As I noted on this blog back in July, a new study has concluded that although “implacably hostile mothers” exist, they represent a relatively small minority of enforcement cases.
Since then the research has been receiving attention on Twitter from family lawyers and others. So it seemed like a good time to take another look at what this study is about, and what findings have been reached.
In England and Wales, enforcement powers can be exercised by courts in child contact cases, when one party does not adhere to a contact order. The provisions for enforcing contact orders were set out in the Children and Adoption Act 2006, which came into force in 2008.
The study, which has been undertaken by the Nuffield Foundation, is called Enforcing Contact Orders: Cases, Courts and Consequences. It examines how and why the family courts respond to applications for enforcement of a Contact Order following alleged non-compliance. Its sample consists of more than 200 enforcement applications made in England in March and April 2012, with cases accessed through the electronic records held by Cafcass.
In advance of the Foundation’s final report, a briefing document has been released, which makes the following key points:
1. Relatively few contact cases return to court seeking enforcement – about 1,400 each year – but they are difficult cases for both policymakers and courts to address.
2. The public perception of enforcement cases is of implacably hostile mothers deliberately flouting contact orders and the courts failing to get tough and ensure compliance. The reality in practice is rather more complex
3. Implacably hostile mothers do exist, but they are a small minority of enforcement cases. The most common type of case involved parents whose conflicts with each other prevented them from making a contact order work reliably in practice. The second largest group was cases with significant safety concerns, followed by cases where older children themselves wanted to reduce or stop contact.
4. The approach of the court appeared broadly determined by the case type. A ‘coparenting support’ approach was mostly used with conflict cases as a means to set a clearer framework and help parents communicate. A ‘protective approach’ was used mainly with risk cases. A punitive approach was used primarily with the few cases we classified as implacably hostile.
5. Cases were generally processed quickly over a shorter period and with fewer hearings than the original proceedings, especially for the ‘parental conflict’ cases. That brevity can mean absence of delay in getting contact restarted but it also signaled that some cases were dealt with rather cursorily, with limited attention to the underlying causes and effects of the ongoing dispute.
6. There were a small number of cases where the court could have been more robust in dealing with a non-compliant parent but equally there a few cases where a punitive approach turned out to be inappropriate. There were rather more cases where the court appeared to minimize safety concerns.
7. Adequate punitive sanctions are in place, are mostly used when needed and can secure compliance. Policy attention should now focus on developing more effective measures to support safe contact across the full range of enforcement cases, particularly high conflict cases where both parents need more help to work together to implement an order.
Although these findings may prove contentious in some quarters (as comments on my previous post have already illustrated), it is difficult to draw informed conclusions before the study has been published in full. In the meantime, however, here are the four main categories into which enforcement cases have been divided:
CONFLICTED (116 cases, 55% of the total) intense competition or chronic levels of mistrust between the parents mean that they are unable to work together to implement the court order. Both parents have greater or less responsibility for the conflict. Minor incidents become flashpoints. Parents are unable to negotiate relatively insignificant changes to contact arrangements to accommodate illness etc. Everyday challenges become insurmountable problems that cannot be resolved without external intervention.
RISK (66 cases, 31% of the total) one or both parents raise significant adult and/or child safeguarding issues, most commonly domestic violence, child physical abuse and neglect, alcohol and drug abuse or mental health issues. These issues may have been raised previously at the index order stage.
REFUSING (21 cases, 10% of the total) an apparently appropriate and reasoned rejection of all or some contact by an older child (10+). Appears to reflect problematic behaviours/lack of sensitivity by the non-resident parent. The resident parent may be neutral or negative about contact but the child’s decision appears genuinely to be their own opinion rather than a simple reflection of the resident parent’s position.
IMPLACABLY HOSTILE/ALIENATING (9 cases, 4% of the total) sustained resistance to contact by the resident parent. The resistance appears unreasonable and is not a response to significant safety concerns or the problematic behaviour of the other parent. In some cases the resident may influence the child so that the child refuses all contact but without well-founded reasons.
Over at Pink Tape, Lucy Reed has crunched the figures and made some pertinent points:
“These percentages mask the fact that the number of applications made for enforcement is pretty low – we have a snapshot only, but only just over 200 were made in England over a 2 month period, approximating we assume to about 100 per month. Compare it to the approximately 46,000 new private law children applications made each year (CAFCASS Stats for y/e Mar 2013), and we can see that enforcement applications are running at around 2.5%. I think it’s a pretty safe bet that contact is not working well or at all in a good deal more than 2.5% of cases, and to me it suggests that applicants (mostly dads) are not applying for enforcement orders. In many cases that may well be because enforcement is very obviously going to be unhelpful or make matters worse. But in some, I sense, that non resident parents are applying back to court for directions, and asking for help from the court in form C2 or by letter, but not making specific applications for “Enforcement Orders” or “Financial Compensation Orders” within the meaning of s11O etc, and they are not doing it on C79. I suspect that this skew the stats – and more importantly the approach the court takes, which is more likely to be a “review hearing” type approach. If there is no C79 s11) is not triggered – there is no power of the courts own motion to make enforcement orders or other associated orders.”
The final report is due to be published in Autumn 2013.