Enforcing contact orders

Family Law|January 22nd 2015

It is a very common complaint that courts are too slow or too reluctant to enforce contact orders (or, indeed, that they fail to enforce them at all). Most of the complaints of course emanate from fathers, as the vast majority of contact orders are in favour of fathers.

The fact of the matter is that deciding whether and if so, how to enforce a contact order can be a very difficult matter. The court will usually have to investigate what breaches of the order have occurred, if any, and if it finds that there have been breaches it will want to investigate why they have occurred, bearing in mind that it is the welfare of the child that they are primarily concerned with, rather than the rights of the parent. Even when it has found that the order has been breached without good reason, it is not necessarily easy to decide how to enforce the order, again whilst having first regard for the welfare of the child.

There have, however, been signs of the courts taking a harder line in recent years against those who disobey their orders. Whether or not this is in response to the complaints, I would not want to speculate.

An example of a court taking a tough line occurred in the recently reported case H-R (Children), although the case also illustrated how many ‘chances’ the court is prepared to give a recalcitrant parent to obey its orders, no doubt to the great frustration of the enforcing party.

The case concerned two children who at the date of the judgment (11 April last) were aged eight and seven. The children lived with their mother and their father applied for a contact order as long ago as April 2011.

On 3 April 2013 the court made an order for contact each Sunday from 11 am to 2 pm. That contact occurred on a couple of occasions but by 20 May 2013 the father was already applying to enforce the order.

A hearing was fixed for 1 July but was adjourned when the mother failed to attend. She did attend the next hearing on 5 August 2013, when it was agreed that the contact arrangements would be altered so that contact occurred between Friday at 6 pm and Saturday at 5 pm. A final hearing was listed for November 2013.

However, the matter returned to the court before that hearing, as the contact did not take place as directed. Hearings were fixed for 23 September, 11 October and 22 November, but the mother failed to attend on all three occasions.

The matter was transferred to the Circuit bench and another hearing was fixed for 23 January 2014, but yet again the mother did not attend.

A fresh contact order was made on 1 February, requiring contact to take place every Saturday from 4 pm to 7 pm, the handover to be at ‘Location A’. However, contact did not take place in accordance with that order and on 4 February 2014 the father in desperation issued an application for the mother’s committal to prison for breach of the order.

When the matter went before the court on 7 March, the mother did attend, but she left the court building before the hearing could take place. The judge made a 21 day committal order suspended on terms that the mother complied with the contact order, taking the children to Location A each Saturday at 4 pm and returning there at 7 pm to collect them from their father. She was also required to attend the next hearing listed for 4 April 2014.

The contact did not take place and the mother failed to attend the hearing on 4 April, which was adjourned, or the following hearing on 11 April, before Her Honour Judge Newton at the Manchester County Court.

Judge Newton was satisfied that the mother had failed to comply with the contact orders. In particular, she had not complied with the order of 7 March, notwithstanding the suspended committal order. Judge Newton said:

“The only proper interpretation of the mother’s conduct is that she has deliberately and repeatedly chosen not to comply with the orders of this court requiring her to facilitate contact between the children and their father. Despite repeated orders of the court these children have not seen their father for some 9 months. Nor has the mother attended this court as directed. She can, in the light of the order of [7 March], have no doubt as to what the consequences of that failure to comply would be.”

She continued:

“It is always a grave step to deprive the mother of two young children of her liberty. Realistically, however, the only alternative is for this court to acquiesce in the mother’s blatant disregard for the orders of this court and to accept that notwithstanding that previous judges have concluded that contact between the children and their father accords with their welfare interests, the prospect of such contact occurring must be abandoned.”

In the circumstances she made an immediate order for the mother to be committed to prison for 21 days.

As I said above, the mother was given every opportunity (some may well say too many opportunities) to obey the orders of the court, but at least robust enforcement action was taken against her in the end. Hopefully, the case might serve as a warning to others that disobeying court orders does have consequences.

Author: Stowe Family Law

Comments(20)

  1. Paul Apreda says:

    Research undertaken by Families Need Fathers in England using MoJ statistics shows that only 2% of enforcement applications ended in an order for such.

    The 2% is fairly simple to calculate, looking at the period from Q1 2011 to Q2 2014 you take the total number of disposals where the disposal type was enforcement (190) and divide it by the total number of applications for enforcement (9453) and you get 2.01%.

    You decide whether you think enforcement is working

    regards

    Paul

  2. Emlyn Jones says:

    The scales tip one way then another.

    I find myself in the strange position of attacking something that I have always fully supported [and in principal still do Paul].

    It is a disgrace that an enforcing parent has to pay for an application and cannot recover the costs of that application.

    Nevertheless, every case should be decided on its merits.

    This is not happening because there is no clear guidance. CAFCASS are unprepared to deal with say, an order for community work which should be arranged by the Probation Service.

    In my view, [and speaking from a highly regrettable experience] CAFCASS should be involved BEFORE such an order is made. I know the figures on such orders. They are miniscule. I have been involved in such cases and am disgusted at how the law was interpreted.

