L-W (Children), Re [2010] EWCA Civ 1253 (04 November 2010)

L-W (Children), Re [2010] EWCA Civ 1253 (04 November 2010)

The Court of Appeal held that the judge erred in law by treating the father's inability to compel the child to attend contact as a breach of the order, and by failing to distinguish between the father's obligations and the child's autonomy. The orders required the father to allow and make the child available for contact, but did not impose an absolute obligation to achieve contact regardless of the child's resistance. The judge also failed to properly apply the burden and standard of proof, and did not adequately consider whether the father had the ability to comply. Accordingly, the enforcement, compensation, and committal orders were set aside.

Citation
[2010] EWCA Civ 1253
Parties
Appellant: CPL; First Respondent: CH-W; Second Respondent: ML-W; Third Respondent: EL-W (by their Guardian ad litem)
Jurisdiction
England and Wales
Judgment Date
04 November 2010
Procedural Posture
Appeal (family Law Private Law Children) / Court of Appeal Judgment on Appeals Against Enforcement, Compensation, and Committal Orders
Outcome
Appeals allowed; enforcement, compensation, and committal orders set aside with minor exceptions.
Legal Topics
Contact Orders, Enforcement of Contact, Committal for Contempt, Compensation for Breach of Contact, Parental Responsibility, Burden and Standard of Proof, Welfare of the Child
Family Law Children Law Contact Orders Enforcement of Contact Committal for Contempt Compensation for Breach of Contact Parental Responsibility Burden and Standard of Proof +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

CPL

Appellant

CH-W

First Respondent

ML-W

Second Respondent

EL-W (by their Guardian ad litem)

Third Respondent

Procedural Posture

Appeal (family Law Private Law Children) / Court of Appeal Judgment on Appeals Against Enforcement, Compensation, and Committal Orders

Legal Issues

  1. 1 Whether the father breached contact orders by failing to ensure the child attended contact with the mother
  2. 2 Whether the father's inability to persuade the child constituted a reasonable excuse for non-compliance
  3. 3 Whether enforcement, compensation, and committal orders were lawfully and proportionately made

Ratio Decidendi

The Court of Appeal held that the judge erred in law by treating the father's inability to compel the child to attend contact as a breach of the order, and by failing to distinguish between the father's obligations and the child's autonomy. The orders required the father to allow and make the child available for contact, but did not impose an absolute obligation to achieve contact regardless of the child's resistance. The judge also failed to properly apply the burden and standard of proof, and did not adequately consider whether the father had the ability to comply. Accordingly, the enforcement, compensation, and committal orders were set aside.

Court Disposition

Appeals allowed; enforcement, compensation, and committal orders set aside with minor exceptions.

Orders

  • Committal order of 24 June 2010 set aside
  • Enforcement orders of 8 January 2010 and 27 January 2010 set aside