News article published on: 25th March 2019
Katie Smith, a solicitor in Osbornes’ family department, discusses the recent changes to the law in relation to enforcing Children Act orders made by the Court.
A relationship breakdown is one of the most stressful times in adult life. Aside from dealing with the emotional affects of this, couples with children have to deal with the practicalities of how this will affect their children and make decisions and arrangements for the future. If parents find they are unable to agree contact arrangements they are encouraged to discuss matters in a conciliatory manner with a view to reaching an agreement that is in the best interests of the child. Of course, this is not always realistic as parents often feel unable to communicate with each other and emotions are high. For many parents, help is required. If this is the case parents are encouraged to attend family mediation so the issues can be discussed with a family mediator to see if a satisfactory agreement can be reached without the need for the court’s intervention. However, sadly, mediation does not work for everyone and sometimes parents find they have no option but to apply to the court for an order.
The first step: obtaining an order
A parent may apply for a contact order under Section 8 of the Children Act 1989. In most cases contact is usually ordered or even agreed between the parties at court. However, this can take time and parents must be realistic in terms of what contact can be obtained; if there have been allegations of domestic violence then initially contact may have to proceed on a supervised basis so it can be determined whether the child is at any risk of harm. Parents must also understand that contact often progresses gradually and perhaps the ideal amount of contact is not always ordered immediately. Once a final contact order is obtained that order is enforceable until the child reaches the age of 16, or until further order of the Court.
I have an order, but I’m not having contact
The difficulties parents experience rarely end when an order is made. Regrettably there are cases when a parent, for any number of reasons, is hostile to contact taking place and they do not make the child available for contact in accordance with the terms of the order. There are also circumstances where the child may not wish to go to contact. Parents must be prepared to consider reasons for this before taking matters further. Once the court has made a final order their involvement ceases leaving some parents feeling alone and without direction. However, it does not have to be the end of the litigation and further court applications can be made if necessary.
In recent years the High Court and Court of Appeal has attempted to increase the available ways to enforce contact orders: by changing the child’s place of residence, by placing the children in care and in extreme cases, by sending mothers to prison. Some argued that these measures did not go far enough while others agreed that sending a child to live with the other parent or committing a mother to prison was certainly not in the child’s best interests. It was clear there was a need for a more practical and child friendly approach.
Enforcement and the new provisions
In an attempt to strengthen the existing enforcement options, on 8th December 2008 Sections 1-5, 8 and Schedule 1 of the Children and Adoption Act 2006 came into force. Sections 11 A-P have been introduced into the Children Act and provide the court with the following new powers:
- Contact activity directions and conditions
Section 11A – it is now open to a court to direct a parent to undertake a contact activity. There are 3 types of contact activity; information meetings about mediation, a parenting information programme and domestic violence intervention programmes. The court will decide what is appropriate for the parents. Both parents are expected to participate in the activity.
Section 11C – the court may impose a contact activity condition. The conditions imposed will depend on the circumstances of the case and could be for example, a condition requiring a parent to do or specifically not to do something during contact.
Section 11G – the court may ask a CAFCASS Officer to monitor the compliance of a direction or a condition but also the effect on the child. CAFCASS will then provide the court with progress reports.
In addition to the contact and activity directions and conditions, Section 11H enables CAFCASS to monitor contact for a period of up to 12 months to ensure parents are complying and using their best endeavours to promote contact. They will then report directly to the court.
Section 11I provides that the court must attach a notice to the order warning of the consequences if the order is not complied with. The Court now has the power to require a parent to undertake unpaid work of up to 200 hours or to pay the other parent financial compensation if they are in breach of an order.
Section 11O provides that the court may make an order that one party pays money to the other in circumstances where it can be shown that the party has suffered a financial loss as a result of non compliance with the contact order.
Practical outcomes for parents
The new enforcement provisions mean that a parent who is in breach of a contact order may be fined by the court or be ordered to undertake unpaid work. As this warning is recorded on the face of the order, it is hoped that parents will take this seriously and understand the penalties of non-compliance.
The continuing role of CAFCASS may result in further delay within proceedings given that resources are already stretched. This may subsequently affect all court proceedings and it is yet to be seen. However, it does mean that parents may be assisted once a final contact order is made and are not left with a potentially unworkable order.
The new provisions certainly give teeth to existing contact orders and will show parents that although a Judge is unlikely to commit them to prison for breaching an order, they will be less hesitant when it comes to fining them or sending them to do up to 200 hours of unpaid work. A parent who is in the unfortunate situation of having a contact order which is not taken seriously by the other parent should therefore seek legal advice in respect of the merit of making an enforcement application.
Katie Smith is an assistant solicitor in Osbornes’ family department, she can be contacted at email@example.com