Enforcing court contact orders By Iain Ashmore

Published On March 2, 2014 | By Children Screaming To Be Heard |

Enforcing court contact orders
 
Do you have a court contact order that is not being fulfilled?  There are thousands of parents around the country that are in this position and they are rarely told that they can enforce the contact order.  Believe me this is the information that the Courts do not advertise openly and local authorities will not tell you about it. The Children and Adoption Act 2006 created a new way to enforce a contact order and the process is relatively quite simple. There are two ways of doing this depending on when your contact order was made.
 
Orders made before 08 December 2008.
 
You need to fill in a form available from your local courts called the C78, this attaches a warning notice to the contact order.  You need to fill in the form and submit it at your local court. Do not be worried if you are on benefits or a state pension, you can apply for the fee’s to be waived by submitting an EX160a. You will need to provide proof of it though, be prepared and take something recent from the DWP.  You can also do this if your earnings are below a certain limit, again evidence will need to be provided.
 
Once this has gone through the courts, a warning notice will be sent out to the interested party, which they have to comply with or be found to be in breach of the contact order.  This is enforceable against local authorities, do not be dismayed because they are a large company, everyone has the right to hold those accountable who are not enforcing court orders. If the party still does not allow you to have contact you will then need to complete the steps outlined for orders made after 08 December 2008.
 
Orders made on or after 08 December 2008
 
You need to complete form C79.  You need to sign and print three copies of these forms.
 
You should write a brief position statement which will aid you and the court as this will form the basis of your argument.  Keep it brief a maximum of 2 to 3 pages if you can, as it is only an overview not the whole argument.  Keep to the point of why you should be having contact and why it is in the children’s best interests. Be factual and objective and try to not use slang in your writing.  Set out how the previous court order has been breached and how it has affected you. You will also need three copies of this.
 
Take these to your local court where you will be required to pay the fee, again if you are on benefits, a state pension or on a low income fill in the EX160a and take proof of your earnings with you.
 
This will most probably lead to a full hearing as in most cases you can bet your arse that the person who has the children residing with them will deny that they have withheld contact. If it is accepted that the order was broken, and there was not a reasonable excuse to justify the breach, there are a number of things a judge might do.

If, as a result of contact being broken, you suffered financial loss, the court can order financial compensation from the party in breach but only for actual loss.  The Court can order that the party in breach carries out community unpaid work. This can be for a period between 40 and 200 hours. The Court may order that CAFCASS (the Court Welfare Service) monitor and/or assist in contact taking place. This can be done through the Court making a Family Assistance Order which can run for up to 12 months.

The Court could also order:
Change the terms of the Contact Order if the current arrangements are found not to be in the children´s best interests and/or are impractical/unworkable.
In exceptional circumstances, the Court could reverse residence in favour of the current non-resident parent or commit to prison the person in breach.
There has recently been a new development in cases where contact has been persistently frustrated by the resident parent, the courts have suspended a residence order as a firm warning. It cannot be overstated that this is a new step, and comparatively rare. The court places conditions upon the residence order which, if breached, the residence can be changed. Case law to cite includes Re A (suspended residence order)  and M (Children) [2012] EWHC 1948 (Fam).
Important cases of recent times before the courts A (A Child) [2013] EWCA Civ 1104, at paragraph 60 of that judgment McFarlance LJ gave guidance:
‘If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.’
If you are worried about taking on the Local Authority read this Judgement: P-B (Children) [2009] EWCA Civ 143  Para 36 is the most important here stating,
‘To make matters abundantly plain, and to demonstrate to the local authority that this is an order which we expect to be obeyed, this order will be endorsed with a penal notice and the director is to be given the assurance by those who represent him today that his contemptuous disregard of this order could lead to an application to commit him and, without prejudging that matter, my preliminary view is that it stands a good prospect of success and he should be advised accordingly’.
This goes to show that no one is above the law and if you are being denied your contact there are means of enforcing it, do not suffer in silence or let your children suffer in silence.
Iain Ashmore Student of Law, specialising in family law.

hmcts http://www.justice.gov.uk/forms/hmcts

M (Children) [2012] EWHC 1948 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2012/1948.html

A (A Child) [2013] EWCA Civ 1104 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1104.html

P-B (Children) [2009] EWCA Civ 143

http://www.familylawweek.co.uk/site.aspx?i=ed33153

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