England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTER COUNTY COURT
(His Honour Judge Victor Hall QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th February 2002

1. THE PRESIDENT: This is an application for an extension of time in committal proceedings. It is not the fault of the applicant for an extension that, while he was incarcerated under an order of imprisonment, his lawyers took three months for his case to get before the court and consequently were out of time. It would be most unjust to Mr Crackles not to give him an extension of time, in a matter as serious as liberty of the subject, and therefore we have done so. However, the issue as to whether or not the order made by the judge, His Honour Judge Victor Hall QC, on 10th October 2001 at the Leicester County Court was excessive is an entirely different matter.
2. There was a period when the appellant and the respondent lived together. They had a child, R, born on 11th February 2000. The mother has an older child, born in 1997. Their relationship was volatile and the mother made a number of allegations that the appellant had assaulted her on more than one occasion. They parted and, after the parting, the applicant made applications to the court under the Family Law Act 1996, Part IV, for protection against the alleged violence of the appellant. She obtained injunctions; and then there were discussions in relation to contact. She was not opposed to contact, so long as it was in a neutral place. It was arranged that contact between the father and his very young son should take place in a contact centre. A contact centre is a neutral place where, so long as people behave properly, there is an opportunity for the non-residential parent to have a relationship of some sort with the child.
3. There were problems as to the parents meeting up at the contact centre. It does not matter who was to blame, but what does matter is that it built up what might be called a "head of steam" in relation to the father and his feelings that he was not getting sufficient contact to his son. On 22nd September 2001 the mother left the little boy at the contact centre and came back at ten minutes to four, just before the time when contact would finish. The father said that the little boy could not go with the mother because he had another ten minutes of contact. They had an argument and the father threw a cup at the mother, which hit her on the arm and bruised her arm. She went down and telephoned the police. The little boy was brought down and the mother took him to her car, where her elder child was already sitting. The appellant wanted to talk to the other person in the car, who was sitting with the elder child. The mother's father was also present. For some reason or other - and again it is not necessary to go into what was obviously a raised temperature in this case - the appellant went to his car in the car park, reversed out of the car park and reversed straight into the mother's car. It was reversed with sufficient force that it threw the maternal grandfather against the mother. The grandfather got out to ask what was happening; and the appellant a second time reversed his car into the mother's car. The mother jumped out; and the car was reversed again, a third time, into the mother's car. At that time the mother was between her car and a wall, and her car was banged into her.
4. It is not so much the actual injuries that were suffered by the mother, which were not particularly serious, but it is the emotional impact upon the mother and, much more important, upon R and his half-brother which is extremely serious. The degree of irresponsibility is one thing, but the violence with which that irresponsibility was exhibited is a very serious matter indeed. It has imperiled any real relationship between this father and his son, R. He clearly is not going to be allowed to go back to a contact centre again. He cannot be trusted to behave. When he is angry he has acted with considerable violence and he has used what is in fact a lethal weapon (that is to say, a car) in order to get rid of his violent feelings towards the mother of his child. He did a great deal of emotional damage to his son, to the half-sibling and to the mother who, up to then, was not unsympathetic to contact. It was also a clear breach, and a very serious breach, of the injunction which was granted under the Family Law Act.
5. To do him credit, the appellant did not seek to pretend that this had not happened. He, in effect, pleaded guilty to the judge, His Honour Judge Victor Hall QC, at the contempt proceedings. He has also recently, on 8th February, attended the Crown Court on various charges connected with this behaviour, pleaded guilty and received a custodial sentence in the criminal court of a total of six months.
6. For some inexplicable reason connected with the incompetence of the solicitors, we do not have a transcript of the judge's judgment and we have an unapproved note because the solicitors did not even take the trouble to send a copy of their note to the judge to see if he agreed it. We are therefore dependent upon what we hope is an adequate solicitors' attendance note. According to that attendance note:

"The Judge said that he took a very serious view of the breach; there had been two young children, who had been traumatised by observing what they observed and it put in jeopardy the existence of a very valuable resource to the inhabitants of the city. He thought it was unforgivable and there was no acceptance of responsibility by Mr Crackles; the only sentence which was suitable in this case was a custodial sentence."

