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A majority of the orders made in the Family Courts, and especially those for contact, are ignored to some extent by the resident parent and more often than not with impunity. There are many reasons for this, including the financial incentive of increased maintenance payments through the CSA.

A 2008 survey of legal professionals by law students at Cardiff University [1] showed overwhelming support for the view that contact was not adequately enforced; enforcement was dismissed as ‘an absolute joke’. One solicitor with over 27 years’ experience had only seen two orders enforced. Family law judges long excused this situation by complaining that they had no sanctions beyond fines and committal with which to enforce compliance. In the case of V v V [2004] EWHC 1215 (Fam) Mrs Justice Bracewell listed the four options then available:

1. Commit the parent to prison for up to two years or make a suspended order for imprisonment;

2. Impose a fine;

3. Transfer residence to the other parent;

4. Give up: make an order for indirect contact or no order at all.

Most judges refuse the first three options because, they say, it is not in the best interests of the children and where respondents are implacably hostile to the idea of contact even committal is not necessarily effective. In far, far too many cases the fourth option is used. As a result a third of children lose all contact with their fathers following family breakdown [2].

New Sanctions

The Children and Adoption Act 2006 was designed to rectify this problem by introducing more flexible powers to facilitate contact and to enforce Contact Orders made under the Children Act 1989; since December 2008 the implementation of Part 1 of the Act has provided the courts with the additional sanctions for which they have been clamouring for years (this legislation is now incorporated into Section 11 of the Children Act). Half of the lawyers surveyed in the Cardiff study regarded the proposals with pessimism, however, and were not convinced that the courts would make use of the measures available. In 2010 a thousand applications were made for Enforcement Orders, but only 55 orders were made [3]; in the same year a derisory 4 orders were made for compensation – clearly the failure to enforce orders has little to do with the availability of sanctions.

The Court’s Duty

When an application is made for enforcement the court must consider the reasons why an order is being disobeyed, why there is hostility and whether it is implacable. The respondent can apply for relief from any sanction the court may impose, but must supply evidence for the reasons given; under Rule 4.6 of the Family Procedure Rules 2010 the court must consider all circumstances. In Re P (Contact: Discretion) [1998] 2 FLR 696 Wilson J outlined three ways in which hostility to contact might arise and how it should be dealt with:

1. There are no rational grounds: the court should only refuse contact where there is serious risk of emotional harm to the child.

2. The grounds are sufficient to displace the presumption in favour of contact: contact should not be ordered.

3. The arguments are rational but not decisive: in such a case the hostility itself may be of determinative importance when measured against the child’s best interests.

Re K (Children: Committal Proceedings) [2003] 2 FCR 336 established that imprisonment would infringe the human rights of a mother and her child and that committal must be justified under Article 8(2) (the right to freedom from state interference in one’s private life). Other remedies such as further Contact Orders, fines, family therapy and transfer of residence must be tried first (Re M (Contact Order: Committal) [2004] EWCA Civ 1790).

A parent’s Article 8 rights may be restricted where the interests of the child so require; where there is conflict the child’s right is paramount; see Yousef v Netherlands [2003] 1 FLR 210 and Hoppe v Germany [2003] 1 FCR 176.

We are forced to the conclusion that the Family Courts are averse to enforcing contact and that shared residence with defined contact is often the only application worth making. Despite the clear evidence that huge numbers of orders are ignored, fewer than 2% of resident parents defaulting on Contact Orders face any penalty [4].

As we have shown, the excuses for ignoring orders are legion: your child is ill / doesn’t want to see you / is going to a party; I got the dates mixed up / had to leave the house at short notice, etc., etc., etc. If you have played the game for a while and it isn’t working sooner or later you will have no option but to return to court, bearing in mind that this will aggravate the other parent further (as if they didn’t expect denying you contact would provoke you). You will need to go to court as soon as possible after contact is denied and tell the clerk you wish to see the duty judge for an ex parte emergency hearing (without your children’s other parent and their legal team present); you must be prepared to hang about all day.

The courts are extremely reluctant to enforce an order which is being ignored (though they can if they want) and you will almost always have to make an application for enforcement; inevitably the judge will want to re-examine the case to see what has changed, and what action is now appropriate. There may well be another CAFCASS report and new directions. You will probably be given a date for an inter partes hearing (with your children’s other parent and their legal team present).

