Jersey Unreported Judgments

Contempt of Court

[2021]JRC030

Royal Court

(Family)

1 February 2021

Before     :

Sir William Bailhache, Commissioner, and Jurats Thomas and Austin-Vautier

 

Advocate C. G. Hillier for the Applicant.

Advocate M. J. Haines for the First Respondent.

Advocate H. J. Heath for the Second Respondent.

judgment

the commissioner:

1.        On 28^th November, 2019, in the course of public law proceedings involving the parties and the child the Court was given a number of undertakings, of which the following are relevant:

(i)        The parties would not use either their or another person's social media platform to place on social media:

(a)       Disparaging comments and/or contentious material about (i) each other, (ii) the Father's other children, or (iii) C, the Father's partner; or

(b)       Inappropriate information about the child; and

(ii)       The Father would use his best endeavours to ensure that his partner gave a reciprocal undertaking to the Mother as per paragraph (i) above.

2.        The Court has received an application from the Father dated 3^rd August, 2020, in which he claims the Mother should be sanctioned for contempt of the first order set out above, to which is joined a claim for interim contact and residence and for a permanent residence order.  He also sought an order for removal of a number of Facebook posts alleged to have been made by the Mother.  The Court gave some directions on 12^th August in relation to these claims, with which the Father did not comply until an "unless" order was made by the Court on 9^th October, and the Court also ordered that the public law proceedings within which the undertakings had been given should cease, the Minister being given leave to withdraw, and the Father's applications for interim contact and for a variation of this Court's order for contact be remitted to the Family Registrar.

3.        There is a cross application dated 30^th September, 2020, from the Mother claiming that the Father has breached the undertakings he gave to the Court and that the Court impose sanctions for them.  A Schedule of the allegations and cross allegations was prepared for the Court's benefit in accordance with directions given by the Court on 18^th November.  The same day the Court made an order that the States of Jersey Police should disclose forthwith to the Court any complaints made within the last 12 months by the Mother or the Father.  Unfortunately, neither of the parties saw fit to provide a copy of that order to the police until 14^th December and although it has been produced subsequently the material was not available to the Court at the time of the hearing and the parties could not be cross examined upon it.  This is not the fault of the police and it is unfortunate.  But we are where we are, and a further evidential hearing and possible adjournment of the applications would not be in the interests of justice.

4.        The Court sat on 14^th and 15^th December to hear the contempt claims.  It is important for the parties to recognise that this was the only purpose of the Court's sitting in this case.  A number of other allegations have been made both in the papers before the Court and in the evidence given by the parties about the conduct of the other party and of others said to be connected with the other party.  We have received that evidence but the vast majority of it was and is irrelevant to the questions we must decide.

5.        We have also heard submissions (and read on the papers) allegations that the other party had committed breaches of Article 73 of the Children (Jersey) Law 2002.  Paragraph (2) of that Article creates criminal offences in respect of which a person found guilty is liable to a fine at Level 3 on the standard scale.  In our judgment, the prosecution of criminal offences has a process attached to it which would make it inappropriate for the Court to determine a breach of that Article in civil proceedings, and although our findings in respect of some of the conduct alleged are capable of being relevant to criminal process, we make them only because the same conduct is raised in relation to the contempt allegations.  In those circumstances, we would not have expected the Attorney General to bring a prosecution on the same facts, although in the absence of hearing from him we cannot eschew that possibility albeit it might give rise to other applications within that process.

6.        We think it might be helpful to be explicit as to why the undertakings were sought of the Father and the Mother in the first place.  They were given at the Court's suggestion as an attempt to find a way in which the Mother and the Father could better relate to each other for their child's benefit.  It is no part of the Court's task on a public law children application to make orders the purpose of which is to protect one adult against another.  The adults can take out private law proceedings for that purpose if so advised, bearing all the risks as to costs or otherwise that such private law proceedings provide.  In the present case, for whatever reason, both the Mother and the Father have shown themselves to be quite unable to contain their emotions in respect of the other.  Neither of them has shown any ability to press the "Stop" button in relation to expressing to the other and to third parties exactly what emotion they might feel in the heat of the moment.  The result has been, as we have seen, some vicious and damaging communications both to each other and the family, close friends or partners of the other, and about each other on social media.  We are not convinced that either of them recognises the damage that has been and is being done because they are both too wrapped up in their perceptions of wrongdoing done to themselves to take a step back and focus on the wider picture.  This is not healthy for them as individuals, but, worse, it is not a healthy environment in which to bring up a child. The Mother in particular needs to recognise this because she is the child's main carer, but it is a relevant also to the Father's application for contact.

