Committal for Contempt of Court: Harvey -v- McFarlane

Family CourtCommittal for Contempt of Court

Case Number: CM20P02823

In the Chelmsford Family Court

10 May 2023

Before:

His Honour Judge Lochrane

Between:

Harvey

-v-

McFarlane

Order

HHJ Lochrane:

  1. The applicant has come here, as I understand it, accepting that she has breached the court order in relation to these four contacts and her failure, originally, to provide her address.  I have heard everything that has been said in mitigation and the applicant understands that this is an extremely irritating and inconvenient process which she has put us all through.  We have lost three days of court time because the applicant failed to engage because she decided that she “did not want to play”, as I put it.  The applicant understands that the corridors are, figuratively, “filled with children” who are waiting to have their cases heard. 
  2. The court list is completely overwhelmed and the applicant has thrown away three days of court time at short notice because she has failed to cooperate with this process which she initiated, which is even more irritating.  The applicant needs to understand that by her actions and by her failure to cooperate with the Guardian, who has her child’s best interests at heart, she has delayed the process of resolving the issues in respect of her child’s welfare interests as far as the Court determines them.  I remind her, again, that she brought this before the Court originally and she cannot complain if the Court is now involved.
  3. I am afraid, having done that, the matter is now in the hands of the Court and the Applicant needs to understand that when we make orders, we expect them to be obeyed, and when she does not obey them, I am afraid, consequences have to follow.  There is simply no alternative.  In this case, the applicant has wilfully disobeyed the court order, and she was reminded more than once, on the basis that she simply decided she did not want to and there was nothing more to be said about it.  Eventually, we have had to drag the applicant here, I am afraid, rather irritatingly, in order to have her answer to this particular problem.  This is a very serious breach of a court order because, ultimately, what has happened is that the potential for this child to have a relationship with his father has been significantly delayed. 
  4. The children’s legislation makes it plain that delay is contrary to children’s welfare interests and the applicant has, singlehandedly, delayed the process of the assessment of this child’s relationship with his father.  I do not know, ultimately, whether it is going to be appropriate for this child to have a relationship with his father or on what basis.  The Guardian will assist him on that and the applicant will have her opportunity to have her say about it, but simply sitting in the corner, I am afraid, and sucking her thumb and telling us she has decided not to play on her terms is not going to cut it.
  5. I understand and accept, of course, the mitigation that the applicant has now accepted these breaches but, frankly, she did not have much choice.  It is not as if there is any evidence, at all, that she attempted in any way to obey the court order because, if nothing else, on the last occasion, she told me she was not going to do it and there was nothing I could do to persuade her, which is why, I am afraid, we have had to go through this process.  Accordingly, this is a serious breach of more than one court order. The defendant has had plenty of warnings of it. 
  6. The particular mischief that the applicant has done, I am afraid, is that by her actions, she has delayed the process of the Guardian being able to address her child’s proper welfare interests in order to be able to advise the Court as to whether he should or should not have a relationship with his father.  If the Court determines that there is going to be a relationship with his father, a significant chunk of his life has passed without him having the opportunity to bond with his father.  That is not the applicant’s choice and I remind everybody that parents do not have rights over their children, they have responsibilities towards their children.  Part of their responsibility, when they split up, is to ensure, as far as possible and as far as appropriate, of course, depending on their welfare interests and whether it is safe or not, that the child has a proper relationship with both parents.  The applicant may not choose to divorce him from his father.  That is something that the Court, ultimately, is going to determine with the assistance of the Children’s Guardian, having heard from the applicant and having heard from his father.  However, that is down the line.
  7. Accordingly, these are serious breaches, I am afraid, and I am not madly impressed with the idea that the applicant feels there is some problem which entitles her to dictate to me how this progresses.  We will get the drug results.  In the meantime, the applicant will make the child available for contact with his father in accordance with the Guardian’s instructions.  The Guardian will consult the applicant before giving those instructions but only if the applicant is prepared to communicate.  The applicant needs to have a route to communicate with the Guardian so the Guardian can make a proper decision taking into account what the applicant has to say, taking into account what the respondent has to say and then exercising the Guardian’s professional skills.  That is the balancing process.
  8. However, if the applicant does not communicate, if the applicant refuses to communicate with the Guardian, the Guardian cannot possibly take into account her position.  Accordingly, it is important that the applicant maintains proper communication with the Guardian.  I hear what is said about the applicant’s telephone signal but she will provide the Guardian, please, with a telephone number which works and on the occasions she gets a message from the Guardian, I strongly advise her to make sure she responds to the Guardian as quickly as she can because the Guardian cannot, I emphasise again, take into account the applicant’s views if the Guardian is not in a position to hear her views because she is not communicating.
  9. Therefore, this, it seems to me, is a serious and serial refusal to abide by the Court’s orders and the applicant has plenty of warning on the subject.  I am not hugely impressed, from what the Guardian tells me, at least, about the applicant’s attitude going forward but I accept, on the applicant’s behalf that, first of all, that she accepts that she has breached the court orders but, secondarily, that she will comply with the court orders in the future which, I emphasise, again, will include, as from today, that she will make the child available for contact with his father in accordance with the Guardian’s instructions before we come back again.
  10. In the circumstances, I do, I am afraid take the view that, apart from anything else, for the purposes of ensuring compliance with the court orders in the future, this is a case which merits a term of imprisonment but the term of imprisonment will be suspended.  The sentence of the Court will be 14 days’ imprisonment which will be suspended for two years on condition that the applicant continues to comply with court orders.  In the event that it is suggested she has not complied with the court order, there will be another hearing and she will have an opportunity to have her say.  However, if the Court concludes she has breached the court order again in the future, any sentence which the Court imposes will start with the 14 days that is imposed today.  It will not take effect, as long as the applicant complies with the court orders in the meantime.  Accordingly, the sentence of the Court is 14 days’ imprisonment, suspended for two years on condition that the applicant continues to comply with the court orders.