Ultimately your only recourse is to go back to court again and again, demand enforcement of the Contact Order, demand sanctions under the Children and Adoption Act, demand penal notices, demand committal or transfer of residence. But you have to do these things in the right order, and at the right time; if you try to go too far, too fast, you will come across as vindictive, and the court won’t like that, and they may even consider you vexatious. Each time the court will want to allow time to determine whether or not the order is working, perhaps 6 months. Years can pass by like this very easily.

Penal notices

Let us consider first the old ‘Penal Notice’ which a court can apply to the terms of a Contact Order and which theoretically enables punishment to be imposed on the parent who disregards it, though these are rarely enforced. A penal notice cannot give the power of arrest (there is no power in the Children Act to include a power of arrest); they are often little more than an idle threat. If a Contact Order has a penal notice attached and the order is broken then the remedy is to apply for committal. However, following Re K [2003] 2 FCR 336, judges consider the committal of a resident parent to prison to be contrary to the best interests of the child.

You will simply need to return to court again. This is a lengthy process which can take many years and numerous hearings, but you should persevere; many parents give up at the point where they are about to be successful. Be aware that each subsequent Contact Order can reduce the level of contact.

The only way contempt of an order can result in imprisonment is if it was made clear that this would result in imprisonment by means of a penal notice. The order must carry this notice:

If you the within named do not comply with this order you may be held to be in Contempt of Court and imprisoned or fined.

The party to whom the order applies can make an Undertaking, but the court can refuse to accept it. If the Undertaking is breached the court may commence contempt proceedings.

The courts are aware of the campaigning against them and the growing cognizance the public now has that they do will enforce their own orders. Consider the statements made by two judges recently. The first is from A v N (Committal: Refusal of Contact) [1997] 1 FLR 533 (CA),

There does come a limit to the tolerance of the Court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the learned judge who did no more than his duty to the child which is imposed upon him by Parliament.

The second from Burgess v Stokes [2009] EWCA Civ 548,

The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of Contact Orders.

The 2006 Act

Warning notices

Since the implementation of the Children and Adoption Act 2006 in December 2008 all new contact orders or variations on existing contact orders now carry a ‘warning notice’. The warning notice must apply both to the respondent and to the applicant. Warning notices are covered under Rule 12.33 of the Family Procedure Rules 2010. Three types of warning are possible,

· A warning (in accordance with Section 13 of the Children Act) that where a Residence Order is in force, no person may cause the child to be known by a new surname or remove the child from the United Kingdom without the written consent of every person with Parental Responsibility for the child or the leave of the court. This does not prevent the removal of the child, for a period of less than 1 month (28 days), by the person in whose favour the Residence Order is made.

· A warning that it may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.

· Advice that any person with Parental Responsibility for the child may obtain guidance on what can be done to prevent the issue of a passport to the child. They should write to UK Passport Agency, Globe House, 89 Eccleston Square, London, SW1V 1PN.

Breach of a warning notice will result in a range of sanctions beginning with an unpaid work requirement. Further breach may result in an additional Enforcement Order, an extension of the Enforcement Order to make the work requirement ‘more onerous’, a fine or committal to prison if consistent or flagrant breach is considered Contempt of Court.

Breach of an order can only result in committal to prison if this is made clear to the respondent by attaching a warning notice to the order (older orders may already have a penal notice attached), informing the recipient that breaching the order may result in a fine or committal to prison.

There is no retrospective appending of warning notices to existing orders, but transitional provisions in the Act allowed parties to apply to have a warning notice appended to an existing Contact Order. This means that if the Contact Order was made before implementation of the Children and Adoption Act 2006 on 8th December 2008 and you want to take advantage of the new sanctions available you will first have to apply to the court to have a warning notice attached. The court does not have discretion to refuse such an application, since the attachment of a warning does not imply that the court has found the order to have been breached. The courts were getting around this requirement by retaining existing orders and not making new ones.

You make an application to have a warning notice attached to an existing order on the application Form C78.

The statutory C43 (Contact Order) form has been amended to provide for inclusion of the text of the warning notice.

