A penal notice in family court proceedings is a formal warning that is attached to a court order telling the person bound by the order that if they do not comply, they may be found in contempt of court. In other words, it is the court’s way of saying “you must follow this order, or you will face enforcement action”.
Penal notices are commonly used for child arrangements, financial matters, occupation orders, and non-molestation orders where the other party is not complying. The consequences of not complying with a court order in England and Wales can include imprisonment, a fine, or the seizure of assets.
It is important to understand that penal notices are not automatically attached to every family court order. They are generally attached where there is a risk of deliberate non-compliance.
Penal notices can be used in a range of family law situations, including:
- Refusal of contact rights: e.g. where one parent prevents the other from spending time with their child as ordered
- Unauthorised relocation: e.g. where a parent changes the child’s residence without the consent of the other parent or the court
- Non-payment of child maintenance: e.g. where a parent fails to provide financial support as directed by the order
- Not following a child arrangements order (CAO): e.g. where one parent ignores the timetable or plan set by the court
- Breach of a financial order: e.g. where one party fails to transfer property, pay a lump sum, or disclose assets as ordered.
- Breach of an occupation order: e.g. where a person returns to a property they were ordered to leave
- Breach of a non-molestation order: e.g. where someone contacts or harasses the protected person despite being prohibited.
A typical penal notice reads along the lines of:
“If you disobey this order, you may be held to be in contempt of court and the court may enforce this order by committal to prison, a fine, or the seizure of your assets.”
This warning makes it clear that the order is not optional; it must be adhered to.
How does a penal notice work?
A penal notice in the family court only has effect if the order is properly served. The process usually works as follows:
On the service of the family court order
- A penal notice is not automatically attached when a court order is first served. The other party normally has to apply to the court for it to be added. It is, however, possible to request that a penal order be attached when it is issued or varied if there is reason to do so.
- A family court order cannot normally lead to committal for contempt (e.g. fine, seizure of assets, or imprisonment) unless a penal notice is attached.
- The court order must be personally served on the person bound by it. Leaving it at their address or posting it may not be enough.
- Proof of service is essential. If the person has not been served, the court will usually dismiss a committal application.
Under new rules which came into force in April 2024 (CPR r.81.2), it may be possible for a party to attach a penal notice to an order without needing permission from the court. To clarify if you need to request permission from the court, we recommend speaking to a family law Solicitor in the first instance.
If a family court order with a penal notice attached is breached
If the situation arises where a family court order with a penal notice attached is breached:
- The aggrieved party (i.e. the person affected by the breach) can apply for committal for contempt of court
- The applicant must provide evidence, such as witness statements or affidavits, to prove both the breach and that the person knew about the order
- At the committal hearing, the court will consider:
- Whether the order was clear and unambiguous.
- Whether the person understood it and had been served.
- Whether the breach was deliberate and without reasonable excuse.
If these tests are met, the court may impose penalties ranging from suspended orders to immediate imprisonment.
What if a family court order doesn’t contain a penal notice?
Without a penal notice, the court will usually refuse a committal application. This is because the person bound by the order was never formally warned of the consequences. However, the order is still valid and binding. Breach of court order, family court proceedings can still be dealt with in other ways.
Depending on the order, the following may be possible:
- Apply to add a penal notice – the court can amend the order to include one, making future enforcement possible.
- Child arrangements orders – an application for an Enforcement Order under section 11J of the Children Act 1989 can be made. This can include compensation for financial loss caused by the breach.
- Non-molestation orders – such orders are enforceable by the police even without a penal notice. A breach is a criminal offence and can lead to arrest.
- Financial orders – alternative orders such as attachment of earnings orders, charging orders, or third-party debt orders may be used.
Ultimately, without a penal notice, committal applications usually fail, but other enforcement routes may be available.
Reference:
JUSTICE.GOV.UK: PART 81 – Applications and Proceedings in Relation to Contempt of Court
