These types
of matters are in the minority but, as you might imagine, are the most
intractable with the emotional distress to the parties and to the children at
its highest.
The Court
may consider a breach of an Order as contempt of Court and this makes available
to it fines or imprisonment. The Court may also change a child’s residence. The
problem with these options is how practical they are in the circumstances and
the potential impact on the carer and, therefore, the children. Ultimately of
course it is not likely to do much for the children improving their
relationship with their non-resident parent, who they may even view as to blame
for their other parent being imprisoned/fined.
Thanks to
the Children and Adoption Act 2006, unpaid work and financial compensation may
also be used as means of enforcing Orders…. but how does the Court actually
deal with these matters.
A recent
study funded by The Nuffield Foundation and published in July this year has
sought to gather information on these types of matters and their outcomes – a
good thing too given the lack of any real analysis to help steer legislation.
Most
enforcement applications are brought by fathers as a result of Contact breaking
down completely, although there were cases brought for enforcement because the
parent with care of the children was late for Contact or sessions were being
missed. 59% of cases studied were brought back to Court within 1 year of the
original order.
Although
most people probably believe that the main reason for Contact Orders being
breached is as a result of the unreasonable behaviour or implacable hostility
of the parent with care, in fact the study found that these matters made up
just 4% of the studied sample of cases.
Most common
were cases of parents in significant conflict – either through a lack of any
trust or where they were in competition – meaning that they were entirely
unable to work together. Next common were those cases where one or both parties
raised issues of risk, be those alcohol, drugs, mental health or domestic
violence and 10% of cases saw older children rejecting all or some of the
ordered Contact in a reasoned way, citing the behaviour of the non-resident
parent or their lack of sensitivity as an issue.
Most of the
cases were dealt with by the Court setting out a timetable for Contact but also
putting in place measures to encourage the parents to work together, be that
mediation, parenting education courses etc. but the Court also dealt with
matters by setting out a new timetable for any Contact, assessing risk issues
by way of drug testing or by restricting Contact to supervised Contact and by
seeking the views of the children involved and following those.
In 9% of the
cases sampled, the Court sought to ensure compliance with the original order by
way of punitive action. These were largely restricted to the cases of
implacable hostility, which formed the smallest % of cases sampled.
The study
finds that largely the Court alters its way of dealing with these matters
depending on the reasons for the case returning to Court and in the vast
majority of matters, the Court deals with them appropriately. Given that most
enforcement cases centre on the parental conflict or risk issues, it is
positive to note the Court’s focus on co-parenting, protection and problem
solving as opposed to pure punitive measures, which almost certainly wouldn’t
assist.
Interestingly
enough, the study found that too much focus is placed on quick case progression
at the expense sometimes of addressing the underlying issues causing the
dispute – I can only imagine that this is not going to improve given the
stripping of resources and increase in the Court’s caseload with Litigants in
Person but perhaps I am being too pessimistic, the single family Court is on
its way and there is every chance this will streamline matters and free up time
for the Courts….
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