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Enforcement of Orders in Private Children Law

Enforcement of Orders in Private Children Law

A practical course dealing with the enforcement of orders and parental alienation in private children law cases.

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Description

This practical session will cover the difficult issues surrounding the enforcing of orders, with particular regard to the use of activity directions, committal, switching living with, unpaid work and compensation. There will be a consideration of cases surrounding parental alienation and implacable hostility.
This is very much an issue at present, given the Covid-19 pandemic. I will cover the practical problems with child Arrangements in light of the Covid - 19 Pandemic, and the Guidance of the President of the Family Division - COVID-19: Guidance for parents confused about access, of March 2020 and ongoing guidance. This is an essential one for family and children lawyers at present.

What you'll learn

On completion of this course you will:
• Have a greater understanding of difficult issues surrounding the enforcing of orders
• Have considered the cases surrounding parental alienation and implacable hostility
• Have covered the practical problems with child Arrangements in light of the Covid - 19 Pandemic
• Have explored the Guidance of the President of the Family Division - COVID-19
• Have explored the Guidance for parents confused about access, of March 2020 and ongoing guidance , of March 2020 and ongoing guidance

Requirements

This course provides 2 CPD points
Watch the recorded webinar to improve or refresh your legal knowledge

Who is the target audience?

This course is suitable for private children law practitioners

Course Content

Recorded Webinars

Webinar

31:42

A practical course dealing with the enforcement of orders and parental alienation in private children law cases.