7.        In the Court's judgment in the public law proceedings (unpublished), the Court said this:

"34. The guardian told us that she agreed there should be a continuous assessment of contact during the six-month supervision order period.  She also thought it was essential that there should be a court order on contact and that this would provide assistance to the Children's Service.  It was important to have the future dates set for a rota which all could understand, and she thought it would be useful to take advantage of the Father's presence in the Island for a supervised contact session to take place on Friday 31^st January. If the Court resolved to adjourn the Father's contact application until a date later on in the period of the supervision order, she thought it might be useful if the Court appointed her as the Court Welfare Officer for the purposes of maintaining her involvement with the family.  The guardian told us that she had no very detailed knowledge of the family wizard application which the Mother had mentioned as to indirect contact but it sounded appropriate and it would enable the gaps in between direct contact to be broken up and therefore might be useful.  She reminded us of the social media posts from both parties which she thought were very unhelpful. The parents needed to get to the point of understanding that if they could prevent their friends from weighing in with social media posts, that was likely to improve relations between the parents themselves.  In short, she considered that little and often contact was better than long gaps, but that of course was going to be difficult in the light of the Father's residence in the United Kingdom.

We turn next to the current relationship between the Mother and the Father which we have found to be extremely disappointing.  It is clear that both Mr Hook and the guardian are correct when they describe high levels of animosity between the Mother and the Father.  Regrettably that level of animosity was clearly demonstrated in the court hearing, when both parties seemed to be unable to resist throwing insults at each other or about each other across the Court.  As we put it to them both at the hearing, it is as if they were determined to seize defeat in the jaws of victory. As little as eight months ago, the Mother was at serious risk of losing both her children and yet the Minister was now proposing a supervision order for the limited period of six months.  Only eight months ago the Father had no order for contact with [the child], and yet today all parties were agreed that there should be some arrangements for contact.  Yet despite these positives, the Father and the Mother were equally guilty of goading each other loudly and continuously across the Court room."

8.        Regrettably, nothing much has changed and while it is usually the case that it is to a child's advantage to have both parents involved in his upbringing, the Registrar may have to consider in due course the extent to which, if at all, the usual rule should apply in this case.

9.        As a result of the Covid restrictions on travel and the financial effects of those restrictions, the Father, who lives in the north east of England, attended the contempt hearing remotely.  This was not something for which we blame him at all, but it was not desirable that he should have done so.  The remote connection did not function as efficiently as either he or we would have liked.  It was not always easy for us to hear distinctly what he said, or, we think, perhaps he to hear what was being said to him whether by counsel or the Court.  However, we have felt able to proceed partly because there is a large measure of agreement about the underlying facts of the alleged contempt or breaches of undertaking, and partly because, although some of his evidence was difficult to follow, we were in no doubt as to the substance of what he felt he needed to say.

10.      We now find ourselves in the position that while there is a private law application for contact pending before the Family Registrar, the Father believes that not only has he been wronged by the Mother and her associates but also that the child is at risk, especially from the Mother's associates.  We have no evidence before us to express a view as to whether that is or is not a justified belief, but we are satisfied that it is a genuine belief.  He does not trust the Children's Service in Jersey, nor does he trust the police to do what is right.  The consequence is that when he comes across anything from the Mother or her friends or associates, or anything which suggests the child may have been at risk, he resorts to social media to complain about it in terms which are not helpful to anyone.  He accepted that he records everything when he can in his dealings with social workers.  The Father's anxiety about the position is no doubt not helped by a diagnosis of him having post-traumatic stress syndrome and an attention deficit hyperactive disorder, for which he takes medication to calm himself sufficiently that he can manage that problem.  But despite that medication, it was clear to us that he is a man with serious issues in handling material which he finds emotionally challenging.  It was noteworthy that when asked by Advocate Heath as to how it would help the child to put material about him or his Mother on Facebook for anyone to see - how that might make the child safer - he had no adequate answer.  It also means that we found his evidence, while given truthfully, was not necessarily reliable.

