Penal Notice: What It Means and What to Do Next

Part of: Going against a family court order

A penal notice is a warning on the front of a court order. It tells the person the order binds that if they disobey it, the court may find them in contempt and punish them with prison, a fine or the confiscation of their assets (Family Procedure Rules 2010, r.37.2). Perhaps someone has just handed you an order that carries one. Or perhaps the other person keeps ignoring an order, and you want the court to take it seriously. Either way, this guide explains what the warning means and where the real decisions lie. It sits alongside our guide to going against a family court order, and it covers the law of England and Wales.

What is a penal notice? The warning on the front of the order

The Family Procedure Rules describe it as a prominent notice on the front of an order. It warns the person named in the order that if they disobey it, the court may treat that as contempt and punish it by a fine, imprisonment, confiscation of assets or other punishment under the law. In practice, it usually appears as a boxed paragraph in capital letters at the top of the first page. It speaks to the person named in it, not to everyone in the case.

So what does it not do? It helps to be clear, because people often read far more into it than it says:

• It is not a conviction. Nobody has found that you did anything wrong.
• It is not a new order. It adds no duty that the order did not already contain.
• It proves nothing by itself. If someone alleges a breach, the court will only find contempt if it is sure, which means satisfied beyond reasonable doubt (FPR r.37.4(2)(o)).

Its purpose is fairness. Prison is the most serious thing a family court can do to a parent or former partner. The law therefore wants the person bound by an order to know, plainly and in advance, what disobeying it could cost.

Penal notice: family court orders that carry one, and those that do not

Whether you see this warning depends on what the order does. As a rule of thumb, the warning can back an order that tells someone to do, or not to do, a specific thing. An order that creates a status, or that orders a payment, works differently.

Why the difference matters for children

The warning notice under section 11I is what lets the court make an enforcement order, such as unpaid work, and the court can only do that if the parent had received a copy of it, or learned its terms, before the breach (Children Act 1989, s.11K). An order made before 8 December 2008 may not carry a warning notice at all, and form C78 exists for that situation. Our guide to dealing with a breach of a child contact order walks through those enforcement steps.

If the order binds you: what the warning means for you

Receiving an order that carries a penal notice is frightening, especially if you think the order is wrong. However, the warning does not change what you must do. It changes how seriously the court can treat a breach. These steps protect you:

1. Read every paragraph, twice. Write down in plain words what you must do or not do, and by when.
2. Comply exactly, even with the parts you disagree with. Disagreement is a reason to ask the court to change the order, not to ignore it. Our guide explains how varying an order instead of breaking it works.
3. Tell the other side at once if something becomes impossible. Illness, a changed shift pattern or a child who refuses to go are all things to raise in writing straight away, and not after the event.
4. Keep a dated record. Note each time you complied, so you can show it later if you need to.
5. Do not answer an allegation in anger. What you write in a message can end up in front of a judge.

If the order is a non-molestation order, breaking it without reasonable excuse is also a criminal offence. However, once conduct has led to a conviction, the court cannot also punish it as contempt, and the reverse applies too (Family Law Act 1996, s.42A(3) and (4)).

Whether something counts as a breach at all turns on the exact words of the order, what you knew at the time and what was realistically possible. That is a judgement, not a checklist. If you are unsure whether you are complying, or someone has accused you of breaking the order, a free initial consultation is the right place to test it before you reply.

What breaking the order can lead to

If the court finds a breach proved, it may impose a period of imprisonment, known as an order of committal, a fine, confiscation of assets or another punishment the law allows. It can also suspend a committal order, so that it only takes effect if there is a further breach (FPR r.37.9). A term of imprisonment for contempt cannot exceed two years on any one occasion (Contempt of Court Act 1981, s.14(1) and (4B)).

The person accused also has real protections. The application must tell them that they have a reasonable time to prepare, that they may give evidence but do not have to, and that they may remain silent. It must also tell them that admitting the contempt and apologising is likely to reduce the seriousness of any punishment (FPR r.37.4(2)(l) to (q)).

Our guide to committal proceedings in the family court covers how a contempt application runs, step by step. For one reported example of where persistent refusal can end, read about a father imprisoned for refusing to obey court orders. For the person accused, the key decision is often whether to admit, explain or dispute. That choice shapes everything that follows, so make it with advice rather than alone.

How to ask the court to add a penal notice

If the other person keeps breaking an order and it has no such warning, you can ask the court to attach one. This is not a form-filling exercise. The judge needs to see that the order is clear enough to enforce this way and that a warning is justified.

1. Check the front page and the wording. Look for a boxed warning, a warning notice or neither. Then note which paragraphs the other person keeps breaking and whether each one says exactly what must happen, and when.
2. Choose the right route. For a child arrangements order, an enforcement order, a change to the arrangements or mediation may do more good than a warning of prison. For money, different tools apply.
3. Ask the court. You usually do this by an application within the existing case, explaining which paragraphs need the warning and why.
4. Arrange proper service of the endorsed order. The rules expect someone to hand it to the person, unless the court has dispensed with that (FPR r.37.4(2)(c) and (d)). An email or a text message may not be enough.
5. Keep a dated record from then on. Breaches after that point are the ones that count.

The hard part is not the paperwork. Instead, it is judging whether your order is precise enough, whether a warning of prison will change behaviour or inflame it, and how the step will land with your child. Getting those calls wrong can cost months and end in a failed application. So test them first at a free initial consultation, where a specialist gives you initial advice on your own order.

When an order gives the warning nothing to hold on to

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Penal notice: frequently asked questions

Expert Tip

The first thing I look at is not the box on the front of an order but the words inside it. A penal notice only has force if the paragraph behind it says clearly what must happen and when. Wording such as “reasonable contact” or “as agreed between the parties” gives a judge very little to enforce. If you are agreeing an order now, press for dates, times and handover arrangements in writing. If you already live under one, write down what each paragraph actually requires of you.

Iblal Iqbal, Partner & Family Law Strategist

General information about the law in England and Wales, not advice on your circumstances.