ON APPEAL FROM MAIDSTONE COUNTY COURT
His Honour Judge Caddick
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE MUNBY
|- and -
(3) EL-W (by their Guardian ad litem)
Mr David Walden-Smith (instructed by Berry & Berry) for the First Respondent (mother)
Mr Stuart Fuller (instructed by Stantons) for the Second and Third Respondents (children)
Hearing date: 27 August 2010
Crown Copyright ©
Lord Justice Munby :
"The father shall allow the mother to have contact with M, and make him available accordingly, as follows: From 12 midday until 6.00pm on each of [various dates], 25th July, 22nd August, 19th September 2009 and every fourth week thereafter; mother to collect from and return to father's home."
19 September 2009 was a Saturday, so in substance the order provided for there to be contact between M and his mother on Saturday afternoon every four weeks. I note that the language of the order – "father shall allow the mother to have contact with M" – followed the language of the definition of a contact order in section 8(1) of the 1989 Act. Properly so: see Re S  EWCA Civ 705. The additional words – "and make him available accordingly" – were a permissible direction made in accordance with section 11(7).
"1 not allowing M to have contact with his mother on [those] dates
2 not encouraging and ensuring M attends for contact on [those] dates
3 not having a reasonable excuse for not allowing contact or ensuring M attends for contact
4 taking M out of the country for contact on 10 April 2010 without consulting with mother or offering an alternative date for replacement contact."
"by disobeying the order dated 4.12.2009 by failing to allow the mother to have contact with [M], and make him available accordingly, on each of the following dates",
that is, on 30 January 2010, 13 and 27 February, 13 and 27 March and 10 April 2010. On each of those six breaches the father was sentenced to 28 days imprisonment concurrent, suspended for 12 months on condition that he obeyed the contact orders of 7 May 2010 and 24 June 2010 and any further contact order as might be made varying or replacing those orders.
The context – the judgment of 4 December 2009
"M said 'it was pointless for the Court hearings to go ahead as he will not be seeing mummy until she can show that she has changed. I want my mummy back from when I was younger not what she has changed into' ... He said 'I will go to contact but only when I am ready and not before, if she .does not grant me this one wish then I don't want to see her, I want her to be the mummy she was until I was about 3 years old.'"
Mr Stevens saw M as "an articulate and intelligent young person who holds strong views on issues of right and wrong." He referred to "concerns that M is heavily influenced by his father regarding his views of his mother" but expressed his view as follows:
"I found no direct evidence of M being placed under any duress or influence by his father regarding his views and feelings about his mother. However, his sophisticated use of language was evident together with an overt reliance on analogies [which] appears to be sophisticated for his age ... I observed a very confident young person expressing his own views, some of which did not appear to be shared by his father, such as his wish not to see his mother on contact."
"I would question ... whether, even if as a last resort [the father] were committed to prison for breach of the Contact Orders, an Order in the terms sought by [the mother] would actually now result in her having any direct contact with M."
He expressed his opinion as being that "any reconciliation process between M and his mother will require extensive work and therapy by experienced professionals." He recognised that the court might be "effectively forced" into what he called the "abhorrent" position in which "M will lose a real relationship with his mother for many years."
"if it was not the object of his behaviour to completely ruin contact, certainly the effect of his attitude to it and his approach to M has been to jeopardise contact close to that point. Putting it perhaps more mildly: he has tried a bit, but he has not tried anywhere near hard enough and effectively enough to promote contact."
He continued (paragraph 90):
"The fact is that M does want to have contact with his mother ... He ... wants an ongoing relationship with her. The father's attitude does not promote that, certainly not in any sustained way. It is the father's underlying mind set that creates a home environment for M where lasting resolution cannot be achieved and progression in it other than on father's terms. It is telling how the child's views are controlled and distorted by unhealthy involvement of the child in adult issues and overwhelmingly the disproportionate power and responsibility heaped upon M by the father. The clear central point that has struck me forcefully over the days of listening to this case is that the father must give M his childhood back. For three years now M has been given the power of an adult which his years and his emotional level of development do not want and cannot cope with."
