England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		12th December 2014

JUDGMENT
1. THE JUDGE: This is an application brought by Mr Todd today. The application in its substantive form is for a contact order between F and his daughter E, who was born on 13^th December 2002, so tomorrow will be aged 12. The application for contact commenced in October 2011 with the first hearing on 24^th October 2011. Since that date, court proceedings have been ongoing.
2. More recently, Miss Turnbull has failed to engage either in the court proceedings or with the guardian. A guardian was appointed in May of this year because of the concerns that I had about the situation. Miss Turnbull is saying that E does not want to see her father and that, at the age E is, she, miss Turnbull, does not take the view that she can effectively force her to have contact. She says that adults are trying to tell E that she does not know her own mind, when, in fact, she is a confident girl, has many interests in and out of school and is visibly distressed by the suggestion she have contact.
3. Miss Turnbull has written, two letters to the court which I have before me and, there is a letter on the file - I do not know what date this is but it says:

"My name is [E] and I'm 12 in three weeks' time."

So it is a recent letter. I do not know if HHJ Wood had that letter. In that letter, which is purported to be written by E, she sets out, what is the point of going to see CAFCASS when nobody is listening to her or listening to what she wants? She says she is being forced to do something she does not want to do and she will not be forced to see her dad because she does not want to see him.

4. This matter came before HHJ Wood on 28^th November. Mother did not attend that hearing, despite being personally served with the order of 29^th September on 30^th September. It was set out that the court recorded that mother had not cooperated with the guardian and the applicant was given leave to amend the application he made to commit the mother for breach of the court order to include a provision that Miss Turnbull had been required to attend the rehearing of the case on 28^th November and failed to attend. That amendment has been made. It is that specific application that comes before me today.
5. Mr Kyle has indicated that the applicant, Mr Todd, has no desire to see Miss Turnbull in prison but that, although Mr Kyle did not put it in these words, the reality is that all other avenues have been tried, attempted and, yet again, Miss Turnbull has not attended at court.
6. Clearly, there has been a breach of the order of DJ Kramer made on 29^th September, in that, the order stated, in terms, that Miss Turnbull was to attend the review hearing on 28^th November and attached to that was a warning notice, saying, "If you do not obey paragraph 4," that is the requirement to attend "you will be in contempt of court and may be committed to prison." She did not attend on 28^th November and, therefore, she is in breach of the order of 29^th September.
7. The matter, therefore, for the court, having found the breach, is how the court deals with that breach. Mr Kyle has told me that HHJ Wood indicated that had he been able to deal with this matter on 28^th November, he would have ordered immediate imprisonment but with the caveat that before being taken to prison, Miss Turnbull be brought before the court. Clearly, that remains an option for this court.
8. The problem with that option is the time of year. What we do not know is when the order committing Miss Turnbull to prison, if that order is made, will be executed. These orders are usually made upon the basis that there will be a court sitting and those charged with executing the order will do so within court time and, therefore, there can be immediate presentation to the court. If the order were to be executed next week, that process could occur. Thereafter, there will be no Circuit judge actually sitting within the court building until 5^th January. It is not expected that an order of this nature is not immediately acted upon by way of the respondent being brought before the court, but if no court is sitting, it presents practical problems which, although the form of order is clear, may mean a delay in the committed respondent being able to be presented to the court. I am conscious that that does cause some difficulty.
9. The question is whether or not the court should depart from the order which was intended by Judge Wood. It is imperative that these proceedings are progressed. What is imperative is that the guardian has the opportunity to explore with E the reasons why she has taken the seeming stance that she has. Without contact between E and her guardian, we are no further forward. The Court is unable to determine Ellie's real wishes or what is in her best interests
10. In light of the difficulties to which I have referred, I am satisfied that there should be a sentence of imprisonment. Clearly the mother is in breach of the order. However because of the difficulties, I will suspend that sentence but make stringent provisions, so that, on the next occasion, if Miss Turnbull is not in attendance, then an immediate custodial sentence will be imposed. So the order that the court will make is that the breach has been found proved; that there be 14 days' imprisonment suspended on the basis that Miss Turnbull attends court on the next occasion, which we will fix; there will be a direction that she attends court on the next occasion with a warning notice and the order will spell out that failure to attend on the date that we will fix will mean the activation of the suspended sentence and, further, punishment for the continuing contempt if she fails to attend on the occasion specified.
[Judgment ends]