How do you enforce a Contact/Access Order? The Children and Adoption Act 2006 | The Children & Families Act 2013

In brief

Child Arrangement Orders’ have been brought in as of April 2014, which endeavour to remove labelling of parents as either having the children living with them, or seeing them on a regular basis. This labelling has been the cause of a huge amount of litigation and whilst there is no presumption in favour of shared parenting, the message being clearly sent is that the courts see both parents having a proper involvement in their child’s life, provided that it is safe and not contrary to the child’s welfare. Orders about children no longer contain the words custody, access, visitation, residence or contact. Instead our children are ‘spending time’ with each parent.

It has always been difficult to enforce contact orders, as judges have been reluctant to do so for fear of worsening the conflict between the child’s parents. Although powers exist to imprison parents who breach contact orders, and to transfer residence/custody to the other parent, the courts feel that to do so conflicts with their duty to make orders which are in the child’s best interests.

A few years ago, a very wide government consultation took place, to find out how contact could be ‘made’ to work. A new approach was taken, which aimed to deal more effectively with problem parents, by giving the courts novel and various new powers. The result was the Children and Adoption Act 2006 (CAA) which came into force on 8^th December 2008. The aim of the CAA 2006 is to be tougher on parties who breach contact orders and to introduce new remedies to run parallel to the old ones.

Prior to CAA

Only remedy for breach of contact order was imprisonment by attachment of penal notice (breach of which entitled the court to jail the offender) and a fine for contempt of court.

New Powers relating to Contact Orders under CAA 2006

The court was given various new powers to order parents to attend parenting and other programmes, and even to impose Community Service-type penalties:

1. Making Contact Activity Directions and Contact Activity Conditions

• 3 types of Contact Activity Directions requiring a parent to attend:

1.                                                                i.      Information /assessment meetings about mediation
2.                                                              ii.      Parenting information programmes
3.                                                             iii.      Domestic violence prevention programmes.

• The court can make these directions at any time when a contact application is being considered.

• The court has power to ask CAFCASS (Children and Family Court Advisory and Support Service) for information in relation to the making of these orders. Cafcass employs Family Court Advisors, who work exclusively within the court system. They sit with judges on cases, and prepare reports.  If requested, CAFCASS must inform the Court of appropriateness of making such orders, taking into account the local availability of the contact activities, the parent’s suitability to participate including their work and other commitments and whether it will actually make any difference.

1. 2.       Monitoring Contact Activity Directions and Contact Activity Conditions

The court can ask CAFCASS to monitor and report on a parent’s compliance of with the order (during proceedings and/or up to 12 months after, and set a review date to come back for another hearing.

3. Warning Notices

• Court must attach a ‘Warning Notice’ to every contact order or variation of contact order made after 8^th December 2008.
• Warning notice sets out consequences of failing to comply ie. an enforcement order can be made and the subsequent consequences.
• For contact orders made prior 8/12/08, applications can be made to have warning notice attached.

4. Making Enforcement Applications

• Application made if warning notice to a contact order has been breached.
• Court can impose an unpaid work requirement (40-200 hrs) (also known as community service).
• Court must be satisfied beyond reasonable doubt that there is no reasonable excuse for non-compliance with the contact order.
• The court will consider:

1.                                                                i.      Necessity of enforcement order to ensure compliance
2.                                                              ii.      Likely effect including on religious beliefs or education/work arrangements
3.                                                             iii.      Availability of locally unpaid work
4.                                                            iv.      Welfare of child

• CAFCASS will be sent a copy of application and make checks as to reported non-compliance.

5. Monitoring Enforcement Orders

• CAFCASS will be asked to monitor any requirement for unpaid work imposed by the Court. The National Probation Service will undertake the monitoring and will report to CAFCASS.
• CAFCASS must report to the Court of non-compliance without reasonable excuse or if party becomes unsuitable to perform unpaid work.
• Other information should be reported to CAFCASS and then to the Court e.g. if party moves address and no new address has been given.

1. 6.       Compensation for Financial Loss

This is something that has concerned my clients over the years. Do they make and pay for arrangements and holidays when they are meant to have their children for contact, when the risk is that the child won’t be allowed to come?

This part of the new law sought to deal with those concerns:

• A party may make an application for compensation of loss caused by the other party’s non-compliance with terms of the order.
• Welfare of child considered by the Court.
• Court can request information from CAFCASS as to welfare of child in relation to affect of one party paying compensation.

Conclusion

How have these new powers worked out? As always, your chances of success depend on the attitude of your judge. The Warning Notices sound impressive, but although the law has changed, the mindset of the judges have not. The Financial Compensation Orders are helpful though, and can be used to good effect to ensure compliance.

The courts do appear to want to be tougher though. In 2010, a new set of rules dealing with procedure came into force (Practice Direction 12b – The Revised Private Law Programme), which gave the judge the authority to make what are now called Child Arrangement orders or other matters at the first hearing, even if one party objected. Previously to this, orders could only be made if both parties agreed. This is definitely a step in the right direction, but I do feel that the court has a long way to go in learning to deal appropriately with these issues. If the courts grasped the nettle at an early stage, so many children cases may well not get to the stage of becoming impossible to resolve. As judges persist in letting these cases drag on without a proper order that they are willing to enforce, parents become unshakeable in their views, and the children take on those views as they have been subjected to them over a long period. If the children are not seeing the other parent, there is no-one to show them that there is an alternative. The delay in the family court system is its biggest shame. Action has been taken to drastically shorten the time for adoption cases and those involving children being taken into care by a local authority. Sadly precious little is being done to remedy the inordinate delays endemic in the private law system, where the bulk of applications are made by parents  against the other parent or family member, for orders about their children.

© Punam Denley

July 2014

pd@blanchardslaw.co.uk