"In truth, M actually wants to see the mother and have a good relationship with her. The adults – and in particular the father as the resident parent – must get behind the talk of not wanting to see mother and remember what he really wants and needs. He gives mixed messages: sometimes the outward talk is "I don't want to see mother" but inside he really does and when people get through to him he admits that. There is no reason apart from M's mind set and the attitude and mind set of the father why he should not go on regular contact with the mother. There is no proper reason that has been put before me as to why he has not been going on those occasions when there has been a contact order for him to go on contact and the father, for whatever reason, has failed to produce him. It is the father's privilege to have a residence order in respect of M. He is in the powerful position of being able to influence M in what he thinks and does, but it must not be abused. He can if he wishes bring proper influence on M to make sure that he goes to contact. If the father wants to I am quite sure that he will achieve that; just as he gets the child to go to school every day, no doubt sometimes when he does not want to go ...
Contact is not optional to M or to the father as the resident parent. How does the father do that when M objects? It is part of his parenting skills – reasoning, persuading, cajoling, probably in the end sanctions. I appreciate that he does not believe in any form of physical chastisement. But how he does it is up to him using his parenting skills. It is not for me to advise him as to how to do it. He is the parent and he should know how to handle his child. But there comes a point when the child has to do things even though he does not want to do them, and this sometimes is one of them."
The law – committal
"(1) The contempt which has to be established lies in the disobedience to the order to return rather than in the original abduction ... (2) Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. Whatever the traditional form of notice to show cause may say, the burden of proof lies at all times on the applicant. (3) Contempt of court involves a contumelious, that is to say a deliberate, disobedience to the order. If it be the case that the father cannot cause the return of the child he is not in contempt of court, however disgraceful and/or criminal the original abduction may have been. Nor is it enough to suspect recalcitrance, it has to be proved: see London Borough of Southwark v B  2 FLR 559. That the onus remains on the applicant throughout is clearly demonstrated by Mubarak v Mubarak 1 FLR 698."
"There was in the course of the judge's ruling no finding that the father was able to achieve return. Without that finding it seems to me that it was not justified to hold him in contempt of court. I have asked myself with some anxiety whether such a finding is implicit in what the judge said given that he would undoubtedly have been extremely familiar with both the onus and the standard of proof in a case of contempt of court, but it seems to me that in the absence of any evidence whatever from the mother it is simply not safe to assume a finding which has not plainly been made. In a case of imprisonment for contempt of court it is necessary that there be a clear finding to the criminal standard of proof of what it is that the alleged contemnor has done that he should not have done or in this case what it is that he has failed to do when he had the ability to do it. There must, as it seems to me, be a clear finding not only of breach of the order but that the breach was deliberate."
"if ... the order ... was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing – see (inter alia) Federal Bank of the Middle East Limited v Hadkinson and Others  1 WLR 1695; D v D (Access: Contempt: Committal)  2 FLR 34 and Harris v Harris, A-G v Harris  2 FLR 895 at para ."
In Harris I had referred (para ) to the decision of this court in Deodat v Deodat (unreported) 9 June 1978 as authority for the proposition that it is impossible to read implied terms into an injunction.
The law – enforcement and compensation orders
"(2) If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an "enforcement order") imposing on the person an unpaid work requirement.
(3) But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4) The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities."
"(1) Before making an enforcement order as regards a person in breach of a contact order, the court must be satisfied that –
(a) making the enforcement order proposed is necessary to secure the person's compliance with the contact order or any contact order that has effect in its place;
(b) the likely effect on the person of the enforcement order proposed to be made is proportionate to the seriousness of the breach of the contact order.
(2) Before making an enforcement order, the court must satisfy itself that provision for the person to work under an unpaid work requirement imposed by an enforcement order can be made in the local justice area in which the person in breach resides or will reside.
(3) Before making an enforcement order as regards a person in breach of a contact order, the court must obtain and consider information about the person and the likely effect of the enforcement order on him.
(7) In making an enforcement order in relation to a contact order, a court must take into account the welfare of the child who is the subject of the contact order."
"(2) If the court is satisfied that –
(a) an individual has failed to comply with the contact order, and
(b) a person falling within subsection (6) has suffered financial loss by reason of the breach,
it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.
(3) But the court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the contact order.
