Enforcing court orders with prison by John Bolch

Divorce|Family Law|March 6th 2014

A court order is, of course, worthless unless it can be enforced. Unfortunately, family court orders, particularly those relating to financial arrangements, are all too often not complied with. I can attest to this not just from my 25-odd years practising family law, but also from the many queries my blog receives asking how to enforce orders.

Of course, the ultimate sanction of the court is to commit the ‘offending’ party to prison for contempt of court in failing to obey the order. Obviously, this is a very serious step for a court to take. It is also quite controversial, with many libertarians and others concerned that it is used sparingly and properly. For this reason more judgments involving committal proceedings have been published recently, in an effort to show how the courts operate and, hopefully, to show the care that judges take before making committal orders.

Two such reports that were recently published were Pocock v Pocock and Hope v Krejci. Both involved applications to commit for breach of financial orders.

Pocock was a county court case that I’m sure would not have been considered to be of sufficient interest to publish a year ago. It concerned a consent order reached between the parties on the 22nd of August 2011, under which the husband had agreed to transfer the former matrimonial home to the wife, to pay the mortgage repayments and to redeem the mortgage on or before the 9th of September 2011.

The redemption of the mortgage has not happened and the mortgage payments have only been made sporadically. Obviously, this has caused considerable stress to the wife, who has had to return to the court repeatedly to ensure that the mortgage is paid and she does not lose the house.

The wife applied for the husband’s committal to prison for breach of the order. Unfortunately, the report does not tell us how many times the wife has returned to the court, only that this was “the most recent application in a long line of applications that [she] has had to bring before the court”.

The case went before Her Honour Judge Moir. She clearly considered that things had been allowed to go far enough:

“…this cannot go on. It cannot go on, on the basis that there are continuing returns to court; it cannot go on, on the basis that the stress which is occasioned every month to [the wife] and resulting in court appearances. The Order was made, it was a Consent Order, there was legal representation and the Order must be complied with.”

Accordingly, she made a fourteen day order of imprisonment against the husband. The order was suspended so long as the husband paid the mortgage (he had brought it up to date just prior to the hearing), but the judge warned him that it would be activated if there was any further breach of the consent order.

Hope v Krejci was a committal application by the wife against the husband for breaching an order made back in July 2012, requiring him to transfer to her two cars and a motorbike. There were various complications regarding the ownership, existence and location of the vehicles, but I will not go into those here. Suffice to say that by the time the wife’s committal application was heard in January this year, the husband had failed to transfer them to the wife.

The wife’s application went before Mr Justice Bodey in the High Court. He was satisfied beyond reasonable doubt that the husband was in contempt of court for failing to transfer the vehicles to the wife as required by the order of the court.

The husband’s counsel tried to persuade him not to make a committal order, saying the husband would deposit the sum of £16,000, the value of the vehicles, into an escrow account, pending an appeal to the European Court. However, Mr Justice Bodey was not prepared to agree to this. There was no guarantee that the money would be deposited and if it was not then the wife would just have to bring the matter back to the court again, adding to her costs and stress.

Accordingly, to ensure the money was paid, Mr Justice Bodey made an order committing the husband to prison for two months, suspended so long as the husband pay the sum of £16,000 to the wife’s solicitors by the 15th of March 2014. If the money is paid then the committal order will be discharged, but if it is not paid by that date it will take effect.

I’m not sure that these two judgments add much to our knowledge on the subject of applications for committal to prison for contempt. They do, however, indicate how the courts deal with such applications, as well as hopefully acting as a warning of the possible consequences of failure to comply with court orders.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(23)

  1. JamesB says:

    If you want to get more faith in court orders it would be good to hear about the court committing a mother to prison for breaching a contact order. They do that in the US. You would only need to do it once or twice to stop people breaking contact orders so blatantly. I tried to enforce my contact order a few times then gave up when all I got from the ‘professionals’ involved was abuse and being laughed at.

    To get respect courts need to be even-handed. Currently they are not, they are completely biased in favour of women.

    These (family) courts in England and Wales are an absolute disgrace that they treat men so badly and women so leniently.