11.      In case the Father thinks that this court is wholly against him and supportive of the Mother, it is right for us to add this.  She has her own difficulties and she is, or ought to be, well aware of the difficulties from which he suffers.  She undoubtedly knows how to agitate him and it is in her personal make up to want to do so from time to time.  It is unhelpful when she does and unless the Family Registrar later comes to the view on the evidence before her that the child should grow up without any significant relationship with his father, the Mother should demonstrate that she means it when she says that she wants the Father to have a relationship with their son.  That will involve her in curbing the expression of her views both about the Father and his partner just as it means that he should curb the expression of his views about the Mother and her friends.

12.      We accept the Mother's evidence that she has felt under extreme pressure from the Father and his partner over the last 12 months if not longer.  As with the Father's evidence, we think her evidence was given truthfully albeit she is so agitated by what is happening and so unable to focus on circumstances outside herself and, perhaps to a lesser extent, her children, that we did also not find her evidence in all respects to be reliable.

13.      We will deal shortly with the allegations of contempt, but we wish to say now that the reasons which underlay the giving of the undertakings which are at the heart of the present application no longer hold good.  There are no longer public law proceedings within which the undertakings have their place.  Secondly, the undertakings which were given have clearly not had any impact on the parents; and indeed, we think that they merely represent another stick with which they can metaphorically beat each other.  Accordingly, we are discharging the undertakings 3(a) and 4 as set out on pages 1 and 2 of the Act of Court of 28^th November 2019.  In doing so we add this.  The discharge of the undertakings does not mean that we condone or encourage any actions of the parents which would amount to a breach of the undertakings if they still existed - far from it.  The parents should act in the best interests of their child, and those best interests involve parents finding a way of working together to achieve that objective.  If that cannot be done, then ultimately the Court is driven to question whether in the best interests the child should continue to live with either parent or have contact with the parent with whom the child is not living. But either of those is a possible conclusion which everyone should do all they can to avoid.  It is a solution to be considered as a last option.  The Family Registrar will have to form her own view about that when she hears the contact application if by then the two parents have shown themselves unable to take a step back and look at the wider picture. 

14.      On the Mother's side, that includes sharing information with the Father about the child, using the parenting communications tool Family Wizard, referred to in the first undertaking the Mother gave on 28^th November 2019.  She may want to consider doing without a Facebook account for the time being, or opening a very limited new Facebook account available only to a few chosen friends who are asked not to share information about any posts which are made by the Father or his partner.  Alternatively, she may wish to communicate with her friends using other social media platforms.  She may wish to ensure that her email address is not known to the Father or his partner.  We understand her comment that she does not see why she should, and of course the suggestion she consider such a course is no more than that and is certainly not an order of the Court.  It is intended only as a practical suggestion.  On the Father's side, that involves using that parenting toolkit and, by remembering his child's birthday and Christmas for example, showing the sort of interest in his child which is consistent with the conduct of a parent who is actually interested in the child and not in making trouble for the Mother.  To the extent he can, the Father will no doubt want to consider a financial contribution to the child's upbringing.

15.      Many of the comments made above have little or nothing to do with the contempt application but we have been troubled by the ongoing issues between the parents which so clearly show that neither of them is as focussed on the child's welfare as would be desirable.  We have therefore made the comments we have in the hope - and let it not be a vain hope - that in the quieter moments once this judgment has been handed down, the two of them and their partners will be able to reflect on what they should be trying to achieve.

The Contempt Allegations

16.      We turn now to the reason the court is sitting - the contempt allegations which have been brought.  It is right that we say at the outset that we distinguish two different types of contempt - the more serious is the contempt of the judicial and administrative process in Jersey which is demonstrated by taking parts of the Court's judgment given in private proceedings and giving publicity to it as the Father has done.  We take a similarly serious view of recording telephone conversations with the social workers who have the child's best interests at heart and putting those out on the internet.

