We’ve written on many occasions about arrangements for children after parental separation. Spending time with your own children if you do not live with them is formally known as contact, which is something on an unfortunate label, having overtones of artificiality (“coming into contact with something”). There are plans afoot to do away with labels such as this, so that in future there will be orders and agreements for “child arrangements” which is a much more neutral term. [2.6.14 Update – this happened on 22 April 2014 and “child arrangements orders” replaced the concepts of contact and residence.]

Terminology aside, it is normal for children’s arrangements to be agreed between the parents, or if that is not possible, a court can impose and order a regime dictating with whom the children will live and when they will see the parent with whom they do not live. Sometimes there are teething troubles to these arrangements, but they usually settle down with time. Around 10% of families who are separating litigate over arrangements for their children; the remainder manage to agree a plan.

However, occasionally things do not go smoothly – one parent can refuse to comply with a contact order, often coming up with spurious reasons why contact cannot take place, or just flatly refusing to obey the court order. This can be complicated when one parent coaches or otherwise influences the children so they claim not to want to see the other parent. In a few cases the case can descend into what lawyers often term “implacable hostility”.

So what remedies are open to the parent who is vainly trying to see their children when faced with refusals from the other parent?

There are a limited number of orders which a court can make to enforce its orders for contact. It is worth mentioning that judges can be reluctant to make these orders for fear of worsening the conflict between the children’s parents. At the extreme end, powers exist to imprison parents who breach contact orders, and to order that the children live primarily with the other parent. Somewhat less draconian is the community service order, by which the court can impose an unpaid work requirement (of between 40 and 200 hours) if it is satisfied beyond reasonable doubt that there is no rational excuse for non-compliance with the contact order.

Further down the scale in the court’s armoury to encourage compliance are the Activity Directions and Activity Conditions. These can require a parent to attend information meetings about mediation, a parenting information programme, or a domestic violence prevention programme. The court can also ask CAFCASS to monitor and report on a parent’s compliance with a court order. The Government recently decided against adding curfews and passport or driving licence retention to the court’s powers of enforcement, although some new measures are suggested in the new Children and Families Bill currently going through parliament.

Until now little research has been conducted onto how courts respond to applications to enforce contract orders, and so we were interested to read the briefing paper recently published by the Nuffield Foundation which summarises research carried out by Exeter and Oxford Universities.

The briefing paper can be viewed here.

Encouragingly the paper tells us that of the 10% of cases which are litigated, relatively few return to court to enforce the contact order – around 1,400 per year. The study looked at 215 of those cases which do return to court with a view to establishing why, and also how courts deal with them. It is hoped this will then assist the Government in considering future policy in this area.

The study showed that the majority of applications to enforce contact are made by fathers when contact has completely broken down. The study divided cases into four categories:

  • ‘conflicted’ where the levels of mistrust between the parents are so severe that they cannot work together to implement the court order. Everyday challenges become insurmountable problems that cannot be resolved without external intervention (55%);
  • ‘risk’ where one or both parents raise issues about the safety of the children whilst in the other’s care (31%);
  • ‘refusing’ where a child over the age of 10 gives an apparently reasoned refusal to comply with contact (10%);
  • ‘implacably hostile’ where there is sustained unreasonable resistance to contact by the parent with day to day care of the children (4%).

It is interesting that despite public perception that enforcement cases are all about intractable mothers, that category was the smallest of the cases examined in the study.

The study showed that judges’ approaches were generally tailored to the type of case. So ‘conflict’ cases were mostly dealt with a more detailed framework worked into a court order reducing potential areas of conflict, often combined with a referral to parent education programmes to aid communication. The punitive approach was largely restricted to the ‘implacably hostile’ cases. Some concern was raised about cases where safety issues are raised, with only half leading to protective measures such as drug testing, supervised contact or referral to domestic violence counselling.

The study praised the court’s attempts to deal quickly with enforcement cases but flagged up that this may mean some cases were dealt with rather cursorily, with limited attention to the underlying causes and effects of the ongoing dispute. The report concludes by saying that as most cases are about mutual parental conflict or child refusal rather than implacable hostility, the courts are largely getting it right by focusing on facilitating co-parenting and listening to the views of older children rather than dishing out punishment.

The report seems fairly encouraging about courts’ approaches in the light of data on the types of dispute before them.