(4) The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.
(9) The amount of compensation is to be determined by the court, but may not exceed the amount of the applicant's financial loss.
(10) In determining the amount of compensation payable by the individual in breach, the court must take into account the individual's financial circumstances.
(14) In exercising its powers under this section, a court is to take into account the welfare of the child concerned."
Judge Caddick's judgment of 15 December 2009
"the enforcement applications have to be kept separate from the substantive hearing, following the Court of Appeal guidance in Hammerton v Hammerton  EWCA Civ 248. That is because the focus and outcomes of the enforcement proceedings are different to the general welfare considerations under section 8 and there are differential standards of proof – the enforcement of proceedings being more akin to quasi-criminal proceedings."
He then proceeded to rehearse the provisions of sections 11J-11P before turning to consider in some detail the events of 13, 20, and 27 June, 25 July and 22 August 2009.
"M had quietened down. They had got to her parents' home and he was just harrumphing and stamping his feet and so on, but was getting through it. I accept that he would have got through it completely if the father had not then turned up ... In the presence of the father, the child then started to get upset again. The father took the child off to the police station. It was around that time, as he left, that the father made observations to the mother – in his own anger – that she was not going to be seeing the child again. So contact, which should have been for six hours ... was cut short in that way as the father had taken the child away ... He should never have taken the child off to the police station after that. It was just making the situation worse. That has been the watershed of contact for the moment because there has been no contact since 13th June 2009. At all of the times in which contact should have taken place under the order it has simply not taken place."
"M did not want to come. The father takes the view that if M, an intelligent and articulate child, says that he does not want to see Dr H, then he is not going to force him to do so ... He did his best to persuade him, but unsuccessfully, and so he did not come."
"The father opened the door and simply told her that M was not coming. M was then brought to the front door and the child said, "I'm not coming. I don't want to come. Why would I want to come after last weekend?" ...The mother ... said something along the lines that M ought to come, and then, trying to persuade him: "If not for me, then for E". M's response was: "Well, I don't need to come and see you to see E. I can see E when she comes here to us". The father gave no support or, as she puts it, vocalisation that it was contact time and he ought to go. He just remained silent."
"There was no answer at all when she, together with her sister, brother-in-law and E, came to the door. They came back an hour later and the father answered the door. He said he had been ill. They said they were there to collect M and he simply told them that M was not there and did not know where he was. I accept the father's evidence that he was indeed unwell on that day, had taken to his bed and, as far as he was aware, M had gone off with the father's wife ... "shopping or whatever" … He felt there must have been a misjudgement by his wife in not having M there at a time when they knew perfectly well that the mother would be coming for contact, even though of course M was not likely to want to go."
"M came to the door on his own and simply said he was not coming and shut the door on them. They knocked again, he opened it, and the mother, and indeed her sister, both asked if they could talk to him, but he refused and said he was not coming. They report that he looked embarrassed, that he had his head down and did not make eye contact and then he shut the door. They did not press the issue and left. The father did not appear. The father says that he had decided on this occasion that he would allow M to go to the door and do the talking, as it were. He played no part in it."
"I must consider separately each of the five occasions alleged. The contact order required him to allow the mother to have contact with M, and make him available accordingly ... Clearly, on each of the five dates involved the father has failed to comply with the order. So far as the points raised by the father are concerned, it is as a matter of law no defence to say that producing the child for contact is difficult or, as he would put it, impossible because of the child's refusal to come. That is not a defence; it is still a failure. The only sensible answer to the question "Has he failed to comply?" is "Of course, clearly he has". Whether the father has a reasonable excuse is another matter and I will come to that in a moment; but he has failed to comply with the order."
"the requirement is to fully comply with the order; that is to allow the child to have contact and make him available accordingly, not just at the beginning of contact, but for the period of contact specified ... by intervening and then taking the child away again part way through the contact period, he certainly was failing to comply with the order from that point onwards."
