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Simon Miller

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Called: 1996

Email: smiller@harcourtchambers.co.uk

I am a children law specialist, having practised solely in children matters since pupillage.

 

I was called to the Bar in 1996. I joined Harcourt Chambers in 2003.

 

 

PRACTICE

 

Public Law

 

I regularly appear for a number of different Local Authorities, Parents and Children's Guardian at all levels of Court, up to, and including, the Court of Appeal.

 

Cases have included matters involving complex medical issues, relating to Bruising, Fractures (Vitamin D), Head Injuries, Sexual Abuse, Factitious Illness and the Death of Children. In addition, I have also provided representation on cases involving Domestic Violence, Chronic Neglect, Drugs, Alcohol, Learning Disabilities and Mental Health issues.

 

I have also undertaken work pro bono.

 

Private Law

 

I undertake cases with a particular interest in parental hostility to contact and alienation, domestic violence and cases with an international element.

 

Other Areas of Interest

 

I have been involved in matters in respect of International Adoptions, Court of Protection and Mental Health Review Tribunals. Other unique cases of interest have involved Sperm Donation, Jehovah Witnesses, Human Rights, and applications under the Inherent Jurisdiction. One of my main areas of interest includes interim removals, having being led in the case of Re L-A (Care : ChronicNeglect) [2010] 1 FLR 80; [2009] EWCA Civ 822 by Jonathan Baker QC (now Mr. Justice Baker).

 

 

ARTICLES

 

  • Parental Opposition to Adoption: The Two-Stage Test (with Piers Pressdee QC) (Family Law, November 2007)

 

 

MEMBERSHIPS

 

  • Family Law Bar Association (FLBA)
  • Association of Lawyers for Children (ALC)
  • British Association for the Study and Prevention of Child Abuse and Neglect (BASPCAN)
  • British Association for Adoption and Fostering (BAAF)

 

 

INTERESTS

 

Having played rugby for Harlequins, Richmond, Middlesex and London Division, I now hold a Level 2 RFU coaching certificate, and have refereed to Level 7. I coach at club level and deliver the RFU School of Rugby Curriculum to u.13 – u.16 age groups with Oxfordshire RFU. I play squash, having attained an England ranking at u.16. I am currently undertaking an Ironman 70.3 and a variety of smaller triathlons.

 

 

REPORTED CASES

(see below for case synopsis)

 

Re S [2013] EWHC 15; [2013] All ER (D) 187
Re L (A Child) [2010] 1 FLR 790; [2009] EWCA Civ 1008
Re L-A (Care : Chronic Neglect) [2010] 1 FLR 80; [2009] EWCA Civ 822
Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam)
Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069
Re K and S (Children) (Contact: Domestic Violence) [2006] 1 FCR 316
M v M (Breaches of Orders: Committal) [2006] 1 FLR 1154
Re M (Contact Order) [2005] 2 FLR 1006

 

 

RECENT CASES :

 

Re S [2013] EWHC 15; [2013] All ER (D) 187

December 2012
High Court Family Division
Jackson J

 

Fact-finding. Acting for the children. Mother and Father represented by QCs. Maternal grandparents representing themselves.

 

The case concerned an extended family of Pakistani origin. In May 2011, the father applied for an order for contact with his three children, whom he had last seen in February 2011, when the mother had removed them from the family home. The mother applied for injunctive relief. The mother made a number of accusations against the father and grandparents. The father and grandparents contended that the mother was lying to draw attention from her associations with people involved in drug-dealing. The father and grandparents submitted that the mother had been involved with local drug dealers and had had a child by one of them. They denied the mother's allegations and contended that, whilst the father had been verbally abusive on occasion, he had never been physically violent. They submitted that the mother's account of being harmed by the father was an attempt to divert attention from her own undesirable associations. Mr. Justice Peter Jackson found that on the evidence, both written and oral, the mother had told a number of lies. However, her lies did not undermine her substantive allegations. The court made the following findings :

 