Webinar

26:13

Hello. Welcome, everybody, and pleased to welcome you to today's session. My name's after Mahmoud on I'm through data law today that I'm speaking to you about the private Children law type of cases where we're dealing with enforcement of orders on also parental alienation. Destinies session fourth off four sessions that we've pulled together. Thio help you with this area we're looking at, as the topic says, the different methods through which we are looking at enforcement of child arrangements, orders on also focusing on parental alienation. So today that I'm what I'm going to do is developing somebody case law in this field, particularly looking at cases of implacable hostility. What the arrangements are, what the case law thinking is behind some of these cases on also looking at some of the more recent matters where the courts have specifically referred to parental alienation going forward. Okay, so let's have a look at these. As always, the material contains a number of case law authorities, which are acknowledged here, right? So let's then start with intractable contact disputes. Now, this is where going back a few years, we had this case re a a 2013 quarter appeal decision on one of the things that this case highlighted, which was handed down by Mr Justice. McFarland, as it was then, is that when he got cases involving the intractable contact disputes, then the course should not allow the implacable hostility one parent to deter it from making a contact order with Charles wealthy otherwise requires it. So we have to be very conscious of that fact that if one parent is certainly showing that level of impact ability, that shouldn't deterred accord from making the order if it's felt appropriate in the circumstances. Because, of course, ultimately is the welfare of a child, which is paramount and therefore what should be regulated and dictating what doesn't should be happening in the circumstances. So I can hear see here in particular, his Lordship said that contact should only be refused. What, of course, satisfied that there's a serious risk of harm of contact were made on, there was reference to the previous authority of 1997. Okay, so we should not allow the implacable hostility £1 to deter the call from making the order in those circumstances now linked with that, how do you therefore ensure that what? This is where his lordship did say some years ago that there is a need for a strategy to be set up okay, to ensure compliance with this on in particular, this is where there is reference to the previous case of our W that I mentioned in the last session, whereby it was emphasized that there is need for steps, a set strategy for the case and therefore to ensure that one is sticking to that consistently to that so effectively. Part of that strategy should be that the court should be making express order requiring the parent with care to comply with contact arrangements on also making it clear that if they were to breach those contact arrangements as part of consistent strategy, that Judge must then, in the absence of good reason, support the order by considering enforcement either by, say, under the Children Act III sections 11 J 2 11 end that we looked at in the last session or by looking at contempt proceedings. To do so otherwise would be to abandon the strategy for the case with the risk that a case may then become, as it is in these type of situations so, putting it another way. When you've got return, a case is sold, speaks or when say I'm acting for farther and farther is instructed me that despite the order in place, Mother has not bean facilitating or permitting the contact. For example, then that's was part of a strategy which he set up. The court should then be looking at. The last order was that was made on looking at the fact that there was the express provision in there that the person must persons must comply with the terms of the order and if no, these are the consequences. So making sure that the warning notice his in place, making sure that there's a peanut notice attached, if appropriate on and that's part of that strategy. The court should then be following that food in that regard so you can see the thinking behind this on later, when we look at some of the proposed changes to practice Direction 12 b in terms of the Child Arrangements program that we look at it later, you can see this is the thinking behind us to make sure that when you have got returner cases coming back for the purposes of enforcement on the course should be dealing with that by way of enforcement applications and not, for example, to look at this as maybe a rerun of the contact application, which is not really what the application for enforcement is. Okay, so we'll have a look at this as we go forward. So let's look at this case of Regina. This was a case also about intractable dispute related to contact. This was a 2019 decision on in them, but a court appear leading judgment by Lord Justice Peter Jackson. So this was in 2019. On this was a case which involved two Children. They were aged eight on 11. They did live with their mother, who had been separated from their father for some six years previously, and that Children had seen very little of the father over the previous six years on. The father had applied successfully for the replacement of the CASS CASS of CASS, CASS Guardian. What happened here was the Guardian had referred to a meeting that apparently took place, But the father was able to satisfy the court that, in fact, that meeting never took place. So it did suggest that there for the characters. Guardian was mistaken on that, and because off therefore, um, that lack of trust in that manner there was a replacement of the Catholic Guardian. There was a case worker from Nyah's appointed and the father later try to get the Nyhus worker replaced also. And that's really what the court was concerned about because on the fact that they felt that the level of willingness on the part of their father was somewhat limited and that hay was finally get very difficult to be able to work with professional. So, in fact, the communication between the father and the other parties was being done more so through the cord, given the lack off, um, willingness on his part and the lack off on the break up of the relationship between him on not just with calf cast but also with Nyah's. Now, ultimately, the court. The trial judge first instance, did decide to make a two section 91 14 order against the father for paid of two years on. The court also decided to make an order that the charge Children were to live with