"The nub of the father's position on that is quite simple and permeates through each one of these occasions. He cannot produce M for contact because, while he has tried, M – being an intelligent and articulate boy – has his own mind … It is his decision on each occasion and the father will not interfere with that. He says that he has tried, as far as he can, "by persuasion and by saying to him such things as 'Well, come on, let's get it over with'. But really, when M makes his own mind up and he says what he has decided, I cannot move him from that." The father makes it clear that he will not force M to do so, whether physically or by imposing sanctions for refusal. In my view it would be a very strange thing indeed if that could amount to a reasonable excuse for not producing a child for contact. It would completely defeat the object of the statute ... It is not a reasonable excuse for failure to comply for the resident parent to say, to use the father's actual words at one point: "The little fellow … doesn't want to go and so I won't make him." That is not sufficient, both as a general proposition and certainly not in the particular circumstances of this case. That cannot be a proper answer to failure to comply with a contact order: whether in welfare terms, which was my focus in the main section 8 hearing or in terms of a reasonable excuse for failure to produce for contact, which is my focus now."
In further passages (paragraphs 34-39) which I need not set out Judge Caddick returned to the themes he had canvassed in the passages in his judgment of 4 December 2009 which I have quoted in paragraph  above.
"What is plain is that the father has not got anywhere near establishing, on the balance of probabilities, a reasonable excuse for failing to produce M on those five occasions."
"without any effective sanction behind the contact order, the danger is that the father will not have a change of attitude, a change of firmness with M, a change so that he ensures that the child does do as he should be doing."
Turning to subsection (l)(b), he explained (paragraph 48) why he had concluded that an order would be proportionate. He went on (paragraphs 49- 53) to consider section 11L(3). He explained (paragraphs 56-57) why he needed further information in accordance with section 11L(2) and why, accordingly, he was adjourning the actual making of an enforcement order until the relevant information was to hand. He explained (paragraphs 61-64) why he was also making a compensation order: the father was in breach; he had no reasonable excuse; in the circumstances, he said, the father ought to compensate the mother her petrol costs for the abortive attempts to have contact.
"The object of enforcement is to get contact working. It may be effective or not. If it works, then it will be very much to the benefit of M. If the father can be helped to the mindset of a positive encouragement of contact rather than the negative and alienating influence that he exhibits at the moment, then that can only be for the benefit of M. If it does not help get contact working then that positive welfare benefit for the child will not be gained. It need not be negative, however. The father does not have to let the child know that an enforcement order has been made and discuss it with him ... I trust that the father will not do so. I appreciate that on past performance it may very well be that the father will see fit to discuss it with the child ... If it did happen then if M is such an intelligent and articulate child as I am told by the father he is, then the point may not be lost on him that a child's actions in this case can have an adverse effect on the father and he needs to bear that in mind. But M is not emotionally mature and I emphasise that I am not suggesting for one moment that he should be told."
Judge Caddick's judgments of 15 and 24 June 2010
"I asked M if he was going to contact to which he responded 'no'. I said to M everyone including me expected him to attend contact with his mother to which he replied 'I am not going I do not want to.'"
"M repeatedly told me he does not want contact with his mother and that he did not intend to go to the next scheduled session due over the weekend of [22 May 2010] ... Throughout my visit to M he remained resistant to changes and entrenched in his wishes not to have contact with his mother .... his reasons ... are largely based on his past experiences ... the trust has gone in his relationship with his mother. Some of the language M used was quite sophisticated ... However, it was clear from my meeting that M is expressing a wish not to have contact with his mother."
"The impact on both children emotionally of this information and therefore on their respective long term relationships with their parents must surely be nothing but negative and could be very damaging."
He commented that if the father was to "disappear" for even a short time the adults would be placed in "an invidious position of having a choice between lying and telling the truth, the later having potentially extremely damaging consequences." He reiterated that in the event of the father being committed: "it is likely that both children will be affected emotionally", adding that:
"given M lives with his father the impact is likely to be more profound with feelings of loss and separation that may well also affect his behaviour and other relationships."
He suggested that the court might wish to consider the option of making a suspended committal order so that the father could "reflect on the implications should he not ensure M attends contact".
