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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> J (Children)  EWCA Civ 1019 (07 October 2015)
Cite as:  EWCA Civ 1019
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ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE FLOYD
Mr Christopher Hames QC & Miss Laura Morley (instructed by Miles & Partners LLP) for the 1st Respondent
Mr David Williams QC (instructed by Brethertons LLP) for the 2nd Respondent
Hearing date: 29th July 2015
Crown Copyright ©
LADY JUSTICE BLACK:
"15. The normal approach of the court when asked to grant an injunction is not to bandy words with the respondent if the respondent says it cannot be performed or will not be performed. The normal response of the court is to say: "The order which should be made will be made, and we will test on some future occasion, if the order which has been made is not complied with, whether it really is the case that it was impossible for the respondent to comply with it." There is a sound practical reason why the court should adopt that approach, for otherwise one is simply giving the potentially obdurate the opportunity to escape the penalties for contempt by persuading the court not to make the order in the first place. That said, I have to recognise that the court – and this is a very old and very well established principle – is not in the business of making futile orders. How does one balance those two somewhat contrasting propositions?
16. The answer, it seems to me, is that one has to evaluate the degree of likelihood that the order, if made, will be futile, which, in the present case means that one has to evaluate the degree of likelihood that the order, if made, will be frustrated, not by the actions of the mother, but despite her best endeavours to ensure compliance, by the obdurate opposition of the children."
"21. I am not so foolish as to imagine that the order I am about to make will necessarily bear fruit. It may be that it will be as ineffective as the previous orders which have been made, but I am not persuaded that the likelihood of futility is such as to justify my declining to make the order the father seeks. I think there is a prospect, even at this late stage, that an order directed to the mother will have the desired effect, if not in relation to each of the two children perhaps in relation to one, the younger. In my judgment if the court is faced with a parent as obdurate and as in default of her parental obligation as this mother the court should not be deterred from making the appropriate order unless satisfied, and I am not satisfied, that the order will be a futility. Accordingly, I propose in principle to make the order which the father seeks."
The President's reasoning
"34. What I derive from these authorities are the following further propositions: (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."
The practical reality in relation to these children
The father's arguments on appeal
"The father's application ….for the committal of the mother to prison for breaching the orders of this court dated 20 August 2013 and 21 August 2013 is dismissed."
It has not been established that that order was wrong and I would dismiss the appeal against it.
LORD JUSTICE FLOYD:
LORD JUSTICE SULLIVAN:
I also agree.