Mother on the dismissal of the father's application for the Children to live with or to spend time with, so his application was dismissed. No direct contact between the father and the Children were to take place and only indirect contact by worth monthly updates with by the mother. Well, then provide updates by way of email on Father, Father to send cards, birthday and Christmas. You could see in 1914, which, as you'll appreciate it's a very significant direction that will be made in these circumstances. Children were to live with Mother, have no direct with their father and only indirect in the circumstances. So that's those were the orders that were made. But the father appealed on the father's ground of appeal. Was, he said, that all reasonable routes to maintaining a relationship had not been fully explored by the court. He very much argued that the court had applied what's known as a linear approach. Now that's a really interesting argument. He ran because as many of you know, we've got that case of re bs. That care case. In September 2013 by the Court of Appeal, leading judgment was handed down by Lord Justice uh Mumby, the then President family division, where by His Lordship did say that when you've got recommendations that have been made, when you've got courts who are making decisions, one shouldn't be applying a linear approach, so you don't look at one placement and then you look at immediately at another, you look at all other realistic options. You effectively do a bouncing approach of looking at always sick options and look at arguments for and against on here. The father on his appeal, said that the judge had applied a linear approach. It was either that the father will see the Children or he won't. Andi It didn't really look at alternatives, and it therefore either decided that he should either have direct contact where you shouldn't Andi also, the father argued that 1914 order was inappropriate in the circumstances well, in terms of realistic options, because that is something that's required on appeal. The court said, Well, what were the options here, what in relation to the position with contact or one of us? A complete buying contact. So that was one option to say there would be no contact, direct or indirect pregnant, the father and the Children. That was one option. The second was the option. The second option was not taken by the judge, which was There will be direct. So there will be no direct between the child and the father of Children and the father, but there will be in direct. So that's the option that the judge took. The third option was in order for significant indirect contact, So that was another option. Another was an option for direct contact. On another option was transferred to Children's home to the father. That was another option, given that the father had been applying for living with or spending time with. So that was another option. And finally, the judge could have adjourned the matter for further investigations. So you can see there were six options here. Andi, with that in mind, the court, uh, these to consider Well, had the judge considered the pros and cons of these on, in fact, on the on the on the facts, the court appear was satisfied. In fact, the judge had done so. So was the judge correct? Was a trial judge correctly making a Section 91 14 order where many of you know that when it comes to or disturbing sort on a section 1914. The leading authority for that is the case of Ri P. On That's the Case, which is repeat Section 91 14 Residents on Religious Heritage in 1999. Decision on it does say in that case that in suitable situations on where there is clear evidence that caught main polls the leave restrictions where the welfare of a child requires it. Even though there's been no past history off making unreasonable applications, many of you will know that 1914 may be attached with The court is satisfied that there's been, maybe, ah, history of maybe unmerited applications. And there's a risk that this person may keep reapplying and making further ID meritorious applications, but actually repeats that sometimes you have situations where, actually you haven't even got a history. But if we, um, do not impose 9 2014 direction so that in the future, if you do reapply, you need to leave. We don't do that. It may subject to hear the child of the primary care iti unacceptable strain. So here repeated make it clear that a court in deciding whether to make the 1914 would need to be satisfied that the facts do go beyond common link counted need for time to settle into the regime on, whereas in a case like this, if they did attached the 1914 without there being a history of making unreasonable applications, then the court need to be satisfied that without this restriction been imposed, a child of the primary carers would be subjected to unacceptable strain. On. The question was, was that the case here on the court did say that court may impose restrictions making applications in the absence of requests for many parties subject to use of natural justice. So you don't even have to have somebody applying for the 1914. The judge can decide to make the order of the own initiative on here. On the facts, the court said that it was necessary restriction was to be imposed, given the way in which the father had actually conducted litigation, the manner in which he had sabotaged proceedings. Given the way in which he showed that significant hostility not just towards the mother but also to the professionals involved on there was a realtor danger that he would continue, he would make further applications, therefore subjected Children under mother to unacceptable Australian the circumstances. So the 1914 was felt appropriate on the court said. That restriction may be imposed with or without limitation off time. In terms of looking at the options, we're all realistic options. Considered it here under fax. The court said Yes, the judge had considered all the options. Andi order that was made was the most appropriate option on the one that was explored and ultimately decided on the facts. So you conceits of a useful case, which brings it to play the need to consider all realistic options. Now that then brings me on to this other case, this more recent case on parental alienation. It's the case of re Hey, Judge Onda. This was a case handed down in 2019 involving a 12 year old boy Hey, had been living at since birth with his mother, uh, had been having contact with the father soon after they separated. This was 1/6 set of private or proceeding sort of had been a lot of previous involvement between