  2. Tristan says:

    Well I can tell a very different story with a completely different outcome to those above. I went to county court to get a contact order enforced. The judge ordered a wishes and feelings report from Cafcass which was prepared by a NAPO Cafcass officer on the basis of interviews carried out exclusively at the mother’s home and without the benefit of any observed contact with me. My children apparently said they didn’t want to see me and so the court refused to enforce the order. Not only that, the judge changed the order itself so that I had no longer had the right to any more direct contact with my children. Until the mother’s disruption of contact, there had been an unbroken pattern of paternal contact going back several years. Plenty of evidence existed including that from previous Cafcass reports, to confirm that past contact was beneficial to the children.

    I have never seen my children since and these proceedings happened over ten years ago.

  3. Andrew says:

    Imprisonment for debt – even f you dress it up and call it contempt – is a servile notion and should be done away with.

    By contrast failing to observe a contact order should be visited with a warning first time and imprisonment the second time, just like breach of a non-mol. Children are more important than money.

  4. Anon says:

    Wow bringing back the old debtors prison, amazing how far the court system has come.

  5. JamesB says:

    Contact orders should be enforceable. That they are not and women know it and do as they want against the wellbeing of the children means these courts have no credibility.

  6. David Mortimer says:

    The Government have got themselves into a muddle about the current law and how the law operates in practice. The Government has repeatedly maintained that case law safeguards the principle of the two-parent model; that is to say, the principle that children normally benefit from a meaningful relationship with both parents following separation, unless good reasons can be shown why that should not happen. In other words, they say that there is already a presumption of meaningful relations or meaningful contact enshrined in case law. But when it is put to them, that that presumption should be mirrored in statute, they say that they do not like the idea that presumption of reasonable contact should actually appear in the Children Act 1989. So their position is contradictory, and the muddle of it is compounded by your belief that the present law is all right.

    The present law is not all right, because it cannot prevent thousands of blameless and loving parents being granted next to no contact with their children for no material or good reason. I an not talking dangerous or dysfunctional parents but about normal, loving, non-violent parents who have had to come to court repeatedly to prove to a judge why it is reasonable for them to have a meaningful relationship with their child. That is the effect of the current law. They do not enter the court with a presumption of reasonable or meaningful contact; they enter it with a presumption of contact of some kind, which may end up as two hours once a fortnight, for no material or good reason.

    Case law does not help those parents. The Governments contention that it does is based on a fundamental misreading of case law and of the Children Act 1989. Certainly you can find in case law warm pronouncements by judges about the desirability of meaningful relationships between the child and both his parents. But if case law is to be useful as a precedent, it has to pass a test. It would have to be recognised by the Court of Appeal as having clear applicability to broad and recognisable categories of parents. It would have to provide a steer to the courts in cases involving those same categories of parent about how much contact time it is reasonable for the resident and non-resident parent to have. Nothing like that exists in case law, which is why I say that the Government has misled it’s self in referring to case law.

    The question was asked in 2006: what is the definition of the term “reasonable contact”? The answer is that it can be defined by reference to units of time, dependent on the circumstances of the case, so long as those units of time are sufficient to deliver the desired end result, which is a meaningful relationship with the child. Most aggrieved non-resident parents will tell you that unless there is overnight contact, the chances of a meaningful relationship continuing are low.

    The judge might say that in the best interests of the child, and to give the best chance of a meaningful relationship, it is reasonable for the resident mother to have 70 per cent of the contact time and the non-resident father to have 30 per cent. The apportionment is then translated into numbers of days and nights per year.

    But all too often, material contact of this kind is denied or brought to an end for no material reason. It is brought to an end in the face of the resident mother’s emotional protests. It is brought to an end because the mother accuses the father of having repeatedly asked for the marmalade in a sarcastic tone of voice. It is brought to an end because the mother accuses the father of changing the time at which a meeting is to take place, thereby upsetting the domestic routine. There needs to be a good reason to deny a blameless non-violent parent reasonable contact time.

    With only a legal presumption of contact, a non-resident parent can be sure of only one thing—that he or she will be awarded at least some minimal level of contact unless a good reason can be shown why not. No more than that.

