confidentiality of court proceedings relating to children. What the father had done was to seek advice in the "self-help" topic of the "Members' Forum" on the Families Need Fathers website. This is open only to members on payment of a fee, as I happen to know as I tried to search it only yesterday for the purpose of preparing for this application. The father did identify the contact centre when he was making enquiries about whether they should have prevented him photographing his daughter. He did later provide details about the dispute when seeking other advice and help, in particular when he wanted to have a Mackenzie friend at a directions hearing in March of this year. The worst aspect of his conduct was posting the mother's solicitor's notes of that directions hearing, including the title to the action, thus giving the parties' names. That, of course, did enable anybody who could visit the site to identify exactly who was involved.
7. It seems to me that there are merits in the arguments about the proper procedure to follow in such circumstances, where what is alleged is a breach of the general law rather than any precise order; about precisely what the father had done which might amount to contempt of court; and, if anything, about what the appropriate penalty would have been. The father ought, it seems to me, to have legal representation for that part of the appeal, if he wants it. It is also my view that the Official Solicitor, who has a role in relation to people actually committed to prison in contempt proceedings, should be invited to assist the court with any representations he may wish to make.
8. I also consider that the father should have permission to appeal against the prohibited steps order. The exact terms were:

"The applicant is prohibited whether by himself or by his servants or agents from publishing anywhere (with particular reference to the Internet) any information with respect to these proceedings."

That order does not distinguish between publishing "any information" and publishing identifying information. The publication of identifying information clearly should be prohibited. It is much more questionable whether it is right to prohibit the publication of general non-identified information with a view to seeking such guidance and assistance as the fellow members of "Families Need Fathers" may wish to supply to him. Again, I have to say, having read many of the communications in question, a great deal of very helpful advice and sound wisdom was provided to the father as a result of his communications in that discussion.

9. As far as the rest of the order is concerned, the prospects of success on an appeal are more difficult.
10. The parents are now aged 44 and 50. The mother has always been in full-time employment, latterly as a trainee and now as a qualified solicitor. Their relationship began in 1998, but was not a full blown cohabitation when the mother became pregnant in 1999. Their daughter was born in February 2000 -- so they are both mature parents -- and she has always been in a nursery. They married on 13th May 2000. This was the first marriage for the mother but the fourth for the father. The father has grown-up children by previous marriages, also step-children and grandchildren with whom he is on good terms.
11. The parents separated on 18th June 2000 in disputed circumstances. The mother's case is that the circumstances of their parting have left her with an abiding fear of abduction by the father. The father did not see their daughter for some time because he was working away. The mother applied for, and was granted, a residence order in July 2000 but with reasonable contact for the father. The father applied for a residence order in October 2000. A court welfare officer was appointed. The first officer observed two contact sessions in February 2001 when, of course, the daughter was still a baby, and these went well. The problem was the acrimony between the parents which they were not concealing from the baby.
12. Fortnightly contact was set up at a contact centre and a new welfare officer observed good contact taking place. On 13th May 2001, which did happen to be the parties' first wedding anniversary, the mother complained about an incident when the father was leaving which related to that. At that stage the welfare officer was wanting to move towards unsupervised contact with staying contact as the long term goal, although he pointed out that this would only be possible if the parents adopted the right attitudes. There had been some debate about whether there was a need for psychological assessment, partly because of the things the mother had said about the father's behaviour during their relationship. The welfare officer could see no signs of psychiatric distress in either party. Nor was he aware of evidence to support the mother's fears of abduction.
13. Thereafter, however, things did not improve. The mother complained of difficult behaviour by the father at the contact centre. One incident was taking the child and holding her over the fence so that his daughter could take a photograph, which she saw as raising her fears of abduction, and the mother withdrew contact. The welfare officer's prognosis was becoming less favourable. If the parents could not make a success of the contact centre he found it hard to see how they could co-operate outside it.
14. A psychological assessment of both parents was arranged. At the end of 2001 the contact centre withdrew its services. There were two sessions of contact arranged with CAFCASS early in 2002, but these were not a success. The child became very distressed. The mother would not participate in the handover. The welfare officer commented that the father demonstrated nothing but sensitivity to his daughter's distress. Nevertheless, he was a unable to calm her down and so the sessions had to be curtailed. It is, of course, not at all an uncommon experience for two-year old children to become distressed when they are separated from their principal carers, but particularly if the principal carers have communicated a sense of anxiety about that particular separation to the child. The problem then is what to do about it.
15. The psychological assessments of both parents in February 2002 found no personality disorder or psychiatric illness in either of them. The psychologist did think that the mother's fears were sincerely held, but he could not say whether or not they were rational. He did think that the father was somebody who was able to take control in inter- personal relationships, should he wish to do so. He clearly felt that there were facts to be found by the courts when assessing the reality of the problems involved.
16. There was a directions hearing on 15th March 2002. The father had asked to have a Mackenzie friend. This apparently had been refused. The case was then set down for a final hearing for two days in July. There was no contact ordered in the meantime. The father launched an application for permission to appeal against that order, but he withdrew that application on the first day of the final hearing. He did have a Mackenzie friend with him for the final hearing whom the judge found helpful. It is my experience that Mackenzie friends are helpful, provided they are not themselves personally involved in the case, in which case it is inappropriate to use them.
17. The judge based his decision on the controlling and at times excitable behaviour of the father. He found that the mother's fears were genuinely held, although he did not find that her fear of abduction was justified, but those fears had an effect on the child's reaction to contact. He appears to have taken the view that the decision of the Court of Appeal in Re: L meant that if a mother's fears were genuinely held that should preclude contact. In my view that is not what that case decides, and the court will no doubt wish to consider whether that is a flaw in the judge's reasoning. The judge referred to the risks to the child of growing up aware of the warring battle between her parents. He concluded that everybody needed peace, hence the five-year moratorium.
18. The skeleton argument which the father has submitted makes some good points against the judge's reasoning. There is no need for me to repeat them now, but it is very difficult for this court to reach different conclusions from a judge who has had the benefit of seeing and hearing the parties and the experts give evidence. The judge has the feel for the case, and this court can only interfere if he has reached a conclusion which is plainly wrong either in law or in the conduct of the balancing exercise which all of these difficult decisions involve.
19. I do not, therefore, feel able to say at this stage that an appeal on the father's other points would have a real prospect of success, but as the case will have to go to appeal in any event, I will adjourn those parts of his application to be heard on notice to the other party at the same time as the substantive appeal.

Order: Application allowed. The appeal to he heard before two judges (to include a family judge) with a time estimate half a day. A transcript of this judgment to be made available to each party at public expense. The Official Solicitor be informed of the appeal and be provided with a copy of the judgment.

(Order does not form part of approved judgment)