This is a question I am asked quite regularly, by clients anxious about contact, despite the efforts they have made to achieve an acceptable Child Arrangements Order. There are a number of ways that I seek to reassure them.
Enforcement of Orders
There are a number of provisions set out within ss11I-11P of the Children Act 1989 that make provision for the enforcement of Child Arrangement Orders (CAOs). Provision is made for various penalties to be considered where a CAO is breached for example the court may direct parties to undertake activities designed to help them understand the importance of complying with such orders and making them work, make an order for unpaid work, an order for financial compensation and/or sanctions for contempt of court.
For the various rules applying to warning notices and to enforcement please see FPR 2010 r 12.33 and the provisions at ss11 I-P of the Children Act 1989. What has to be shown is that, beyond reasonable doubt, a person has failed to comply with a CAO made under s8 of the Children Act 1989. The Court may not make an enforcement order if satisfied that the person in breach had a “reasonable excuse” for breaching the order s11J(3). The burden of proving a reasonable excuse is on the person in breach and the test is the balance of probabilities. The factors to be considered by the court before making an enforcement order are set out in s 11L and in Sch A1, Pt1.
Do enforcement provisions work ?
All of this is very well but in a case where there is a young child, the parents have separated acrimoniously and there is heightened anxiety on the primary carer’s part (whether justified or not) about the progression of contact it can be something of a blunt instrument. Not many family lawyers will be able to tell you of cases in which the primary carer’s support of contact was crucial to its progression and an application to enforce proved “just the ticket” to assist the situation.
Could a Monitoring Order provide an alternative and more pragmatic solution ?
When dealing with just such a case recently (where there was a young child involved, the mother and father had parted acrimoniously and the mother was very anxious about contact progressing) we tried a rather different tactic……
The CAFCASS officer who had been involved in the case queried our suggestion that a Family Assistance Order might be of use and said that in her experience a Monitoring Order might prove more successful.
The advantages of Monitoring Orders
Section 11H of the Children Act 1989 provides that if the court is making or varying a section 8 order about with whom a child is to live or spend time with then it can ask a CAFCASS officer to monitor whether there is compliance with the terms of the order and to report to the court about compliance-related matters. This Monitoring Order can relate only to the period when proceedings are before the court or alternatively/in addition can relate to a period not exceeding 12 months after the proceedings have concluded.
You will need to check with your local CAFCASS officers about the services available. Our CAFCASS officer told us that locally there were few resources available for Family Assistance Orders whereas under a Monitoring Order (in spite of the fact that there is no statutory definition of what should be provided), in our case it was likely to provide the following:
The CAFCASS officer who had prepared the s7 report remaining involved for up to 12 months
The CAFCASS officer staying in touch with the parents on a monthly basis
The CAFCASS officer acting as a first point of contact for the parents if difficulties arose in relation to the contact that had been ordered
The allocated CAFCASS officer being able to utilise available resources to assist the parents in moving forward e.g. if the service had any trainees it was possible that they could do any necessary direct work
If the order was not complied with or the expectations set out in relation to progression were not realised then the CAFCASS officer would refer the matter back to court without the applicant having to issue fresh proceedings
In the event that the CAFCASS officer did have to make a referral back to court then a report would be prepared setting out the issues and recommendations as to any variation of the order.
A note of caution
Such orders obviously have resource implications for CAFCASS and the President of the Family Division has agreed that the provision should not be used in Consent Order cases, but instead in cases where the issue of contact has remained in dispute during the proceedings and where a trial and judicial determination of the contact issue has taken place. The consent of the parties is not required for such a direction to be given.
Conclusion
Monitoring Orders under s11H of the Children Act 1989 may provide a useful tool for cases where there is a disputed transition from supervised to unsupervised contact or where there has been a real reluctance for any contact to take place. The most important thing is to check with the CAFCASS officer involved in your case to see whether this is an option that would assist and how it would be implemented.
For more information and a discussion about your or your client’s Family Law situation please contact the clerks.
