Local Authority v HP & Anor

Judgment

Lord Justice Wall:

Introduction

This is the judgment of the court.

As presented to us, this appeal, for which Wilson LJ gave permission on paper on 17 November 2008 raises a short point which, according to the considerable industry of counsel, appears not to have been decided before. As argued before us, it can be formulated in the following way:

does a judge sitting in the county court have the power to attach to a contact order made in public law proceedings under section 34 of the Children Act 1989 a penal notice addressed to the local authority stating that if the order is not obeyed, the local authority will be in contempt of court and the officer responsible for the implementation of the order – alternatively the Head of Children’s Services- may be sent to prison?

In our judgment, however, although the judge did attach a penal notice to her order, and the appeal is brought against the imposition of the penal notice, the more profound and underlying question is whether or not an appropriately worded order made under section 34 of the Children Act 1989 in the county court is enforceable by committal.

No committal proceedings have, to date, been issued for the very simple reason that the order for contact made by the judge has now been fully implemented. However, two further questions inevitably arise if the answer to both the questions posed in paragraphs 2 and 3 above is “yes” namely; was it, on the facts of this case, an appropriate exercise of the power for such a notice to be imposed; and, if the answers to all the questions so far identified is “yes”, should the penal notice remain in place now that contact, it appears, is working smoothly? For obvious reasons, we will postpone consideration of the final two questions until we have answered the first two.

For those, however, who are not inclined to read any further, we will say at once that in our judgment the answer to the question posed in paragraph 3 above is “yes”, as is the answer to the question posed in paragraph 2. The answer to the first of the two question posed in paragraph 4 is also yes. However, on the particular facts of this case the answer to the final question is, in our judgment “no”. The appeal will, accordingly, be dismissed in relation to the question of jurisdiction, but will be allowed to the extent that the penal notice will be deleted from the order with immediate effect.

The appeal

This judgment sets out our reasons for reaching these conclusions. We pr