    Family Law cases should never be decided on whether one party can afford a lawyer or not.

    Evidence is what it is, not who presents it.

    As with Findings of Fact, when an enforcement penalty is being considered, both sides should get legal aid resourced from the savings made by cutting back on the plethora of unwarranted applications for Non Molestation Orders.

    How I have become so concerned about the state of justice in this country from someone who started out 12 years ago simply worried about how fathers were treated, is a mystery to myself.

    The only explanation I can offer is a firm belief that there are forces at work simply protecting the right to advocate by a professional and not the right for every citizen to get a fair hearing.

  3. Vincent McGovern. says:

    At the second reading of the Children and Families Bill in Parliament 25/2/13, Tim Loughton ex Minister for Children stated that in 2011 there were only 53 successful applications for committal proceedings in the UK re enforcement of broken court orders from the family courts. I researched and discovered in 2010 there were 55. Whether it is 2% as Paul above writes, or bigger forces at work as Emlyn has stated just above, one thing is certain. there is effectively no enforcement.

    The pretence of enforcement is I believe merely to keep the public and politicians happy. A bit like the Emperors invisible clothes, one is supposed to believe it even when you cannot see it.

    The mother above played a very foolish game and left herself exposed, most resident parents (mums) who flout court contact orders play a smarter game with the assistance of the myriad unregulated quasi judicial agencies and also solicitors who too often for reasons of ideological and vested interest seek to assist those who thwart court ordered contact.

    The ‘welfare of the child’ is a fantastically useful phrase of convenience for too many wrongdoers.

  4. Randox Drug & Alcohol Testing Services | Enforcing a contact order says:

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  5. Nordic says:

    In Denmark, the enforcement courts (fogedretten) handle enforcement of contact orders. Parents are encouraged to report breaches immediately. The local enforcement court can then (1) issue a formal warning if it is a first occurrence, (2) order replacement contact, (3) issue fines which increase with repeated breaches and (4), in extreme cases, physically fetch the child for contact. While it occurs, contact denial is not remotely the issue it is here because parents know there is a defined process which quickly entails unpleasant consequences for the parent in breach.

  6. Andrew says:

    Why should mothers (usually) who disobey orders to allow contact be allowed more chances than fathers (usually) who disobey orders to stay out of contact? They are both in contempt of court.

  7. Andrea says:

    What about mothers who take fathers to court to get them to see the child?
    We have been through courts for 16 months and each time the father did not attend contact sessions ordered by courts, failed to attend court appearances and was only given a no contact order but could have indirect contact a Christmas and birthdays..
    What about setting an example to fathers what about jail threats for them instead of constantly pointing fingers at women all of the time!

    • Luke says:

      Andrea, I can understand that you are emotional about this because it affects you personally, but your statements are irrational.
      You can make a father pay child support, but you cannot force one human have a relationship with another – if in your case the father now has a no contact order then I’m not sure what you expect him to do at this point, an indirect contact order is just a bullshit sop by the court to pretend there is contact when there really isn’t – I think if I was a father I would use it but let’s face it – it’s a joke…

      • Rani says:

        Luke, I am sorry, I think it is your response that is irrational. If you say, no one has the right to force one human being to have contact or a relationship with another does that not completely defeat the purpose of these contact orders? Consider a child who does not want to have contact with a particular person, if what you say is true that no one has the right to force such a child to have a relationship or contact with the adult in question, why are these children routinely forced into having relationships [which are frankly quite unhealthy] with these people? We see a lot of that where there has been violence and sexual abuse against the child by the specified adult, yet the child is brow-beaten by the court to have enforced contact where often times they get abused again and if the non-violent/non-abusing parent try to raise these concerns they are silenced with gagging orders, imprisonment and reversal of the custody of these children. I was today looking at a dossier of 22 such cases that came before the family court on each occasion the children are now living full-time with either suspected, alleged, or well-known paedophile parents who had sexually molested these children. So why are the children forced into these relationships if what you say is the norm? I’m just curious as to what informed your comment because it is far from the realities of the family court process and outcomes for abused children. Or are children simply not human enough to be afforded such rights?

        • Luke says:

          It’s really simple Rani – one is an adult and the other is a child – duh… 🙂
          .
          A child can be subjected to undue pressure by the other parent or brainwashed by the other parent to not want to attend, an adult cannot. A child is also less likely to be making a considered decision.
          When the child reaches the age of majority they can then refuse to see the parent if they so wish.

          .

          • Luke says:

            I would also add for clarity Rani that if the child doesn’t want a ‘relationship’ with father then they cannot be made to form one – they can only be made to attend by a contact order – that’s not the same thing as forming a relationship if they steadfastly refuse to do that.

  8. Andrew says:

    Father seeing the children because the court orders him to? That’s going to work well, isn’t it?
    .
    Sorry, but this is not like paying money or allowing the other parent contact: it’s impossible to make a parent keep contact who does not want to.

