H v T (Committal Appeal: Notices on Orders)
| Jurisdiction | England & Wales |
| Neutral Citation | [2018] EWHC 1310 (Fam) |
| Date | 2018 |
| Court | Family Division |
Children - Orders with respect to children - Enforcement - Penal notice - Suspended committal order made against mother on application for enforcement of child arrangements order - Whether penal notice attached to original order adequate - Whether original order capable of being enforced by way of committal - Whether committal order wrong by reason of procedural defects - Guidance on correct format of warning and penal notice to be attached to child arrangements order -
The paternal grandmother of a young child obtained a child arrangements order under section 8 of the Children Act 1989 requiring the mother to make the child available for contact. The order, in its final form, contained a warning notice appearing to combine in a single condensed paragraph the warnings in respect of an enforcement order and the warning that a contempt of court might result in committal to prison. No contact took place. The grandmother applied for an enforcement order under section 11J of the 1989 Act and in her statement in support of the application invited the court to make a suspended committal order. At the conclusion of the hearing of the enforcement application the recorder made a committal order, imposing a suspended custodial sentence upon the mother. The mother appealed, inter alia, on the grounds that she had not been given adequate notice of the committal proceedings or received any warnings that a prison sentence might be imposed at the hearing.
On the mother’s appeal—
Held, allowing the appeal, that all child arrangements orders made under section 8 of the 1989 Act had to contain a warning notice as set out in section 11I of that Act; that such a warning notice was different from a penal notice under FPR r 37.9; that for an order under section 8 of the 1989 Act to be enforced by way of a committal order under FPR r 37.4, it had to be endorsed with a penal notice which complied with the requirements of FPR r 37.9 and Practice Direction 37A supplementing FPR Pt 37; that, therefore, the penal notice had to contain the words set out in paragraph 1.1 of the Practice Direction, or words to substantially the same effect, which had to be prominently displayed on the front of the order; that, moreover, pursuant to rule 37.9(1), a penal notice could only be endorsed on an order under section 8 of the 1989 Act, including a child arrangements order, where the court, on the application of the person entitled to enforce the order, had expressly directed that it be endorsed; that, consequently, since the original order did not contain a penal notice in terms that complied with FPR r 37.9(1), it was not capable of being enforced by an order for committal under FPR r 37.4; that a number of other significant procedural irregularities, stemming from the fact that no application to commit had been made or served on the mother, supported the clear conclusion that the recorder’s order had been wrong; and that, accordingly, the suspended committal order would be set aside and the grandmother’s enforcement application relisted for hearing (post, paras 24–29, 30, 32–34, 36, 48).
APPEAL from Mr Recorder Wilson sitting in the Family Court at Mansfield
In late 2016 the paternal grandmother, CT, and her new partner, P, successfully applied, pursuant to section 10 of the Children Act 1989, for permission to apply for a child arrangements order under section 8 of the 1989 Act in respect of the child, E. The application was opposed by the mother, CH. An order of the Family Court dated 21 July 2017 provided for the grandmother to have contact with the child every Sunday. By an order dated 14 September 2017 Judge Lea dismissed the mother’s subsequent appeal. No contact having taken place, and by an application dated 26 October 2017, the grandmother applied for an enforcement order under section 11J of the 1989 Act. On 20 February 2018 Mr Recorder Wilson, having heard from the mother in person that she did not intend to obey the order of 21 July 20147, made a committal order imposing a suspended custodial sentence upon the mother.
By an appellants’ notice filed in the Family Division on 26 February 2018 the mother appealed on the grounds, inter alia, that (1) the order of 21 July 2017 had been defective because it referred to P as a paternal grandparent, (2) she had not been given proper notice of the committal proceedings and consequently did not attend the enforcement hearing with legal representation and (3) she had not been warned by the court that a prison sentence might have been imposed at the hearing.
The hearing was held in private and the judgment is reported with leave of the judge on the basis that the anonymity of the child and her family members be strictly preserved.
