The challenges of enforcing orders relating to children
Philip Hunter discusses the delicate balance to be struck between demonstrating robust justice for the breach of an order and recognising the best interests of the child
One area of family law that is often overlooked as part of the post-LASPO fallout is the difficulty for parties of securing the enforcement of orders relating to children. Individuals might instinctively sense that they might be successful with applications for contact or other orders under section 8 of the Children Act 1989 (CA 1989) – the bread and butter of private children cases – but will feel a sense of frustration at their inability to enforce any order against a non-compliant or intransigent parent.
Need for review
In late November 2012, the then Conservative-Liberal Democrat coalition government proposed a review of an earlier joint Department for Education and Ministry of Justice consultation document, ‘Co-operative Parenting Following Family Separation’. The review was published in early 2013, and the government made clear its position on the issue of new sanctions against non-compliant parents – broadly, it was not in favour.
The review of the literature had crystallised the government’s position that taking punitive steps against a parent in breach of an order was generally not conducive to the wider objective (i.e. promoting future cooperation between the child’s parents). This position was taken despite the overwhelming support during the consultation process for new punitive sanctions to be made available from those making enforcement applications (86 per cent are non-resident fathers).
Following the publication of the government’s review, the children’s minister announced there would be ‘an enforcement-specific case assessment and intervention pathway’.
In 2014, in conjunction with the Nuffield Foundation, the University of Exeter published ‘Enforcing contact orders: cases, courts and consequences’, which found three key points:
Very few enforcement cases fit the popular media image of the implacably hostile resident parent. This stereotype does not capture the full picture available to the courts where most enforcement cases involve troubled or conflicted sets of parents or significant safety issues.
Courts focus on problem solving and getting contact restarted rather than identifying whether or not a breach has occurred and sanctions are needed. This orientation reflects the default approach of the family justice system that is pro-contact, pro-settlement, and future-oriented.
The problem-solving approach can default to over-rapid, ‘cookie-cutter’ case processing. In some cases, risk was inadequately assessed and managed. Some of the high-conflict repeat litigation cases returned to court quickly after very limited input.
The report concluded that dealing effectively with enforcement cases is difficult. They are tough and complex cases.
Child assessment orders
When initially assessing an enforcement application case, it is important to check whether the existing child assessment order contains a warning notice. CAOs issued after 8 December 2008 will automatically contain a warning notice to the other party about the consequences of non-compliance with the terms of the CAO.
Practice direction 12B of the Family Procedure Rules 2010 sets out specific provisions regarding the steps which must be taken to enforce a CAO. On any application to enforce a CAO, the court will consider:
Whether the facts relevant to the alleged non-compliance are agreed or whether it is necessary to conduct a hearing to establish them;
The reasons for any non-compliance;
How the wishes and feelings of the child are to be ascertained;
Whether advice is required from CAFCASS on the appropriate way forward;
Assess and manage any risks of making further or other CAOs;
Whether a separated parents information programme (SPIP) or referral for alternative dispute resolution is appropriate;
Whether an enforcement order may be appropriate; and
The welfare checklist.
If the court considers there has been a breach of a CAO ‘without reasonable excuse’, the powers available include:
Referral of the parents to an SPIP or mediation;
Variation of the existing CAO;
An enforcement order under section 11J of CA 1989;
An order for compensation for financial loss under section 110 of CA 1989;
Committal to prison; or
If the court is considering making an enforcement order or considering a compensation order in respect of financial loss, the court must determine the facts (if not agreed) in order to establish the cause of the alleged failure to comply, which may require a fact-finding hearing under paragraph 21.7 of PD 12B.
Enforcement orders can be made under sections 11J(2) and (3) of CA 1989, imposing an unpaid work requirement on the breaching party, monitored by the probation service. The rules surrounding the making of these orders are complex, but, in short, before the court will make an enforcement order it must be satisfied that:
The breaching party knew of the terms of the order which has been breached;
The breaching party has failed to comply with the CAO;
The breaching party had no reasonable excuse for the breach;
Issuing the enforcement order is required to secure that person’s compliance with the order; and
Making the order is a proportionate step to take.
It should be borne in mind that before making an enforcement order, the court will also have to obtain and consider information about the person on whom the order would be imposed and the likely effect of the order upon them, including any conflict with their religious beliefs or times of attendance at work or college.
If the court is satisfied that a parent has breached the terms of a CAO and the other parent has suffered financial loss as a result of the breach, the court can order that the breaching party pay the other compensation up to the amount of the financial loss (e.g. travel costs, holiday bookings, etc).
Section 11 of CA 1989 gives the court the power to direct a breaching parent to take part in any activity which may promote contact, such as an SPIP or mediation information meeting (MIAM). Often such courses are directed as part of the original CAO, if it is anticipated they might be of use to the parties.
Under section 11G, the court can also direct CAFCASS to monitor a parent’s compliance with a CAO and to report to the court if there is a failure to comply. The monitoring period must be specified in the order, which cannot exceed 12 months. Given CAFCASS’s recent ‘Guidance on the use of professional time’, it is unlikely that such orders will see the light of day in reality.
As a last resort, the court may consider making an order transferring residence of the child as a consequence of breaching a CAO. However, the court will only do so where it considers this to be in the best interests of the child. Taking such extreme action must be fully justified by affording paramount consideration to the child’s welfare, and is not to be imposed as a form of punishment to a parent.
Under section 63 of the Magistrates’ Court Act 1980, the court can consider imposing a custodial sentence for any breach of a CAO that may be proved in committal or family proceedings. Committal is only used in exceptional circumstances.
Confidence in the system
There is inevitably a balance to be struck between demonstrating robust justice for a breach of an order and recognising that in the best interests of a child, a conciliatory and positive rather than punitive approach may assist the majority of parties. The courts will be mindful of using a sledgehammer to crack a walnut, however, and this may appear at first instance to demonstrate to the offended party that the court lacks the teeth to bring a non-compliant party into line. If a breach is not forcefully addressed now, what incentive does it provide a breaching party to comply in the future?
Such issues are also to be weighed up in the context of the ability and ease of parties and the courts to engage in additional litigation, as costs rise and resources diminish. If an offended party has to travel a significant distance to their nearest court, without legal advice, and confront a non-compliant parent before a judge without the resources to potentially assist, it is inevitable that confidence in the family justice system will erode.
Philip Hunter is a partner at Hunter & Uro