Procedural irregularities prevent the enforcement of a contact order

Young female child

It is an often-stated truth that a court order is worthless if it cannot be enforced. Accordingly, the courts have been given wide powers to enforce orders, in various ways. The ultimate of these is the power to commit the person in breach of the order to prison. However, such a draconian power must obviously be subject to safeguards, to ensure that it is properly used. In the case of committal, that means that certain procedural formalities must be strictly adhered to.

Sadly, it is a recurring theme in reported cases of committal hearings that these procedural formalities are not followed. The result is that the person in whose favour the order was made may be left frustrated, especially where the breach of the order was clear and deliberate.

Such was apparently the situation in the recent case CH v CT, which concerned an application by a grandparent to enforce a contact order.
The background to the case was a little complex, but the essential facts were that the child is aged five and has lived with her mother all her life. Sadly, her father died in 2014. For a while after this, she was having contact with her paternal grandmother and her current partner. That broke down in circumstances that are disputed between the parties, and in 2016 the grandmother applied for a child arrangements order.

The application was opposed by the mother, but the court made an order in favour of the grandmother, on the 21st of July 2017. The order provided that the child should have contact with the grandmother every Sunday on a two-weekly cycle, week one from 12 noon to 2 pm, and week two from 12 noon to 5 pm.

No contact has taken place under the order, the grandmother having allegedly attended outside the mother’s property every Sunday, but having not been allowed to see the child.

In October 2017 the grandmother applied for an enforcement order. The application was heard in February 2018. The court found that the mother had not obeyed the order, that she acknowledged that she had not done so and that she confirmed that she did not intend to do so. In the circumstances the court made an order committing her to prison for three months. The order was suspended for four months, meaning that if the mother again disobeyed the order within that period, the three-month sentence could be activated. The mother appealed against the committal order alleging, amongst other things, that there had been various procedural irregularities.

Hearing the appeal in the High Court Mr Justice Baker found that there had, indeed, been a number of serious procedural irregularities.

Firstly, the mother had not been given proper notice of the committal application (the grandmother had only applied for an enforcement order).

Secondly, the mother should have been served with a detailed list of the alleged acts of contempt so that she knew precisely what she was being accused of, but this did not happen.

And thirdly, the judge hearing the committal application had not set out the breaches of the order that she had found proved, as she should have done.

Mr Justice Baker pointed out that it is possible for the court to waive any procedural defect in the commencement or conduct of a committal application. However, it may only do so if it is satisfied that no injustice had been caused to the respondent by the defect. Here, the above defects were such that the mother had suffered such an injustice.

For these reasons, Mr Justice Baker reached the clear conclusion that the committal order was wrong. However, he made clear that:

“In saying that, I am not endorsing the [mother’s] actions. It seems plain that she has failed to comply with the order of 21 July 2017. But the fact that a party has failed to comply with an order does not empower the court to make a committal order without complying with the procedural requirements.”

Further to the above defects (and this has been a common occurrence over the years), the contact order did not contain the required ‘penal notice’, warning the mother of the possible consequences of breaching the order – without such a notice, the order was incapable of being enforced by an order for committal at all.

Accordingly, Mr Justice Baker allowed the appeal and set aside the suspended committal order. He further ordered that the grandmother’s application for an enforcement order should be listed for rehearing before a circuit judge, to consider whether the mother had a reasonable excuse for failing to comply with the order of 21 July 2017.

You can read the full report of the case here.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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6 comments

Helen Dudden - July 5, 2018 at 10:55am

As someone, who has been campaigning for change on the subject, I can understand the reasons it fails. The more time goes on, the more distant the relationship becomes. The child is a product of alienation. Hardly fair, the mother could go to prison, the child ends up suffering that way too.
There has to be a better way.
Every case is different, every case will usually end differently.
The Foreign Office, was once part of the international child access and abduction situation. Reunite still are the key player’s in trying to resolve international issue’s, where this situation can sit in the courts for years.
I liken this to my personal experience, years later, what has changed, little. I’m the only one to see my grandchild, they have lost all contact and emotional bonds with the rest of the family.
I find this subject sad and very destructive.

Terry james Scales - July 5, 2018 at 1:25pm

The complexity required to enforce dubious orders made in family court’s adds credence to a belief that the state should retreat from family life all together.
Social stigma has proven to be in the main the best tool society has at regulating the moral cultural norms needed to keep families functional and stable.
Family law is soaked in malevolence, cultivated by an ideology, this ideology rips apart the souls of millions of men and children. Family law is a perversion of justice, men are with proclivity found guilty of committing acts of domestic violence by allegation alone, alienated from their children and removed from their home.
I cannot think of an act as penal to human nature as what family court’s dish out every day.

Helen Dudden - July 5, 2018 at 7:00pm

Terry James. I totally agree. I thought when I started my study of law, that Family Law was different to Criminal Law.
There seems to be, little control on situations getting out of hand.
Mother goes to prison, there seems to be little respect for achieving a positive outcome for the future, and the best for a small child who has lost her father too. If the outcome is time in prison what does that achieve, more anger and resentment.
The situation should never have been left to fester.

Paul - July 5, 2018 at 7:10pm

If the law is to mean anything, court orders must be upheld. For too long they have been completely ignored when a court order should be a binding, legal obligation. To deprive a child of his or her dad or grandparent is a chronic child welfare issue. It is a form of child abuse. I think that it should be an absolute given that – man or woman – if you ignore a court order you should be punished appropriately but 99% of broken court orders on contact go unpunished as no Judge wants to send a mother to prison except in very serious cases. The crack down on mothers who repeatedly ignore court orders giving fathers access to their children has never started. It is rare for courts to jail single mothers who usually claim, through their solicitors, that their child would suffer if a judge imposed a custodial sentence.

The government should look at the Danish system, under which parents are urged to ensure that children divide their time equally between both parents but this is unlikely as all political parties do not want to look at this issue.

Official figures show that nine out of 10 single-parent families in the UK are headed by women as the law assumes that women are automatically better at childcare than men, when in recent decades male and female roles have become more blurred.

Recently men have used self-identification of gender stating they are women to fight for contact.

Helen Dudden - July 6, 2018 at 8:28am

Paul, for too long there has been the attitude women cause all the problems, and men are aggressive.
All cases are different, the above is sad because the child needs all the care and love after the loss of the father.
Being widowed at 30 years old, I can understand the trauma and confusion. I personally, made sure my children saw their father’s mother. It was not up to me to alienate or dictate to my children.
Unless, in law it is not in the interest. All women do not see men as an aggressive. I was taught in law to listen, not judge.
Could I add one more point, I have met some very good lawyers, on the subject of child access and also international issue’s. Things have become stereo typed and it’s time for a fresh, honest approach.

Paul - July 6, 2018 at 6:28pm

Helen, the welfare of the child will be the Court’s paramount consideration but it seems from any outsider that this is not the case as there is no Shared Parenting when one parent alienates and the other is left fighting for contact with the child. The Court’s focus is maintained on the importance of children enjoying an ongoing relationship with both parents after separation but this is not the case. it has been made clear that ‘a meaningful relationship is not about equal division of time, but the quality of parenting received by the child’ and this is by the mother. The practical arrangements for the child give the impression that one parent has more control than the other, this being the mother. Whilst the majority of parents are able to agree arrangements between themselves, whether directly or with the assistance of lawyers or mediators, there is still the minority who do not come to an agreement and the Courts are not helping and this is where the issue lies.

The same single mothers are now facing similar issues with contact with their grandchildren and can now see for themselves what they used to do. As the UK is the capital of divorce in the world, these issues will gather pace.

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