17.      Our task in determining whether any contempt of court had been committed would have been rendered difficult if not impossible had the principal allegations not been admitted.  The agreed bundle of documents was most confusingly put together.  Insufficient attention was paid to identifying clearly the documents which were said to evidence the breach of undertakings, or to specifying why they were said to have breached them - who made the post on social media, when and whether the post was a private post or message or a public one.  Thus of the 23 allegations made by the Father, numbers 14 to 23 merely replicated some of what was in numbers 1-13; and of those latter numbers, numbers 2,3, 9,10, 12 and 13 were withdrawn it being clear that the allegations could not establish a breach of undertaking by the Mother regardless of whether there was evidence supporting them.  Similarly, in relation to the Mother's allegations, complaints 2f, 2h, 3a and 3b equally were withdrawn, it being clear that the complaints themselves, regardless of whether there was any evidence supporting them, would not establish a breach of undertaking by the Father.

The Father's Allegations

18.      The first allegation is that the Mother made a Facebook post which reads

"[C] and [A] are responsible for this from [place].  Absolute scum of the earth ..... a psychopath and a psychotic mess .....

...... trust me I have never come across two sickos like it.  Unfortunately, they are in Jersey at the moment so will be good to know they are not near [D] ......   warped sick twisted freaks they are disgusting in every possible.  9? kids and that's your priority to a stranger?  11 it needs sectioning in my opinion xx."

19.      In her response the Mother accepted that she had made this post.  However, it was her position that it followed some immense provocation namely that the Father's partner had contacted the place of work of D, an acquaintance of the Mother, and informed them and D's loved ones that D had passed away in a car accident.  This was untrue and the Mother told us she was upset by it.  It appears that her friendship with D has however grown since the date of this post.  In her evidence, the Mother told us that she knew she should not have done this, but she had been "pushed and pushed".  She said that the allegations which she had made in Court did not represent the totality of the pressure she had had from the Father and his partner, although the partner was the worse of the two.  She said that if she had included everything, there would be files and files.

20.      The Court can only proceed on the basis of the evidence which it has before it.  In our judgment the evidence that we have does not amount to such provocation and would not legitimate a Facebook post of this kind.

21.      The second allegation concerns an email dated 15^th November 2019, which pre-dates the undertakings given to the Court, and the application was withdrawn.

22.      The third allegation concerned a Facebook post made by a third party which included reference to the Father as a person "who assaults children (dragging by the hair, chucking across the room)."  There was no evidence that the Mother had put the third party up to making this post, and the Facebook post therefore cannot be attributed to her as a breach of her undertaking.  The allegation was withdrawn in the course of the Hearing.

23.      The fourth allegation was that a Facebook post demonstrated a "conversation" between the Mother and a different third party.  The post was said to refer to the Father and his partner and originates with the third party making derogatory comments.  The Mother replied in her Facebook post "yes I completely agree with you, however, acknowledging them in any way is what they want.  Particularly her, so the best thing is just to completely blank them out and leave it to Karma which I am certain is on its way.  Don't get sucked in ......"

24.      We do not find the Mother guilty of contempt in this allegation.  She did not post a disparaging comment albeit she agreed with the disparaging comments which had been posted by the third party.  However, there is unquestionably at least a reasonable doubt as to the purpose of the post and indeed we think, applying an objective test, that she was expressly encouraging the third party in question not to engage with the issues.

25.      The fifth allegation is that an undated Facebook post showed a conversation between the Mother and other third parties which the Father believed was about him and his partner.  The Mother accepted that she had made that post and accordingly we find the contempt proved.  Her explanation was that there had been provocation from the Father who had put up on Facebook a series of complaints about the Mother following an incident in May when the child was found on his own away from the house in which he lived with the Mother.  We have noted that access to the Mother's Facebook posts are limited to those who are accepted as her friends, but, in our view, this is another case where the provocation may explain but does not justify the Mother's breach of her undertaking.

26.      The sixth allegation concerns another negative Facebook post made by the Mother concerning the Father's partner.  Following an introduction in relation to other things, she comments that the partner is an "ugly faced fat who is a psycho."  The Mother accepts that she wrote the post, which she said was made after the Father's partner had made various allegations against her in Facebook posts.  She contended that the partner appeared to be monitoring her social media and then accused the Mother of harassment.  In reality, the Mother believed it was the other way around and that she was experiencing intense and regular harassment from the Father's partner.  We find the contempt proved and the alleged provocation insufficient to justify it.

