CONTACT/CONTEMPT: B v S [2009] EWCA Civ 548

14 MAY 2009

(Court of Appeal; Ward and Wilson LJJ; 14 May 2009)

In the context of a serious history of refusal to comply with contact orders, the mother was sentenced to three concurrent terms of 28 days' imprisonment for three contempts of court, including her refusal to comply with two orders requiring her to make the 3-year-old child available for contact with the father. During the hearing it was arranged that the 3-year-old child would remain in the care of the maternal grandmother, with whom the mother and her children were living. However, the judge assumed that the mother's 3-month-old baby from a different relationship, who was still breast-feeding, would be able to reside with the mother in prison. In fact, when the mother arrived at the prison, it became clear that the prison authorities required 28 days notice to make arrangements for the baby. The mother appealed her sentence. The father did not oppose the mother's appeal.

The judge had been entitled to consider the wider context of the mother's refusal to comply with contact orders, and therefore to recite earlier breaches of contact orders. The court declined to suspend the mother's sentence; the days were long gone when mothers could assume that their role as carers of children protected them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders. However, the baby's right to respect for family life had been breached by the judge, inadvertently, because he had not realised that the sentence being imposed on the mother would require the separation of the baby from the mother. Therefore the appeal was allowed; the court would apply forthwith to the prison for authorisation for the baby to accompany the mother for the duration of any term of imprisonment. The court directed a further hearing before the original judge after 28 days, to review the prison's response. If, in the meantime, contact between the 3 year old child and the father had taken place, the judge might choose to view the mother's contempt in a different light.

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