Family Law: Enforcing Contact Orders
This article is about what you can do if you have a court order to see your child, but your ex-partner breaks that order and won’t let you see them. If contact is stopped in breach of an order, it is vital that the case is brought back to court promptly. Any delay plays straight into the hands of the person in breach of the order by enabling them to work on the child so as to make it more difficult to re-establish contact.
There are a number of technicalities involved and the process can be a tricky one. If you do not want, or cannot afford, to instruct a solicitor you might consider having a direct access barrister to assist you for some or all of the process.
Our Direct Access Barristers are skilled in negotiation and advocacy. Plus, they can help you to draft applications and statements. Call us on 01245 605040 to arrange an initial meeting at our chambers in Chelmsford to discuss what we can offer.
We can assist you at any stage but, if you do decide to represent yourself, there are a number of factors you need to consider. Fortunately, we’ve provided the information you need to get started.
Please note, the court forms referred to below can be downloaded by going to www.justice.gov.uk/forms/hmcts and completing the section marked search for forms and leaflets.
When completing the relevant form, you must ensure that you include the case number that is on the top of your existing order and ask for the court file from those proceedings to be made available to the judge/magistrates hearing the case. This is because each fresh application received by the court is assigned its own case number. Locating the original file is sometimes overlooked, which can result in the first hearing having to be adjourned and little progress being made.
Question: What is a contact order?
What used to be called a contact order is now called a child arrangements order. The law changed in April 2014 with the introduction of the Child Arrangements Programme (CAP), which converts all existing contact orders into child arrangements orders. A child arrangements order is an order that provides for your child to spend time with you.
You must check the wording of the order very carefully. The format of orders has recently changed. They are now called CAP orders. The new style orders contain a lot of information and you need to find the relevant section that deals with the child arrangements.
Mandatory orders put a responsibility on the other person by stating that they shall make the child available for contact or to spend time with you and it sets out the times, e.g. on alternate weekends from Friday 6pm until Sunday 6pm. An order must be mandatory to be enforceable.
A declaratory order will say something like, ‘Upon the parties having agreed that the child will have contact / spend time with you as follows…’ These orders are not enforceable in their current form.
To be enforceable the order must also contain a warning notice setting out the consequences of disobeying the order. The old-style contact orders were typed up on a pro-forma, which had the warning notice pre-printed on it, but with CAP orders you need to make sure that a warning notice has been included.
- To convert an order into a mandatory order, apply to the court using a Form C100.
- You can apply to the court to have a warning notice added to your order using a Form C78.
Enforcing your order
If the order is mandatory and it contains a warning notice, you can apply to enforce it and for compensation for financial loss. You need to use a Form C79.
- An enforcement order applies a penalty of between 40 and 200 hours of unpaid work to the person who broke the original child arrangements order.is an order for the person who has broken the order to undertake unpaid work for between 40 and 200 hours.
- A compensation order covers money you have actually laid out e.g. wasted travel costs or tickets for a show you couldn’t take the child to.
It needs to be made clear on the application form exactly how the order has been breached, including the dates and the length of time since there has been contact, and that an urgent hearing is required. If you are seeking a compensation order, you will need to attach evidence such as receipts.
You will need to satisfy the court beyond reasonable doubt that the order has been breached, but no enforcement and/or order compensation order will be made if the other person can prove that they had a reasonable excuse, e.g. the child has been unwell (for which there should be medical evidence) or there have been transport problems.
Your ex-partner may allege that the child does not want to see you because of something you have done or not done during visits. The court will probably give directions at the first hearing for you both to provide witness statements about what has been happening. They may also ask Cafcass (Children and Family Court Advisory and Support Service) to provide a report to the court with recommendations about what the arrangements should be in the future and whether it would be appropriate to make an enforcement order.
All of this will take time and you should request that until the next hearing the existing order should remain in force and not be suspended or, at least, some other provision for contact should be put in place to keep the relationship alive.
It is rare for enforcement orders to be made. The hope is that a way will be found of ensuring that there are workable arrangements in place which may involve changing the arrangements in the original order. The court can direct the parties to attend mediation to resolve their difficulties. Alternatively, the court can bolster the order by making a family assistance order for up to 12 months or asking Cafcass to monitor compliance with the order and report back to it for up to 12 months. Normally, these are approaches that will be suggested by the Cafcass officer and will depend upon whether they have the resources.
It is even rarer for the court to punish a disobedient parent by sending them to prison for contempt of court. This is an application you can make, but there are strict procedural requirements that must be complied with and it is regarded by the courts as a last resort.
Our experienced Mediation Team can help you to find a solution without legal proceedings. If you would like to arrange mediation at our chambers in Chelmsford, you can call us on 01245 605040 or find further details on our contact page.