  1. In 1996, the family moved to Pakistan, leaving a daughter behind at the age of 18 after she had run away from home.
  2. While in Pakistan, the grandparents participated in the imprisonment and beating of cousin T.
  3. In Pakistan, in 2001, the mother became pregnant by her older first cousin M. On discovering this, the grandparents beat her and arranged for her to marry the father.
  4. In Pakistan, in February 2002, the mother was delivered of a child, which was removed from her at birth. (The mother has not seen the child since).
  5. Following the separation of sister R and her husband I in 2005/6, and despite R alleging that he had been violent to her, the family sided with and gave support to I.
  6. In August 2010, on a visit to Pakistan for her sister S's wedding, the father assaulted the mother during an argument by grabbing her by the throat.
  7. On the family's return to England, the father raped the mother twice, the first occasion being in September 2010 and the second being in October 2010.
  8. Between September 2010 and February 2011, the father was verbally abusive, pushed the mother and children, and threw household items.
  9. After the mother left home on 6 February 2011, the family became aware that she was alleging that the father had been physically and sexually violent to her. Despite this, they have given support and a home to the father.

 

Re S (A Child)
November 2012
High Court Family Division
HHJ Hughes (s.9)

 

3 week fact-finding hearing. Representing the maternal grandmother, leading a member of Harcourt Chambers. Both parents and the step-maternal grandfather represented by QCs.

 

Following the death of a baby, a post-mortem examination found multiple fractures of different ages. Following the birth of a new baby, the Local Authority commenced care proceedings, and the matter was listed for a three week fact-finding hearing. The parents’ case was that they had not caused any of the injuries, and either the injuries were as a result of Vitamin D deficiency, or were caused entirely by the maternal grandmother. The expert witnesses included Dr Stephen Chapman (Consultant Paediatric Radiologist), Dr Maconochie (Consultant Paediatrician), Professor Nussey (Consultant Endocrinologist), Dr. Scheimberg (Consultant Paediatric & Perinatal Pathologist) and Professor Risdon (Consultant Paediatric Pathologist). In his judgment, the maternal grandmother was completely exonerated from having caused any of the injuries.

 

Re C (A Child)
May & August 2012
High Court Family Division
Pauffley J

 

On the 7th September 2008, the child, then aged 3, was in the family home when the father stabbed to death the mother. The father was sentenced to a term of imprisonment for 12 years for manslaughter. There was strong support for the notion that the child witnessed all, or parts, of what happened. The child went to stay with long-term friends of the family. No legal proceedings were instigated. By August 2009, this placement came under considerable strain, and the child moved into Local Authority foster care. This placement broke down in 2010, where the child then moved to a further foster placement, where the child has remained. Care proceedings were commenced on 18th January 2011, some 2 years 4 months after the death of his mother. The court, when seized with the application, transferred the matter immediately to the High Court, Family Division, in accordance with Re A and B (One Parent Killed By The Other) [2011] 1 FLR 783.

 

Given the length of time it had taken to issue proceedings, profound issues had arisen in respect of the child’s therapeutic needs, the need to tell the child about the circumstances of the mother’s death, and long-term planning, whether by adoption, family placement or long-term fostering. Issues around publicity and costs were raised at the commencement of proceedings.

 

Re W (A Child)
January 2012
High Court Family Division
Pauffley J

 

This case involved the death of a nine month old baby. The Local Authority asserted that the mother had caused the death of her baby, who was found to have multiple bruises to the face and body, brain injuries, broken ribs of different ages, and arm and leg fractures, some of different ages. The mother denied any involvement in the death. Findings made that held the mother responsible for the death and injuries. Medical evidence included reports from Professor R. A. Risdon (Consultant Paediatric Pathologist), Dr. J.H. McCarthy (Consultant Histopathologist) and Professor A. Malcolm (Consultant Histopathologist).

 

Re B (A Child)
September 2011
High Court Family Division
Jackson J

 

Representing Maternal Aunt. International Adoption. Aunt who lived in the USA wished to care permanently for her two nieces and nephew. Father had killed their mother and was serving a life term, and was refusing permission to the adoption. The case involved a complicated legal framework in respect of immigration and adoption to allow the children to move to the USA permanently.

 

A Local Authority v W & B
March 2011
High Court Family Division
McFarlane J

 

This matter involved a six month old baby who suffered injuries to his head, including subdural haemorrhages, bilateral extensive retinal haemorrhages, perimacular retinal folds and cerebral oedema/hypoxic ischaemic damage. The Local Authority asked for findings to be made against the mother and/or father. In addition the medical issues and causation were complicated by a diagnosis of Biliary Atresia and Hypernatremia. Over the course of the three week fact-finding hearing, various experts were called to give their oral evidence, which included Helen Fernandes (Consultant Neurosurgeon), Dr. Karl Johnson (Consultant Paediatric Radiologist), Miss Gill Adams (Consultant Ophthalmic Surgeon), Dr. Alistair Baker (Consultant Paediatric Hepatologist), and Professor Tim David (Professor of Child Health & Paediatrics).

