Procedural irregularities prevent the enforcement of a contact order
By:6 commentsJuly 5, 2018
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.
July 5, 2018
Categories: Family Law