Activity directions

When considering whether or not to make a Contact Order, the court may direct parties to undertake an ‘activity’ and attach this as a condition to the order. These activities must be regarded not as sanctions with which to punish an intractable parent but as tools to help establish, maintain or improve the involvement in the life of the child concerned of the individual named in the order. There are three types of activity in which the court may require parents to participate:

· Attending information/assessment sessions about mediation; this programme involves a one-off information/assessment meeting.

· Attending Parenting Information Programmes (PIPs); these are designed to support attending parents with information on parenting following separation, how it can affect them and their children and how to change things for the better. The intention is to encourage safe, beneficial contact between children and their parents.

· Attending programmes aimed at addressing violent behaviour. These intensive interventions are designed to challenge and address participants’ violent and abusive behaviour. The programme is an intensive intervention (of about 60 hours) and seeks also to engage with victims and (if any) current partners.

The court cannot require you to undergo medical or psychiatric examination, assessment or treatment as part of a contact activity, and it cannot require you to take part in mediation.

A contact activity direction can form part of a final order, so the effect of the activity in facilitating contact need not be monitored. The court must ensure the child’s welfare is always the paramount consideration.

Before making such an order the court must consider the availability of the contact activity, the accessibility for the parent, the suitability of the parent, and the likely effect of participating. The person providing the activity must be named in the order. According to the Family Justice Council availability of these activities will be subject to a ‘postcode lottery’ in the same way that other services provided by CAFCASS and contact centres are [5].

From April 2010 litigants have not had to pay for these programmes, presumably to encourage their greater use [6]. The £80 cost of an information session about mediation is covered by the Legal Services Commission, and the £200 per party cost of a Parenting Information Programme is covered by the Department of Education (or whatever it’s calling itself now); both parties will be required to participate, though not necessarily together. Only one party will be required to attend a domestic violence (DV) programme, if they have admitted to DV or been found through a finding of fact hearing to have been a perpetrator. The £2,500 cost of such a programme is also covered by the Department of Education. Any victim of DV is offered support services.

PIPs

The Separated Parents Information Programmes (PIPs) are awareness programmes which a court will direct parents to attend where a CAFCASS officer has recommended accordingly. They have become increasingly popular and referrals rose from 900 in 2008/09 to 13,178 in 2010/11. PIPs are run by providers such as Relate. Both parents are expected to attend the sessions, but not together. They are ‘aimed at improving parents’ abilities to put aside their differences and limit the negative impacts that their divorce or separation can have on their children by improving communication; helping them to make joint parenting decisions and to see the separation through the eyes of their children’. They are based, therefore, on the presumption that disputes over residence and contact are the fault of both parents.

PIPs are run over two sessions and last a total of four hours. Parents are initially asked to watch a DVD made by young people which charts the course of a case over 6 months. Parents are then asked to discuss a prepared scenario and to consider it from the viewpoints of the mother, father and children. Finally parents are asked to look at the emotional effects divorce and separation can have and at the options for moving forward.

The provider only reports your attendance back to CAFCASS and does not assess your responses to the programme.

Enforcement

If this is the first breach of the order made by your children’s other parent it may be valuable to write to them in the first instance pointing out that they are in breach of the order; say that you will proceed to court if the order is not adhered to, and send a copy of the letter to the court. If it does go back to court you will at least be able to show that you have tried to resolve the issue reasonably, attempting to have your ex committed isn’t likely to improve relations between you.

Note: that you can only apply to a court for enforcement of contact where a Court Order has been made for contact; you cannot ask the court to enforce a private agreement for contact, nor can the legislation be applied to the enforcement of Residence Orders. A court cannot make an order for enforcement on the same occasion it makes an order for contact.

If the other parent is publicly funded the threat of court may not concern them, as they know they can keep you going back there for years if they want to. Challenge their funding.

If there is no compliance or if a Contact Order is breached without reasonable excuse you will need to make an application for enforcement using Form C79 which was introduced at the same time as implementation of Part 1 of the Act. If the case comes back to court (for example on application for a variation) the court must add a warning notice to the Contact Order.

To qualify to make the application you must be the resident or contact parent, another adult with PR for the child, an adult with whom the child is living, or the child himself.

The case is dealt with under Section 11J of the Children Act. The court must be satisfied to the ‘beyond reasonable doubt’ standard of proof that the other party failed without reasonable excuse to comply with the Contact Order; it may then make an Enforcement Order under the Criminal Justice Act 2003 imposing an ‘unpaid work requirement’ of between 40 and 200 hours on the party (this used to be called Community Service).

