Case numbers: CF22P70446 and CF22F70635
The Family Court at Cardiff
24 May 2023
Recorder D. G. Evans
Mr Recorder Evans:
- This is case number CF22F70635, an application by AB, the Claimant, in respect of contempt of court alleged against CD, who is the Defendant. The matter is listed before me, Recorder Evans, at Cardiff Family Court today, 24 May 2023, and it is listed for a committal hearing.
- The hearing is a public hearing and is being recorded by the court service. The matters of anonymisation are that the parties’ children are not to be identified in any public judgment of this court, and I have directed that the parties’ names are not to be published in order to prevent ‘jigsaw identification’ of the children.
- This is an application for the committal of CD, made by AB, arising out of alleged, or I should say ‘not alleged any longer’, breaches of undertakings given within linked Children Act proceedings with case number CF22P70466.
- The Claimant, AB, is represented at the hearing by Mr Joshua Haran, of counsel, and the Defendant, CD, is represented by Mr David Johns, of counsel, both parties attended at the hearing today and have been present in court throughout, with the assistance of screens, as a result of participation directions I have made previously.
- The original application was issued on 17 April 2023, and directions were given by me on 26 April 2023 at a separate committal directions hearing to the substantive Children Act proceedings. At that hearing I gave directions for the preparation of evidence, for the listing of this committal hearing, and for the procedural defect of the civil, rather than the family form, to be used. That was ultimately undertaken in the weeks preceding this hearing and evidence was filed from both parties and Mr Walton, a social worker, with the Rhondda Cynon Taff local authority.
- Matters have moved on somewhat this morning and I was informed by the parties at the outset of the hearing that the parties have been able to compromise the allegations between the parties, and I invited them to commit that compromise position to a basis of plea document, which I expected to be signed.
- A copy of that is before me now and it is signed by both parties, and in essence the Defendant accepts the following allegations.
Firstly, that on 2 March 2023 the Defendant admitted to Dean Walton, the social worker, that he encouraged Nicola Thomas and Marcia Briscombe to take photographs of the Applicant at contact handovers in Cardiff.
Two, the Defendant called the police twice, demanding welfare checks on the children, despite the fact the children were in secure accommodation, and I digress briefly to state that secure accommodation does not mean secure accommodation within the meaning of public law children work, it means safe accommodation, thereby causing distress to the Claimant.
On 26 March the Defendant sent emails to both the Local Authority, the social worker Dean Walton, and the Guardian with photographs attached of the Claimant, taken on 25 March 2023, and also emails referencing previous court proceedings between the Claimant and her former partner regarding their daughter, and previous proceedings in relation to the parties’ children under case number CF21P00387.
And then four, the Defendant has shared material from confidential Children Act proceedings with third parties, namely the Guardian and the Local Authority, and on social media.
Those are accepted concessions by the Claimant and they mean that the remaining allegations were withdrawn by the Claimant.
- At the invitation of the court, with the assistance of counsel, the Defendant was invited to consider whether his acceptance of those factual matters placed him in breach of the undertakings that were given to the court on 7 October 2022 and 24 March 2023, and thereby in contempt of court. The Defendant did accept that in his basis of plea document, and the additional allegations were withdrawn formally, and so therefore the Court does not need to determine specifically any factual issue between the parties, and the Court has heard no evidence. The Court has read a bundle prepared for the purposes of the committal hearing and the ancillary statements.
- The Court does accept the basis of plea that has been provided by the Defendant, and does confirm that those factual concessions do indeed place CD in contempt of court. The Court will go on to consider the sanction as a result of those findings now, and on the basis of those findings.
- The sentencing powers of the Court in respect of contempt of court matters, and the process more globally, are dealt with within the Family Procedure Rules 2010, Part 37, with the associated practice direction, and the Court is reminded that the powers of the Family Court are helpfully set out within a statutory instrument, namely the Family Court (Contempt of Court) (Powers) Regulations 2014, which is SI 2014/833. Those regulations are drawn in light of various statutory authorities in respect of contempt of court, and I remind myself that the Family Court has the powers of the High Court, subject to those regulations.