27.      The seventh allegation concerns a Facebook post made by the Mother in conversation with a number of third parties in which the Mother made derogatory comments about the Father and his partner.  The Mother accepted that she wrote these comments and that this was provoked by the incident when her child was found away from the property in which they both lived, and allegations had been made by the Father on Facebook as to the lack of care which she gave the child, and of her being a "junkie" or "smack head" or similar.  We find the contempt proved, and the provocation was insufficient to justify it.

28.      The eighth allegation was a Facebook post by the Mother in which she stated "when you are psychotic ex [A] slashes your boyfriend's work tyres last night (or pay someone else to do it) though pure bitterness!  All that now means is your [child] now has to be walked to nursery in the cold and rain now .... Nice one you absolute idiot!  Thank God for dash cam footage."  The Mother accepted that she wrote this post.  She said that she was aware that the Father had slashed people's tyres before and again she alleged there had been relentless harassment before the post was made, including the fact that her partner did actually have the tyres of his car slashed.  We find that the contempt is proved.  We note that within this allegation there is an identification of the child.  In our judgment, the provocation which existed, or may have existed, was insufficient to justify the contempt.

29.      The ninth allegation concerned an email from the Mother to the Father with photographs of the child and the Mother at the Jersey Zoo, and an accompanying email.  The Mother denied that this was a breach of her undertaking.  The allegation was withdrawn in the course of the hearing but it is perhaps telling that the Father's reaction to receiving perfectly normal photographs of his child was to complain that it was inappropriate to use images of the child in communications to him by email.

30.      The tenth allegation concerned an email from the Mother to the Father in which she was complaining in forthright terms of the Father's conduct.  The undertakings which were given concerned the use of social media.  An email from the Mother to the Father therefore does not fall within that description.  The terms in which the Mother expressed herself were extreme, but do not amount to a breach of the undertaking and the allegation was withdrawn during the course of the hearing.

31.      The eleventh allegation concerned a Messenger message from the Mother to the Father's partner.  The Mother did not accept that she had sent this message.  She asserted this was not her Facebook account and she believed it to be a fake account created by the Father's partner.  Allegations of contempt need to be proved to the criminal standard.  The Court cannot be satisfied that this message was in fact sent by the Mother, nor can it be sure that it amounts to a breach of the undertaking in any event.  We do not find the allegation proved.

32.      The twelfth and thirteenth allegations were also withdrawn in the course of the Hearing.  In relation to the twelfth allegation, the assertion was that Facebook photographs showed a link between the Mother and social media contacts who would post information on Facebook, but it is clear that such photographs do not, of themselves, amount to the breach of any undertaking given.  In relation to allegation thirteen, a complaint was made of a Messenger conversation which was alleged to have taken place between the Mother and the Father, but in fact there is a doubt as to whether the conversation took place between them at all.  It may well have taken place between the Mother's partner and the Father, and therefore would not amount to a breach of the undertaking.

33.      As indicated above, allegations fourteen to twenty-three amount to a duplication of the earlier allegations.

Allegations against the Father

34.      The first allegation concerned the post by the Father of Court documents online on 14^th February 2020.  When challenged about this in cross-examination, he prevaricated about whether he had put up the material on Facebook himself.  He said that he agreed it would be wrong to do so "if I did", and there was then what can only be described as a further evidential rant by the Father about people linked to the Mother who he asserted had attacked him, wore masks, and stabbed him, against a backdrop that he considered his child was not safe.

35.      The Court notes that the Father had previously accepted that he did in fact make these posts of Court documents on-line, which had identified the child as well as the allegations which established that threshold had been passed in the Public Law proceedings.  The Court finds the allegation proven and is unimpressed by the prevarication of the Father in this respect.

36.      The second allegation was that the Father had made a Facebook post of a video clip of a social worker's telephone call with him in which he says:

"so, what would you do you get a call that your two-year old has been found nearly half a mile away.  The Social Services say its fine when the Mother has a Class A abuse history, is currently under a Supervision Order with the Royal Court and has not been asked to perform a drugs test."

The Children's Services have given a different account to the Police and the Mother and her child that found my [child]. 

The Police initially refused to give me NY information even though I have PR and then tell me he was found in the LNE that contradicts what I was told by who found him.  I have then recorded the full conversation both the Police and ND, the Social Services .... Jersey Services are appalling ......   Well I took the drugs tests, will she?"

