Backing contact arrangements with penal notices and injunctions

The Court of Protection team at 39 Essex Street look at a case where an order relating to contact arrangements was backed by a penal notice and injunctions.

The proceedings in E & K v SB & JB [2012] EWHC 4161 (COP) are an example of a case in which an order making provision as to contact arrangements was backed with a penal notice and injunctions.

E and K both suffer from Fragile x syndrome with associated learning disabilities. In April 2010, the local authority commenced proceedings in the Court of Protection in respect of both girls. The other parties were SB (their mother) and JB (their step-father).

In January 2011, the court made final declarations that E and K both lacked capacity to litigate and to make decisions about their residence, the care and contact arrangements with their immediate family (SB and JB). The expert evidence before the court was that both E and K were able to contribute to the decision-making process, but K was not consistent.

The court approved a consent order declaring it to be in E’s and K's best interests to reside at and receive care at H House and to have contact with Mrs B restricted to pre-arranged supervised contact in a public place. Contact with JB was restricted to the extent that it should only take place in accordance with their articulated wishes and feelings and subject to the approval of the local authority.

The order was supplemented by a ‘Memorandum of Understanding: Contact’ in which the detail of the contact arrangements were set out.

Within a relatively short timeframe, issues arose in relation to the contact arrangements and the local authority applied to have the matter restored to the Court of Protection in October 2011 on the grounds that Mrs B and JB were in breach of its terms and those breaches were not in E & K’s best interests. The matter was not listed before the court until March 2012.

In the interim, there was a serious incident which resulted in JB being convicted and sentenced for dangerous driving. The offence had been committed in the course of a supervised contact session and using a vehicle registered in K’s name. The vehicle he was driving collided with the contact supervisor who was carried on the bonnet for some distance. JB was sentenced to a period of imprisonment and, was therefore unable to attend the court hearing in March 2012. Mrs B arrived late. As a result, a contested fact-finding hearing was not possible.

The contact arrangements were varied. Mrs B was permitted to have interim contact with E and K at the discretion of the local authority, taking into account E and K's wishes and feelings. An interim order was made prohibiting Mr B both from talking to E and K on the telephone and from contacting or attempting to contact either E or K without the express written permission in advance of the local authority. Any such contact was required to be in accordance with E and K’s properly articulated wishes and feelings at the time such contact was proposed to take place.

Interim injunctions were made preventing Mr B from coming within 100 metres of E or K without the prior permission of the local authority and prohibiting him from coming within 100 metres of the principal entrances of H House, E's work place and K's work place. A penal notice was attached.

The matter was then listed for a fact finding hearing in May 2012. The principal purpose was to determine to what extent there had been breaches of the 2011 order as to contact and to determine the contact arrangements going forwards.

By the time of the fact finding hearing, a number of admissions had been made and the dispute had narrowed. One live issue was whether any order as to contact should be backed by a penal notice, in respect of both JB and Mrs B. The evidence was that in the period since the March 2012 hearing, Mrs B’s contact had improved and she had been engaging on a better basis with the professionals involved with E and K. However, the local authority sought a penal notice against Mrs B and the Official Solicitor agreed that an order backed by a penal notice was more appropriate than simply allowing Mrs B to give undertakings.

District Judge Eldergill found that JB and SB had both committed serious breaches of the court’s earlier order and injunctions and penal notices were appropriate in both cases.

The case for injunctions and penal notices against Mr B was overwhelming as the repeated and serious nature of the breaches means that “penal notices are required to ensure that the injunctions are as effective as possible, and in order to protect E’s and K’s best interests.”

With regards to Mrs B, he accepted that there had been improvements but found, nonetheless that, a penal notice directed towards her was also necessary. She had been involved in serious breaches of the court’s order, and had behaved in a way that has harmed E and K.

The judge accepted the submission advanced on behalf of the local authority that allowing Mrs B simply to give an undertaking would not convey the seriousness of the breaches. He also took the view that the most serious test was yet to come (when JB was released from prison). District Judge Eldergill expressly recorded that he believed that that there are cases where prison is the appropriate sanction for contempt of court.

Comment

There are relatively few reported cases in which the court has upheld an application for contact arrangements to be backed by a penal notice and injunction. Although the facts on this case were relatively extreme, there were a number of features of the case which are more common - a break down in the relationship between the local authority and the interested parties and a detailed memorandum of contact arrangements which subsequently is not respected.

This is therefore a reminder of the range of the court’s powers to ensure that arrangements in P’s best interests are not compromised by family members. The penal notice (particularly in the case of Mrs B) was imposed partly by way of indicating the court’s disapproval of the everity of the breaches in which she had been involved.

This article was written by the Court of Protection team at 39 Essex Street.