The facts are stated in the judgment, post, paras 1–16.
Robert Glansfield, solicitor (of Bhatia Best Ltd, Nottingham) for the mother.
James Conlon (instructed by MKB Solicitors llp, Barnsley) for the grandmother.
The court took time for consideration.
25 May 2018. BAKER J handed down the following judgment.
1 On 1 May 2018, sitting at Nottingham, I allowed an appeal against a suspended committal order made by a recorder sitting in the family court following the appellant’s failure to comply with an earlier order which required her to make her daughter available for contact with the respondent to this appeal. This judgment sets out the reasons for my decision.
Summary of facts2 The proceedings concern a little girl, hereafter referred to as E, now aged rising five. Throughout her life, E has lived with her mother, the appellant in this case. E’s father died in 2014. Both of E’s paternal grandparents—her grandmother, C, and grandfather, G—are still alive, but are no longer in a relationship. Indeed, it is clear from court documents I have seen, and their conduct during the hearing before me, that relations between them are extremely poor. It seems that, for a while after her father’s death, E was having contact with her paternal grandmother C, and her current partner, P. That broke down in circumstances that are disputed between the parties. The mother alleges that C abused her own children, including E’s father, when they were young, and in making these allegations has been supported by the grandfather, G. C denies these allegations, and instead asserts that the mother only stopped contact after C and P reported concerns to social services about the mother’s partner. I am not in a position to decide where the truth lies in these cross-allegations, and it is unnecessary for me to resolve them for the purposes of this appeal.
3 Towards the end of 2016, C and P applied for permission to apply for a child arrangements order so that they could resume contact with E. The application was opposed by the mother but permission was granted, and the application for a child arrangements order was listed for a contested hearing before justices sitting in the family court on 21 July 2017. At the conclusion of the hearing, the justices made an order for contact. In the reasons for their decision, they concluded that “it was appropriate for the paternal grandparents to have time with their granddaughter”. The mother and G have objected strongly to the use of the phrase “paternal grandparents” to mean C and P, when P is, in fact, not her grandparent. The order drafted immediately after the hearing provided that C should have contact every Sunday, in a two-weekly cycle, week one from 12 noon to 2 p m and week two from 12 noon to 5 p m. The sealed version of the order, however, provided that both C and P should have contact at those times. This difference has also been the cause of grievance between the parties and was the subject of an application some months later to amend the order as described below which led to a third version of the order.
4 All of the versions of the order contained the following words on the front of the order: “if you do not do what the child arrangements order says you may be sent to prison and/or fined, made to do unpaid work or pay financial compensation.” In the version handed down immediately after the hearing, the words are in bold typeface, whereas in the sealed order they are in ordinary font. The sealed version of the order also contained an endorsement on the second page, in bold typeface, headed “Warning”, which included the following words:
The version of the order handed out immediately after the conclusion of the hearing contained the words “WARNING NOTICE” at the bottom, but no words underneath.“Where a child arrangements order is in force: if you do not comply with a provision of this child arrangements order (a) you may be held in contempt of court and be committed to prison or fined; and/or (b) the court may make an order requiring you to undertake unpaid work (‘an enforcement order’) and/or an order that you pay financial compensation.”
5 No contact has taken place under the order. C and P have allegedly attended outside the mother’s property every Sunday but have not been allowed to see E.
6 The mother appealed against the order and also filed a further application for another child arrangements order, effectively to supersede the first order. Shortly before the hearing of the appeal, G applied for permission to intervene in the proceedings to support the mother. The appeal was listed before Judge Lea on 14 September 2017. At the start of the hearing, the judge refused G’s application, whereupon both G and the mother left the court. The judge proceeded to consider the mother’s application for permission to appeal against the order of 21 July. He dismissed the application and ordered the mother to pay the respondents’ costs in the sum of £1,320.
7 On 26 October 2017, C filed an...
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