 

 

REPORTED CASES

 

Re L (A Child) [2010] 1 FLR 790; [2009] EWCA Civ 1008

WALLER, WARD and WALL LLJ

Wall LJ :

 

I am extremely grateful to counsel for the submissions we received, and in particular to Mr Miller who, on the joint instruction of the local authority and the guardian, made submissions which were both well-judged and realistic.

 

For the local authority and the Guardian, Mr. Miller made a valiant attempt to support the judge. He argued, firstly, that it is not in every case that fairness requires a parent to obtain an independent assessment. The judge had been right to distinguish Re K and Re B. Secondly, he submitted that the judge had properly directed herself as to all the various issues involved, including fairness. Given, therefore, that she was exercising a judicial discretion, this court should not interfere with her conduct of the balancing exercise. She had reached a legitimate conclusion, and one with which this court should not interfere.

 

In my judgment ... despite the skill and moderation with which the contrary was argued by Mr. Miller, I am in no doubt at all that the judge's decision to refuse the mother an independent assessment was, on the facts of this case, plainly wrong.

 

FACTS : A six month old baby was admitted to hospital with serious injuries, which included rib fractures and head injuries, which were believed to be non-accidental injuries. The parents put forward a number of explanations for the bruising and rib fractures, but could offer no explanation for the other injuries. In respect of the criminal proceedings, the father was charged with inflicting the injuries and the mother was charged with cruelty based on neglect. In the care proceedings, the Local Authority took the view that neither parent could be excluded as a possible perpetrator, and whoever was the non-perpetrator was guilty of a failure to protect. The father was a vulnerable adult in terms of his low IQ and cognitive difficulties and was represented by the Official Solicitor. At the fact-finding hearing the judge found the perpetrator was one of the parents, but was not able to identify which one. The judge described a ‘global family failure’ to protect, and invited the Local Authority to draw up a timetable to bring the proceedings to a conclusion with the minimum of delay. The care plan was for adoption. The Local Authority had assessed the parenting capacity of the mother, which gave a generally positive report, but did not discuss with the mother the findings made. The judge hearing the case refused the mother’s application to have an independent risk assessment, and listed the case for a final hearing shortly before the criminal trial. The mother appealed the refusal of the risk assessment. The criminal proceedings were adjourned for several weeks, at the request of the defence, to allow time between the disposal of the care proceedings and the criminal trial.

 

Held – allowing the appeal; giving permission for the mother to obtain a risk assessment; directing that the disposal hearing take place after the criminal hearing, and that it be heard by a different judge –

 

  1. The judge’s function at the fact-finding hearing was: (1) to decide whether or not the threshold criteria were satisfied; and (2) to make findings of fact upon which assessments of the parents could then be made. Then, at the disposal stage the judge was to move on to consider the best, or ‘least worst’, outcome for the child, in the light of the findings made and the assessments undertaken by others, consequent upon the judge’s findings of fact.
  2. It was impossible to reach any conclusion from the way the findings were expressed other than that the judge had prejudged the care proceedings, demonstrating a misunderstanding of the split hearing process.
  3. This was plainly a case in which, in the absence of powerful considerations to the contrary, the criminal proceedings should be heard first; the decision to hear the care proceedings first could be explained only on the basis that the judge thought the parents guilty and the outcome of the care proceedings inevitable. On any view, the outcome of the criminal trial had plainly been relevant to the outcome of the care proceedings, and the criminal trial was likely to throw up material, not currently available, which, in turn, was likely to inform the final hearing of the care proceedings.

 

Re L-A (Care : Chronic Neglect) [2010] 1 FLR 80; [2009] EWCA Civ 822

 

THORPE and MAURICE KAY LJJ

 

FACTS : The Local Authority commenced care proceedings in respect of the four children on the grounds of chronic neglect. Following a number of hearings the social worker reported that the chronic neglect was deteriorating into something worse, and the Local Authority sought leave to remove the children into foster care pending the final hearing. The guardian supported the authority’s application. At the interim removal hearing, the mother accepted that the home circumstances had crossed the threshold. The judge declined to remove the children, on the basis that, applying Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575, a child could only be removed from the family home if there was ‘an imminent risk of really serious harm’. The Local Authority, supported by the Guardian, appealed. Counsel for the Local Authority suggested that the phrase, ‘an imminent risk of serious harm’, was being treated as the key definition of the standard that must be achieved to justify the making of an interim care order and to justify removal of children from the care of parents.

