W (A Child), Re

A penal notice should be attached to a contact order only where necessary because there is a real risk of disobedience. If attached, the order must define the required conduct precisely enough to support committal for contempt. An obligation to deliver a child without identifying the destination may be too vague and unenforceable. Permission to appeal may be refused where the challenged order has already been performed and the issue is academic. Costs remain a matter for the lower court’s discretion.

The father sought permission to appeal orders made by Her Honour Judge Fisher in Coventry County Court on 4 October 2001. The orders required him to make his child available for contact with the mother, to deliver the child to her and to collect him, and imposed a penal notice and costs. He argued that the penal notice was unnecessary and that the delivery obligation was too vague to enforce by committal. He also challenged the costs order in light of his financial and transport difficulties. By the hearing, the contact had taken place. The central issues were whether permission should be granted and whether the penalised contact arrangements were sufficiently necessary and precise.

Lord Justice Ward dismissed the applications for permission to appeal and for a stay of execution.

1. The proposed challenge to the contact order was academic. The father had delivered the child and the order had served its purpose. The Court therefore declined to grant permission.
2. The court nevertheless gave guidance for future contact orders. A penal notice should be imposed only where it is necessary because there is a real risk that the order will not be obeyed. If a penal notice is imposed, the order must define the contact arrangements and required acts so that it is abundantly plain what conduct could justify an application for contempt and committal.
3. The times specified in the order were sufficiently clear, but the requirement that the father deliver the child to the mother did not identify where delivery was to occur. It was therefore arguably too vague to be enforceable by committal. That issue did not warrant intervention because the appeal was academic.
4. The costs order was also left undisturbed. Costs were a matter for the lower court’s discretion. Although the judge could have shown greater sympathy to the father’s financial and practical difficulties, the Court of Appeal was unlikely to interfere, particularly since granting permission would create further costs without practical benefit.
5. The county court was invited to resolve the arrangements for collection and return, including whether the burden should fall on one party or be shared, as cheaply and efficiently as possible.

• Court of Appeal (Civil Division): applications for permission to appeal and for a stay of execution dismissed.
• Coventry County Court: on 4 October 2001, Her Honour Judge Fisher made contact, penal-notice and costs orders.