the parents relating to this child. So you can see, like many of these cases, there was quite a history involved in this case, the mother. The father was effectively applying here for a transfer off the child's care from the mother to him. So you're looking at a switch off residents in these circumstances, which, as you'll appreciate his that's certainly a significant step to take. Not a child had been having regular contact with his father and his paternal family, which was a good quality, and the contact stopped, so it had been good on. Then he had stopped. And that's where the father sought now not just for the contact continue, but in fact, he sought for a child to live with him to Father was given permission to adduce expert evidence, particularly looking at the issue off parental alienation. So that evidence was adduced Andi, uh, what was the child's relationship like with the other paternal family, where the court is satisfied that the father did, in fact enjoy Ah, very good relationship with the child until about a year previously? And then there was a close relationship with not just a father but also with the paternal grandparents and what is really were going well. But then, uh, the notion of implacable hostility on parental alienation kicked in. Now this is where the fathers living arrangements for these. He was living with his own family. He had made arrangements for the child to go to private school if the child was placed with him, so education had been put into place. He had also made arrangements to get the love converted to even have a another bedroom for the child, specifically if needed. So he had made a lot of plans already. If the child was the place to be placed with him, he lived in a different part of the country where the mother and the child lived on. The father supported fully contact with the mother. If residents was switched in his favor, the mother very much opposed transfer off residents. She saw for the child to continue to live with her in the circumstances and she still remained very much opposed to the relationship between the father and the child being maintained. Now this is where, in terms of the expert evidence that was adduced, the court was satisfied based on the evidence that the mother had alienated a child on the expert evidence was that as a direct consequence of this charge, was and would continue to suffer emotional and social harm on. But this is where the poorer the expert evidence went as far as saying that if this situation carried on, then the child will continue to suffer adverse consequences through the whole of his life. This will impede his ability to form meaningful and positive relationships both now in the future. On it could even cause him to suffer depression in later life. So you can see things were very strong opinions and very clear expert evidence that has been given in relation to the rest of the child off continue to being alienated by, in this case, the resident parent. Now the judge did decide to switch residents. But of course, wonder fears was there was a risk that the child may have gone may run away from father. But on the facts. Given that they had been a positive relationship between them, it was hoped that that wouldn't happen. The judge was concerned that in coming to a decision about switching residence, the judge had to take into account that the obvious matters which was this child, had hitherto lived all his life to date with his mother he had settled in school, had a good set of friends in that school. He had many interests and was part of many clubs. He had lived in a majority of his life with mother in the particular area. Not only visited Father in the other way, so ah, lot of that was going to be coming to an end on. Therefore, if he was placed with his father, he will have to accept his fathers and paternal family. Hamas. New home. He'll have to move area. He'll have to settle into a new school part way through school term. He'll have to make new friends on the left to familiarize himself with a new environment in that regard. So one of those factors, obviously we're going to be very prime on very much on his mind in that regard. But the judge was certainly reassured by the fact that the transition planet Independence social we could put together was one that could should work in the circumstances. And this transition plan was this whereby for child arrangements, order was made, especially find a child living with father and effectively. What would happen is after one of the school days. The child would then go on. Ben moved in with his father. The father's family was moved out for some two weeks. Eso is to enable the father and the childhood and formed a bond between them after two weeks. They would then rejoined the father and the child in those circumstances. But when the child and went to live with the father after school, the contact with Mother, uh, in terms of spending time would be subject to a three month embargo so there would only be in direct contact as advised by independent social worker between the child and the mother. So, like side of paternal family agreed to leave the family home for a couple of weeks to enable a child under father to have that space to really perform that bond between them and to have that on on the facts it worked on. In fact, when the matter did come back before the court, the judge was reassured that this had worked and the child was happily now residing with the father and having that relationship with the mother. And in fact, after the three months to contact with the mother resumed to one are face to face so you can see these cases can work. And it's just a question, in my view of being able to deal with these cases at the right time with the right facts and no one size fits all, of course. But on the facts of this case, it was felt that it was right order to make in the second stance, and you can see the significant impact off parental alienation. And that's why it's very, very important to be able to address those issues going forward type that brings the sun to another case. Another, more recent case on parental alienation. This is the case of Ri s parental alienation. Cold transfer, primary care. This was recently a case handed down by the High Court by Mr Justice Williams on the 15th of July 2020 Andi that this was a case which also looks very much at the effect upon Children off parental alienation, and the child here was only nine years of age on. This is where, by a paragraph 63 his lordship did side. It was clear that the child's express views was that she very much wanted