37.      The Father's response to this was that he admitted he had telephoned the Children's Service and recorded the phone call and he admitted that he posted this call on social media.  He emphasised that he had not actually named the child directly.  However, the reference "my [child]" identifies him.  We find the contempt proven and there is no excuse for it.

38.      The third allegation (Allegation 2(b)) concerns further Facebook posts on the Father's personal page - three video clips of telephone calls with social workers and screen shots of Facebook Messenger conversations about the incident between the Father and an unidentified person.  One of them refers to the child by name.  The Father's evidence in this was that he had admitted he had telephoned the Children's Service and recorded the phone call; and he admitted posting this call on social media.  He contended that he had not directly named the child in the telephone call, which is true, but the child is nonetheless named in the call by the social worker who had not realised either that the call was being recorded or that the recording would be placed on social media.  We find the contempt proven and there is no excuse for it.  The alleged provocation that the Father was upset about his child's escape from the house comes nowhere near justifying the recording of a telephone call with the Children's Service in which the child is named and placing that call on social media.

39.      The next allegation (2 (c)) concerns a Facebook post on Good or Bad Jersey Business, including the video clip of the telephone conversation which referred to the child by name.  The Father admits that he telephoned the Children's Service and recorded the call; he admits that he posted the call on social media and the comments which we have made in relation to allegation 2(b) apply here as well. 

40.      The next allegation (2 (d)) concerns various Facebook posts on other pages including Jersey Rental Properties and Jersey Ask, Advise and Advertise.  These posts included video clips of the telephone conversations with the social worker, one of which contained a reference to the child by name.  The Father admitted in the written material before the Court prior to the Hearing that he had telephoned the Children's Service, recorded the call and posted the recording on social media, but, when he gave his evidence before us, he was more equivocal saying "if I posted these, I apologise."  However, he gave no explanation for doing so.  We find the contempt proved.

41.      The next allegation (2 (e)) was a duplication and, was withdrawn.  The next allegation (2 (f)) concerned a Facebook post on the Father's personal page about the Mother's Mother and her private life.  This allegation was withdrawn because it did not amount to a breach of the undertaking which was required to be construed strictly for this purpose.  In permitting the allegation to be withdrawn, the Court emphasises that a malicious post of this kind does the Father no credit.

42.      The next allegation (2 (g)) was an undated Facebook post on the Father's personal page showing a private message which he says was between the parties regarding a friend.  The Court finds the contempt alleged to be proven but to be very mild.

43.      The next set of three allegations (2 (h), 3 (a) and 3 (b)), all concerned Facebook posts by the Father's partner on her Facebook page.  If the partner had given undertakings herself, these would have been in breach of them; but she has not, and she is not a party to the proceedings.  In the circumstances, the allegations could not be sustained as amounting to a breach of undertaking by the Father whose evidence was to the effect that he had no control over what his partner did or did not do.

44.      The next allegation (Allegation 4) concerned an assertion by the Mother that she had received an extract of the Father's court application from a third party prior to this application being served on the Mother's lawyer.  The only reasonable inference was that the Father had shared the private court document with that third party.  In his written material before us, the Father accepted that he did disclose some parts of the document to third parties, "to show people the trust has I was being harassed by them due to untrue things [the Mother] had told them about me." 

45.      The Court finds this to be a proven breach of the undertaking in question.  It is aggravated by the fact that this breach took place on or about 4^th August, 2020, six months after the earlier breach of posting private court documents on-line in February 2020. 

Discussion

46.      As to the allegations against the Mother, we accept that the Mother has, for the most part, responded to provocation from the Father, but on occasions we think she has overreacted.  She has rightly acknowledged the fact that she has broken the undertakings and has apologised for doing so; her evidence was mostly addressed to material which was not relevant to the current case but insofar as it was relevant, it was to the effect that the provocation explains, but does not justify, what she did.  We have approached the breach of undertaking on that basis.