7. He imposed a 12 months sentence for the first breach (that is to say, the ramming of the car three times into the mother's car) and a one month sentence for the second breach (that is to say, throwing the cup in the contact centre), which was to run concurrently.
8. There is nothing that I have read in the quite short papers which leads me to the view that the judge was wrong then, or indeed now, when he said that there was no acceptance of responsibility by the father, the appellant. He has not written any letter of apology. There is no statement of apology. There is no recognition that what he did was unforgivable, as the judge said - and I endorse it - and that it was a very serious breach. There is the very real worry, in the light of the fact that this is somebody who has not accepted responsibility and has not expressed a genuine apology, that he has not learnt from what he did and that he might indeed think that, if he lost his temper, it is something that he could do again. I do not take that point into account in considering what should happen on this appeal, but I do think it appropriate that this court, hearing an appeal on sentence, should take into account whether or not there was an acceptance of responsibility and an apology for this unforgivable behaviour, in which he had put his own child, aged under two, at serious risk. He might well have misjudged the speed at which he had gone into the car in which his own child was sitting.
9. For my part, I can see nothing whatever wrong with an immediate custodial sentence; and indeed Miss Connolly, for the appellant, accepts that. The only issue is whether it should be 9 months or 12 months. Miss Connolly suggests that 9 months would have been a more suitable sentence. I would not think it appropriate to interfere with the judge's approach to this case unless he was wrong in principle. He was clearly not wrong in principle and, for my part, I think a sentence of 12 months appropriately appreciates and recognises the enormous seriousness of this behaviour and the lack of taking of responsibility for that behaviour. So the appeal on the sentence of 12 months, in my view, ought to be dismissed.
10. The second issue, however, is entirely separate. The judge suggested to the parties that there should be imposed an order under section 91(14) of the Children Act 1989; that is to say:

"On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court."

11. The judge made a section 91(14) order in respect of the father and he put that, perhaps rather surprisingly, at the bottom of the committal order. He ordered that the respondent should be restricted from making an application for contact for a period of 12 months.
12. Technically, of course, there are a number of faults to that order. First of all, section 91(14) does not prevent the applicant from making an application, but what he has to do is make an application for leave to make a section 8 application. It is not an absolute barrier. But secondly and much more important, the father had not made an application for contact and consequently there was no application before the court under the Children Act. Consequently, as I understand it, the judge was not able to make a section 91(14) order. He might or might not have been able to make an order under the inherent jurisdiction generally exercised by the High Court. It is not necessary for this court, in this case, to consider whether or not the circuit judge could have made that order, because he did not seek to do so; and it would be impossible for us to suggest - indeed, Miss Ferguson has rightly not suggested - that one could transform the judge's order under section 91(14) into an order under the inherent jurisdiction. But what Miss Ferguson does ask us to do is to make, in the Court of Appeal, an order under the inherent jurisdiction that this father should be prevented for 12 months from October 2001 from applying for contact.
13. I do not, for my part, think it generally appropriate that a section 91(14) order or an order under the inherent jurisdiction should be made on committal proceedings unless the judge is also considering actual applications which are before the court. I am also very concerned that section 91(14) should not be granted as a matter of course. In other than unusual circumstances, I would think it inappropriate that such an order should be made without prior notice to the parties; and preferably one of the parties should be making the application, which would be acceded to or not by the judge. I am unhappy that there should be a view that it is appropriate for the court to impose it at the last moment, with very limited amount of notice, so that the lawyers for the parties have to think at the very last moment whether that is or is not an appropriate order to be made. There will be cases, but they will not be in the usual run.
14. I do not think it appropriate, for my part, that under contempt proceedings the judge should get involved in whether or not the contemner should or should not be making further contact applications after he comes out of prison. I understand that he did it in all good faith because he felt that the family needed a breathing space. That may be so, but in this case he made an order that he could not make and I see no reason why this court should impose an inherent jurisdiction order to meet this particular potential problem.
15. I think, if I may say so, that Mr Crackles has considerable problems ahead of him on contact applications. Unless he wishes to act as a litigant in person, there may well be a period when the Legal Services Commission will no doubt wish to consider whether or not his application is one that justifies granting legal aid. That is a matter, of course, for the Commission but, looking at the time it took for the contempt proceedings to be appealed, I think the mother has every likelihood of being protected for some time from the hearing of an application on contact.
16. So I would dismiss the first appeal on the sentence and I would allow the appeal on the section 91(14) order and set that order aside.
17. LORD JUSTICE THORPE:I agree.
Order: extension of time granted on the contempt matter and appeal dismissed; permission to appeal on s.91(14) order granted, appeal allowed and order discharged; no order for costs save public funded costs assessment; transcript of this judgment to be supplied to the parties at public expense.