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penal notice enforement

  • upbeat
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30 Aug 12 #352889 by upbeat
Topic started by upbeat
Hi peeps,
If anyone can help I would be greatful :)have searched the site but cant find the answer.
in the situation of ancillary releif, when a penal notice is attached to an order under what direction does the judge have to adhere to? or section of the FPR, MCA or other and do these explain how, when, why ect ? and which section to enforce it?
i.e
1. If it is enforced at what point can it be enforced?
2. What are the enforcements available? I know imprisonment but for how long? what are the least most terms ect and where does it state this?
3. If this was the case what form Ect is this done on not to ask for it but to lock someone up, or is it another seperate hearing?
4. Is this up to the judge to decide sentence or......

What I am asking is for the legal direction ect to read as some are to do with criminal and I''m not sure if they are different :huh:also answers opinions on a postcard would be appreciated :)

thankyou xx

  • .Charles
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31 Aug 12 #352997 by .Charles
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If a party does not comply with Directions you ask for a penal notice to be attached to that (those) direction(s). If the defaulting party fails to comply with the penal notice you can then apply for a committal to prison.

The committal process is rare as most parties cave in with a threat of prison held over them. A colleague of mine went through the process to compel the other side to file his form E. The judge ordered that my colleague accompany him to the court office to swear his Form E and to not let him leave the building. My colleague had no real authority to detain him and had the other side ''escaped'' the judge would probably have issued a warrant for arrest.

In another case the Judge ordered that the offending party be taken to the cells and brought back before him the following morning, the process to be repeated until compliance had occurred (completing documents).

In the case of a breach of an injunction, the judge can make whatever order s/he sees fit but committal is normally overnight or maybe a week. Enough time to realise that a breach is not worthwhile.

You can apply for a penal notice on paper provided that the breach is unchallengeable e.g. failing to file documents at court and serve on the other side. The committal has to be served personally though to ensure that the respondent is given notice of the hearing as the judge will make an order in their absence if satisfied that they have received the notice of hearing.

Charles

  • upbeat
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04 Sep 12 #353733 by upbeat
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Thanks for the reply it was just that the jusdge asked me if I wanted my x to be arrested and improsioned and for how long i wanted him to be improsioned so was woundering what the options would have been if i had chosen to go down that route.

  • shimmyaway
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27 Feb 13 #381504 by shimmyaway
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I may well have to make that decision soon as well. We now have a penal notice attached to my ''ex'' husband''s non-compliance. Why make it so bloody difficult!!

  • .Charles
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27 Feb 13 #381529 by .Charles
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Largely due to the fact that family matters are dealt with in the civil court and to impose a custodial sentence is a very serious step.

The procedure is actually very simple: a party fails to comply with a direction, the other party applies for a penal notice which is granted if the court believes that the application has merit and if the penal notice if breached, the applicant can apply for a the committal of the respondent.

Even on an application for a committal the respondent will have plenty of opportunity to comply. A colleague of mine made such an application for the respondent to file his form E. My colleague was directed to escort the respondent to the court office to hand write and swear a Form E at the court office. The respondent did comply but my colleague did wonder what would happen if the respondent had done a runner as he would technically be in breach of the court''s direction!

Anyhow, personal liberty is not to be taken lightly and the court is not in the business of sending people to the big house on the basis of an application that might be inaccurate or untrue. The evidence has to be tested before liberty can be taken away.

Charles

  • shimmyaway
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27 Feb 13 #381531 by shimmyaway
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sorry Charles I meant why do ex partners have to make it so difficult not the court! Although the court system has been extra-orindarily slow (I''m told because the whole system is ''collapsing'' and under huge strain.

I think I understand the process, just feel very sad it has had to come to this.

Thank you though for your reply.

  • chollylop
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27 Feb 13 #381569 by chollylop
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I am not sure if this is the information you are looking for but my brother failed to appear in court on any occasion, reply to any letters and file any paperwork. The judge issued a penal notice as a final threat to get him to file his form E. He ignored a final letter from the court telling him to appear otherwise a warrant for his arrest would be enforced ( this letter was still lay unopened on his desk) He was arrested at 5:30 in the morning, taken to a holding cell then transferred to his local prison.His sentence was 56days of which he was to serve 28days. His only option for release was to purge his contempt in front of the judge. This process took a VERY long time - he infact got the chance to do that the DAY BEFORE he was due to be released. He still had to file the form E when released so I don''t see why anyone would choose to take this as an option, unless that is you enjoy life in prison and all the delights that go with it and you enjoy the total mess you have to deal with when you are released!

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