"I have to be sure that there have been, on each date we are concerned with, clear breaches of the contact order. That is that the act of the father, or the failure to act, was deliberate on his part in terms of a failure to do as required by the order. Further, although it is not always spelt out in that way, it is relevant to think in terms of reasonable excuses just as it is in the framework of enforcement orders. Again, I keep in mind the principle that committal orders are remedies of last resort. I will leave that for further discussion later, as I will the impact of welfare. Welfare considerations as to what kind of order to actually make do impinge on both considering a committal order (though it is not spelt out in the statute in that case) and enforcement orders (as is specifically set out in section 11). In either case it is relevant as a consideration to be borne in mind; but it is not paramount, as it would be in section 8 issues."
"That in my judgment is an overly legalistic view of the ordinary terms that one expresses contact orders in and indeed the terms of section 8 itself ... It is not enough to simply bring the child to the doorstep and stand there while the child says "No, I don't want to come", anymore than it is enough to go to the doorstep oneself and say, "No, he sends the message that he doesn't want to come." The short point is that the father did not ensure that the child went for contact with the mother on any of those dates. He was responsible for the child; he had the privilege of having a residence order and the child living with him in his home; he had to make sure that he did all that was necessary so that that child would go – imposing sanctions or whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went."
"the reality is that nothing has changed ... We have now another six occasions of failure to comply with the contact order in force. I do not propose to go through all six in great detail because they are really more of the same as before. On each of those dates – bar the last one – we have the mother going to the house with an agreed family member and the child does not go for contact."
"The grandmother goes to the door to collect M; he and his father come to the door. The grandmother reports to the mother simply that M had said that he is not coming; the father had remained silent and had not spoken to her; M simply was insistent that he was not coming and retreated back into the house; the father said nothing – no words of encouragement to M".
"On each of those occasions I have no doubt that the father did fail to comply with the order. It is a question of whether the father had a reasonable excuse for not complying. Certainly he did not comply and I am afraid I reject the interpretation placed by counsel for the father on the wording of the contact order. If he were right, then of course that in itself would drive a coach and horses through the whole notion of contact orders and how they can be enforced. The submissions made go to reasonable excuse in my judgment, not to the basic fact of a prima facie non-compliance."
"despite the contact being arranged ... as set out in the order of 4th December, he then some three months later announces that actually M will be on holiday that day in the Far East and so will not be able to have contact. Thus it was of course that the child was not available at all literally. He was at the other end of the world".
So, he concluded, "again on the face of it a clear breach of the order."
"it seems to me as a matter of law (and in this case certainly as a matter of fact) it is not a reasonable excuse to say: "Well of course I want him to go but you know he is so intelligent and articulate. He says he will not go and I can not make him. I can not be responsible for his failures and refusal to go. I've done my best and it's really down to him; it is his decision". If that did represent the law then it would again drive a coach and horses through the statute. There would have been absolutely no point in Parliament passing this law if all that the resident parent has to do is to say well it is the child's decision, even if in fact that is what the child is expressing."
"We have reached a point of what seems to be last resort ... we really get to a position on the present applications where it seems to me that I have to have a committal order uppermost in my mind, unless of course even now it can be said that some lesser order may meet the objects of enforcement action. Those objects are firstly, to secure compliance with the contact order and secondly, to punish for deliberate and persistent disobedience of the orders of the court."
Having heard further submissions and further evidence from Mr Stevens, Judge Caddick continued (paragraph 26):
"I have no doubt that the appropriate order to make in this case does involve a committal order. We are really at the end of the line with attempts to persuade, cajole and exhort this father into making sure that his son has the contact with the mother as he should."
He went on to explain his reasons for imposing a sentence of 28 days' imprisonment, albeit suspended.
"That puts the father firmly in the saddle in this sense. Going to prison or not will entirely depend on him, and obviously to a much lesser extent on M, and how he the father decides to act. I hope that it will at last galvanise the father into a period of responsible exercise of parental responsibility, which is required of him as the parent with the privilege of being the resident parent at the present, even if that does involve some "tough love" and firm handling of M."
Finally (paragraph 8) Judge Caddick explained why, although he was not making a further enforcement order, he was making a further compensation order.