 

Held – allowing the appeal and remitting the decision for retrial –

 

  1. It was common ground that the judge in Re L, in using the phrase ‘an imminent risk of serious harm’, had not intended to restate or to alter the approach set out by the Court of Appeal in Re H (A Child) (Interim Care Order) [2002] EWCA Civ 1932, Re M [2005] EWCA Civ 1594 and Re K and H [2006] EWCA Civ 1898. Re H established that separation was only to be ordered if the child’s safety demanded immediate separation, and also that the decision taken by the court on an interim care application must necessarily be limited to issues that could not await the fixture, and must not extend to issues that were being prepared for determination at that fixture. Re M stated that in seeking to justify the continuing removal of a child from home, a local authority must meet a very high standard. Re K and H indicated that the removal of children from their parents was not to be sanctioned at an interim stage unless the child’s safety required interim protection. The judge in Re L had been bound by these Court of Appeal authorities, and he had plainly recognised this.
  2. It was clear beyond argument that the judge in the instant case had construed the comments of the judge in Re L as a decision that altered the law, raising the bar for removing children at an interim stage. That was a misdirection. Plainly the judge had been wrong to think that the words ‘an imminent risk of really serious harm’ prevented him from doing what he instinctively felt the welfare of the children required. The appeal must, therefore, be allowed.

 

Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069

 

THORPE, WALL LJJ and HEDLEY J

 

FACTS : The parents both abused alcohol and drugs; their marriage was volatile, punctuated by the father inflicting serious violence on the mother. The child was removed from the parents’ care a few weeks after birth under an emergency protection order. The judge rejected the parents’ application for a residential assessment, on the basis that there was no reasonable prospect of success, and made a care order. Later the judge made a placement order under s 21 of the Adoption and Children Act 2002 (the 2002 Act) dispensing with both parents’ consent. The child moved to the prospective adopters, and almost 1 year later was thriving within the new family. The parents had not appealed either the care order or the placement order, although they had contested both. However, when the prospective adopters issued adoption proceedings, the parents applied for leave to oppose the making of the adoption order, relying on a change in circumstances since the making of the placement order, within s 47(7) of the 2002 Act. The parents claimed that they had addressed their problems successfully, pointing to the fact that the mother had given birth to a second child who had not been taken into care, but had remained with them following a successful residential assessment, and that the father had resumed contact with two children from a previous relationship. The mother was now pregnant with a third child. The judge rejected the parents’ application: he was not satisfied that there had been a sufficient change in circumstances; and in addition considered that the child’s welfare, which he found to be paramount, required adoption. The parents appealed, arguing that there had been a sufficient change in circumstances, and that the child’s welfare was not the court’s paramount consideration on an application for leave to defend adoption proceedings.

 

Held – dismissing the parents’ appeal –

 

