Re L-W (Children) (Enforcement and Committal: Contact); CPL v CH-W and Others: CA 4 Nov 2010

The father appealed against orders made in the county court in the course of child contact enforcement proceedings. He had residence of the child, but had repeatedly failed to make his son available for contact at the times ordered causing financial loss to the mother who had travelled to see him.
Held: With minor exceptions, the appeals succeeded.
Munby LJ said: ‘(1) The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law. (2) The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopt Hughes LJ’s language, Could he do it? Was he able to do it? These are questions of fact. (3) The burden of proof lies throughout on the applicant: it is for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it. (4) The standard of proof is the criminal standard, so that before finding the defendant guilty of contempt the judge must be sure (a) that the defendant has not done what he was required to do and (b) that it was within the power of the defendant to do it. (5) If the judge finds the defendant guilty the judgment must set out plainly and clearly (a) the judge’s finding of what it is that the defendant has failed to do and (b) the judge’s finding that he had the ability to do it.’
. . And ‘Bearing in mind that a defendant is not in breach of a mandatory order, even if he has not done what the order required, if it was not within his power to do it, issues of force majeure are properly to be considered as going to questions of breach rather than reasonable excuse. So, for example, if a parent taking a child for contact is prevented from going on or is delayed by unforeseen and insuperable transport or weather problems – one thinks of the sudden and unexpected grounding of the nation’s airlines by volcanic ash – then there will be no breach. Reasonable excuse, in contrast, arises where, although it was within the power of the defendant to comply, he has some good reason, specifically, a ‘reasonable excuse’, for not doing so. A typical case might be where a child suddenly falls ill and the defendant, reasonably in the circumstances, takes the child to the doctor rather than going to contact.’
. . And ‘If it is to be said, for example, that on 30 January 2010 the father was in breach of the order then, to repeat, the task for the judge is to identify, by reference to the express language of the order, precisely what it is that the order required the father to do on 30 January 2010 and then to determine whether the father has done what he was required to do and, if he has not, whether it was on 30 January 2010 within his power to do it. So any allegation of breach necessarily involves a close and careful scrutiny of the events of the day in question. Moreover, the question in the example I have given is whether, on 30 January 2010, it was or was not within the power of the father to do what the order required. If the answer to that question is that it was, 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.’
Munby, Jacob, Sedley LJJ
[2010] EWCA Civ 1253, [2011] 1 FCR 78, [2011] Fam Law 14, [2011] 1 FLR 1095
Bailii
Children Act 1989 11J 11K 11L 11M 11N 11O 11P
England and Wales
Cited by:
CitedJones, Re (Alleged Contempt of Court) FD 21-Aug-2013
The Solicitor General sought the committal of the respondent for alleged contempt of court. There had been repeated litigation between the respondent and her former husband as to whether the children should live in Spain with the father or in Wales . .

These lists may be incomplete.
Updated: 01 March 2021; Ref: scu.425801