B v S

Lord Justice Wilson:

A mother appeals from an order made yesterday, 13 May 2009, by His Honour Judge Rylance, sitting in the Epsom County Court but as if in the Guildford County Court, that she be forthwith committed to prison for three terms of 28 days, to run concurrently, for three contempts of court, namely in refusing to comply with two orders that she should make a child available for contact with her father and with a third order that she should attend court on a specified date in order to participate in a hearing about such contact. The judge however went on to provide for a further hearing within the 28 day period, namely on 22 May 2009, at which the mother might seek to purge her contempt.

The child who is the subject of the proceedings is a girl, T, who was born on 7 August 2005 and who is thus three years old. The primary basis of the appeal, however, is the situation of another child, a boy, B, born to the mother on 4 February 2009, and thus a baby aged three months, by a man who is other than T’s father and to whom the mother is engaged but with whom she does not co-habit. It will however be convenient for me to describe T’s father, who is the respondent to this appeal, as “the father”. It appears that, pending the marriage of the mother to her fiancé and the father of the baby, the mother and both children live with her own mother, namely the children’s maternal grandmother.

Yesterday’s hearing before the judge seems to have proceeded on the assumption, which was entirely valid, that, were the mother committed to prison, T could continue to live temporarily with the grandmother. The corresponding assumption in relation to B, however, seems to have been, although it was not expressly articulated until a very late stage of the hearing, that, were the mother committed to prison, the prison would allow her to take him with her to reside there during the period of her imprisonment. The mother is currently breastfeeding B and indeed he takes no food at all other than from the breast.

The primary ground of the appeal is that when, following the hearing in the Epsom County Court, a van arrived at court in order to convey the mother to HMP Bronzefield, it became clear that the prison would not, at any rate there and then, also admit B. The practice of the prison (so the mother and her advisors were told) is to require an application to be made on paper for a mother to be allowed to bring a child with her to reside in the prison and its determinat