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Contact enforcement: failure to progress

[Update 2.6.14 – this blog refers to the Children and Families Bill, which became the Children and Families Act 2014 and many provisions of which came into force on 22 April 2014.]

Last week we wrote about enforcing contact orders [Update 2/6/14 – now child arrangements orders]  and a study which looked at how courts deal with those cases brought before them where one parent is trying to enforce an order made in earlier proceedings. We have also mentioned before the Children and Families Bill which is making its way through the parliamentary process, having had its second reading in the House of Lords earlier this month. There were suggestions that the Bill would contain proposals for enforcing orders relating to children, so we thought that to complete the picture started in last week’s blog, we would have a look at those proposals, and explain what became of them.

Last year the Department for Education and the Ministry of Justice jointly issued a public consultation document called “Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life”. The consultation invited views on the Government’s plans to introduce legislation to reinforce the principle that most children benefit from the ongoing involvement of both parents after separation, and on options for strengthening the enforcement measures available to courts to deal with breaches of court-ordered arrangements for contact. The Government’s response to the second part of the consultation (contact enforcement arrangements) was published in February 2013 and can be found here.

The government sought opinions on adding three punitive enforcement options to the court’s powers when trying to make contact work in the face of intransigence from one or both parents. Those three options were:

  • Curfew order – requiring the person who is the subject of the curfew order to remain at a specified address during specified dates and times;
  • Disqualification from holding a driving licence for a specified period of time;
  • Disqualification from holding a passport i.e. from obtaining or holding a passport during a specified period of time.

These measures have already been approved for dealing with enforcement of child maintenance arrears, although they are not yet in force.

The consultation asked whether courts should have stronger enforcement powers to enforce decisions they make about how much time a child should spend with a parent (contact), to which 66% of respondents said that they should. Just under two thirds of respondents who answered the question about specific remedies (61%) agreed with the introduction of curfews and disqualification from driving or holding a passport to the powers of the courts when dealing with contact enforcement cases. However not many people actually answered this question in the survey, so numerically the support for each potential option was limited.

The demographics of the respondents are interesting: more fathers responded than any other group, and wider family members and mothers were equally represented. Responses from mediators, solicitors and barristers were relatively few.

A strong message from consultation was that measures designed to ‘punish’ parents are unlikely, in many cases, to be appropriate or to encourage parents to be co-operative in the future. The results from the study by the Nuffield Foundation showing that the courts barely use their existing punitive powers and generally manage difficult cases well, as discussed in last week’s blog, was also made available to the Government while it was considering its options.

Some objections to the proposed new powers came from women’s groups and people fearing domestic violence if contact were to be enforced. Some respondents were critical of linking child maintenance and contact more closely than they are presently (ie by making enforcement options exactly the same), pointing out that punitive measures to enforce child maintenance rarely impact directly on the parent with whom the child is living, whereas enforcing contact via punishment usually will have a direct impact on that parent. As a result the Government decided not to introduce these new powers into the court’s armoury for dealing with enforcement cases.

So where does this leave us?

Well, the Government is committed to a speedy resolution to contact disputes, having accepted a recommendation of the Family Justice Review (in 2011) that alleged breaches of court-ordered arrangements for children should be brought back to court quickly, and wherever possible to the same judge who made the original order.

In some respects it seems like a lost opportunity for toughening up and broadening the enforcement provisions, which even if seldom used, might be useful for those really difficult cases where the child’s welfare is being compromised by failure to adhere to court orders. So judges are left with the options of changing residence (as a last resort, and only if it is in the child’s best interests), imprisonment, community service, contact activity directions or Cafcass monitoring. It seems the government is putting great faith in its proposed changes to section 1 of the Children Act 1989 to emphasise the importance of children having an ongoing relationship with both of their parents following family separation, a provision which is still being wrangled over at the moment to determine its precise form and meaning, to bring about a change of behaviour in contact refusers.

If you have any questions about contact or its enforcement, do give Gail, Sue, Adam or Simon a call on 01223 443333.

Join the discussion One Comment

  • Nick Langford says:

    So we really aren’t any further forward than Bracewell’s comments in V v V: commit, fine, transfer residence or give up. This seems to be the government giving up. Do they really think child arrangements orders will be more readily obeyed? The new 2006 sanctions aren’t being used (and the courts seem unaware of how to use them). The Nuffield study is so bigoted and full of holes it is next to useless. What might be more useful would be a study of why contact orders are breached – wouldn’t that be the logical starting place? The government has also failed to examine the other side of the coin, which is why contact ordered isn’t taken up, as well as hostile applications. Clearly some mothers who responded to the consultation thought enforcement should apply to fathers as well, and why shouldn’t it? Not all jurisdictions are as squeamish as ours about pushing reluctant parents to honour their responsibilities.

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