The decision of the Court of Appeal in the matter of L-W Children [2010] EWCA Civ 1253 has surprised many people. Some have probably used even stronger language. It is probably best if, in this article, I concentrate on analysis and practicalities.

BackgroundThe court was concerned with appeals by a father against a series of enforcement, compensation and committal orders, arising out of problems with contact between a child, M, a boy, now 11, and his mother. M lived with his father. The law is to be found in the Children Act 1989 (CA 89) at sections 11J–11P.

A properly worded contact order of 13 May 2009 set out when, as to dates and times, the mother was to have contact with M, and collect and return M to the father’s home. The father was to ‘allow’ this contact with M, and ‘make him available’ for it. Contact was to be Saturday afternoons every four weeks. No contact took place on the first two Saturdays. Mother issued an application for enforcement and compensation for her travel expenses.

This was already a heavy case – M had a guardian, and a psychologist had reported. On 4 December 2009, after five days of hearing, another equally properly worded order was made by the same judge – David Caddick, formerly District Judge Caddick – which set out precise dates and times. A penal notice was attached to this order. In a separate hearing on 15 December, an enforcement and a compensation order were made, subject to information under section 11L (2) CA 89. More applications and more penalties followed.

Throughout this time, the contact issues themselves were the subject of hearings, reports and further orders.

Finally, in June 2010, the father was committed to prison for 28 days concurrent, suspended for 12 months, in respect of each of six breaches between January and April 2010. All enforcement, compensation and committal orders were appealed. Father had by then paid the compensation orders and done some of the unpaid work under the enforcement orders.

Judge Caddick concluded with reference to the evidence he had heard, that M wanted a good relationship with his mother, and father’s ‘underlying mindset’ had created a ‘home environment for M where lasting resolution cannot be achieved and progression in it, other than on father’s terms’. He was critical of father’s failure to use proper parenting to ensure that M understood that he must see his mother as the court had ordered, like it or not. Father had power as a father, and had failed to use it properly.

At paragraph 49 he is quoted: ‘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.’

The court described the judgment as ‘careful, detailed and impressive’. Not only that, but when invited to move the case to the High Court, the appeal court was resounding in its refusal to do so, calling the judicial continuity in this case ‘a blessing’.

The appeal judgmentHow was it then that Judge Caddick apparently got it so wrong that the bulk of his enforcement, compensation and committal orders were overturned? From the judgment of Lord Justice Munby the following summary about breach can be taken:

Committal

  • Is there a clear positive order?
  • Has the father done what he was required to do?
  • Was it in his power to do it (burden of proof on applicant mother to criminal standard)?

Enforcement

  • Has there been a failure to comply with the contact order, including consideration of whether it was in the father’s power to comply (burden of proof on applicant mother to criminal standard)?

Compensation

  • As above, but substitute ‘civil’ from ‘criminal’ in standard of proof.

Only when this is proved does the entirely distinct question of ‘reasonable excuse for that failure’ arise (burden on respondent to civil standard).

In this case:No breach, so no penalty, save on three occasions where father removed the child early (once) or M simply was not at home (twice) and plainly was in breach, with no reasonable excuse found.

  • The order required ‘allow’ and ‘make available’ and father did just that.
  • The father did not actively or positively obstruct.
  • The order did not require that he ‘ensure’.
  • It is a ‘defence’ to breach to say that it is beyond father’s power to comply due to the child’s refusal. Mother must prove it is within his power to the criminal standard.
  • Therefore the second distinct issue of reasonable excuse was not even reached – simply, there was no breach.

As to father’s ‘power to comply’ - what if the ‘bigger picture’ allows proper findings that father’s overall and long-term words, conduct and attitude have created this response/refusal in the child? Then there is still no breach. The finding of breach must be date- and time-specific.

‘84 ..So any allegation of breach necessarily involves a close and careful scrutiny of the events of the day in question. ….if [compliance] was [in father’s power], then so be it. But if the answer is that it was not (or, to be more precise, that it has not been proved that it was within his power) then that is the end of the allegation, and it matters not at all that the father may by his own acts (or omissions) on previous occasions have brought about the state of affairs upon which he now relies by way of defence.’

A long period of conduct by the resident parent, which seriously impedes a child’s relationship with its other parent, such that an older child refuses to go for contact, does not amount to breach of an order that one parent ‘allow’ contact. This emasculates section 11J of CA 1989 and risks making a child a human shield for such a ­parent.

What to do:

  • Seek an order that says ‘permit and encourage’ or other proactive words.
  • Seek findings of real detail about actual conduct, including words and lack of them, on the day, on the doorstep, at handover.
  • Seek (with official encouragement) enforcement including committal much earlier in the process (paragraph 106).

Otherwise, a parent might well say to the court, as Robin Williams’ Genie says to Aladdin in the eponymous film – ‘wake up and smell the hummus’!

District Judge Spencer sits at Teesside Combined Court