to remain with the mother in the circumstance season. She wanted a core process to come to an end aunt to resume life without the conflict between the mother and the father. But she did wish to have some relationship with her father. But this is where the evidence was that all the child's views had to be assessed, having regard to the fact that they were distorted. But the prism off alienation. The child's wishing feelings with a subjective result of exposure to harm apart for beliefs and practices, which led to her alienation from her father and the on banishment with her mother. So one has to look at the child's wishing feelings. But then look at how those have been distorted by the alienation that she had bean subjected to. So therefore, that had to be looked at. And therefore you find out with many of these cases, that's what we have to look at on on the facts of this case, the child's residents was again transferred to that with a father, even though the mother had said that she had minimized and reduced the involvement that she had with the various organizations that she was, which was potentially having an impact on a child's welfare. The court felt that the mother wasn't committed enough to be able to address those fully enough to be able to put the child's needs before her own on. Therefore, with that in mind, the court again decided to switch residents to the father in the circumstances. Now that's where I wanted to mention for the final process. Today is proposed changes thes air The proposed changes to the Chart Arrangements program, which came into effect on the 22nd of April 2014 by the then president Family Division Sir James Mumby. So there have been consultations which have been going ahead whether it's bringing about changes to this. So there was a report made of available earlier this year in March 2020 the reporting owners. The Time for Change, the Need for change. The case for change on This was the second report to the president of Family Division put together by Mr Justice. Cub fought on behalf of the private Law Working Group and I put a link, therefore, you should you wish to have a look at this and read it in a four Onda. There are number of proposed changes to a child arrangements program. Eso that some of these detailed proposals to the family court process cannot be done until there's been further information provided in relation to at the harm in private law. On it suggested that there should be a number of pilots put together esos to then put together practice directions. But in so far as the position would, enforcement is concerned. Some of the pilots which are suggested are these. It's suggesting that there should be more development off ways to promote all forms of non core dispute resolution. So we should be looking mawr at emphasizing the greater use of non core dispute resolution in terms of Miami's, for example, mediation information and assessment meetings. Enhancing the effectiveness of parenting education through the steps, the separated parenting information programs. And they're working together for Children program in Wales. So making more use of that so that, for example, it's utilize even before the first hearing. Even before the for head draft, for example, the first hearing dispute resolution. So it's already in place beforehand, maximizing the benefits of digitization of the court application, for example, enabling early social worker assessments by CAF cast, for example, consistent thresholds when it comes to making applications, but also protocols for safeguarding enquiries in relation to return a case Is this idea that safe garden enquiries need to be done as quickly as possible? When you got returned? A cases ie those which helping and being brought back because one is looking to enforce charred arrangements. But one of the key things is this. Differentiated pathways diss tracks, which it suggested that should be coming forward for private law, depending on the complexity. So if, for example, one is bringing the matter back before the court for enforcement of child arrangements, then that should be following a particular pathway so that that case can then be listed and be heard as quickly as possible on to ensure judicial continuity. So therefore, in line with that case of re aided I mentioned earlier than that, Lord Justice McFarlane, when that was discussing about the need for a strategy, has strategy to be set so that one is clear about how, when these orders are made that if they are brought back as a return a case, what would happen, what the expectation of the court is So it's very much hoped that these proposed changes to cap will also assists significantly, with enabling the court to be able to deal with appropriately thes matters relating to enforcement of child arrangements on also in relation to post finding a fact. Hearings making sure that case is off this kind are such that with the post fact finding hearings, we've got a situation where 11 sunny findings are made, that we have the documentation available as early as possible. Eso that we can then go on and deal with risk assessments they after us quickly and swiftly as possible in the circumstances. So against very useful proposals going forward in so far as this is concerned. Okay, so that brings this session to an end. You can see we've spent a favorite of time over the last couple of hours looking specifically at the position with certainly enforcement to chart arrangements and particularly some of the developing case law. Insofar as parental alienation is concerned and you can see there's a number of options available and no one size fits, really, so you do need to really look at what may work. Do you need to get the Guardian on board, you have to think about 16.4 words. We said, Is it a case where the judge meet with the chart? For example, is it a case where we're looking at committal costs? Orders is a case. We're looking at Skips. Is it a case we're looking at? Enforcement orders, financial compensation, family assistance orders, cometo is it one which is Have you got a reason? Excuse in light of the cove in 19 Pandemic, for example. And then you're looking at some of the developing case law. Do you need expert evidence to look at evidence of parental alienation, for example, on looking at the impact that that has on the child so you can see all of those factors? Do you need to be carefully tied in? Ondo monitored. Cool. Thank you very much indeed for listening. I hope this has been a useful set of sessions for you. Andi, I speak to you next time. Thank you very much indeed. Bye for now.