47.      At the same time, we should note that the breaches of undertaking which we have found on her part proven do not directly concern the child.  Many of them concern the Father's partner and while this does not excuse them and makes them less important than would be the case if they did concern the child directly, that conduct is hardly likely to operate constructively on the Mother's relationship with the Father; and for the sake of the child, if nothing else, the Mother needs to reflect on that.  For a similar reason, the Mother needs to control herself in her comments about the Father.  Perhaps she might reflect on the possibility that her long-term relationship with her child might be adversely affected if he should come across those comments.  Indeed, the longer she continues to react as she does, the more likely it is that the child will discover what has happened and at least partially, perhaps wholly, hold that against her.  Worse, the child itself will emerge into adulthood with unresolved issues in its own mind about the relationships between parent and child and between parents themselves.

48.      By contrast, the Father was more equivocal in what he was prepared to accept.  As indicated above, he tentatively departed in his evidence to us from what he had already accepted in February this year, namely that he had placed part of the Court's judgment in the public law proceedings on an open Facebook page notwithstanding that the judgment was given in private proceedings.  The child was identified in these passages of the Court's judgment and referred to the threshold findings, which went to the significant physical and emotional harm caused by the Mother's parenting of the child.  As the Court remarked in its judgment of 14^th February 2020 (unpublished), this was a flagrant breach of the third undertaking which the Father had given.  It was made worse by the fact that the Court then ordered the Father to file an affidavit within 14 days setting out the circumstances which gave rise to the posting of this material but that order too the Father ignored.  He later gave a bare apology, but still no explanation, to the Court for his actions in his affidavit of 8^th October.  That disregard of the Court's order is unfortunately not untypical of the Father's approach to court orders.  On 12^th August, 2020, he was ordered to file an affidavit within 7 days setting out the alleged breaches of the undertakings by the Mother, but he failed to do so until there was an "unless" order made on 1^st October, 2020.  Again, although he has apologised for that failure he has given no adequate, if any, explanation for it.

49.      We do not get the impression that at present the Father is interested only in what is best for the child.  On the contrary, for whatever reason, he is too wrapped up in the injustices he perceives he has suffered.  That was amply demonstrated by his reactions whilst the Mother gave her evidence - jabbing his finger aggressively at the camera, sometimes clearly shouting at the camera (albeit we could not hear him with sound muted) and at times unable to sit still for the emotion being generated.  If he cannot control himself in the presence of third parties (the Court) it is unsurprising that he cannot control himself when he is in the presence of the Mother alone.  Yet he needs to do this for the same reason that the Mother needs to improve her conduct - it is in the interests of the child that the parents find a way of relating to each other that does not put the child under pressure.  As we indicated at paragraph 13 above, the consequences of not doing this are potentially very significant indeed.

Decision

50.      Advocate Haines submitted that, by contrast with the breaches of undertaking by the Mother, the Father's breaches were at the top end of the scale.  His behaviour has directly placed the child at risk by quoting parts of court judgments given in private and placing them on open social media pages; he has secretly taken recordings of conversations with the Children's Service officers who have a difficult enough job to do in any event, and placed those also in the public domain.  He was largely unrepentant about that.  The Mother did not want the Father to be sent to prison.  She did, however, want to be able to get on with her own life with her two children.

51.      We were referred to Taylor v Chief Officer of the States of Jersey Police [2005] JRC 215 where the Court considered conflicting approaches in Jersey to questions of contempt in the context of whether there was any mental element necessary for there to be a contempt of court.  In Skinner v Le Main 1990/060 (30 April 1990) (Jersey) Unreported, the Court considered that no mens rea was required to prove an alleged contempt of court by a breach of an injunction.  By contrast in R v S 1994/114 (9 June 1994) (Jersey) Unreported, the Court took the view that it needed to be satisfied beyond reasonable doubt that there was a wilful or deliberate refusal to obey the Order of the Court.

52.      In Taylor, the conflicting approaches were resolved in favour of the decision in Skinner v Le Main.  The analysis which the Court followed was this:

"29. .... It is of the first importance that Orders of the Court should be obeyed.  This is not for the purpose of upholding the Court's dignity.  The Court makes orders because it believes them to be in the interest of justice.  If parties are to be able to rely upon the Court resolving disputes between them, they must have confidence that orders will be enforced.  If it is open to a party to argue that, although he has failed to comply with the Court's order he did not mean to breach the order, there would be endless scope for argument and for parties to try and get out of their obligation to obey the order ......  Far better for there to be an absolute rule that orders must be obeyed with mitigation being available as necessary where the breach was not deliberate.  The policy considerations which have led the English Courts to adopt the approach which they have are equally applicable in Jersey.