  1. The decision whether or not to give leave to a parent to defend adoption proceedings under s 47(5) of the 2002 Act was ‘a decision relating to the adoption of a child’, and was governed by s 1 of that Act, which meant that ‘the paramount consideration of the court must be the child’s welfare throughout his life’. Section 1(7) of the 2002 Act was poorly drafted and unnecessarily obscure, but the reference in s 1(7)(b) to ‘a decision about granting leave in respect of any action … which may be taken by an adoption agency or individual under this Act’ plainly covered a decision to grant or refuse parents leave to defend adoption proceedings. Such a decision did not also come within s 1(7)(a) (see paras [17], [21], [22], [26], [55]).
  2. The statutory criteria contained in s?10(9) of the Children Act 1989, applicable to an application for leave to apply for a s 8 order under that Act, were quite different from those that applied under s 1(7)(b) of the 2002 Act; in deciding an application for leave under s 10(9) of the 1989 Act, the child’s welfare was not the court’s paramount consideration. The language of the final 15 words of s 1(7)(b) (‘but does not include coming to a decision about granting leave in any other circumstances’) was opaque, but could only refer to decisions about granting leave under other, and different statutory provisions: eg an application for leave in proceedings under the 1989 Act would not be within s 1(7)(b) (see paras [23], [24], [25]).
  3. An application for leave to defend adoption proceedings under s 47(5) of the 2002 Act had two stages: first, the court had to be satisfied, on the facts, that there had been a change of circumstances within s 47(7); only if there had been such a change was the second stage reached, of a judicial discretion, applying the paramountcy test, to permit the parents to defend the adoption proceedings (see paras [26], [55]).
  4. The change in circumstances since the placement order must, self-evidently and as a matter of statutory construction, relate to the grant of leave, and must, equally, be of a nature and degree sufficient, on the facts, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings. There was no need to import a word such as ‘significant’; a change in circumstance could embrace a wide range of different factual situations, and need not relate to the circumstances of the parents. The test must not be set too high, as parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that was unachievable. Whether or not there had been a relevant change in circumstances since the placement order must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application (see paras [30], [31], [32], [55]). 
  5. It was arguable that the judge in the instant case had been wrong to conclude that there had not been a sufficient change in the parents’ circumstances to trigger consideration of the exercise of the discretion, but there was no need to decide that point, as the judge had gone on to reject the application by reference to the paramountcy of the child’s welfare (see paras [37], [38]).
  6. When exercising his discretion under s 47(5) of the 2002 Act, the judge had correctly taken the child’s welfare as the paramount consideration and had been entitled, indeed bound, to give considerable weight to the year-long plan for adoption, to the placement of the child, and to the success of that placement. The judge had also been bound to take into account the fact that, if the child were to return to the parents, they would shortly be caring for three children under the age of 3 (see paras [47], [48], [51]).
  7. The judge had a discretion, when hearing either limb of the two-stage process, whether or not to hear oral evidence. The object of the 2002 Act had been to simplify the adoption process, and to reduce delays in children being placed for adoption and adopted; the court viewed with great concern the argument that an application for leave under s 47(5) required a full welfare inquiry, with oral evidence and cross-examination. It was not necessary for the judge to conduct a full welfare hearing unless the issues that arose for decision positively required such a hearing, or required oral evidence in one or more particular respects. It would be perfectly proper in an appropriate case for the judge to assume as true the facts asserted by the parents (see paras [53], [56]).

 

Re K and S (Children) (Contact: Domestic Violence) [2006] 1 FCR 316

 

THORPE, RIX and WILSON LJJ

 

FACTS : In 1996, after a year of cohabitation, a child was born to the mother and K. When the relationship ended in 1997, the mother married S, with whom she had two children, born in 1999 and 2000. The marriage broke down on the basis, the mother contended, of S's violent behaviour, although that was not accepted. Divorce proceedings were commenced, and in May 2003, following a number of allegations of harassment and intimidation which caused the mother to apply for injunctive relief, S undertook not to use or threaten violence against the mother. Further harassment of the mother was reported to the police in May 2003, and criminal proceedings were commenced against S, although no civil proceedings were initiated. In the meantime, the mother applied to remove the children permanently from the jurisdiction to Australia with her current partner. S applied for a residence order and contact with his children, and K also applied for, inter alia, residence, contact and parental responsibility orders. The cross-applications were case-managed towards a final hearing, and in preparation, a CAFCASS reporter, Y, filed a report in which she recorded the allegations of violence and harassment by the mother against S. The mother's statement repeated those allegations, but further criticised the nature and content of Y's report. The criminal proceedings against S were subsequently abandoned. Following the hearing, the judge delivered judgment in November 2004. The order the judge made reflected her conclusion that broadly the merits lay with S and K, whose relationships with their respective children she sought to uphold and develop by her order, and a guardian was also appointed. The mother's complaint against Y's work had been referred to independent investigation, and the subsequent report criticised Y in respect of procedure, method of work, and technical requirement, rather than substance. That report, delivered in July 2005, was the foundation of the mother's application to appeal the order of November 2004 out of time. The mother contended that: (i) the judge's conclusion was unsustainable, given that she had validated Y in a way that she could not possibly have done had she had available to her the investigation and report on Y's work; and (ii) the judge had erred in failing to make any findings one way or another on the crucial issue of violence and harassment involving not just the mother but also the children.