Webinar

25:17

Hello. Welcome, everybody. My name is softer my mood and pleased to welcome you to today's session Through data law, they seized the course on private Children or cases where we're dealing with enforcement, off orders and also parental alienation. This study session to off fall on. Do you recall that in the previous session I started looking at somebody issues surrounding charter arrangements, orders how they work on. Also, we looked at judges meeting Children or sort of produce off. Joinder on this course is looking at the different opportunities and methods through which one is looking at enforcement of child arrangements. Spending time. Otherwise, I'm in contact with orders. We're looking at some of the case law on the provisions generally today. Then what I'm going to be doing is developing this further by looking at matters relating to committal. For example, be looking at use of costs. Orders will be looking at use of section 37 of the Children at the local authorities would get involved were looking at every position with cometo in more detail conditional charred arrangements, orders on also switching off residents. So these are just some of the options that we made the news in order to deal with the issue of enforcement on. We're looking at this course as off mid September 2020 right? So just to put this into context then as we looked at last time, if, say, you've got a new order in place whereby the mother, for example, is to make the child available to spend time with the otherwise have contact with father, say a few times a week Andi, despite the father being his patient as he can, suggesting that mother had on some occasions blocked the contact. But at first she was saying the Children weren't well. But then, after one, he begins to take the view that perhaps she's deliberately flouting on preventing him from seeing the Children. That's where, then he may wish to bring matters back to court by way of enforcement. One option will be it's not necessarily going to be the first option, but nonetheless, it is something that somebody may wish to consider is that of cometo. But this is where committal proceedings, as you can imagine off very do Corning in nature on not always appropriate, and one example of that is this case of we am. This 2005 case, on done by a quarter appeal on this is one whereby they were ongoing proceedings whereby the father breached the order by returning his daughter following contact only 10 minutes late on. In fact, the mother decides to go for committal proceedings and in fact, the first instance Judge. I thought that a fine would be broken, but because of the father's lack of means, imprisoned for seven days, suspended for six months. And that father did appeal when in fact the Court of Appeal said the first instance, Judge made another a coast custodial sentence should not have been imposed. And to really re use the words of a court appeal to said this was a dreadful waste of time on money, given that no further breach had occurred. A commuter was a sledgehammer to crack a nut. Okay, so you can see here, Can't you can see somebody concerns with this. And therefore, even though you may think well, if somebody doesn't comply with the order, will will ask for commit Oh, but you do have to look at the reality of it. Is it going to work? Is it going to serve the purpose and what this actually enable that person to then go forward on enable contact take place? It may do, but not necessarily. So. I'm not saying for a moment don't go for committal proceedings, but of course it shouldn't necessarily be seen as a to the first option. And, of course, one has to look at the facts and see what other options may will be available beforehand, right? Another option could be application for costs orders. And again, it's not necessarily going to be the first option that you may wish to consider. As you know, in family proceedings and Children Sings in particularly got Rule 28 about 28 of the fpr on generally in Children proceedings. The court may make such orders accosts as they see fit on. This is where in the case of Retief, for example, order for costs in order was made here whereby the respondent party here failed to abide by the terms of the order, and again, sometimes it may be appropriate it may serve its purpose, but again, I would suggest that you need to look at the engine with gold. What are you trying to achieve And if you're trying to achieve a situation whereby the respondent Party would be invited, persuaded to abide by the terms of the order, what a costs order actually served that purpose, as you know, would costs orders. Generally speaking, one has to show conduct which would be irresponsible, reprehensible behavior in order to enable costs order be made on also, is it in order that's actually going to serve its purpose on the facts themselves, in the sense that has has a respondent got the means to pay that order, what impact is they're gonna have on their on their budget, for example, what impact is gonna have on their Children? So you do have to weigh up all of those factors. Also, what other options are they? Well, this is where Section 37 off the Children Act is worth exploring On Section 37 of the Children Act arises where one would then be looking at the involvement of the local authority. So this was a rising family proceedings, and you can see here it provides that in any family proceedings, if a question arises with respect to the wealth, have any child and it appears the court that it may be appropriate for care a supervision order to be made, that the court can direct, that the appropriate authority undertakes an investigation of a child. Circumstances. Now, to put this into context, what normally this comes down to Is this say I was acting for father on? Do we want to charge arrangement spending time with you? Otherwise, I'm in contact Onda se. We've got an order in our favor, which, which is just that our mother is to make the child available twice a week, for example. But sadly, it's not happening. We then bring it back to court for enforcement. Now, if our evidence is that as a result of the contact in black, the child, we say is now developing, showing signs off emotional harm, significant emotional harm, psychological harm because off not maintaining that relationship with the father and maybe