(Court of Appeal; Thorpe, Wall and Moore-Bick LJJ; 27 February 2009)
The child had been taken into the interim care of the local authority, and was living with foster parents. The child had maintained an excellent relationship with his mother's former partner, the father of one of the child's half-siblings. The step-father wanted to have contact with the child on a Sunday, which not only fitted in with his own working arrangements, but also allowed the half-siblings to spend time together. The foster father was not prepared to allow Sunday contact, and indeed said that if Sunday contact were ordered by the court, he would terminate the child's placement. The foster family was also failing to comply with an earlier order for telephone contact. The local authority supported the foster father. The county court judge considered that the foster father was attempting to threaten the court, and took a robust view of the case. She made an order, addressed to the local authority, requiring the authority to make the child available for face-to-face contact one Sunday every month, for 3 hours at a time, attaching a penal notice to the order, and also attaching a penal notice to the order for telephone contact. The judge rejected the local authority's argument that she had no jurisdiction, as a county court judge, to attach a penal notice to such an order, but, as a precaution, obtained permission to sit as a High Court judge, so that she could exercise the inherent jurisdiction. The local authority appealed.
An appropriately worded order made in the county court under Children Act 1989, s 34 was enforceable by committal. Although the order in this case was vague as to venue and the precise timing of contact, it was sufficiently clear to fulfil the requirements of County Court Rules Ord. 29.1: if the authority had failed to make the child available for contact by the end of the last Sunday in any month, it would clearly have failed to comply with the order. A county court judge had jurisdiction to attach a penal notice to a contact order in public law proceedings. Although Family Proceedings Rules 4.21A, which legislated for the imposition of penal notices, applied only to private law orders and was not expressed to apply to orders under s 34, it was not exhaustive, and CCR Order 29, r 1 was available to fill the gap. Although there might be occasions when it would be appropriate for a circuit judge hearing a child case temporarily to transfer the proceedings to the High Court in order to exercise powers under the inherent jurisdiction that he or she would not otherwise have, this had not been one of those occasions. In any event, a judge could not sit in both the High Court and the county court simultaneously in relation to the same matter. As contact was now working well, and in that respect the penal notice had achieved its purpose, the penal notice would be struck out with immediate effect.