    The fact that there is a presumption in law does not mean that a court must make a contact order. If there is a good reason in the interests of the child not to make a contact order—usually because to do so would pose an unacceptable risk to the child—then there is no contact order. In the same way, if the Children Act were to provide for a presumption of reasonable contact, that would not put the child at a greater risk of harm. A presumption is only what it says—a presumption. If a good reason is shown to the court why there should not be material contact, the court will not make an order granting it. It would not be reasonable to do so.

    So I say to the Minister, please take further legal advice. With one breath, he is embracing the presumption of reasonable contact, and with the next he is resisting it. By sticking to his current position, by resisting the idea that a presumption of reasonable contact should be incorporated into the Children Act, he is doing one thing and one thing only—rejecting the two-parent model for bringing up children. He is rejecting the golden principle that the child-parent bond should not be lightly set aside. He is going against what he says he believes about how children can best maximise their life chances. And because he does not acknowledge that a very simple change to the law is what stands between contentment and utter grief for hundreds, if not thousands, of parents, he has allowed himself to believe that the measures contained in the Children & Families Bill will do good. They will not, because they are conceived on the premise that there is nothing wrong with the Children Act provisions on contact. If you do not cure the root of the problem, you will not cure the problem, and the root of the problem is something that the Children & Families Bill does not touch.

  7. David Mortimer says:

    In 2011/12 there were 1,383 applications for enforcement of contact orders in England . To put that in context, 38,405 children were involved in contact applications in England and Wales in 2011.

    Deliberate refusal to obey any court order is contempt of court that can be punished with a fine or imprisonment but they do not think that such penalties are appropriate in child contact cases because of the effect they claim it would have on the children at the Centre of the dispute.

    Kruk’s findings show that a child must spend at least 40% of his time with a parent to establish and maintain a beneficial attachment but there is no research used to train judges in relation to deciding contact time & CafCass still has no guidelines or training on how much contact is required despite the fact that was the reason why it’s predecessor the Family Court Welfare Service was closed.

    It is pointless for the courts to make orders if those orders are not then enforced. There is a legitimate public interest in ensuring that where an order is made by the court it is subsequently obeyed. Failure to enforce contact orders is the basis of some of the claims that the system is ‘biased against fathers’. Furthermore, a failure of the State to enforce orders in this sphere has been held by the European Court of Human Rights to amount to a breach of the State’s positive obligations under the European Convention on Human Rights.

  8. Stitchedup says:

    “By contrast failing to observe a contact order should be visited with a warning first time and imprisonment the second time, just like breach of a non-mol. Children are more important than money.”

    As someone that has been convicted of breaching a non-mol, I can assure you that a warning is not always given the first time you are considered to have breached it. In my case I was considered to have first breached the non-mol on a Wednesday evening when I telephoned the family home to speak to the kids and the ex answered the phone. The judge would not accept my defenced of reasonable excuse as I could not control who answered the phone and said I should have put the phone down as soon as I heard the voice of my ex.

    I was the considered to have breached the non-mol a second time when my ex came to the pub I was in with friends being fully aware that I would be there having been told so by a friend, stood at the table I was stood at with my pint in front of here and started talking to the friends I was with. I questioned why she was there and suggested she leave so that we had space between us.

    My ex basically didn’t like it that I asked her to leave so reported me to the police on the Monday and I was arrested for two breaches effectively back-to-back, convicted and nearly went to prison. No violence or threats of violence involved.

    I respect much of what you write Andrew, but non-mols are issued way too freely and the non-communication orders frequently attached are often way over the top. District judges and perhaps magistrates cannot be relied on to apply reasonable excuse in the way that most commonsensical people would.

  9. Paul says:

    The majority of non-molestation orders are issued ex-parte, on no evidence or even outright lies, and by unthinking,”cut and paste” magistrates who couldn’t give a toss about fairness and justice.

    The police are equally as bad in deploying unlawful, discriminatory, automatic arrest practices where fathers are arrested as a matter of force policy rather than on facts.

  10. Anonymous says:

    Excellent comments, but what everyone is forgetting is that the act of trying to enforce an order is very gendered. If you are a man, trying to enforce contact will be formulaically presented by the other solicitor as an act of control, harassment or even violence. And most times the guy behind the bench (who likes endlessly to blow air about some idiotic welfare principle) will agree with this nonsense. Because formulaic nonsense is always the best argument in the family courts. Makes the judge’s job that much easier.

