Local Authority v HP & Anor

A county-court judge may enforce by committal an appropriately worded contact order under section 34 of the Children Act 1989 against the responsible local authority. The order must require the authority to perform an identified act within a specified time. Uncertainty about the venue or precise timing does not necessarily defeat enforceability. Family Proceedings Rules 1991 rule 4.21A, directed to specified private-law orders, is not exhaustive. County Court Rules 1981 rule 29.1 may fill the gap. A penal notice may be attached, including of the judge’s own motion, provided the process is fair and Article 6 compliant. Such notices are exceptional. The notice was deleted when it had served its purpose and contact was operating satisfactorily.

The appeal arose from care proceedings under Part IV of the Children Act 1989. Her Honour Judge Nasreen Pearce, sitting in the Luton County Court, ordered the local authority to make a child in interim care available for supervised monthly contact with a person who was not the child’s father. She attached penal notices warning of contempt and possible imprisonment if the order was disobeyed.

The local authority challenged the county court’s jurisdiction to enforce the order by committal and to attach a penal notice. By the hearing of the appeal, contact was operating satisfactorily. The issues were whether the order was enforceable, whether the notice was lawfully imposed, whether High Court powers were required, and whether the notice should remain.

1. Disposition. The appeal was dismissed on the jurisdiction issue but allowed in relation to continuation of the penal notice. The notice was deleted with immediate effect.
2. Committal for breach of a mandatory order requires an order directing a person or body to perform an act within a fixed time, followed by refusal or neglect to perform it within that time. The contact order required the local authority to make the child available for supervised contact on one Sunday each month for three hours. Although the venue and precise timing were left to agreement, the order was sufficiently clear and was capable of enforcement by committal.
3. The contact regime under section 34 of the Children Act 1989 was entrusted to the court rather than left to the local authority’s discretion. The local authority’s parental responsibility and its power under section 33(3)(b) to determine the extent to which others could exercise parental responsibility carried a corresponding responsibility to obey the contact order.
4. Family Proceedings Rules 1991 rule 4.21A, which concerned specified private-law orders, was not exhaustive. County Court Rules 1981 Order 29 rule 1 was available to fill the gap and permitted enforcement of the section 34 order. Since committal jurisdiction existed, the judge also had jurisdiction to attach a penal notice. Judges dealing with children under the 1989 Act had a broad procedural discretion and could act of their own motion, provided the process was fair and Article 6 compliant.
5. It was unnecessary and inappropriate for the circuit judge to invoke High Court inherent jurisdiction while sitting in the county court. A judge cannot sit simultaneously in both courts concerning the same matter. If High Court powers are required, the proceedings should be transferred before those powers are exercised.
6. Committal remains a remedy of last resort. In this exceptional case, attaching a penal notice was a proper exercise of discretion as a forceful warning that the order was expected to be obeyed. Once contact was working well and the notice had served its purpose, its continuation was no longer necessary. The Court of Appeal therefore deleted it, taking account of the child’s interests, the statutory philosophy that orders should be necessary, and the avoidance of further costs.

1. Court of Appeal (Civil Division): The appeal was dismissed on the question whether the section 34 contact order was enforceable and whether a penal notice could be attached. It was allowed to the limited extent that the penal notice was deleted immediately.
2. Luton County Court: Her Honour Judge Nasreen Pearce made the section 34 contact orders on 16 and 23 October 2008 and attached penal notices to them.