Enforcing Contact Orders

 

This article first appeared in FNF's McKenzie newsletter #43 (December 1999)

 

Compliance with and enforcement of court orders for contact is the Achilles Heel of the family courts.

It is a difficult choice for the non-resident parent whether to wait and see if an order 'settles down' - risking the establishment of a status quo - or to be more pro-active by going back to court. Non-compliance by the resident parent is often 'rewarded' with Legal Aid and a reduction of the contact originally ordered.

However angry one feels there can be merit in a bit of 'give-and-take'. It may help to develop co-operation and trust, and the alternative is often the stress of several court hearings.

Establishing clear 'boundaries' may, however, be necessary. At the first breach of a contact order you should formally put the fact on record by letter to the mother and (if she has one) her solicitor. Make it clear that you will go back to court for enforcement (and costs) if there is any further default. You might also remind the solicitor of his/her duty to advise the client about the consequences of non-compliance. In the event of a further breach do not delay in returning to court to ask for a penal notice to be attached to the order - court orders are not made to be ignored.

Courts start from the position of urging parents to agree and to resolve problems between themselves. So it is important to be able to demonstrate in correspondence (attached to any subsequent statement) that you have tried to resolve any differences before resorting to legal action.

In order to get anywhere it is important that the contact order is sufficiently detailed - specifying who is to do what, where and when (time as well as date). If the order is ambiguous then write to the other side clarifying your understanding and asking for confirmation.

Don't expect immediate results. In two cases I know of it took 9 and 12 penal notices respectively before the recalcitrant resident parent was committed for non-compliance. In many other cases a ticking off from the judge and subsequent pressure from a barrister have been enough to ensure that contact took place.

The court may take a 'short sharp shock' approach (in the case of a younger child) especially where one parent has a history of contact denial. But available sanctions are limited to a fine or prison sentence. Unfortunately, Community Service Orders are not an option at present, though this would seem to many to be a more suitable form of punishment.

In most cases, of course, excuses are offered - open defiance before a judge is rare. If there is a long journey involved the mother may tell the father that the child 'might not be able to make contact'. She may subsequently confirm this in court but add that, as it turned out, the child was able to make contact after all - the only difficulty being that the father decided not to make the journey!

She might also say that the child was terribly disappointed at being let down and now opposes contact. This is often an indication that the mother may be starting to alienate the child against the father, something which requires firm action.

When a contact order is breached it is important to have detailed evidence. A sworn statement from a reliable witness can help. Discreet observation (beware allegations of harassment) or a report from a neighbour might show that at the time the child was supposedly unwell he or she was at a party or out shopping with the mother, looking perfectly healthy.

Never forget, though, why you are in court. As FNF members, we don't want to see mothers or fathers jailed - we want to see our children having proper contact with both parents.

If the case has only recently been before the court you will need to take account of the judge's findings at the hearing. For example, harsh criticism of the mother for denying contact might cause a judge to be more inclined to give a penal notice to uphold the order of the court.

On the other hand, if the judge encounters intermittent breaks of contact which are presented as reasonable he might be more inclined to the view that the order needs a chance to settle before taking action - it is a draconian step to threaten the mother with jail at the first small lapse.

The judge may alternatively decide that the mother is facing an 'obsessive' father, in which case the father risks losing the application, having contact reduced and costs awarded against him.

One case I remember involved a 3-year-old boy. The father was granted staying contact, but the distance meant an eight hour round-trip which cut into contact time. So he rented a cottage near the mother. The judge drew up a careful order providing visiting contact for the first weekend (to allow the child to settle in the new surroundings) with subsequent staying contact.

At the first weekend the mother broke the order by taking the child on a surprise holiday. The father took the matter straight back to court (without a solicitor) for a penal notice and was granted one, plus costs of £250 against the mother (who also got a severe ticking off from the judge).

Another approach is to ask that the mother make an undertaking not to disrupt contact without (for example) a medical certificate or prior written agreement.

Though it is mostly mothers who thwart contact, some fathers who have residence are equally at fault. As ever, it all depends upon the merits of the particular case - after all, if there were a simple formulaic solution there would be no need of family courts.

 

Ian Mackay
December 1999