 

Held – In the instant case, the judge had been entitled to make the order that she had. The criticisms of Y had gone more to her working practices than to the substance of her report, and there was absolutely no evidence or bad faith or bias. It was difficult to understand, however, why the reformed practice for courts of trial to investigate, sometimes as a preliminary issue, disputed allegations of domestic violence and harassment had not been followed. That amounted to a serious deficiency in the trial process in the instant case. However, against that proven flaw was the powerful consideration that that deficiency had been manifest from the date of judgment, and the mother had had the opportunity to apply for permission to appeal within due time. No application had been mounted, and there was no explanation for that failure. Delay of that length and that character was impossible to overlook and difficult to mitigate in the light of subsequent events, including considerable professional investment in the development of the relationships between the children and their fathers. Whilst the importance of the obligation on the trial court to adhere carefully to guidelines concerning the investigation of allegations of violence and harassment was to be emphasised, in the circumstances, the welfare of the children prohibited a return to an unlimited trial. There was, however, no inhibition on setting a clear task for the court to investigate, albeit belatedly, the case of violence and harassment that had as yet received no judicial determination either in criminal or family proceedings, and argument would be heard in due course as to the mechanisms by which the deficiency in the trial process could be made good. Accordingly, the appeal would be dismissed.

 

M v M (Breaches of Orders: Committal) [2006] 1 FLR 1154

 

WARD, CLARKE and NEUBERGER LJJ

 

FACTS : In the course of protracted litigation between the parents, an order was made directing that there should be no direct contact between the father and the children, and placing restrictions on any indirect contact between them. The order prohibited the father from allowing the children to enter his home and to remain with him, and directed him to return them immediately to their mother should they approach him. A penal notice was attached. Numerous breaches of the order followed, the children insisted on visiting their father and he would meet them in town. The mother commenced committal proceedings. The judge found that there had been more than 60 breaches of the order and that the father’s conduct was such as to merit punishment in the form of a substantial prison sentence. He also found that the two older children were likely to revolt against the father’s committal and that the mother would be unlikely to be able to cope with them, with the consequence that the local authority might have to intervene. Having regard to the likely effect on the mother and children of committing the father, the judge concluded that such a course was unwise and made no order on the breaches. The mother sought permission to appeal but her counsel submitted that permission was not needed and the Court of Appeal queried whether the application was truly an appeal or merely an application for permission.

 

Held — refusing the application —

 

  1. The mother, as the applicant in committal proceedings, had the right to come to the Court of Appeal by virtue of s 13(1) of the Administration of Justice Act 1960, but the Civil Procedure Rules 1998, r 52.3(1) and the authorities made clear that permission to appeal a committal order had to be sought. It followed therefore that the applicant had to persuade the court that she had a real prospect of success on an appeal.
  2. The applicant had no prospect of success on appeal. The judge was right to have regard to the welfare interests of the children in deciding whether to impose any penalty on the father for his flagrant breaches of the order. He had not been plainly wrong to do so. The judge was fully entitled to conclude that the consequence of sending the father to prison would be to put the children beyond parental control and run the risk that the local authority would need to assume their care.

 

Per curiam: Applicants for committal were to be discouraged from participating in the sentencing exercise, which was a matter for the court. The occasions where a disaffected applicant should move the Court of Appeal in consequence of the decision made in committal proceedings should be exceptional.

 

Re M (Contact Order) [2005] 2 FLR 1006

 

WARD and CLARKE LLJ

 

The parents were engaged in ongoing and acrimonious proceedings in relation to where their daughter was to live. The child was reluctant to live with her mother and the father had applied for a residence order. Various orders had been made in the course of the proceedings, including an order that the father collect the daughter from school on a particular day and return her to her mother’s house no later than 4.00 pm. The mother commenced committal proceedings on the basis of the father’s alleged breaches of that order. The father was found to be in breach of the order for having returned the child at 4.10 pm. In sentencing the father for this breach the judge was of the view that a fine would be an appropriate sentence but for the fact that the father would be unable to pay it. Because of this, he sentenced the father to a term of 7 days’ imprisonment, suspended for 6 months on terms that he did not breach any order in the proceedings or any part of any order to which a penal notice had been attached. The father appealed.

 

Held — allowing the appeal, discharging the suspended sentence and substituting no order —

 

A custodial sentence should be imposed only where justified. It was contrary to principle to impose a custodial sentence in circumstances where a fine would be appropriate. The judge had been wrong to resort to a custodial sentence merely on the basis that the father lacked the means to pay a fine.