Practice and Procedure


PUBLISHED April 10, 2003

A father who had placed details of the case between himself and his child's mother on the website "Families Need Fathers" had been wrongly committed for contempt of court due to procedural flaws in the committal hearing.Appeals and applications for permission to appeal by the father ('F') from orders made by HH Judge Mitchell in a case concerning a child 'G' born on 2 February 2000. The judge ordered that there should be no direct contact but set out a regime of indirect contact and also made a s.91(14) Children Act 1989 order, prohibiting F from making any application for contact for five years, without leave of the court. Although no contempt proceedings had been initiated, the judge found F to be in contempt of court for placing, on the website of the organisation 'Families Need Fathers', sufficient information to identify by name volunteers at a contact centre and the proceedings before the court so that the child could be identified. The judge sentenced him to 14 days imprisonment suspended for six months. He also made a prohibited steps order, designed to prevent F from publishing any information about the case, on the internet or elsewhere. He made an order against F by way of contribution towards the costs of the mother ('M'), assessed at ?500 under Family Law Act 1996, although he did not make a separate order under the 1996 Act. F represented himself, without legal assistance, before the judge.HELD: (1) The judge's findings on the contact application could not be disturbed. He was entitled to come to the conclusion he had reached and he had applied the criteria in s.1(3) of the 1989 Act and balanced the factors in the exercise of his discretion. (2) The judge should not have made a committal order on his own initiative. That was an exceptional course, especially in family cases where time should normally be taken for reflection. This was not an exceptional case of clear contempt which could not wait to be dealt with. (3) The father had not been afforded any of the protection required by the Practice Direction (Family Proceedings: Committal (2001) 1 WLR 1253. He was not represented or given the opportunity of an adjournment to enable him to be represented and for his defence to be prepared. This was not proper and the father was not afforded his minimum rights under Art.6(3) European Convention on Human Rights. The basis of the alleged contempt was not formulated in writing as it should have been and F gave evidence about the facts which the judge subsequently found constituted contempt without being told that he was not obliged to give that evidence for that purpose. There were other flaws which, taken all together, led to the suspended committal order being set aside. In addition the form of the order was defective and the proceedings were not held in public, which they normally should be. (4) Although F might possibly have been in contempt of court, that conclusion was not straightforward and he did not appear to have been in contempt to the extent found by the judge. (5) The father was not in breach of any court order. In the absence of an order, identifying volunteers at the contact centre was neither a contempt nor an offence. Identifying the child was probably not a contempt in itself. It might have been a criminal offence under s.97 of the 1989 Act, but the judge was not exercising that jurisdiction and F might have had a s.97(3) defence. Some of the other material published might well have been a technical contempt under s.12(1) of the Administration of Justice Act 1960 as being details of the actual proceedings of the court. But the father was seeking advice and the publication was on a website for that purpose with restricted access. The technical contempt was not as wide as the judge considered. On the hypothetical facts under consideration, a suspended committal order would have been disproportionate and a wrong exercise of the court's discretion. (6) It appeared that, on the authority of Bush v Green (1985) 1 WLR 1143 and by virtue of RSC O.52, r.1(2), contempt of court "in connection with" proceedings in the county court, which was not contempt in the face of the court nor disobedience of an order of a county court was only punishable by an order of committal made in the Queen's Bench Division. The Practice Direction (supra) was inconsistent with RSC O.52, r.1(2), which overrode it. This was regrettable and there ought to be jurisdiction to deal with a case such as this in the county court. (7) The wording of the prohibited steps order was in terms which were too general and a new order had been agreed. (8) The order under s.91(14) of the 1989 Act was disproportionate to the circumstances. A five year order was tantamount to closing the door permanently on direct contact when the child was under three. It was premature to do so at this stage. (9) The costs order was not appropriate and was set aside.Appeal on finding of contempt allowed. Suspended sentence set aside. Appeal against prohibited steps order set aside. Order agreed by parties substituted. Permission to appeal against the s.91(14) order allowed and order set aside on the undertaking of F not to make a contact application before 1 January 2004. Permission to appeal against contribution of £500 towards M's costs and costs order set aside. Permission to appeal refusal of judge to make direct contact order. Arrangements for indirect contact made with agreement of parties.

[2003] EWCA Civ 489