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What is a contact order; what does it do, and what does it not do?

Section 8 Orders

Section 8 of the Children Act 1989 made provision for 4 new types of court order, for Residence, Contact, Prohibited Steps and Specific Issues.  Orders made to vary or discharge these orders also come under Section 8.

Once a child reaches the age of 16 any Section 8 order ceases to have effect, and the court normally will not make new orders other than one to discharge an order.  Under exceptional circumstances it can make orders for a child up to the age of 18; if it does the order will cease to have effect once the child reaches 18,

What is Contact?

‘Contact’ is what used to be called ‘access’ prior to the 1989 Children Act.  Contact Orders replaced the old Access Orders just as ‘residence’ replaced the notion of ‘custody’; the intention was that these orders should be viewed from the child’s perspective and not the parent’s, and so the language of the prison visit was replaced with the language of extra-terrestrial encounter.

An Order for Contact is ‘an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.’

The Resident Parent’s Obligation

The case of Re L-W (Children) sub nom CPL v (1) CH-W (2) ML-W (3) EL-W (by their Guardian) [2010] EWCA Civ 1253 (CA) established the limitations of a custodial parent’s obligations under the law,

The father’s obligations under each successive order were to "allow" contact and "make M available" for contact.  To "allow" is to concede or to permit; to "make available" is to put at one’s disposal or within one’s reach.  That was the father’s obligation; no more and no less… The father’s obligation, according to Judge Caddick. was to "make sure that he did all that was necessary so that that child would go" and to take "whatever other steps within the exercise of his Parental Responsibility were necessary to make sure that he went".  The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to "ensure" – that contact actually took place.  Nor, with all respect to Mr Walden-Smith, was the father under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.

This means that even if there is an order in your favour, should your children express the view – according to the resident parent – that they don’t want to see you, the resident parent cannot be compelled to force them.

A Contact Order also cannot oblige an unwilling parent to have contact; see Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404, which means the court cannot force a non-resident parent to take up the contact he has applied for and been granted.

It can be seen from the definition contained in the Act that Contact Orders are designed to apply to the resident parent to make the child available to the applicant for a prescribed minimum level of contact; if the resident parent does not comply with the order they are in breach of it and in Contempt of Court.  Some Contact Orders merely state that a child and an adult are to have contact with each other, and no one is in breach if the contact does not take place.

Restrictions on the Court

There is controversy over whether a Contact Order can only be made once a Residence Order has been made identifying the resident parent.  In Re S (A Child) [2010] EWCA Civ 705 the lower court judge had ruled anachronistically that a Shared Residence Order was not appropriate for two parents who lived no more than 100 miles apart; he made an order, contrary to legislation, providing the periods during which the father would have ‘care of the child’.  The intention was probably to avoid the contentious word ‘contact’, but it exceeded the Court’s jurisdiction: in making an order the Court must remain within the statutory vocabulary.

On appeal Lord Justice Thorpe quoted Ward LJ in Re B (A Child) [2001] EWCA Civ 1968 that it was necessary first to determine with whom a child lived before a Contact Order was made because the order required that parent to allow the child to visit or stay with the other parent.  Thorpe interpreted this to mean that a Residence Order must first be made to which the Contact Order was then attached.  This was contrary to the no-order principle and was rejected by other authorities, Ward himself had already clarified the point in Re G (A Child) [2008] EWCA 1468, arguably rendering Thorpe’s ruling ‘per incuriam’, i.e. made without due care. In Re H (A Child) [2011] EWCA Civ 585 Thorpe had the last word,

Of course what the statute requires is not in every case that there should be a residence order to which a contact order exists, but that there should be a person defined or capable of definition with whom the child lives.  So if the parents agree that, say, the mother should be the primary carer, but do not trouble to get a residence order enshrining her role, still a contact order can be made against her as the person with whom the child lives.

Limitations of Contact Orders

Because he has been unable to resolve the issue of contact without going to Court, a non-resident parent is considered dysfunctional; if a resident parent is preventing contact it is assumed that they have a legitimate reason for doing this.  An application for contact is therefore considered inappropriate and provocative.  The interpretation of contact by the courts often seems to be to order the applicant not to seek contact beyond the prescribed maximum level.  Thus, although a parent who attends a school play or returns a child late after a contact period is not in theory in breach of the order because it does not apply to him, he is regarded as in breach and may be accused of harassment or be treated as though he had breached a Non-Molestation Order, and he will often find himself back in court with a new order for a reduced level of contact.

If a non-resident parent wants contact it is often considered by the courts to be his responsibility to cover the costs of travel between the resident parent’s home and his.  The time taken by the travelling is usually taken out of his contact time.  This convention is neither fair nor in the best interests of the child, and a reasonable resident parent should be prepared for some give and take.

You should understand that an application for contact means that you and your parenting ability will be put on trial and will come under minute scrutiny.  The court has no interest in the resident parent’s parenting skills and character, at least in the early months of an application, because it is not their parenting which is in question.

Because the resident parent has normal custody of the child, the court will also take into account the effect of contact on her, and whether it causes her undue stress; it has no interest in the effect on the non-resident parent of having no contact because it will not directly affect the child, and the child is their paramount concern.

It is difficult to make an order for contact flexible, and they can to be overly rigid or too loose to be of value.  If your work is irregular the chances are that sooner or later you will slip up in some way.  Your children’s other parent will then represent this as evidence of your lack of interest in the children and apply to vary the order for reduced contact.

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