The arguments on the appeal
"To accede to the father's application for the committal order would not conceivably be in the best interests of the children. It would mean two things: first, if committed, that their mother would be taken away from them for a time and their father would be branded in their eyes as the man who had put their mother in prison. That is a brand from which no parent in my experience can ever hope to recover. It is the most deadly blow a parent can inflict on his children. There is no doubt and it should be clearly understood – I am speaking for myself now – throughout the legal profession that an application to commit for breach of orders relating to access (and I limit my comments to breaches of orders relating to access) are inevitably futile and should not be made. The damage which they cause is appalling. The damage in this case which they have caused is obvious. To apply for a legalistic but futile remedy, because it is the only thing left to do, is, in my judgment, the last hope of the destitute. The court is only concerned with the welfare of the children and ought not to trouble itself too much about its own dignity. These cases are exceedingly intractable. They can only be dealt with by tact not force. Force is bound to fail."
Brandon LJ agreed.
"The usual problem in this type of case where the custodial parent resolutely refuses to obey an order for access by the court is that the court has no effective sanction to enforce that order ... it is a rare case – although I would not go so far as to say it can never happen – that the welfare of the child requires that the custodial parent be sent to prison for refusing to give the other parent access."
"The stark reality of this case is that this is a mother who has flagrantly set herself upon a course of collision with the court's order ... In my judgment, it is time that it is realised that against the wisdom of the observations of Ormrod LJ is to be balanced the consideration that orders of the court are made to be obeyed. They are not made for any other reason ... it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed upon him by Parliament."
Beldam LJ said much the same, commenting (at page 542) that:
"the court has been placed by the mother in a situation in which it either has to yield to her obstinacy and back down from its own order or it has to enforce it. If the court were to yield to such persistent intransigence, respect for its orders and for the administration of justice would be at an end."
"It seems to me that this was an order which was justified both in terms of enforcing respect for the orders of the court, and, therefore, for the rule of law in society, and also, as a last resort, to coerce the mother into complying with court orders. In my view, the judge's decision was amply justified".
"The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders."
"proper judicial control and judicial case management requires what Wall J referred to in Re M at para  as 'consistency of judicial approach' within the context of a judicially set 'strategy for the case'. This must form what he described at para  as 'part of a wider plan for [the] children, which … needs to be thought through'."
I added (at para ):
"It may be that committal is the remedy of last resort but, as Wall J recognised in Re M at para , the strategy for a case may properly involve the use of imprisonment. Interestingly he seems to have accepted (see at para ) that imprisonment, even for a day, might in some cases be an appropriate tool in the judicial armoury. I agree. A willingness to impose very short sentences – 1, 2 or 3 days – may suffice to achieve the necessary deterrent or coercive effect without significantly impairing a mother's ability to look after her children."
"the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent."
She added (para ):
"It is … most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt."
"M told me 'I don't care I am not going to see mummy, if daddy goes to prison what one will it be, I will go and live with X ...' M said 'I don't care if they send daddy to prison I will find him.' He went on to say 'why does it have to get that drastic it's because mummy has made it that way' ... M told me that he no longer refers to his mummy as 'mummy' but [by her name]. He said 'I want mummy to answer my questions'."
Mr Stevens then talked to M about the contact that was due to take place on 14 July 2010:
"M told me he would not go to see his mother, at which time I reminded him the Court expects his father to ensure he does attend. M replied 'I don't care'. M told me he did not feel his mother was being 'co-operative'."
i) We should set aside the enforcement order made by the judge on 27 January 2010 and so much of the enforcement order made by the judge on 8 January 2010 as was referable to the alleged breaches on 20 and 27 June and 22 August 2009.
ii) We should discharge the father from any remaining obligation to carry out the unpaid work he was ordered to perform.
iii) We should set aside the committal order made by the judge on 24 June 2010 save insofar as it records the finding of breach on 10 April 2010.
That leaves only the compensation orders. Recognising that a lower standard of proof is required to justify making a compensation order in contrast to either an enforcement order or a committal order, I do not think that the compensation orders can be saved on this basis. Given the reasons why, as I have found, the enforcement orders and the committal order have to fall, the compensation orders, in my judgment, have to suffer the same fate.
A further point
"Proceedings will not normally be suitable to be dealt with in the High Court merely because of … intractable problems with regard to contact."
Lord Justice Jacob:
Lord Justice Sedley: