An article Miranda wrote for MATCH's November 2007 Newsletter
From FamilyLawWiki
Legal issues: Enforcing Contact Orders Miranda Fisher
Miranda Fisher is an Associate solicitor in the Family Law team at Charles Russell LLP London, and co-author of Child Contact: Law and Practice for Law Society Publishing. Her published articles include Enforcing Contact Orders: The Children and Adoption Act 2006 for Family Law Journal; and Privacy and Open Justice in the Family Courts with Keith Schilling for Family Law. We are indebted to Ms Fisher for contributing this article to MATCH.
There is a presumption or assumption that contact with a non-resident parent is in a child's best interests unless the contrary is proved. For many non-resident parents the difficulty therefore does not arise in obtaining a contact order but in enforcing that order when the resident parent is resolutely against contact often without good reason, and seeks to limit or deny contact altogether.
The Children and Adoption Act 2006 (CAA 2006) which received royal assent on 21 June 2006 is designed to address the issue of "implacably hostile" resident parents. The government is currently deliberating on the timescale for commencement and implementation of the CAA 2006, This involves consideration of the necessary resources for implementation, guidance and training for court staff and the changes that have to be made to the court rules. The date of commencement will be notified in due course. The CAA 2006 brings in a raft of new measures designed to enhance and increase the powers of the court to enforce contact orders. Until the provisions of the CAA 2006 are implemented, the courts must continue to rely on the existing enforcement remedies where a contact order has been made and is being frustrated and undermined by the resident parent. These remedies will continue to exist after implementation of the CAA 2006 and it remains to be seen to what extent the courts fall back on the old methods of enforcement rather than embracing the new methods.
CURRENT ENFORCEMENT METHODS Imprisonment/Suspended Imprisonment Order
The court can send the parent who refuses or frustrates contact to prison, or make a suspended order for imprisonment on the basis of contempt of court. This remedy has been used, albeit sparingly and as a last resort, in recent years. In Re S (Contact dispute: committal) [2004] EWCA Civ 1790 [2005] I FLR 812 the Court of Appeal were faced with the complete defiance of the resident parent who refused to in comply with a contact order or even attend the committal hearing, upheld the decision of the judge in the lower court to commit the resident parent to prison for seven days coupled with an interim residence order in favour of the non-resident parent There are obvious limitations to sentencing an implacably hostile parent to prison, The child may blame the applicant parent for committing his or her carer to prison and the order itself may disrupt the child's life to an unacceptable extent. If a child cannot reside during the prison sentence with the other parent or with another suitable carer, the child will be placed in foster care. The precursor to committing a parent who is frustrating contact to prison is to apply for the attachment of a penal notice to an order for defined contact. In the absence of a penal notice committal proceedings cannot be brought. A penal notice may work as a "last warning" to the parent who is in breach of an order but will not necessarily work with the really intractably hostile parent. It is also worth noting that the Court of Appeal has held (Re M (Contact Order) [2005] EWCA Civ 615 2 FLR 1006) that a custodial sentence should not be imposed where a fine would be appropriate.
Imposition of a fine
This option of imposing a fine on the parent obstructing contact is rarely used largely because it is considered to be inconsistent with the welfare of the child to deprive a resident parent of funds, particularly where they may already live on a limited budget with which they support the child or children.
