When a Child Arrangements Order is made giving an applicant the right to spend time with his child, that order is underpinned by the enforcement provisions set out below. That order is sometimes frustrated by the party against whom it is made, who I will refer to as the party in breach. This article examines those provisions and seeks to dispel the opinion that they are somewhat of a blunt instrument, using two recent examples that the author has been involved in.
The law is set out at Section 11J of the Children Act 1989. Where a Child Arrangements Order is in place and a party has failed to comply with one of its provisions, without a reasonable excuse, the court can make an order imposing on that party an unpaid work requirement. The burden is on the party alleged to have breached the order to show, on the balance of probabilities that he has a reasonable excuse for doing so.
The court must also take into account the following:
a. whether the non compliance is agreed and if it is not, must conduct a hearing to establish the facts;
b. the reasons for non-compliance;
c. the wishes and feelings of the child;
d. whether advice is necessary from Cafcass;
e. manage any risks of making any further Child Arrangements Order;
f. whether the court should order a Dispute Resolution Appointment or the parties attend a Separated Parenting Information Programme, and
f. whether an enforcement order is appropriate and the welfare checklist.
A cursory glance of the the above provisions shows that the court need to take a holistic approach to an application for an enforcement order. It is not simply, that the times ordered for the Applicant to have contact with his child, has not been complied with without reasonable excuse.
Section 11J directs the court, if the facts of the case merits it, to revisit the original application. For example, the court must take into account the ascertainable wishes and feelings of the child concerned. The court may even order the parties to attend a Separated Parenting Information Programme, designed to assist the parties to communicate with each other in respect of the child concerned or set the case down for a Dispute Resolutuon Appointment.
Moreover the effect of provisions of Section 11J have to be seen in the light of Section 11L. Section 11L makes it clear that before an enforcement order can be made, the court has to be satisfied that:
a. the making of an enforcement order will have the desired effect of securing compliance with the order for contact;
b. the effect of the order proposed to be made is proportionate to the seriousness of the breach, and
c. there is suitable unpaid work within the area where the person in breach lives.
Section 11L goes on to further “water down” the effect of the enforcement provisions in that:
a. The court has to obtain and consider information about the person in breach and what is the likely effect of the enforcement order upon him, and
b. whether the order if it is made conflicts with the religious beliefs of the person in breach and whether or not she is attending an educational establishment.
The first case that I was instructed in, was for an Applicant under the Direct Public Access Scheme. I had previously represented him in a two day final hearing where an order for contact in respect of two children was made in his favour. The party in breach who was represented at the final hearing, denied contact in respect of one of the children, from the outset and after three months of no contact, I was further instructed to enforce the order. The reason for the contact not resuming the party in breach said, was that the child did not want to see his father. The party in breach however was criticised for not returning the matter back to court as soon as possible and the court ordered Cafcass to look into the matter again and to make recommendations as to how contact could be resumed.
In the more recent case, I represented an Applicant after there was a breakdown in the substantive order. The original proceedings were acrimonious, with many hearings and lasted over two years. Following some minor breaches, the party in breach stopped contact entirely and at the time of the application, there had been no face to face contact for over three months. The Applicant was not only seeking the reinstatement of the order, but for or times missed to be made up and for there to to be an element of punishment, by way of unpaid work.
The court at the first hearing ordered the resumption of contact as previously ordered, gave the Applicant some added contact time with the child and sent a stern warning to the party in breach about what could happen if there were further breaches of the order, including the court ordering in the future, that the child move to live with the Applicant. The Applicant also wanted the party in breach to be punished by doing unpaid work, but that was not ordered. On balance the application achieved what the enforcement provisions intended; that is reinstating the order as soon as possible and sending a warning to the party in breach about the potential consequences of further breaches.
From my experience therefore, the enforcement provisions although they seem to be somewhat of a blunt instrument, in practice they are not. Applicants should be aware that the court will always strain as far as possible, to order contact between the child and him. Even in cases where objectively the suspension is justified, the court will always be critical of the party in breach, if the matter is not returned back to court as soon as possible. If the order is not being complied with, the court will want to look at the matter afresh to see how, if at all possible contact can be reinstated. In the cases where suspension is not justified the court may even consider ordering the child to live with him.
In conclusion the answer to the question whether the enforcement provisions are effective, is in my opinion yes. They are not perfect but they do have varying degrees of success. Rarely are the punitive provisions used against the party in breach, but the primary objective is usually achieved.