J (Children): No contempt when impossible to fulfil order

Lady Justice Black
A brief summary of the Court of Appeal judgment in J (Children) [2015] EWCA Civ 1019, handed down today.

This is, hopefully, the final judgment in the long-running child abduction saga of the mother who brought the children to Wales, failed to comply with an order to return them to Spain, and then, as widely reported in the newspapers at the time, absconded with the children before the police could enforce a collection order. To cut a long story short (if you want the details, see the earlier judgments, referred to in this judgment), the case finally revolved around two of the children, now aged 17 and 15, who remained with the mother and refused to return to Spain. In August 2013 the President ordered the mother to return the children. This did not happen, and the father applied for the mother's committal. The committal application went before the President, who gave judgment on the 9th of July 2014. He refused the application because, in his judgment, the father was required to prove to the criminal standard of proof that the mother could have ensured compliance with the orders and he had not achieved this. The father appealed to the Court of Appeal.

Giving the leading judgment Lady Justice Black essentially followed the President's reasoning:
"As I shall now explain, my conclusion that the appeal should be dismissed emanates from the particular circumstances of the case and I have not therefore felt myself compelled to determine the rights and wrongs of [counsel for the father's] arguments. In my judgment, it is necessary to look at the making of the orders against the mother in August 2013 and the father's application for the committal of the mother for contempt as a whole. This was not a case in which the possibility of compliance with the proposed order was investigated before the order was made, in the sort of depth that it might have been in a civil case, or even perhaps in another type of family case. The President decided to exercise his discretion by making orders despite the acknowledged risk that the children would frustrate them. His recognition of the potential impossibility of compliance is clear not only from what he said in his August 2013 judgment but also from his inclusion in the order of alternative dates for the return of the children ... It follows that, in making the order in the face of the risk that it would be impossible for the mother to fulfil it, he would have proceeded upon the basis that no finding of contempt could be made against her unless it was established to the criminal standard of proof that it was within her power to do what was required."
She continued:
"When it came, later, in the context of the contempt application, to a closer examination of whether fulfilment of the orders was possible, the President found that [the child] was clear, settled and determined in her long-held views and found that the father had fallen "well short" of establishing to the criminal standard that the mother could have achieved the return of the children to Spain"
Lord Justice Floyd and Lord Justice Sullivan gave concurring judgments.