CH v CT

A child arrangements order cannot be enforced by committal unless the procedural safeguards for contempt proceedings have been followed. A party’s admitted breach does not remove the need for a properly issued and served committal application, adequate notice of the allegations, and a fair opportunity to respond.

Committal is a remedy of last resort in child arrangements cases. The court should consider the statutory enforcement procedure and other available remedies. A warning notice under the Children Act 1989 is distinct from a penal notice under the Family Procedure Rules. A penal notice must be expressly directed, prominently displayed on the front of the order, and compliant in substance with the relevant rule and practice direction.

The appellant appealed against a recorder’s suspended committal order made after she failed to make her daughter available for contact under a child arrangements order. The respondent had applied for an enforcement order under section 11J of the Children Act 1989, but no separate committal application had been issued or served.

The recorder nevertheless found deliberate contempt and imposed a suspended sentence of three months’ imprisonment. The appeal concerned the procedural validity of the committal proceedings, the adequacy of the notice attached to the child arrangements order, and the availability of publicly funded representation.

1. Appeal allowed. The suspended committal order was set aside. The appellant’s failure to comply with the child arrangements order did not empower the court to commit her without compliance with the procedural requirements for contempt proceedings.
2. The respondent had applied for an enforcement order under section 11J of the Children Act 1989, not for committal. The appellant had received no proper notice of a committal application. The requirements of FPR rules 37.10(3) and Practice Direction 37A were also not met: the alleged contempts were not separately and numerically identified, supporting affidavit evidence was absent, and the appellant was not given the required warning, reasonable time to prepare, information about criminal legal aid, or a proper opportunity to obtain legal advice.
3. The recorder’s reasons were inadequate. They did not clearly identify the breaches proved or explain why committal was appropriate instead of an enforcement order or another remedy. Committal should be treated as a remedy of last resort in cases concerning enforcement of child arrangements.
4. A child arrangements order may be enforced by committal only if it contains a compliant penal notice under FPR rule 37.9(1) and Practice Direction 37A. The warning notice required by section 11I of the Children Act 1989 is different. Every child arrangements order must contain the statutory warning notice, but a penal notice requires an express direction under FPR rule 37.9(3)(a). It must be prominently displayed on the front of the order and contain the prescribed words or words substantially to the same effect.
5. The order in question conflated the two types of notice and was not capable of enforcement by committal. The application for an enforcement order under section 11J was remitted for consideration by a circuit judge, including whether the appellant had a reasonable excuse. The underlying child arrangements order remained in force.
6. Proceedings for committal in family proceedings constitute a criminal charge for the purposes of article 6 of the Convention. Representation in committal proceedings in the High Court, including an appeal against a committal order, is therefore in the interests of justice, and there is no financial test for such proceedings. The judge did not finally determine the dispute between the High Court and the Legal Aid Agency as to the relevant authority.

• High Court (Family Division): allowed the appeal against the recorder’s suspended committal order, set it aside, and directed that the enforcement-order application be listed before a circuit judge.