The court must also be satisfied that there was no reasonable excuse for failing to comply with the order. A reasonable excuse might be a sudden medical emergency involving the respondent or the child, a car breaking down or train being cancelled, or a fear of violence at handover. The burden of proof is on the respondent to demonstrate the truth of their excuse, and the standard of proof is the balance of probabilities.

The court is required to satisfy itself that the Enforcement Order is necessary to ensure compliance and has a reasonable chance of success. The unpaid work must be available locally and it must not interfere with the person’s work, education or religious observance. How the unpaid work impacts on the welfare of the child must also be considered, but the child’s welfare is not, in this instance, the paramount principle. The courts remain squeamish, however, and in 2010 only 55 such orders were made.

The court must attach a Warning Notice to the Enforcement Order warning of the consequences of failing to comply; if the order is not carried out it can be increased to a maximum of 200 hours and a fine can be imposed. Continued breach may result in a prosecution for Contempt of Court.

The court will ask the CAFCASS/CAFCASS Cymru officer to monitor compliance with an order for unpaid work and failure will be reported to the court. The work requirement itself must be monitored by a reporting officer who must warn a party in breach of an Enforcement Order without reasonable excuse. She may also report first-time breaches to CAFCASS.

If the breach is not the first within the previous 12 months, she must report it to CAFCASS. The court will very, very rarely enforce an order unless you specifically apply for it to be enforced on an additional Form C79. If it sees fit, the court can also order the parties to attempt to resolve their differences through mediation. If in the substantive proceedings the child was represented by a Children’s Guardian, the guardian is not automatically served with the application to enforce. However, an application for a fresh appointment may be made to the court.

Applications for enforcement must be treated by the court as family proceedings and thus are held in chambers.

The court’s aim is not to punish an uncooperative parent but to get contact working. If contact starts again while the unpaid work is being carried out the court is likely to end the order, provided it thinks contact will continue.

Compensation

Where a Contact Order has been breached without reasonable excuse and breach has been proved beyond reasonable doubt, the court may on application award financial compensation from one party to another; for example, if the cost of a holiday or flight has been lost as a result of a breach of a Contact Order. This is enabled by Section 11O of the Children Act.

The court may not make the order if the respondent has a reasonable excuse for breaching the Contact Order. Once again the burden of proof is on the respondent, and the standard of proof is the balance of probabilities. The court must ascertain the impact of this on the child’s welfare and CAFCASS has responsibility for providing that information.

If you have suffered actual financial loss you must apply to the court for a financial compensation order in respect of that loss; again you make an application using Form C79. You will find the Family Courts don’t take very seriously any claim that obstruction of contact has left a parent financially disadvantaged: in 2010 the courts made a total of 4 such orders.

The role of CAFCASS

The new provisions impose additional responsibilities upon CAFCASS under Section 11E of the Children Act:

The court may ask a CAFCASS (or CAFCASS Cymru in Wales) officer to provide information in the process of making a contact activity. Before the court can order the activity it must first determine from CAFCASS,

· that the proposed activity is appropriate to the circumstances;

· that the person named in the order as the provider is suitable to provide the activity; and

· that the person to whom the order applies can reasonably be expected to travel to the activity.

CAFCASS must also advise the court of the likely effect that making the direction or order will have on the person affected, including possible conflicts with religious beliefs and interference with work or educational commitments.

CAFCASS must also advise the court on the local availability of unpaid work which is administered by the National Probation Service (NPS). The CAFCASS officer may be required to discuss aspects of the case with an officer from the National Probation Service, but must not disclose details of a case to the NPS without leave of the court. If an Enforcement Order is made CAFCASS must liaise with the NPS who will monitor it to ensure the work requirement is carried out. If the order is not complied with, or the party is for any reason unable to carry out the requirement, the NPS will report this to CAFCASS who will report to the court. A Practice Direction ensures that the court will give leave accordingly for disclosure in order that the officer will not potentially be in contempt.

· Under Section 11G of the Children Act the court may ask a CAFCASS (or CAFCASS Cymru in Wales) officer to monitor compliance with contact activity directions and contact activity conditions. They will be expected to monitor the programmes and to report back to the court on the effects, whether beneficial or not.

