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.