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09 July 2018

Enforcing orders in respect of children (Part 1)

Issues involving children (how much time they spend with each parent, whether they see their extended family) are often the most difficult and painful to resolve. Magistrates and judges are frequently asked to determine such intractable disputes but the powers that they have to, in particular, make child arrangements orders, are a blunt tool and the orders made frequently please neither party. It is not uncommon for extended family members, such as grandparents, to be drawn into the conflict which can make finding a workable solution even more difficult.

Moreover, even once an order has been made, difficulties can remain as a recent decision made by Mr Justice Baker shows.

The case involved a young girl, aged five, who throughout her life had lived with her mother. Following the death of her father at a very early stage in her life, the child was having contact with her paternal grandmother and her current partner. (The paternal parents had separated and were not on good terms). That contact broke down in circumstances which were disputed and this led to the grandmother and her partner applying for permission to apply for a child arrangements order, so that they could resume contact with the child. Despite the mother’s opposition permission was granted and this led to an order in July 2017 which provided for regular weekly contact to take place. The mother’s application for permission to appeal against that order was dismissed.

Notwithstanding the making of the order in July 2017, no contact took place and the grandmother therefore applied for an enforcement order under section 11J of the Children Act 1989.

In February 2018, the recorder made a committal order against the mother which stated that she was to be committed to prison for three months, suspended for a period of four months. Such a ‘draconian’ step is often seen as a last resort and the mother unsurprisingly appealed against the suspended committal order, alleging amongst other things that the grandmother had abused her own child and was a risk to her granddaughter.

On appeal, the mother was successful and the suspended committal order was set aside. This was for a number of procedural reasons described below.

It is not surprising that the grandmother started enforcement proceedings. No contact appears to have taken place pursuant to the order. The mother effectively admitted this but submitted that there was a reasonable excuse for non-compliance. It is also not surprising that the possibility of committal to prison arose – it appears that all versions of the order contained the following words ‘if you do not do what the child arrangements order says you may be sent to prison and/or fined, made to do unpaid work or pay financial compensation’.

However, it does not appear that the grandmother actually applied for the mother’s committal in the conventional way. No notice to show cause was served on the mother and the only mention of committal was in the grandmother’s statement in support of the enforcement application.

The case report makes it clear that there was a whole host of other applications and arguments made by the parties that are not relevant to this article. It is apparent that the mother wanted to make a full frontal attack on the child arrangements order in addition to criticising the process leading up to the making of the committal order. Such a ‘kitchen sink’ approach is not uncommon when emotions are running high and one or more of the parties is not represented.

The judgment on appeal makes it clear that, whilst a child arrangements order can be enforced by committal to prison for contempt of court ‘it is generally recognised, however, that committal proceedings are usually inappropriate as a method of enforcing a child arrangements order’. S11J of the Children Act contains powers of enforcement if the court is satisfied beyond reasonable doubt that a person has failed to comply with the provisions of a child arrangements order. The defaulting parent needs to be served with a warning notice as part of the procedure.

The type of enforcement order that the statute has in mind is a community service order of between 40 to 200 hours. The existence of the enforcement order procedure does not preclude committal proceedings but it is very rare for the court to exercise such powers.

In the present case, the judge identified a number of important defects in the procedure.

Firstly, there was no proper application made by the grandmother for a committal order. Secondly, the strict requirements set out in the rules were not complied with. The mother did not receive an application identifying, ‘separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts’. Thirdly, the judge criticised the original Recorder for not giving a proper judgment setting out the breaches she found proved nor her rationale for making a committal order as opposed to alternative orders for enforcement of the child arrangements order. It was felt that she had not given sufficient consideration to the making of an enforcement order. Finally, the judge determined that the warning which appeared on the order served on the mother was not in correct form.

Many people consider that child arrangements orders do not have sufficient teeth and that it can be easy for one parent to flout an order of the court. This case shows, yet again, that the court will be slow to commit a parent for breach of a child arrangements order and that, if committal proceedings are to be commenced, it is essential that the strict requirements contained in the court rules are complied with.

It is not known how the case referred to ended. Although the appeal was allowed, the judge directed that the application for an enforcement order made by the grandmother should be re-listed for a further hearing to consider whether the mother had a reasonable excuse for failing to comply with the child arrangements order made in July 2017.

Read part 2 here.

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