When is a Final Order not a Final Order?November 07, 2017
As a family solicitor specialising in children matters, a major concern for my clients can be making sure that the ‘contact’ order they have managed to obtain after expensive court proceedings is actually complied with.
Every court order now has a prominent warning at the beginning which states that if you do not comply with it you may be in contempt of court, committed to prison, fined, required to do unpaid work or pay financial compensation.
These punishments are not automatic and the parent whose time with the children is being denied (most often the father) will have to issue enforcement proceedings.
Faced with an enforcement application the court has to consider the reasons why the order is not being complied with and a 2013 study set out 4 main categories:
- Conflict – where there is chronic mistrust or intense competition between the parents;
- Risk – one parent raises safeguarding issues about the other (for example violence, neglect, alcohol/drug abuse, mental health issues);
- Refusal – an apparently reasoned rejection of contact by the child; and
- Implacable hostility/alienation – sustained resistance to contact by the resident parent.
What can be done?
Clearly there is no one solution to these problems and the court will often take one or more of the following five approaches:
- Settlement - focusing on achieving better clarity in respect of the arrangements and a more detailed court order.
- Co-parenting support – putting in place measures to improve how the parents work together, for example using a third party for handovers, referring them to mediation, ordering them to attend educational/parenting courses. A new system of ‘Parenting Co- ordinators’ (PC) is currently being trialled where a PC is employed by the parents to assist in resolving issues between them and helping them manage/implement the order.
- Protective–assessing risk (for example drug/alcohol testing), restricting/supervising/supporting contact, referring to domestic violence/drug/alcohol programmes, ordering psychological assessments of the parents or children. Also under this heading would be where the court assesses the child to be at risk of harm if the resident parent continues to deny contact and therefore orders the child to live with the non-resident parent.
- Child led – obtaining the child’s views, wishes and feelings or appointing a solicitor to represent them independently of their parents either directly or through a Children’s Guardian depending on their age.
- Punitive – ordering unpaid work/fines/compensation/imprisonment.
Are the courts getting it right?
The 2013 report concluded that in 96% of the 215 cases they looked at they felt that the court’s approach was ‘about right’. This will come as no comfort to the small number of parents who find the enforcement system to be full of delays and lacking any real ‘teeth’.
My own experience is of cases that roll on for months, if not years, of a strong aversion to the use of punitive measures but limited resources for co-parenting support, of children who suffer emotionally as a result of the conflict and the breakdown of their relationship with one parent, and of parents (as I say, generally fathers) who become emotionally and financially exhausted and understandably disillusioned with the family court.
As a solicitor it is important to ensure that cases are not allowed to slide:
- There should always be the same Judge dealing with the case.
- All options should be presented to the court and constantly reviewed as the case progresses.
- Any serious factual disputes need to be resolved by an early hearing.
- Each step taken should be timetabled and the case should be brought back to court if those steps are not complied with.
Our Family team are professional, proactive and committed to helping you reach a resolution to even the most intractable cases.