Transfer or change residence
Residence can be transferred where an implacably hostile parent is seen to be acting against the best interests of a child in frustrating court orders for contact. However, again such an option is not necessarily available to the court because the non-¬resident parent may not have the facilities or the capacity to care for the child full time. Shared residence orders are being made in increasing numbers and can be a way of ensuring the relationship with both parents is maintained. In the early 1990s, the courts were holding that shared residence orders would only be made "in exceptional circumstances" and against the background of a presumption that children need one main home and regular contact with the non-resident parent. The courts moved away from this from about 2002 and now, where it can be shown that such an order is in the child's interests, children do not necessarily have to be dividing their time equally between their parents to justify the making of a shared residence order. The courts will now make shared residence orders where this reflects the reality of the children's lives in that their time is being shared between their parents or to emphasise that parents are equal in the eyes of the law and have equal duties and responsibilities; a shared residence order may well be needed where a sole residence order could be misinterpreted by one parent as being the parent in control when in fact the parents should be cooperating together over arrangements for the children. Shared residence can be used to redress a power imbalance between parents and may assist in ensuring that the resident parent complies with an order requiring the child to "reside with" for a set period of time, as opposed to have contact with, the non-resident parent
Indirect contact
An order for indirect contact (letters, cards, emails, telephone calls) may made as a short term solution with a view to rebuilding direct contact but following this option gives the impression to the wider public that judges will not deal with implacably hostile parents and may lead implacably hostile parents to feel that they need not fear court imposed consequences if they disobey court orders for contact
Section 37 reports
Under the Children Act 1989 s 37, the court can direct a section 37 report from the local authority to investigate whether a child is at risk of emotional harm due to the behaviour of the implacably hostile parent and to consider whether care proceedings are appropriate. This was used in the case of Re M (Intractable contact dispute: interim care order) [2003] EWHC 1024 (Fam)], [2003] 2 FLR 636 where the judge made clear that to use the section 37 procedure the court must be satisfied that the criteria for invoking this procedure were met and that the action contemplated (which would be that the local authority would remove the children from the residential parent's care for assessment or a change of residence) must be in the children's best interests.
Costs orders
Whilst not strictly part of enforcement, the making of a costs order against a parent unreasonably frustrating contact orders and causing the drawn out proceedings may well act as a deterrent. It is unusual to make costs orders in children cases because where there are proceedings regarding a child's future the "aspiration is that in their outcome the child is the winner and indeed the only winner The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as an unsuccessful party obliged to pay them." However where the conduct of one party has been "reprehensible or the party's stance has been beyond the band of what is reasonable" costs will be ordered (Sutton London Borough Council v Davis (No 2) [1995] I All ER65). In the more recent case of ReT (A child) [2005] EWCA Civ 311 the non-resident parent had not complied with a contact schedule recommended by professionals and ordered by the court. The court then made a residence order in favour of the resident parent. The Court of Appeal dismissed the resident parent's appeal against an order for costs where unfounded allegations had been established. This case shows that the court is increasingly willing to penalise the unreasonable parent where the unreasonableness is related to the conduct of the litigation.
Family assistance orders (FAOs)
The court can oblige an officer of the Children and Family Court Advisory and Support Service (CAFCASS) or a local authority officer to advise, assist and (where appropriate) befriend a named person or persons (s 16 Children Act 1989). The persons named can be a parent or guardian of the children or a person with whom the child is living or in whose favour a contact order is made or the child himself. The court must be satisfied that the circumstances are exceptional and that it has the consent of every person named in the order other than the child. The FAO can currently only be made for six months. The CAA 2006 contemplates better use of FAOs in that they will no longer be used only in "exceptional circumstances" and extends the time limit for their use from six to twelve months.
THE CHILDREN AND ADOPTION ACT 2006 (CAA 2006)
The CAA 2006 envisages a new approach to old enforcement problems. The court retains the existing remedies outlined above and acquires new powers to: Direct either parent to take part in an activity that would promote contact with a child or make it a condition of granting a contact order that the parent undertakes such an activity (including programmes, classes and counselling or guidance sessions to establish maintain or improve contact or to address violent behaviour) Punish either parent for breaching a contact order or a condition attached to a contact order (e.g. failing to attend an activity which is a condition of contact) with an enforcement order imposing an unpaid work requirement.* Order one parent to pay the other compensation for financial loss caused by the breach of a contact order (for example, the cost of a lost holiday or outing) Ask a CAFCASS officer to monitor one or both parents' compliance with a contact order and report to the court Make a Family Assistance Order (FAO) for up to 12 months The hope is that the CAA 2006 will add to the court's armoury in the effective enforcement of contact orders where the court finds that there is no justification for implacable hostility and that it is in the best interests of a child to have contact with his or her non-resident parent
Miranda Fisher
"Unpaid work requirements are akin to community service orders and will form part of the scheme operated by the National Offender Management Service which was set up to ensure community service activities are appropriate to the individuals carrying them out. The range of work carried out is varied, for example: assisting at social clubs for older people or people with disabilities, cleaning, painting and decorating work or gardening and landscaping in the local community.