· The court may also ask the CAFCASS/CAFCASS Cymru officer to monitor compliance with a Contact Order and to report back to the court.

CAFCASS will be expected to make the initial suggestion that a contact activity is appropriate and to incorporate the recommendation into the initial assessment it makes to the court. In practice you may need to remind your CAFCASS officer about this.

Although under these rules CAFCASS are expected to monitor contact, this was something they had never done before and it is by no means certain that they comply, given their considerable backlog and claims that the service is already over-worked and under-resourced. The onus will still fall on you to inform the court if contact is not taking place or if other directions are not complied with.

It has been agreed with the President of the Family Division that the new provisions should not be used in ‘consent order’ cases where proceedings have ended. Instead their use will be limited to those cases where the issue of contact has remained in dispute during proceedings and where a trial and judicial determination of contact have taken place. For example, where one party remains resistant to contact the court may consider that the imposition of a monitoring requirement is appropriate. Unlike the situation with Family Assistance Orders the consent of the parties is not required. CAFCASS may also transfer this duty to a Family Support Worker.

Under Section 11H of the Children Act, if it deems it appropriate, the court may set a further date for a review hearing, preferably before the same judge. CAFCASS will be expected to monitor compliance with the Contact Order by means of phone calls to the adults and interviews with the children if they are competent. CAFCASS should make recommendations to the court on how contact is to be monitored so that this can then be incorporated into the order. If CAFCASS then fails to monitor the contact they will be in breach of the order. Where compliance is satisfactory it may be possible for CAFCASS to reduce the frequency of monitoring. The court may not order CAFCASS to monitor compliance for longer than 12 months.

The court can instruct CAFCASS to provide a written report on the outcomes of the order either at the end of the monitoring process or before if compliance is not satisfactory. If your ex is not complying, or is introducing minor or petty infractions, you must return to court before this becomes a pattern; don’t let CAFCASS persuade you that anything less than complete compliance is acceptable. The court may then decide it is necessary to bring forward the review hearing, and CAFCASS will need to inform both parties and the judge how best to monitor any compliance which is taking place while the court considers how best to proceed.

If you make a C79 application for enforcement the court will send CAFCASS a copy of the application so that they can undertake updating screening checks with the relevant local authority and the police and produce a Schedule 2 Letter.

Some applications will be made as a result of a non-compliance notification from CAFCASS, while others will arise in cases where CAFCASS has not recently been actively involved. In either case, CAFCASS must notify the court promptly as to the outcome of the checks, together with any other information they request. The court has discretion to join the child as a party to enforcement proceedings; the child is not automatically a party even if he was a party to the original proceedings which led to the making of the breached order. CAFCASS may be asked to advise the court on whether the child should be joined as a party. In practice it will seldom be necessary, and CAFCASS Legal can advise in difficult cases.

These provisions are relatively new, which means that there are few relevant legal precedents, and little advice we can usefully give on using them. It is important that they are used, and you must ensure that if they are CAFCASS keeps to its side of the bargain; be careful, though, that in making these applications you do not come across as malicious. It may well be that these sanctions are simply a cynical ploy to reduce repeat litigation while increasing fees and assisting the Family Courts to come closer to full self-funding; they may prove ineffective, with the result that they will merely delay proceedings further.



[1] Dyer, C., McCrum, S., Thomas, R., Ward, R. & Wookey, R., Enforcement of Contact Between Children and Non-Resident Parents, Cardiff Law School: Family Law Research Project, August 2008, http://www.law.cf.ac.uk/alumni/studentproject.pdf

[2] Press release issued by Mishcon de Reya, November 2009

[3] Unpublished data from Her Majesty’s Court Service FamilyMan case management system.

[4] Harriet Harman in written answer to John Hemming, Hansard, 4 July 2006, http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060704/text/60704w1420.htm#06070491000037

[5] http://www.communitycare.co.uk/Articles/2008/12/09/110200/family-justice-council-postcode-lottery-risk-for-contact-activities.html

[6] See the Explanatory Memorandum to the Children Act 1989 (Contact Activity Directions and Conditions: Financial Assistance) (Revocation and Transitional Provision) (England) Regulations 2010, 2010 no. 690, http://www.opsi.gov.uk/si/si2010/em/uksiem_20100690_en.pdf