Enforcing contact orders
By:19 commentsJanuary 22, 2015
It is a very common complaint that courts are too slow or too reluctant to enforce contact orders (or, indeed, that they fail to enforce them at all). Most of the complaints of course emanate from fathers, as the vast majority of contact orders are in favour of fathers.
The fact of the matter is that deciding whether and if so, how to enforce a contact order can be a very difficult matter. The court will usually have to investigate what breaches of the order have occurred, if any, and if it finds that there have been breaches it will want to investigate why they have occurred, bearing in mind that it is the welfare of the child that they are primarily concerned with, rather than the rights of the parent. Even when it has found that the order has been breached without good reason, it is not necessarily easy to decide how to enforce the order, again whilst having first regard for the welfare of the child.
There have, however, been signs of the courts taking a harder line in recent years against those who disobey their orders. Whether or not this is in response to the complaints, I would not want to speculate.
An example of a court taking a tough line occurred in the recently reported case H-R (Children), although the case also illustrated how many ‘chances’ the court is prepared to give a recalcitrant parent to obey its orders, no doubt to the great frustration of the enforcing party.
The case concerned two children who at the date of the judgment (11 April last) were aged eight and seven. The children lived with their mother and their father applied for a contact order as long ago as April 2011.
On 3 April 2013 the court made an order for contact each Sunday from 11 am to 2 pm. That contact occurred on a couple of occasions but by 20 May 2013 the father was already applying to enforce the order.
A hearing was fixed for 1 July but was adjourned when the mother failed to attend. She did attend the next hearing on 5 August 2013, when it was agreed that the contact arrangements would be altered so that contact occurred between Friday at 6 pm and Saturday at 5 pm. A final hearing was listed for November 2013.
However, the matter returned to the court before that hearing, as the contact did not take place as directed. Hearings were fixed for 23 September, 11 October and 22 November, but the mother failed to attend on all three occasions.
The matter was transferred to the Circuit bench and another hearing was fixed for 23 January 2014, but yet again the mother did not attend.
A fresh contact order was made on 1 February, requiring contact to take place every Saturday from 4 pm to 7 pm, the handover to be at ‘Location A’. However, contact did not take place in accordance with that order and on 4 February 2014 the father in desperation issued an application for the mother’s committal to prison for breach of the order.
When the matter went before the court on 7 March, the mother did attend, but she left the court building before the hearing could take place. The judge made a 21 day committal order suspended on terms that the mother complied with the contact order, taking the children to Location A each Saturday at 4 pm and returning there at 7 pm to collect them from their father. She was also required to attend the next hearing listed for 4 April 2014.
The contact did not take place and the mother failed to attend the hearing on 4 April, which was adjourned, or the following hearing on 11 April, before Her Honour Judge Newton at the Manchester County Court.
Judge Newton was satisfied that the mother had failed to comply with the contact orders. In particular, she had not complied with the order of 7 March, notwithstanding the suspended committal order. Judge Newton said:
“The only proper interpretation of the mother’s conduct is that she has deliberately and repeatedly chosen not to comply with the orders of this court requiring her to facilitate contact between the children and their father. Despite repeated orders of the court these children have not seen their father for some 9 months. Nor has the mother attended this court as directed. She can, in the light of the order of [7 March], have no doubt as to what the consequences of that failure to comply would be.”
“It is always a grave step to deprive the mother of two young children of her liberty. Realistically, however, the only alternative is for this court to acquiesce in the mother’s blatant disregard for the orders of this court and to accept that notwithstanding that previous judges have concluded that contact between the children and their father accords with their welfare interests, the prospect of such contact occurring must be abandoned.”
In the circumstances she made an immediate order for the mother to be committed to prison for 21 days.
As I said above, the mother was given every opportunity (some may well say too many opportunities) to obey the orders of the court, but at least robust enforcement action was taken against her in the end. Hopefully, the case might serve as a warning to others that disobeying court orders does have consequences.
Photo by meesh via Flickr
January 22, 2015
Categories: Family Law