    Bottom line: the family courts could not be more predictably incompetent, biased and untrustworthy.

  11. Stitchedup says:

    Just read my comment above, full of spelling mistakes and an omission that probably makes it hard to understand.

    Just to clarify the point regarding warnings on the first breach of a non mol.

    Wednesday evening I phone the family home to ask my eldest son to get information regarding the sale of the former family home. I had been asked to provide this information by the conveyancing solicitor my ex had instructed. My ex answers the phone, I ask to speak to my eldest son, my ex tells me he’s not in, I ask to speak to my other son, my ex tells me he isn’t in also. The ex then asks what it is about and I tell her I had received a sellers information pack and have to provide mortgage account number, amount of mortgage outstanding, selling price of house etc, etc. I didn’t have any of this information as all related documentation was in the former family home that she was occupying and I agreed, foolishly, for her solicitor to have conduct of sale so didn’t know how much the house was being sold for or the target completion date. We then had a disagreement when she disclosed that the house had been sold for the minimum allowed under the order of sale.. not a penny more… 20 years of hard graft and our children’s inheritance down the pan!! I put the phone down on her, she phones me back twice, the first time I answered and told her I didn’t want to talk to her, the second I let it ring off.

    The following Sunday evening she comes to the pub as explained in my earlier comment above. I really didn’t want to see the woman after the conversation we had Wednesday and wanted space between us, hence suggested she leave.

    The ex reported me to the Police Monday morning and I was arrested and convicted for two back-to-back counts of a breach, so there was no warning for the first breach, and they were treated as separate incidents even though they were actually related due to our disagreement about the house.

    I nearly went to jail as the judge thought I was being “deliberately awkward about the sale of the house”. He wouldn’t entertain a defence of reasonable excuse stating that I should have put the phone down as soon as I heard the voice of my ex. I’m now in the same category as a violent domestic abuser and perhaps will be a subject of Clare’s Law.

    By the way, my ex admitted I asked to speak to the children first, admitted I terminated the conversation and that she tried to phone me back. She also admitted she had been told I “might” be in the pub on Sunday evening, and she had stood at the table I was using and started talking to my friends.

    This is what feminists, Judges and lawyers consider to be domestic violence……IT IS ABSURD!!!!

  12. Stitchedup says:

    I was interested to hear an interview on TV this morning calling for a reduction in the time it takes for convictions to be spent. The link below takes you to an earlier report on this:

    http://www.bbc.co.uk/news/uk-16857388

    I believe my conviction should never have been allowed to happen; we have serious problems in the UK with non-mols, non-communication orders etc which are being misused and the system abused.

    That aside, I don’t see why an employer needs to know I had disagreement with my ex about the sale of the family home. The way it stands, by declaring an unspent conviction I would probably never get to explain the circumstances of my conviction. All an employer would see is 2 braches of a non-mol, a conviction, 250 hours community service, a fine and in-definite restraining order. They would think….Wow he must have done something really serious , best steer clear of him.

    Similarly and to be balance, I wouldn’t expect an employer to need to know that a Woman had breached a contact order, though we all know it is unlikely she would get convicted.

    I would go further than call for a reduction in time for certain convictions to be spent. Firstly, as with non-payment of Television license, certain issues should be taken out of the criminal system all together and existing convictions quashed or converted into a civil offence only.

    Imho, only certain breaches of a non-mol, such as physical assault should be a criminal offence; but speaking to somebody without threat shouldn’t even be a civil offence.

    However, a step in the right direction for now should be to make certain categories of offence non-reportable. I think breaching a non-communication order where there are mitigating circumstance and no threats have occurred come under this. At the end of the day, how does it benefit the children if a father can’t find work because he has been convicted for speaking to his ex wife/partner with whom he was in relationship for 20 years????

  13. Stitchedup says:

    Oh and another thing, speaking as someone that has travelled on business extensively during his career, we shouldn’t be sharing convictions data with countries that do not support the rehabilitation of offenders act and the concept of spent convictions e.g. the U.S..

