CA-2025-001272 - [2025] EWCA Civ 1048

It is undoubtedly the case that making no order is within the range of sanctions available to a court having made findings of contempt. I note Nicklin J’s view in Oliver v Shaikh, that where there is a conflict as between marking the court’s disapproval of disobedience to its order and securing compliance with the court’s order then the primary objective is to secure compliance. This court has not heard argument (i) as to whether, and if so, in what circumstances, primacy should be given to either one of the two objectives in contempt proceedings or (ii) what would amount to ‘conflict’ between those two pillars. In my judgment in this case there is no conflict, so the issue does not arise and I would not in any event wish to be thought in those circumstances to be endorsing the passage in Oliver v Shaikh referred to us by the mother and set out above.

In the present case the mother has repeatedly flouted the court’s orders and again made her continued refusal to comply clear at the hearing of this appeal. The two orders in question were orders which HHJ Lloyd- Jones determined were in A’s best interests as long ago as 17 May 2023. The first order permitted a father who has parental responsibility to have some basic information as to the welfare of his child, whilst not permitting him to send any information about him or his family to A. The second and, at this stage, the more important order, was to allow the Guardian to do some Storyboard work with A so that she would know who her father is but again, without at this stage there being any plan for there to be an introduction or contact. The mother’s refusal to allow the Guardian to see A not only prevents that important work from taking place, but also places an effective brake on the enquiries which are necessary for the Guardian to make in order for her to prepare a report to inform the welfare hearing which is listed for four days starting on 19 August 2025.

The mother said to the court that she did not know what the Guardian would say to A and what information would be given to her, information which she did not believe to be true and which she, as her mother, may not wish her to have. It is however obvious, if only from the order of 18 March 2025, that the mother has had every opportunity to discuss the Guardian’s approach to her meeting with A, albeit with the mother not having any sort of a veto on what was to be discussed with A. The fact remains that it is not for the mother to refuse to comply with these modest child-focused orders, made in the best interests of A, in the absence of a successful appeal against them.

In my judgment the judge fell into error in two respects, one of which runs from the other. First, the judge should not have accepted that the mother would not comply with the orders even if a custodial sentence (whether suspended or not) were imposed based only on the mother’s current assertion that that was the case. The mother emphasises again and again that she has only her child’s interests at heart. As the judge recognised on 18 March 2025, if a sentence of imprisonment was imposed she would have to make a decision as to whether to “[Follow] court orders that have been made in [A’s] best interests or [go] to prison”. Notwithstanding her repeated defiance of the court’s orders, the mother has not yet had to face that decision.

Secondly, the judge was wrong to rely on the mother’s continued refusal to co-operate as a reason not to punish her for her continuing contempt. The judge’s failure to consider that the real possibility of a custodial sentence might in fact secure compliance and instead to decide not to do anything in the face of the mother’s intransigence, was not in my judgment a proper application of the regime for ensuring the compliance of court orders, which relies on the court’s ability to ensure that non-compliance has real consequences. The judge as a consequence, far from escalating the sanction to be imposed in the face of repeated breaches of the orders, gave in to the mother’s opposition to her child having any knowledge of her father. Whilst understanding the judge’s attempt to try a different route via the order in the welfare proceedings that the mother take A to the Guardian’s offices, it is hard to think how that would achieve anything given that the sanction for disobeying that new order was only the threat of fresh committal proceedings instigated as a consequence of the imposition of a penal notice.

As Hale LJ said in Hale v Tanner,family cases raise different considerations from other cases given their emotional overlay. Often the best interests of a child or children, underpin the orders which found the applications for committal. It cannot be the case that a parent can repeatedly refuse to comply with orders made in the best interests of their child, knowing that a judge may well in those circumstances dismiss the committal proceedings as serving no purpose. To do so would undermine the authority of the court and have significant implications for other cases. Punishment for breach of court orders serves as an essential aspect of upholding judicial authority as well as ensuring compliance.