L-W (Children), Re

L-W (Children), Re

The judge erred in law by overstating the father's obligations under the contact orders and by rejecting impossibility of performance as a defence. The orders required the father to 'allow' contact and 'make available' the child, not to ensure contact occurred. On the facts, breach was only established on three occasions where the father actively prevented contact. The enforcement and committal orders were not justified for other alleged breaches. Committal was inappropriate given the child's entrenched resistance and the likely harm to the child's welfare.

Parties
Appellant (father): CPL; First Respondent (mother): CH-W; Second Respondent (child): ML-W; Third Respondent (child): EL-W (by their Guardian ad litem)
Jurisdiction
England and Wales
Judgment Date
04 November 2010
Procedural Posture
Appeal (family Law Private Law Children Proceedings) / Appeal From Maidstone County Court Orders (enforcement, Compensation, Committal)
Outcome
Appeal allowed in part; enforcement and committal orders largely set aside; compensation orders set aside; case to remain in County Court.
Legal Topics
Enforcement of Contact Orders, Committal for Contempt, Compensation Orders, Parental Responsibility, Welfare of the Child
Family Law Children Law Civil Procedure Enforcement of Contact Orders Committal for Contempt Compensation Orders Parental Responsibility Welfare of the Child

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Parties

CPL

Appellant (father)

CH-W

First Respondent (mother)

ML-W

Second Respondent (child)

EL-W (by their Guardian ad litem)

Third Respondent (child)

Procedural Posture

Appeal (family Law Private Law Children Proceedings) / Appeal From Maidstone County Court Orders (enforcement, Compensation, Committal)

Legal Issues

  1. 1 Whether the father breached contact orders by failing to 'allow' contact and 'make available' the child for contact with the mother
  2. 2 Whether impossibility of performance due to the child's refusal is a defence to breach
  3. 3 Whether enforcement, compensation, and committal orders were properly made

Ratio Decidendi

The judge erred in law by overstating the father's obligations under the contact orders and by rejecting impossibility of performance as a defence. The orders required the father to 'allow' contact and 'make available' the child, not to ensure contact occurred. On the facts, breach was only established on three occasions where the father actively prevented contact. The enforcement and committal orders were not justified for other alleged breaches. Committal was inappropriate given the child's entrenched resistance and the likely harm to the child's welfare.

Court Disposition

Appeal allowed in part; enforcement and committal orders largely set aside; compensation orders set aside; case to remain in County Court.

Orders

  • Set aside enforcement order of 27 January 2010 and parts of 8 January 2010 order relating to certain breaches.
  • Discharge father from any remaining obligation to carry out unpaid work under enforcement orders.