    • Rani says:

      Andrew, to be frank, I don’t know what Andrea was thinking when she took the matter to court. As it is impossible to make a father see a child if he doesn’t want to, do you not also think the same should apply to a child who, due to abuse, does not want to see a particular parent or adult? This is certainly not what is happening in the family courts today. They use the argument that a father is extremely important in the child being able to have an identity irrespective of the fact that the father may have repeated raped that poor child senseless! We need to come together and throw the cover off the family court so that the entire process become more transparent and held to accountability like any other profession or court of law. Presently, family law cases are held in private, not accurately reported and are beginning to take on more and more cases that should indeed be heard at the Crown Courts – it is a slippery slope in dark! So not many are aware of it.

  9. LG says:

    Hi All,

    Looking for some advice if possible… I have an court order for contact to 2 of my children after going through solicitors and courts for approx 2 years(dragged out by mother at any possible turn) after approx 2 years of seeing the kids they turned round and said they didn’t want to come any more because they don’t have friends at my house(they used to come every other weekend) and this wasn’t said directly to me but to their grandmother on my ex’s side who passed it on to me… I did miss the odd contact on the way up to Christmas(Max 1 or 2 times due to having to work away as part of my job) which I no longer do because of this… But I know that the children’s mother offered them to take them to football every week if they stay at home every weekend. This was slipped up by the grandmother when talking about contact but not something I can prove…. The boys are at an age where they will want to be with their friends 12 and 10… Can I/should I enforce an order if it was what they want? Also do this affect my maintenance… Should I pay more or less even though I still want to see them… I just feel like their mother has manipulated the children(something hopefully they’ll see in time) but is rubbing her hands together at getting 17% of my wage every week and successfully stopped contact which is what she wanted from day one… This has been over a year of no contact… I’m just wondering what’s best to do and where I stand? Any advice would be great. Regards LG

  10. LG says:

    I forgot to add I have a 5 year old son who misses his brothers and can’t understand why they don’t want to see him… He often mentions them and gets upset about it… It breaks my heart. I obviously tell him that it’s not him but he doesn’t understand. And if I enforce the order are the children likely to resent me for it? Should I let them come around in their own time? I do not know what’s best. LG

  11. JamesB says:

    LG. I am rushing, sorry, I need to get to an event for one of my children.

    I think a two pronged Approach. One of making contact with them a good nice time and doing something nice and not difficult. Two of being ok in yourself and your life.

    It is a difficult balancing act and I am faced with very similar scenario between old and new families. I think do the best you can with what you are offered and they will see through the name calling.

    I don’t think it matters if you apply for enforcement or not, if you do she will probably get a variation and reduction to see them less based on what you have said. If you don’t then the same.

    Right, here goes…

    I have found.
    1. Co-operative parenting (with ex who I dislike and biting my lip and taking the assaults) works and works a lot better than parallel parenting

    Also, worth going for enforcement if she is not offering anything and you think she respects court and you might get more contact through court. The orders are unenforceable though. If you want I could come along as McKenzie friend if you are in the SouthEast and try and help. I do not advise paying lawyers for such an application.

    Anyway, I wish you all the best.

  12. C says:

    My wife has been served an application for enforcement by her ex . He has one child aged 15 my wife has the other aged 12. We can prove in court with evidence that he breached the order on a number of occasions starting from day 1. After a number of safety concerns for her children and a refusal from her ex to send the eldest for contact with my wife she then refused to send the youngest to her ex.
    Has my wife breached this order? The currant order is only 13 months old and clearly doesn’t work can we ask for a new order to be made? PLEASE CAN ANYONE HELP? We just can not afford a solicitor.

  13. Stitchedup says:

    You appear to have the question for yourself.

  14. stitchedup says:

    You appear to have answered the question yourself.

  15. Johnny says:

    I think with regards to every case has it’s own merits’ however my experience of the hole situation (1) The family Court system
    Is failing our Children because it’s clearly about keeping Soliitor’s Judges Cafcas and other professionals with little or no ideas what’s in the best interests of the child…..
    because’ the so called family courts system will generate a welf of financial gain for those within the system.
    after all my experience within that system ultimately unless the mother is willing to comply don’t wast your hard earned cash
    Returning her to court’ because they don’t enforce the orders period!!…,,
    Simply because if she was going to comply you wouldn’t have needed an order in the first place!!…
    However If you are really keen to understand why your child no longer wants to have contact with you for no given reason’ don’t go to court’ just look up the effect a Narcissistic mother will have on her children “there is your answer” and hears is what really helps the mother get through the Court system is they fail to recognise the condition and there allowing
    her to sit below the radar of the Courts and continue to emotionally abuse her children and left untouched by the system that is failing everybody.
    These people with Narcissistic personalitie disorders will ruin your life and the child’s life and continue and move on to the next unsolved problem that the child has navigating his or her way through life
    after shattering the farthermost Parental closeness her Child.
    I been in court 10 times over one Child over 10 years proved the child was being emotionally abused’
    sexually exploited so on & so forth…
    They did nothing.
    That why society is what it is today.
    Regards
    Loving Dad.

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