If you would like to talk about anything raised above, do get in touch with us on 01223 443333.

*This information is given free as a public resource and is not legal advice. Please seek legal advice based on your own circumstances.  Whilst valuing and encouraging discussion, CFLP regrets it is unable to answer individual queries on this website.

Join the discussion 5 Comments

  • Kelly says:

    My family lived in South London until my ex made a surprise move to Manchester, forcing me to drive 10 hours return to see my kids. While she is not overtly preventing me from seeing them, she is making it very difficult to see them and impossible for them to spend nights at my home. I don’t earn enough to pay for legal services (after child support and rent I barely make ends meet) but earn too much for legal aid. Meanwhile my ex has at every opportunity engaged in the most hostile activity possible and has a history of denying me contact to my children and telling bald-faced lies to them and her solicitor (provided free by the state of course).

    I feel like I’m being forced to work so she can continue to sit on her butt and abuse me through my children. I feel like the best solution for me is to quit my job, move to Manchester, rent a house and apply for benefits when my savings run out. That way I can spend time with my children and as soon as I’m poor enough, apply for legal aid. This system seems inherently wrong and corrupt and benefits the most lazy and self-centred person in the relationship. I have to become as terrible a person as her to see my kids on a regular basis. This all just seems so very, very wrong. Any suggestions that allow me to maintain my integrity and self respect that don’t involve 10 years of ongoing slavery to a verbally and mentally abusive socio-path would be welcome.

  • Deb says:

    What if it works the other way though?

    My ex husband obtained a court order even though he had contact with my daughter, he had legal aid whilst I had to represent myself.

    The contact order states the contact times should be for two and a half hours on a Thursday (16.30 – 19.00) and four hours on a Saturday (10.00 – 14.00). He is not allowed to collect or return our daughter to me as he has been verbally abusive to me in front of our daughter, therefore the judge included in the order that my sister is the point of contact.

    He never exercises the full contact times and brings our daughter home after only exercising half of their time together without prior notice and sometimes to me which completely flouts the order. I have said to him that he needs to follow the order but he just laughs at me and states he still gets legal aid and won’t have to pay whereas I do! He applied for legal aid before April and was awarded it even though he was working cash in hand – I have photographic evidence – whereas I was rejected due to the fact of my housing costs not being taken into consideration.

    My main concern is that my daughter is only nine and already becoming disinterested in attending contact with him. Any advice would be welcomed x

  • James says:

    I am about to start the process of enforcing a court order and after reading this I am quite worried, my case would fall into the risk category, The mother of my child is living with a man who has a 9 year history of abuse, neglect and inappropriate behaviour towards children so I am very concerned about the current situation especially as she has just cut my contact from 4 days per week to once a fortnight. Social services wont enforce the agreements they put in place despite the agreement stating that she will not allow contact between the children and the man she has recently allowed to move in. despite my worry and quite serious concerns, I feel I’m going to be let down as im starting to get the impression judges rarely enforce court orders, I sincerely do hope the courts and judges are more competent than Social services. My son’s welfare and whole future depend on it 🙁

  • Good Dad says:

    My case has lasted over 7 years.

    What this report seems to ignore is how long it takes to get orders in the first place and how long it takes to get enforcement hearings.

    That is where there is major discontent.

    There is no serious consideration of shared residence and it is surely a change of residence that will make most comply.

    There is no shaming of the person that breaks contact orders at all. Indeed constant court appearances legitimise their behaviour in the eyes of those around them as it appears to outsiders as though there are good reasons for ongoing difficulties and these just feed the case even more.

  • Richard says:

    What a total joke!!
    My ex partner has spent the last 9 years accusing me of being an alcoholic, drug addict, violent child pest with absolutely no proof whatsoever! I have also never been arrested in my life!

    However, I have had a court order in place for 4 years and have never waivered from it, but she has recently chosen to unilaterally decide not to bring them to my flat!!

    I have told every legal body I can who basically tell me my hands are tied and the never ending waiting for a result is as long as a piece of string, all the time my children’s rights to see there father are continuing to be denied!

    This woman DESERVES to do community service or a minimum custodial sentence because she is blatantly breaking the law and should made an example of

    But the courts would rather her get away with it and sort things ”amicably”
    Would they feel the same if it were me!
    I don’t think so!!

    The courts are deluded and soft and a total joke!

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