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16 July 2018

Enforcing orders in respect of children (Part 2)

In part 1, we explained the difficulties of enforcing a child arrangements order by way of committal proceedings.

One reason often given for contact not taking place is that the child concerned does not wish to spend time with the other parent. In some cases this is a regular refrain and the type of problem that the Court of Appeal had to grapple with some eight years ago. That case demonstrated the importance of trying to word the child arrangements order in such a way as to make it easier to enforce.

The background to the case before the Court of Appeal in 2010 was that the father and mother had two children: M, a boy who was then 11 and B, a girl, who was 9. M lived with the father and B with the mother. This was sadly another situation where there had been protracted proceedings in relation to contact, in particular in relation to M’s contact with his mother. The judge who had dealt with the proceedings throughout stated that the litigation ‘is fairly described as an intractable contact dispute, with an element of parental alienation and persistent failure to comply’. The dispute had reached such a level that the children were each separately represented and a number of experts had been involved in producing reports during the proceedings in respect of the children’s wishes not to have contact with the non-resident parent.

Orders for contact were made for M to have contact with his mother but such contact did not take place essentially because M refused to either go to the contact or wanted to immediately return to the father once contact had started. This led to the mother making various applications for enforcement and compensation orders and a committal order was also made against the father in June 2010.

The father appealed against the various enforcement orders and the committal order. So far as is material, the relevant part of the contact order which the mother sought to enforce contained the following words:

‘The father shall allow the mother to have contact with M, and to make him available accordingly …. [times and dates for contact]’.

The Court of Appeal paid tribute to the care and attention which the judge had brought to bear in dealing with this case describing his judgments as being ‘impressive’. However, the Court of Appeal held that they were vitiated by two fundamental errors in approach. First, the judge had overstated what it was that the relevant contact orders required the father to do and on the facts before him he had wrongly rejected impossibility of performance as being a defence.

The father’s obligations were to ‘allow’ contact and ‘make M available’ for contact. To ‘allow’ was to concede or to permit and to ‘make available’ was to put at one’s disposal or within one’s reach. The Court of Appeal determined that that was the father’s obligation; no more or no less. The Court of Appeal considered that the judge had assumed that the father’s obligation was to ‘make sure’ or ‘ensure’ that M went and that contact took place. The father’s obligation, according to the judge, was to make sure that he did all that was necessary so that the child would go and take ‘whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went’. The Court of Appeal thought that the father may have been under a parental or moral obligation to do these things, but on the wording of the orders he was not, it was held, under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve that contact took place. The Court of Appeal rejected the argument that the father was under a legally enforceable obligation to take some steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.

The judge who had dealt with the proceedings had concluded that M wanted to have an ongoing relationship with his mother and had wanted to have contact with her but the father did not promote this. The judge was critical of the home environment which the father had created for M and the pressure which had been placed on him. The judge had thought that the object of enforcement was to get contact working.

The Court of Appeal underlined that committal is an essential weapon in the court’s armoury in cases such as this and that nothing in the judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including where appropriate by means of committal, but in this case it was thought that the committal order ought to be set aside and a recommendation was given that other means of enforcement be considered.

It may be that the issues identified by this case will now be a thing of the past. The soon to be former President of the Family Division, James Munby promulgated draft standard orders which, whilst not mandatory, are to be encouraged. These are now more directive and, for example, provide that the parent with whom the child lives ‘must make sure that the child spends time or otherwise has contact with’ the other parent. The change of emphasis is important.

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