the paternal family if we've got that kind of evidence and maybe other evidence is well, which points to the fact that in fact the child continue to reside with mother. Mother is demonstrating signs of parental alienation, sees sabotaging the relationship she is coaching. The child is prime in the child it is showing irrational, implacable hostility on her part. Then if in these family proceedings, the judge is satisfied that in fact the harm that the child is suffering was likely, suffer has now become significant harm, such as to meet the criteria for the purposes of sections that you want subsection to the Children act. For when one mate look at seeking a care under a supervision order, then that's what it's possible for the judge in those private law proceedings to direct on investigation under Section 37 of the Children Act so you can see it here. It provides that if he appears to court and then it may be appropriate for care a supervision order to be made i e. If the judge is satisfied on the evidence that the threshold are met, are likely to be met, then that's where the core can direct an investigation under Section 37 for the local authority land to investigate the circumstances surrounding the charts. So that's the thinking behind this on. Then it goes on to say that we're section 37. Report is ordered. The local thought it must think consider whether they should apply for a care order or supervision order respects the child so effectively. What happened is this Section 37 investigation would be carried out. The local authority would ordinarily have eight weeks within which to carry out this investigation on. During that time, they would have, of course, been making visits to family home. They would be speaking to the family to the parents, visiting the child, making enquiries with other agencies in those circumstances and then looking to see what checks and balances that can put in what services or assistance that can provide to meet the child's needs to minimize and reduce the risk to the child in the circumstances. But if at the end of that, if at the end off that period of time when they've done their eight weeks of investigations, if they feel that despite the intervention, despite the provision of services safeguards assistance that can that can provide the child still so is suffering or is likely to suffer significant harm, then that's where they should be confirming, confirming as to whether or not they are going to then be perceiving public law orders, whether by wherever care or supervision order. So that's where By the end of that, they should then be deciding so. Section 37 therefore goes on to say that we're local authority undertaking this investigation decided not to apply for care a supervision order with respect your child, they should inform the court or the reasons for deciding that. But if they do decide to it and of course they should then be looking to commence those proceedings. So to decide not to commence proceedings, then it legally to give them easy to court. And I need to be setting out what other services or assistance they are providing or who will be providing or what other action they are proposing or will be taking. So you can see this is a very, very important provisions within the Children Act and particularly relevant when you're looking at cases involving parental alienation. On told us whereby they are concerns over implacable hostility in particular, and we're contact may have seized altogether, or where contact has changed from very much from what it was supposed to be to what it is now. And hence, like I say, you can then move into the public law arena in that regard, right as I mentioned earlier. Committal is certainly not necessarily going to be the first option. It's obviously a very draconian step to take, but may well be necessary sometimes on this is where you got the case of B. V. ESTs 2009 quarter of Peel case. And this was a particular case whereby you had a mother who had ah charged with the applicant Andi, although they got on well for a while. Suddenly the relationship ended. Andi. There was an order for contact in favor of the father. My mother wasn't abiding by the terms of the order. She had a new relationship with another man. In fact, she had recently given birth to a chart with her new partner. But the father of the older child, who was denied and continue to be denied, contact that sort enforcement aunt. He was arguing that despite many attempts, mother was still failing to abide by the terms of the order. So he thought, as a last resort, he was going to be pursuing committal. Andi mother was committed to prison for three concurrent terms of 28 days to for not making a child available for contact on the third for not attending a hearing about the contact. But this is where mother argued that she was, in fact, breastfeeding. She had recently given birth to her three month old child by her current partner. And she said, There's just no way I can go and serve time in prison because, of course I'm breastfeeding, and that would involve me being separated for my child on bond. Of course, that therefore, became a very pivotal issue for the court to consider eso. This became an issue only after the sentence was passed Azzan choirs, where that need to be made with the prison on demand. They stated that they would not take a chance with the mother without a formal application be made and notice being given. So what happened? Well, the mother appealed against the orders that were made, which were for her to serve this concurrent period of time. He relied, of course, very heavily upon articulate upon the right to respect her privacy and family life in relation to her newborn child on herself, she relied upon the fact that she was breastfeeding on before, she said. The most the court should have done is ordered a suspended sentence off some six months, but the matter went to court of appeal can. In fact, the court said that other than the policy of a prison, breaches of the orders were so serious as to warrant on immediate present sentence. And in fact, the court did impose the order on her, but for her to go to the prison with the child. So therefore to ensure that she could continue to meet the child's needs, but at the same time to serve her time in prison for the continued repeated breaches and could