High Court refuses to enforce contact order

Family Law|July 23rd 2015

A High Court judge has refused a British father’s legal bid to enforce contact between him and his two children.

The parents met in Spain and began their relationship in 2004 and their first child was born there four years later. Before they had their second child in 2012, the couple married in Gibraltar. By the time their second child was born, the family began to spend “substantial periods of time in both” England and Spain. Their relationship soon broke down and they separated in 2013.

Following their separation, the American mother successfully applied for permission to move the children to Spain. However, the district judge’s order stipulated that it would only be for 19 months until August of this year. It also said that the children’s legal or ‘habitual residence’ would remain in England and Wales.

The order also stated that the father should see his children “at least on three-weekly cycle either in England or in Spain” and that the costs of their meetings should be divided equally between the parents. After the order was made, the mother moved to Spain with her children.

Despite the contact order, complained that he was unable to see his children for lengthy periods. He said that on one occasion there had been a gap of a year between visits.

Sitting at the Royal Courts of Justice in London, Mr Justice Peter Jackson heard the father’s application to enforce the original order. He considered two central questions: where the children were habitually resident and whether or not the original order was enforceable.

The judge ruled that, despite the terms of the order, the children’s habitual residence was in Spain, not England and Wales. He said they had “a significant history of living in Spain” and that that their lives “had the necessary quality of stability” to establish a legal residence.

Turning to the second question, the judge did “not consider that this is an order that can be enforced”. He added that “an enforceable order would have to … specify the times when contact was to take place” and that, because neither parent had legal representation when it was made, the order failed to do so.

Mr Justice Jackson said that these two points led him to dismiss the father’s application. He concluded by urging the parents to “take whatever opportunity they can to find a legal and practical solution” to ensure that the children “have regular dependable high quality time with their father, free from the disagreements and legal arguments”.

To read GW v MW, click here.

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  1. David Mortimer says:

    There is a legitimate public interest in ensuring that where an order is made by the court it is subsequently obeyed. It is pointless for the courts to make orders if those orders are not then enforced. Deliberate refusal to obey any court order is contempt of court that can be punished with a fine or imprisonment. 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.

  2. M says:

    This is so typical of the UK court. In my case I had a French court order with contact to be 50% of each holiday time. The ex kicked off, yet again with false allegations of DV (despite the French court having ordered two in depth investigations which found she was a liar) and the UK court appointed a CAFCASS officer to carry out another ‘investigation’. The CAFCASS officer did not even speak with me, produced a report which had more errors in it than a colander and concluded as the [brainwashed] children said they did not want to spend time with me then they should not be forced to.

    So much for enforcement through Brussels II, it was in my case a complete joke and has allowed the ex to completely alienate my children from me.

  3. Andrew says:

    Refusal to cooperate with contact should be as dangerous – in terms of committal for contempt – as breach of a non-mol. Warning first time, down the stairs the second.

    • Nordic says:

      Not sure this was happened here, but your general pointt holds. If breaches of contact orders were robustly enforced, regardless of the gender of the violator, there would be far less breaches. This is to a large extent an issue created by the courts, which yet again become part of problem rather than the solution.

  4. Nick Langford says:

    Either the courts should enforce their orders or they should make orders that are enforceable – ideally they should do both. To do neither is an appalling dereliction of duty, I don’t believe the courts are the best place to resolve these issues, but as long as they remain the final arbiters the judges have a responsibility to take their role seriously. As Lord Filkin said in 2004, “Any court that doesn’t enforce its own orders is a sham”. Any court that makes unenforceable orders – presumably in the hope that no one will try to enforce them – is equally a sham.

  5. Name Witheld says:

    what a crock this judge is , orders were made in a lower court , the high court judge refuses to enforce the orders , yet i myself was sent to prison last year and also recieved a suspeneded sentence this week for not obeying court orders , yet mothers and social workers can break court orders and get away with it , this is a mockery to the criminal justice system and reinforces peoples beliefs like mine , the there is a 2 tier law system , and that stinks judges are not useing common sense , 1 rule for the elite another for us poor peasants !

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