A (Children), Re

Where a court makes a contact order, it should state clearly what the person responsible for making the child available is required to do. Practical difficulty, the child’s activities, or the possibility that sanctions may worsen family relations does not justify simply declining to act on an existing order. If the difficulty is that the order is not in mandatory terms, the court can consider amending it. Sanctions for breach of a contact order remain a last resort, but the order must provide clear and effective guidance about the contact required. These points apply with particular force where the child and both parents live in the same household.

The father and mother were judicially separated but continued to live together with their 12-year-old son, M. The father sought contact outside the home so that he could develop a normal father-and-son relationship. The Croydon County Court made a contact order, but the father said that it had not operated as intended.

He later applied for a penal notice to be attached to the order and sought clarification about M’s bedroom and passport. On 25 January 2001, His Honour Judge Ellis dismissed the penal-notice application, holding that a penal notice could not be attached unless the order was mandatory and that an order compelling the mother to make M available would be impracticable and contrary to M’s best interests. The central issue was whether that refusal justified ending the court’s involvement with an existing contact order.

1. Application adjourned. The application for permission to appeal was adjourned for a hearing on notice to the mother, with the appeal to follow if permission was granted. The court had heard only the father’s account and did not finally determine the merits of the underlying contact dispute.
2. A court which has made a contact order should not simply decline to take further action because compliance has proved difficult. If the refusal to enforce rested on the order not being in mandatory terms, the judge could consider amending the order to make its requirements clear.
3. Although sanctions for breach of a contact order should be imposed only as a last resort and may aggravate family difficulties, the order must at least make clear to the person responsible for making the child available, and to the child, what contact is expected.
4. The court must put the child’s interests before those of either parent. That consideration did not, on the material then before the court, make the father’s application wholly unfounded. The unusual feature that the father and child lived together did not remove the need for an effective order governing contact outside the home.

A transcript was directed to be prepared and served on both parties, with reporting restrictions continuing to apply.

• Court of Appeal (Civil Division): The application for permission to appeal was adjourned to a hearing on notice, with the appeal to follow if permission was granted: [2001] EWCA Civ 500.
• Croydon County Court: On 25 January 2001, His Honour Judge Ellis dismissed the father’s application to attach a penal notice to the existing contact order.