IS YOUR CONTACT ORDER WORTH THE PAPER IT IS WRITTEN ON?  or, Is it even capable of being enforced?

pexels-photo-69096.jpegIS 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) [2010] 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.

See:  http://www.familylawweek.co.uk/site.aspx?i=ed158497

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?

6 thoughts on “IS YOUR CONTACT ORDER WORTH THE PAPER IT IS WRITTEN ON?  or, Is it even capable of being enforced?

  1. My final child arrangement order says: “AND UPON the mother, being the primary carer, agreeing to ensure that the children see their father in accordance with the schedule below AND the mother consenting to the father’s presence when the children have contact with their paternal grandparents under their own child arrangement order”

  2. I got caught out by this with my first court order. Agreement was thrashed out pre court by solicitors and approved by Judge and I then duly waited to get the order, only to find the contact times etc weren’t in the body of the order but attached as an agreement in “recitals” the wording of the order just said “Mother will allow reasonable contact as agreed between the parties”. Six months went past and all was well then an issue and both of us found out it wasn’t enforceable. I did think about trying to enforce as it referred to as agreed and the agreement was attached, but no it wasn’t enforceable. A year later going through the courts and reached a consent order at court, well defined. But hey guess what! I have no order at all because Mother refuses to agree it now and I have to go back to court again. So would also be wary of consent orders unless they are typed up and sealed on the day in court.

  3. This was an important case and unusual in that the typical gender roles were reversed and it was the father who was thwarting contact.

    In 2014, Contact Orders were abolished and replaced by Child Arrangements Orders which impose no such obligations – even if they could be enforced. CAOs are simply descriptive and it is up to the judge to write any requirements into the order. In theory, this makes them more flexible, but they don’t seem to be any more effective at enabling contact.

    There is also the problem that many Contact/Child Arrangements Orders simply aren’t practicable and the contact ordered in them cannot be supported – particularly in the long term – possibly because of long-distance travel or costs. The almost total lack of research in this area and evaluation of existing orders means that judges have no idea how to construct an order that will work.

    • Hi exjuria
      The president has recently published his latest template orders and for child arrangements he is still splitting them along traditional lines. Here is a link. https://www.judiciary.gov.uk/publications/practice-guidance-standard-family-orders/
      They are under 7.3.
      e.g
      ‘Live with order
      The child[ren] shall live with [name] [until further order] [as follows: [insert]].
      Contact order
      [Name] must make sure that the child[ren] spend[s] time or otherwise [has] / [have] contact with [name].’

      The templates then go on to list various alternative constructions for a range of different circumstances. None of the circumstances involving letting children decide if or when contact should happen.
      The 2014 templates are similar. Nonetheless, and in spite of the judgment in Re L – W four years before, we are still seeing many examples of judges using the same ineffective construction as in Re L – W in cases which will more than likely need enforcement. The last one I saw was on Thursday 5th and it was made in 2016. Both sides had representation. One had a Mackenzie and the other had a solicitor. None of the parties brought Re L – W to the attention of the judge in 2016 and the judge was at best ignorant of the judgment and at worst deliberately making a worthless order to ‘allow’ and ‘make the child available for contact’ in a case with a history of contact obstruction and alienation. The court also seems to have been oblivious to the fact that there were templates available. The chosen construction hands an alienating parent a gift wrapped defence of ‘impossibility of performance’ whilst consigning a targeted parent and child to continued abuse by handing out an order which is virtually unenforceable.