  14. Andrew says:

    We should not be sharing conviction data at all.

  15. Paul says:

    If you have been the subject of an unadjudicated arrest (e.g arrested on bogus allegations then released without charge) then you are officially ineligible to travel on a WVP (Visa Waiver Programme) to America.

    This is one of the reasons why I am so against police policy on DV where men are subjected to automatic arrest on the flimsiest of allegations. I sued my local chief constable and won a Part 36 payout to settle my claim of false arrest and imprisonment. However, that still leaves me with the problem of an criminal justice arrest record. I used to travel frequently to the U.S. Do I duck and dive now, omit to mention my arrest if questioned? You’re taking a chance, just assuming they don’t know.

    Police practices regarding domestic violence are sexist, discriminatory as well as unlawful and cause unnecessary problems for innocent men.

  16. Stitchedup says:

    “If you have been the subject of an unadjudicated arrest (e.g arrested on bogus allegations then released without charge) then you are officially ineligible to travel on a WVP (Visa Waiver Programme) to America”.

    It really is absurd isn’t it???? How can it be allowed to go on???

  17. Caz says:

    In 1996 we (Grandparents) plus our son and his then partner, both parents of my Grandson, were arrested and investigated by Cleveland Police, the allegations were, suspicious injuries to my Grandson, after fall at home and taken to Middlesbrough General Hospital, transferred to South Cleveland Hospital. Their investigation ended in unconditional release, stating to us the family, my Grandchild did not have any injuries from the fall and due to our well documented evidence of suspicion of birth damage, no further action on suspicion of fall
    Question: Will this investigation still be on record, would this affect (not that we have, but have in the past considered Disney World America for a visit) stop us from being able to enter America?

  18. MumofFour says:

    I have fought a long battle trying to get my ex to contribute to his son’s nursery school education as well as education till he is 18. During the Final Hearing, my ex didnot turn up. The Judge made an order of a paltry £5000 which is better than nothing considering that my ex has decided not to be involved in his son’s life in whatever form.

    I am a LIP, my questions are:
    #What Do I need to do to enforce the court order for a lump sum of £5000 which he was ordered to pay by 7 August 2014. I know he is likely to ignore the order as well.
    #How do l appeal against the judge’s decision as he said l cannot ask for a lump sum to cover future costs of educating my son.

    Kindly Assist.

  19. Gary says:

    My ex wife has not complied to the consent order, she was supposed to transfer 2 policies over to me within 7 days of the Decree Absolute. It is now 2 weeks after it should have been done, but she has done nothing, despite me having sent her the paperwork . Although this doesn’t seem like a long delay, each month the CEV value is decreasing and, as it wasn’t much to start with, soon there will be nothing left.
    I have been advised that I can take her back to court. If I do this will the court enforce it quickly or am I wasting my time and money again? Also, is there any way I can reclaim the amount that has already been lost due to her delaying?

  20. alex says:

    I am repeatedly getting arrested for trying to contact my ex partner as i want to see my children and cannot afford to pay through courts its making me depressed and i am facing yet another criminal charge and im fed up of being criminalised for wanted to love and see my children what do i do ?

    • Stitchedup says:

      ” i am facing yet another criminal charge and im fed up of being criminalised for wanted to love and see my children what do i do ?”

      Ask Charles Pragnell

  21. Yview says:

    A financial arrangement with my son’s divorce was to transfer the house and equity to his ex. and his ex. to make best efforts to have his name removed from the mortgage. The paperwork duly came for the transfer of the house to his ex. which my son signed. At the time however, the lender was unwilling to release my son from the mortgage. However, recently there seems to be a change of heart, necessitating his ex. to go into the branch office, pay a nidest fee and my son’s name would be removed from the mortgage. As she has now re-married, morally and legally it would seem the right thing to do. Needless to say, my ex. dil has made no effort to do this. Odd that my son had to comply with court order on his part, but there is nothing to ensure that my ex. dil complies with her obligation.

  22. Andrew says:

    Yview the court can order that the District Judge can sign the necessary form on her behalf and the lender will have to accept it. Your son may have to pay the lender’s fee but the court can order her to repay him and even to pay his costs of the application although making her pay might be more effort than it is worth.

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