This article does not constitute legal advice and FNF cannot be held responsible for the use of this information.
Before any order can be enforced it must contain a warning notice under section 11I of the Children and Families Act. This warning should be on the front page of the order as specified in paragraph 37.9 of the Family Procedure Rules.
Applications to enforce are made on form C79. As of 16/10/2910 there are currently proposals by the Private Law Working Group headed by Mr. Justice Stephen Cobb to remove for C79 and add enforcement of orders to the C100 form, on the assumption most people who apply for enforcement actually want to vary their Child Arrangements Order. There is no reliable evidence of this.
When issuing the application the court may order Cafcass/CAFCASS Cymru to undertake safeguarding checks. If they order being enforced was made more than 3 months ago, safeguarding checks will always be ordered.
The first hearing should be scheduled within 20 working days. Section 21.2 of Practice Direction 12B states:
Practice Direction 12B sets out the steps the court will take, namely:
- consider whether the facts relevant to the alleged non-compliance are agreed, or whether it is necessary to conduct a hearing to establish the facts (a Finding of Facts hearing);
- consider the reasons for any non-compliance;
- consider how the wishes and feelings of the child are to be ascertained;
- consider whether advice is required from Cafcass/CAFCASS Cymru on the appropriate way forward;
- assess and manage any risks of making further or other child arrangements order;
- consider whether a SPIP or referral for dispute resolution is appropriate;
- consider whether an enforcement order may be appropriate, and
- consider the welfare checklist.
The court must first determine beyond reasonable doubt if the order has actually been breached. It is very important to ensure you have clear evidence the order has been breached. Often orders can be drafted in an ambiguous way which allows too much leeway for an errant parent to claim their actions or inaction did not breach the order.
If one or more breaches is established the court will then determine on the balance of probabilities if the person in breach had a reasonable excuse. The threshold for excuses is very low, often excuses which seem unreasonable can be accepted by the court. To avoid this you should try provide evidence and examples explaining why he person should not have considered the reasons sufficient to breach an order. Often comparing their breach with behaviour they themselves have engaged in can show the behaviour to be unreasonable or a contradiction of the way the person in breach behaves.
The Family Court seems to have an aversion to enforcement of orders. They tell the delinquent party in very stern words not to breach the order and "don't do it again", but they are very reluctant to impose any penalty on the person who breached the order. The statistics on enforcement of orders make depressing reading, each year the number of applications for enforcement orders increases by between 10% and 30% each year, but the number of enforcement orders made has never been higher than about 1%. In 2018 this dropped to 0.5% of applications resulting in an enforcement order. This situation is a disgrace, but it should not deter you from applying to enforce. Even if the party in breach is not punished by the court, the likelihood is contact will be restored.
Here are a couple of quotes you may wish to use to reinforce the view of the senior judges with regard to enforcement:
In 2014 the then President of the Family Division issued his "View from the President's Chambers" no. 7 entitled "The process of reform: changing cultures". In it he made clear the importance and sanctity of court orders:
"What I fear is an even greater cause for concern – and it is for me a real concern – is something symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time.
"Too often they are not. They are not preferences, requests or mere indications; they are orders. This principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Both parties and non-parties to whom orders are addressed must take heed. Non-compliance with an order by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body. Non-compliance with orders should be expected to have and will usually have a consequence: see Re W (A Child), Re H (Children)  EWCA Civ 1177."
In a speech given to the J20 conference in Argentina in Sept 2018 by Lord Justice Gross entitled "How can judges strengthen the rule of law" he said:
"Furthermore, a functioning justice system must provide effective access to the Courts. While there is room for argument as to detail, the principle cannot be in doubt. It is hollow to provide rights without the means of accessing Courts to give effect to them; our concern is with practical not theoretical justice. Effective, readily available, legal advice and representation. Ease and effectiveness of enforcement.Costs that are not to be prohibitive; the Judiciary can properly take steps to ensure that court rules, practices and procedures do not increase the cost of litigation unnecessarily. And within the rules, judges should manage cases so that they are conducted at proportionate cost. Without access, property rights will not be secure, contractual rights will not be capable of ready enforcement: businesses will be neither able nor willing to invest and society will, as a consequence be impoverished. Equally, human and other civil rights and obligations will be incapable of effective implementation. Both the socio and economic demand of law will go unmet.The goals of sustainable development could not be achieved."
The options for enforcing orders were expanded in the Children and Adoption Act 2006 to include ordering a person to do unpaid work.
These were inserted into the Children Act 1989 sections 11J to 11N. The procedure is set out in The Children Act 1989 section 11J and expanded in Practice Direction 12B. This can be summarised as follows:
- The court must decide if the order has been breached beyond reasonable doubt
- The court must then decide on the balance of probability if the person breaching the order had a reasonable excuse - the burden of proof is on the person who breached the order to prove they had a reasonable excuse.
- Consider how the wishes and feelings of the child(ren) should be ascertained.
- Consider if advice should be sought from Cafcass/CAFCASS Cymru on the way forward.
- Assess the risks of making further or other orders.
- Consider and Activity Direction e.g. SPIP or making an enforcement order.
- Consider the Welfare Checklist.