Making contact work

It is a situation well known to all family judges, all family solicitors and, sadly, far too many separating and divorcing parents. Both parents want to stay involved with their children, but all too often the parent with whom the children are living seeks to exclude the other parent from their lives. In some cases there will be good reason for such exclusion. There may be a history of domestic abuse or violence to the partner or to the children, a lack of perceived involvement in the children's lives, a denial of paternity, a relationship between two very young or not-so-young people that has fractured before the birth of the child or simply such animosity between the parties that the needs of children to have a relationship with both parents is ignored.

Small steps often lead nowhere

Often where contact breaks down there will be an application to the court and enormous efforts will be made to find an agreed way forward even though that may sometimes lead to very small steps being taken. Hours will be spent on working out arrangements that are acceptable to both parties, only for the agreement to be breached almost before the ink is dry on the court order.

Until now the court has had few effective powers to compel a recalcitrant parent to comply with a contact order, particularly as the majority of parents who simply do not wish contact to take place will be adept at blaming everyone but themselves for the breach. Accusations of unpunctuality, unreliability or inability to parent will be made, the cost of getting the children to contact will become an issue and it will be maintained that the children do not want to see their other parent. A penal notice endorsed on an order is not an effective tool. Putting the recalcitrant parent in prison is unlikely to facilitate future contact, and a change in residence may be neither practical nor in the child's best interests.

Section 1 of the Adoption and Children Act 2006 inserts new sections 11A '“ 110 into the Children Act 1989, which will come into force on 8 December 2008, will give the court new powers to promote, encourage and monitor contact as well as powers to impose a financial penalty where breach of a contact order causes the other parent financial loss.

Normally where contact presents difficulties the first step will be for the court to make a contact activity direction to promote contact, and contact may be conditional on such an activity. This may include programmes, counselling or guidance sessions and either parent can be ordered to take part. Equally the court can make an order for either parent to attend at a time or a place to enable contact to take place and if the parent fails to comply an enforcement order can be made.

Enforcement orders

Where a contact order or a condition attached to a contact order has been breached (including a failure to attend an activity which is a condition of contact) the court can, if it is satisfied that making such an order is necessary to secure compliance, issue an enforcement order to require the parent in breach to undertake unpaid work. Because this is intended as a punishment, the standard of proof is beyond reasonable doubt and consequently an unpaid work order will not be made where the parent in breach has a reasonable excuse for the breach. The provider of unpaid work must be a suitable provider and the unpaid work must take place in a location to which the parent can reasonably be expected to travel. It must not conflict with either his/her religious beliefs or interfere with normal work or attendance at an educational establishment.

In order to check whether contact is working in accordance with the order the court may ask Cafcass or Cafcass Cymru to monitor the contact and report to the court whether the order is being complied with. If it is not Cafcass can be asked to report to the court and a further hearing will be arranged at short notice to identify the cause of the failure and, if possible, rectify it.

If a person has failed to comply with a contact order and the other party to the proceedings has suffered financial loss as a result of the breach, the court can make an order requiring the person in breach to pay the other person compensation for his loss. This would be likely to apply where a holiday cannot take place, or substantial travel expenses have been incurred. The burden of showing that there is reasonable excuse for the non compliance is on the individual in breach, but before making an order the court must take into account that person's financial circumstances and the welfare of the child. If an amount is ordered to be paid, it is recoverable as a civil debt.

The new Act certainly has teeth, but how its provisions will work in practice remains to be seen. It is unclear whether there will be sufficient unpaid work schemes available to make an order for work bite, and whether the courts will feel able to order financial compensation for financial loss where the making of such an order could impinge on the welfare of the child, either directly by making less money available to maintain the child, or indirectly because of the effect such an order will have on the parent who is penalised.