- The powers of sentence of the Family Court are set out in those regulations as follows: A circuit judge and a district judge both have powers of imprisonment, of custodial sentences of up to 2 years and up to a level 5 fine on the standard scale, which is a fine of £5,000.
- If the Court is so minded, and pursuant to Rule 37.9 of the Family Procedure Rules, the Court may impose a period of imprisonment, which is an order of committal, a fine, the Court can confiscate assets, or make such other punishment as is permitted under the law.
- I remind myself that the purposes of sentencing, and I use that term loosely, because the Court is exercising contempt powers for committal, are twofold. Firstly, they are coercive, and by that I mean that the Court should consider such sanction as is necessary to ensure compliance with the existing orders or future orders, and the
second purpose is in respect of punishment. So punitive and coercive elements of the sanctions are in the Court’s mind.
- The Court should first of all consider whether the custody threshold has been passed, and I have in mind the authority of Liverpool Victoria Insurance Company Limited v Zafar  EWCA Civ 392, which provides a helpful statement of the sentencing principles in contempt cases. Drawing upon the criminal sentencing process, the custody threshold should be considered by the Court first. Secondly, whether it is unavoidable that a sentence of imprisonment ought to be imposed, and thirdly, what is the shortest term commensurate with the seriousness of the offence, and then lastly, whether the sentence can be suspended or not.
- The Court is also to have regard to the nature of the committal allegations and whether, in effect, there has been, to use the criminal terminology, a guilty plea which avoided the necessity for the Claimant to give evidence with all the other ancillary difficulties that that presents.
- Turning to the acts of contempt. The undertakings that were provided by the Defendant to the court on 7 October 2022 and 24 March 2023, were clearly intended to regulate the behaviour of the Defendant, CD, and to promote the feelings of safety, security and wellbeing of the Claimant, who is currently the sole carer of the parties’ two children.
- The undertakings were also designed to allow them to live peacefully and securely during the currency of these proceedings, and also, they were designed to promote the welfare of the children, particularly at times of handover, which are the most likely times for incidents to arise between the parties, because otherwise the parties do not have any cause to come into contact with each other.
- The acts of contempt accepted by the Defendant are relatively wide ranging:
a. They range from inappropriate actions at handover, namely the photographing of the Applicant by family members of the Defendant during a handover, in circumstances where the Claimant had real concerns about the
knowledge of her address and her movements.
b. The Defendant required the police to undertake welfare checks on the children at times where it was inappropriate to do so, which, aside from the issue of police resources, would have been intrusive and distressing to the Claimant and undoubtedly, by extension, to the children having uniformed officers attending at her place of residence; and then, more widely,
c. It is the publication and dissemination of information which is confidential to these proceedings to the Local Authority and to the Guardian, who are professionals that are working with the family. Those emails, which I have
read and are included in the bundle, are clearly designed to undermine the standing of the Claimant in the eyes of those professionals; and
d. The publication, more widely, on social media of matters relating to this case, where prima facie the information is confidential in order to safeguard the parties’ children from being identified in the community as being the subjects of proceedings. But this also had the potential to lower the Claimant in the eyes of the public and her reputation may be damaged thereby.
e. So there are various aspects of mischief within the acts of contempt that have been conceded.
- Having regard to the undertakings that were provided and the fact that there were undertakings provided on two different occasions which were ultimately breached, I have no hesitation in determining that the custody threshold in this case has been passed. Quite properly, and realistically, Mr Johns on behalf of CD in fact conceded that the Court would likely find itself in the position of the custody threshold being passed. I agree.
- Secondly, I have to consider whether it is unavoidable that a sentence of imprisonment or committal ought to be imposed. In effect, and adopting Mr Haran’s helpful assisting comments to the Court, whether it can be avoided by some alternative.
- In my judgment, the wide ranging nature of the contempt and the seriousness of the impact to, not only the Claimant, but also to the children, of incidents arising at handover and incidents involving professionals involved with the family, that a sentence of committal to prison ought to be imposed in this case. I cannot see any realistic alternative to a sentence of imprisonment.
