IS YOUR CONTACT ORDER WORTH THE PAPER IT IS WRITTEN ON?
or, Is it even capable of being enforced?
Enforcement of orders is a frequent topic of discussion in any parent’s group, children’s group or in any group of family court professionals. But, not many people state what the real problem is.
How often have you heard people complain about courts failing to enforce contact?
The topic of enforcement can be a red herring if the original order is not capable of being enforced in the first place. At NAAP we have become aware of an alarming number of orders in this category.
Could your child arrangements order be enforced? (even if the courts were prepared to!) and, Why are some orders virtually unenforceable?
I want to ask whether your contact order requires the parent ‘…to allow…’ contact and ‘…make the child available…’ for contact?
If your order contains these, or similar words then please let us know.
Why are we asking these questions?
The answer is simple because in 2010 the court of appeal found that orders worded in this way are often incapable of being enforced. I know that sounds far fetched so I will repeat that statement and i’ll embolden it to make it stand out because it is important that people are aware of what the courts have foisted upon them.
Some child arrangements orders dealing with child contact are simply not capable of being enforced.
In the case Re L-W (Children)  EWCA Civ 1253 Munby J (as he was then) stated a few home truths about this style of order. In particular, some orders for contact are simply not always capable of being enforced. The case before the court was an appeal against the judgement made by Judge Caddick who had ordered the enforcement of an order containing the exhortations ‘…to allow…’ contact and ‘…make the child available…’ for contact.
Munby J said this,
‘The father’s obligations under each successive order were to “allow” contact and “make [the child] available” for contact. To “allow” is to concede or to permit; to “make available” is to put at one’s disposal or within one’s reach. That was the father’s obligation; no more and no less. But that is not how Judge Caddick treated the orders. Running through all his judgments is the assumption, indeed the repeated assertion … 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 Judge Caddick … was to “make sure that he did all that was necessary so that that child would go” and to take “whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went”. The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, 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 – to “ensure” – that contact actually took place. Nor … was the father under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.
So, using Munby J’s analysis, orders using this language are lamentably weak. A parent only has to state that they have ‘allowed, permitted or conceded ‘ contact ‘ and that they placed the child at the ‘disposal or within the reach’ of the other parent. There is no obligation to ‘…make sure…’ that contact takes place and any number of excuses for failing to get a child to contact will do. e.g little Johnny did not want to go with his daddy and I cannot make him do what he does not want to’ <yawn> etc… etc… etc…
Please let us know whether your court order uses the term ‘…to allow…’ contact and ‘…make the child available…’ for contact. Sir James Munby is now president of the family division. In his template orders issued to the family courts in January 2016 he suggests the following words should be used,
‘B31 Orders “contact with”
The ** must make sure that the child(ren) ** spend time or otherwise have contact with **
- as may be agreed between them,
- as set out in the schedule to this order
- as follows: **
- which is to be supervised by **’
** denotes. to be completed by court.
Why do judges in the lower courts routinely dilute or ignore the boss’s instructions?
Shouldn’t the judges set an example of how we should behave or would they actually like the rest of us to also behave like delinquent teenagers?