These types of matters are in the minority but, as you might imagine, are the most intractable with the emotional distress to the parties and to the children at its highest.
The Court may consider a breach of an Order as contempt of Court and this makes available to it fines or imprisonment. The Court may also change a child’s residence. The problem with these options is how practical they are in the circumstances and the potential impact on the carer and, therefore, the children. Ultimately of course it is not likely to do much for the children improving their relationship with their non-resident parent, who they may even view as to blame for their other parent being imprisoned/fined.
Thanks to the Children and Adoption Act 2006, unpaid work and financial compensation may also be used as means of enforcing Orders…. but how does the Court actually deal with these matters.
A recent study funded by The Nuffield Foundation and published in July this year has sought to gather information on these types of matters and their outcomes – a good thing too given the lack of any real analysis to help steer legislation.
Most enforcement applications are brought by fathers as a result of Contact breaking down completely, although there were cases brought for enforcement because the parent with care of the children was late for Contact or sessions were being missed. 59% of cases studied were brought back to Court within 1 year of the original order.
Although most people probably believe that the main reason for Contact Orders being breached is as a result of the unreasonable behaviour or implacable hostility of the parent with care, in fact the study found that these matters made up just 4% of the studied sample of cases.
Most common were cases of parents in significant conflict – either through a lack of any trust or where they were in competition – meaning that they were entirely unable to work together. Next common were those cases where one or both parties raised issues of risk, be those alcohol, drugs, mental health or domestic violence and 10% of cases saw older children rejecting all or some of the ordered Contact in a reasoned way, citing the behaviour of the non-resident parent or their lack of sensitivity as an issue.
Most of the cases were dealt with by the Court setting out a timetable for Contact but also putting in place measures to encourage the parents to work together, be that mediation, parenting education courses etc. but the Court also dealt with matters by setting out a new timetable for any Contact, assessing risk issues by way of drug testing or by restricting Contact to supervised Contact and by seeking the views of the children involved and following those.
In 9% of the cases sampled, the Court sought to ensure compliance with the original order by way of punitive action. These were largely restricted to the cases of implacable hostility, which formed the smallest % of cases sampled.
The study finds that largely the Court alters its way of dealing with these matters depending on the reasons for the case returning to Court and in the vast majority of matters, the Court deals with them appropriately. Given that most enforcement cases centre on the parental conflict or risk issues, it is positive to note the Court’s focus on co-parenting, protection and problem solving as opposed to pure punitive measures, which almost certainly wouldn’t assist.
Interestingly enough, the study found that too much focus is placed on quick case progression at the expense sometimes of addressing the underlying issues causing the dispute – I can only imagine that this is not going to improve given the stripping of resources and increase in the Court’s caseload with Litigants in Person but perhaps I am being too pessimistic, the single family Court is on its way and there is every chance this will streamline matters and free up time for the Courts….