ENFORCING CONTACT ORDERS

24 Nov 2009

As we all know, where a marriage/relationship has broken down and children are involved, frequently problems arise over contact.

Often, notwithstanding a non-resident parent having an order directing that he or she should have contact, such contact order is not complied with by the resident parent. This leads to bitterly contested court cases which are slow and costly and frequently do not achieve a satisfactory conclusion.

Accordingly, as from the 8th December 2008, provision has been made in the Children and Adoption Act (Commencement Number 3) Order 2008 to give the Court new powers to promote and enforce contact orders made under section 8 of the Children's Act 1989.

The object of the new statute is to encourage compliance with contact orders and to enforce those orders where they are not complied with.

Under the new legislation a court has power to direct a party to take part in an activity which may promote contact. In the event that the court does not make a Contact Order at the Hearing, it may still make a contact activity direction. In the event that a Contact Order is made the Court is empowered to make participation in such activity a condition of contact.

Where the Court makes a contact order after the 8th December 2009, it must now attach to the Order a "warning notice". This notice sets out the potential penalties and enforcement measures that are available to the court if the Contact Order is broken.

To enforce a contact order made prior to the 8th December 2008, an application will need to be made to the Court for the Notice to be attached to the existing Order.

To enforce a Contact Order, it will be necessary for the applicant to show.

1. A warning notice must have been applied for (unless the contact order was made after the 8th December 2008.
2. The Applicant must be in a position to prove, beyond reasonable doubt, that the Contact Order was broken.
3. The Applicant must satisfy the Court that there was not a reasonable excuse for the contact order having been broken (e.g. the child was ill).
In the event that the Applicant can prove beyond reasonable doubt that the order was broken and there was not a reasonable excuse to justify the breach, the Court has the power to:-
a) order financial compensation from the party in breach, if the applicant can show that he or she suffered financial loss. Examples would include traveling costs or a loss of session at a contact centre or a cancelled holiday.
b) order the party in breach of the contact order to carry out community service work.
c) direct that a Cafcass officer monitor or/and assist in contact taking place.
d) order the parties to attend Mediation to try and resolve their difficulties.
e) order one or both parties to undertaking counseling therapy or anger management counseling.
It should also be noted that the Court still has power to change the contact order if the current arrangement is not found to be in the children's best interest or not working and may, in exceptional cases, reverse residence in favour of the non-resident parent or commit to prison the person in breach of the order.