In December 2008 the Family Courts became empowered to add so-called Warning Notices to Contact Orders. This represented a major and significant change in this area of law. It is only now, when one reviews the recent case law, that the effects of the change can be seen.
Prior to the change there were many instances of parents not complying with Court imposed Contact Orders. This was the case, even though the Contact Order would make it explicitly clear what was required of each party subject to the Order. There was little, if any, judicial intervention to enforce the Contact Order. This is because the only real mechanism for enforcing a Contact Order was an application for the non-compliant party’s committal to prison. Not many Judges were prepared to sanction such a Draconian step, in the first instance.
Naturally, this left some parents and family members frustrated, even after lengthy Court proceedings, and often with little or no progress being made. In the extreme, applicants (usually fathers) would give up their fight for contact, thereby depriving the child of an important relationship. This was obviously a very unsatisfactory state of affairs and not the type of fairness that the Children Act and the Human Rights Act called for.
Since 8th December 2008, all Contact Orders now automatically carry a Warning Notice. What does this mean in reality? Simply this – there is now a clear and simple mechanism to enforce Contact Orders that are not being complied with. A breach proved against the non-compliant party may result in him or her having to undertake up to 200 hours unpaid work, or pay compensation to reimburse any financial loss suffered as a result of the breach. Imprisonment is now a last resort, as opposed to an only option.
The Court is able to hold in contempt of court, the persistent offender or one who has defiantly declared an intention not to comply with the Contact Order. This would allow the Court to order payment of a fine or, in sufficiently serious cases, order a committal to prison for up to a maximum of two years.
The paramount consideration of the Court will always be “the welfare of the child”. This means that when considering any penalties for a breach the Court has to balance the needs of the child against the level of punishment. Clearly, any punishment, whether it is a financial penalty, unpaid work or imprisonment, will have an adverse effect on the child. In real terms offending parties will often be given a second chance in relation to a first breach.
Also, in the final extreme analysis, if punishment does not ultimately encourage compliance with a Contact Order, the Courts do have the power to order a change of the child’s residence from that of the obdurate parent. Whilst such a Draconian step is to be viewed as a weapon of last resort, it is clear that Family Courts are now taking breaches of Contact Orders seriously, and are making use of the full range of powers available to them.
Parents and other family members can now be assured that those who frustrate contact, without a reasonable excuse, will not simply be ignored by the Family Courts!
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