Enforcement of contact
The new provisions for enforcing child arrangement contact orders/child arrangement orders in the Children and Adoption Act 2006 came into force on 8 December 2008.
The Court’s enforcement powers when one party does not adhere to a Court order providing for defined contact to the non resident parent have previously been limited to:
- Committing a parent to prison or making a suspended imprisonment order which may well not achieve the reinstatement of contact;
- Imposing a fine which may deprive a parent on a limited budget and not be consistent with the welfare of the child;
- Transferring residence, which is not necessarily available because the other parent may not have the capacity to care for the child full time.
The Court can direct a parent to take part in an activity that would promote contact with a child or make it a condition of granting a contact order that the parent undertakes such an activity. Contact activities could include parenting classes/programmes or counselling sessions that assist a parent to establish, maintain or improve contact.
Where the Court is satisfied that a contact order/child arrangement order or a condition attached to a contact order/child arrangement order has been breached, the Court can impose a community based enforcement order requiring a person to do unpaid work. The type of work to be undertaken will be determined by a Probation Officer.
The Court can also order that one parent is to pay the other compensation for financial loss by the breach of an order. This may include for example, the cost of a pre-arranged holiday or outing where one parent refuses the children to go at the last moment without reasonable excuse.
CAFCASS officers can monitor compliance with a contact order, activities and enforcement and report back to the Court.
All contact orders/child arrangement orders made or varied on or after 8 December 2008 will now have a Warning Notice on them, to warn parents of the consequences of non compliance with the order.
The provisions should help to ensure a continuing meaningful relationship with both parents for the children whenever it is necessary for an application to be made to the Court in respect of contact.
The new powers are made under Part 1 of the Children and Adoption Act 2006 and will give the Courts new powers to:
- Direct a party to the case to undertake a contact activity;
- Attach a contact activity condition to contact orders;
- Award financial compensation from one person to another for losses arising from failure to comply with the order;
- Impose, upon application, an unpaid work requirement on the person who breaches the contact order.
Where a Court makes (or varies) a contact order/child arrangement order, it is to attach to the order a notice warning of the consequences of failing to comply with the order.
- The Court has power to make an enforcement order where the Court is satisfied that a person has failed to comply with the contact order;
- Enforcement order imposes an unpaid work requirement;
- Court must be satisfied beyond reasonable doubt that person failed to comply with the contact order, but may not make an order if the person had a reasonable excuse for failing to comply;
- Court may suspend an enforcement order;
- Court may make more than one enforcement order;
- The person in breach must have been given a copy of or been informed of the warning notice in the contact order before the failure to comply.
To apply for an enforcement order, you must be either the person with whom the child lives, or the person whose contact is provided for in the order, or an individual subject to a s11(7)(b) condition or the child (with leave from the Court).
The new Schedule A1 sets out the detail of the unpaid work requirement, and deals with revocation, amendment or breach of the enforcement order.
The maximum number of hours is 200 and the provisions are similar to the community orders in the criminal courts.
Before making an enforcement order the Court must:
- Be satisfied that an enforcement order is necessary to ensure compliance and that the likely effect on the person is proportionate to the breach;
- Obtain and consider information about the person, including information about their religious beliefs and work commitments, and the likely effect of the enforcement order on them;
- Take the child’s welfare into account, but this is not paramount.
The Court is to ask a CAFCASS officer to monitor or arrange for the monitoring of the person’s compliance with the unpaid work requirement and to report to the Court. The arrangement currently proposed is for the National Offender Management Services (NOMS) to be responsible for arranging the unpaid work and the supervisor will be an officer employed by the probation area, who will then report to CAFCASS.
Alternatives to Enforcement Orders
The Court can order the individual in breach of a contact order to pay compensation to another person who has suffered financial loss by reason of their breach and that person has to make the application.
If the individual said to be in breach can satisfy the Court that they had a reasonable excuse, the Court may not order compensation. The Court must take into account the individual’s financial circumstances in determining the level of compensation, but the compensation may not exceed the Applicant’s loss. The compensation ordered to be paid is a civil debt.