- Having regard to the shortest term commensurate with the seriousness of the offence, having noted that the custody threshold has been passed and a sentence of imprisonment is unavoidable, I have regard to the wide range of powers the Court has. I have up to 2 years of imprisonment available to me, and it is important that the Court does mark the seriousness of this issue. That said, happily there was in fact no direct impact to the children, and happily the professionals have been able to identify in this case that the correspondence they received was inappropriate.
- I also have regard to the fact that CD’s own behaviour has had the greatest consequence of all to him, that contact has stopped in the community and contact will now, certainly until the final hearing, only take place in strictly supervised circumstances, and he has missed out on months of contact as a result of his actions. That is a significant punitive element to the breaches of the undertakings.
- Doing the best I can and imposing the shortest term commensurate with the seriousness of this offence, I find that 6 weeks is an appropriate custodial term. But I will reduce that to 1 month on the basis that CD has accepted the contempt allegations in his basis of plea document, and has thereby avoided the necessity for evidence to be called and perhaps, in this case, avoided the necessity for an adjournment in circumstances where Mr Walton, one of the key witnesses in the case, was unavailable to attend, and I do give CD credit for undoubtedly heeding the legal advice that he has received.
- I also bear in mind that, within the particular circumstances of contempt proceedings, it is available to the Court to consider purging of contempt, which is, in effect, an apology to the Court and to the wronged party, and the potential for adherence to the order. Mr Johns has, albeit at a late stage, on the day of the committal hearing, provided a fulsome and wholehearted apology on behalf of CD, which the Court accepts. However, the provision of that apology and the attempt to purge, whether intentional or not, does not bind the Court’s hands and the Court still has to consider using the wide range of powers, whether the purging of that contempt in effect removes the necessity of sentence. For clarity, it does not. The seriousness of the behaviours, in my judgment, means that a sanction is still required in this case and in particular, to mark the seriousness of the behaviours.
- The last issue that the Court needs to consider is ancillary to those sentences of committal and they are twofold. Firstly, whether it is appropriate to suspend and whether I ought to make any additional fine or other sentence.
- In my judgment, it is appropriate to suspend that sentence of imprisonment and the Court can hold back the immediate sanction of committal to prison on the basis that this is, in effect, CD’s first foray into contempt of court proceedings, and the Court hopes has become a very salutary lesson for him that he may find himself incarcerated if any of these behaviours continue.
- The Court, of course, is mindful that a sentence of immediate custody would also prevent the progression of the case and the resumption of contact in due course, and so, having regard to all the circumstances of this case, the Court is prepared to suspend that sentence of committal, which will lapse after two years, if not enforced. But, as
Mr Johns has quite properly said as part of his submissions, CD ought to be under no illusion that if he is back before the court for any further breach of undertaking, then the sentence will be immediately imposed upon him and there will be no further suspension likely available to him.
- So, the Court is prepared to suspend the sentence of committal upon compliance with the undertakings from both 24 March and 7 October, which ought to be restated in the Committal Order so that there is no misunderstanding about what it is required of CD.
- Lastly, turning to fine. The Court is minded to mark these behaviours and the obvious distress that they have caused, by way of fine. So there is an immediate impact upon CD, to reinforce the seriousness. Level 5, on the standard scale, is £5,000, which is a significant sum of money, particularly when I am told that CD earns something in the order of £1,460 a month by way of a combination of Universal Credit and weekend work clearing asbestos. I have been given a list of CD’s outgoings and I have those in my mind when I set the level of fine.
- In my judgment it is appropriate to mark, in addition to the Committal Order that I have made, a fine of £200, which is to be paid within 14 days, and that is paid, in effect, to the state, rather than by way of direct compensation to AB.
- So, in total, the Court has today found the Defendant in contempt of court on the basis of plea that has been signed and tendered to the Court by the Defendant, and accepted by the Claimant. The Court has considered the various statutory guidance and authorities and has handed down a sentence of committal to prison for 4 weeks, which is suspended for 2 years, upon compliance with the undertakings. Furthermore, there shall be a fine of £200, which shall be paid within 14 days.