30.  In summary, the question of whether or not a contempt by reason of a breach of a Court order has been committed involves an essentially objective test requiring the determination of whether or not the alleged contemnor has acted in a manner constituting a breach of the order.  If he has , then a contempt will be established, regardless of whether or not he acted contumaciously or with the intention of breaking the order, although whether any, and if so what, punishment ought to be imposed on him will, or may be, materially dependent on considerations of this sort."

53.      We agree with that approach and apply those principles in the present case.

54.      Advocate Haines suggested that the Court should impose a suspended prison sentence on the Father pursuant to the Criminal Justice (Suspension of Prison Sentence) (Jersey) Law 2003.  By Article 2 of that Law, the Court has power, where it has sentenced an offender to a term of imprisonment of not more than two years, to order that the term of imprisonment be suspended in accordance with the terms of that Article.

55.      The difficulty with this argument is that the definition of "Sentence of Imprisonment" precludes such an approach.  By Article 1(1) (b), "Sentence of Imprisonment" does not include "... imprisonment for a failure to do or abstain from doing anything required to be done or to be left undone."  It seems to us that that covers imprisonment for contempt - the contemnor is in contempt because he has failed to do or abstain from doing something required to be done or to be left undone.  If he were to be imprisoned for that failure, the order for imprisonment would thus not be a "sentence of imprisonment" for the purposes of this Law.  Furthermore, although proof of contempt is to the criminal standard, a civil contempt does not naturally fall within what one would anticipate that was intended by a law concerning criminal justice.  For these reasons we do not think we have jurisdiction to order imprisonment and then suspended.

56.      So, what to do?  As to the Mother, we admonish her for her breach of undertakings.  She has apologised and has shown that she appreciates the significance of her conduct.  While we have some doubt as to whether she would be able to control herself in the future in similar circumstances, we think that the breach of undertaking is unlikely to be repeated because we have discharged those which she would be prone to breaking.  Nonetheless, both in her interests and those of the child, we hope she will learn to regulate her reactions.

57.      The breaches by the Father are more serious - far more serious not only because the child has been directly named but also because his breaches will make establishing a relationship with the Children's Service even more difficult, which can only damage the child further.  In addition, he has failed to show any true remorse.  While we do not think that he deliberately set out to breach the undertakings in question, we think that he was indifferent to them and that although he could have exercised the self-control which would have enabled the breaches to be avoided, the undertakings were simply not important enough to him to drive him to consider that course of action. 

58.      He is not resident in our jurisdiction and it is unclear whether, if we were to impose a custodial sentence, it would ever be served.  Furthermore, we have had the opportunity of looking at a statement of means from which it is plain that he does not have the financial wherewithal to pay a substantial fine.  On the other hand, he needs to appreciate that his actions and his inability to control himself have consequences and it would not be right to mark this contempt only by a reprimand.

59.      In the circumstances, we impose a fine of £100 for the breaches of his undertaking and coupled with that fine a serious reprimand.  He should pay the fine by weekly payments of not less than £5 which he can afford if only by giving up cigarettes.  In any event he should do so within 6 months of today.  If he fails to pay, there will be a custodial sentence of one month's imprisonment, in default.

60.      We wish to emphasise that if the Father should breach the remaining undertakings referred to at paragraph 1(i)(b) above in future, he can expect a prison sentence to be imposed regardless of the difficulties of enforcement, whether this might inhibit any contact with the child or not, if the same be ordered by the Registrar.  Similarly, the Mother, if she is found to have instigated any breach by the Father, can expect a financial or other sanction to be imposed.

61.      We order that the documents in these proceedings can be disclosed into the family proceedings before the Registrar.  The limited disclosure ordered does not prevent a further application being made if other civil or criminal proceedings should follow.

Authorities

Children (Jersey) Law 2002. 

Taylor v Chief Officer of the States of Jersey Police [2005] JRC 215. 

Skinner v Le Main 1990/060. 

R v S 1994/114 (9 June 1994) (Jersey) Unreported. 

Criminal Justice (Suspension of Prison Sentence) (Jersey) Law 2003