This post by Celia Kitzinger on the Open Justice Court of Protection Project site, ‘Sentencing in contempt proceedings’, is actually a Family Court case. Celia explains why the hearing caught her eye in the lists, how she observed it, and why she has written about it in the context of that project’s work on the Court of Protection.
In last month’s Roundup, we wrote about the recent Court of Appeal judgment where Ms Justice Henke was found to have been wrong not to send a mother to prison. The mother was refusing to comply with a court order for her child to meet a Cafcass guardian to begin some work toward building a relationship with the child’s father. The mother had ignored many other court orders made over the years in applications by the father.
The case then went to Mrs Justice Lieven, who Celia reports as suggesting that the Court of Appeal had left her with no choice.
This is what we wrote last month:
Re B (a child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048
The judgment in this appeal was sent out by the Judicial Press Office but we haven’t seen any media coverage of it. The father in the case is serving a prison sentence for fraud in Slovakia. He has made repeated applications regarding the child after the mother moved to the UK about eight years ago. Orders were made in Oxford Family Court for the mother to provide welfare updates to the father and to allow a Cafcass guardian to begin some work with the child on learning about her paternal heritage. These orders were not complied with by the mother and she was found to be in contempt of court: the father applied for her to be committed to prison. However Ms Justice Henke concluded that although she could send the mother directly to prison, this would make no difference to the mother’s attitude towards allowing the guardian to meet the child. The father appealed and the Court of Appeal decided that Henke J had been wrong not to impose any sanction on the mother. The mother might see things differently when faced with imprisonment and the authority of the court needed to be upheld. The case was sent back for the High Court to reconsider the sentence.
The new High Court decision by Lieven J
Celia wrote:
The judge, Mrs Justice Lieven, ordered the local authority to send social workers immediately to the mother’s home to collect the child – and as soon as the child had been removed, the police would arrest the mother and take her to prison. The judge made it absolutely clear that she did not want the mother to go to prison. She said she was in an “invidious position” because “I have the Court of Appeal telling me I have to send this lady to prison, effectively. I have a mother who I suspect has engineered a situation where there is nobody to look after the child, and a local authority who has effectively washed their hands of the situation”.
The post concludes with some reflections by Celia on whether it was in the child’s best interests (or welfare, in Family Court terms) for her to begin the sessions with Cafcass when that could only happen if her mother went to prison and she was taken into care.
The Court of Appeal quoted Henke J as having said that ‘I also take into account the impact on [the child] if I were to send her mother to prison. It would be direct, the harm would be emotional, psychological and financial.’ No other reference to welfare appears to have been made by Lady Justice King in the Court of Appeal or Lieven J in the High Court, despite the fact that the order now being enforced was originally made on the basis of the child’s welfare.