see here have taken a call from what the quarter appeal said, where they said that the days were long gone, when mothers could assume that they were all his carers of Children, protecting them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches off contact orders. Of course, this was very much directed towards a mother who was the parent with care here, of course, arguably the same principle of life. It was the dad, for example, if the child was living with him on, he was denying getting form of contact with the mother and the court felt it was appropriate for the contact to be maintained. So the idea that I would suggest whoever is there a resident parent, the court appear we're emphasizing that then being the care of a child doesn't prevent them from being sentenced to immediate terms of imprisonment. If there is clear repeated on deliberate breaches off contact orders so you can see very, very important case which emphasizes the need for compliance with the orders concerned what the options are available. Well, this other case of Reem is an excellent case on one that I would suggest you do need to give consideration to, and this is the idea of conditional orders being made on. This is a very excellent way, my way, my view off, being able to comply with the necessity of enforcement. So when this case was decided in 2012, of course, we didn't have child arrangements. Orders were still at residents in contact, so this case was about conditional residents orders of the court. But now arguably, you would refer to these as a child arrangements order specifying living with conditionally or a conditional child arrangements order specifying Living with it was a case where essentially, Father had applied for residence for two Children aged eight and tend to live with him. Mother was in a really relationship, and initially the father applied for contact, but it just didn't take place. Mother kept blocking. The contact on it didn't take place for the best part. Off almost a year on de evidence suggests that the mother was persuading the child to have a very negative view off their father on the child was Children are very loyal to their mother. Children were separately represented by guardian. So this is where he had the route 16.4 provisions in place that we discussed earlier on. He also had the benefit of a child psychologist. There was some limited contact taking place between the father and the Children, but not a great deal at all. Onda, as you can see here the mother had not been promoting any form of contact on her view was very clear. He was showing very much clear signals that she felt that the Children should have no relationship with their father at all. Now the court activity that these Children did famous love their father, but there were so loyal to their mother that Children couldn't really express their true wishes and feelings, and that was a difficult in this case. They truly did love their father. But there was the divided loyalties, and they weren't able really to know how best to deal with that. They were doing well at school. They were settled. Andi mother was therefore meeting many of their needs, but of course, was so implacably resistant to enabling any relationship that were maintained between them and the father. So because they were settled in other ways and they were doing well and Mother was meeting, there were the needs to judge didn't necessarily wish to switch residence. It was famous scene as a draconian step on, perhaps not necessary in the circumstances, but the same time the court needed to ensure that the contact was taking place. So what the court decided was not to switch residents at that stage, but instead to basically make a conditional order, which is the court decided to switch residents to father unless the mother permitted to contact as directed so effectively. The mother was given one final chance, which used to abide by the contact provision. Otherwise, the Children will be moved to live with their father site was effectively a conditional child arrangements on the essence of the orders. If you look at paragraph 80 of the judgment by his Lordship, the essence of the order was as off Satya here on Dhere. It provided for the fact that in the event of Children not go to stay with their father for the peers referred to and therefore that was particular eyes. The following orders would then apply. Firstly, there would be a residence order now, of course, charge arrangements living with provided that the Children should live with their father for the first eight off. The period in question on the mother was expected him to give up the Children to the father on that date on did she failed to do so that an application was going to be made immediately For what? A recovery of the Children under Section 34. Many of you will know that Section 34. The Family Law Act is very useful so that if, for example, somebody is refusing to give up a child in circumstances when the other responsible person should have them in their came and This is where Section 34 could be applied for. This is the equivalent, often order in public law under section 50 of the Children Act, so effectively recovery order would be made. And that's where the police could then be involved as well, if needs be, so that they could force the belief they have. Thio be in a position to be able to remove the Children from other on, then to a place with Father Andi, uh, the court director, that there should be such contact between the Children and the mother as may be agreed by the parents in consultation with the Guardian. So if that did happen so effectively, this was a conditional child. Arrangements, which was mother was to abide by the contact provision. But if she felt to do so than an application would be made for recovery order under Section 34 the Children would then be placed with father on the contact that mother would have would be has agreed between the parties in that instance. So the ball was very much in mother's court, so to speak in this regard in terms of how this would be dealt, so I would suggest it's a very good case and it z one that you may wish to consider when you're trying to use what is felt to be the most appropriate on proactive way forward in terms of ensuring that the contact is taking place. And therefore, when you're looking at enforcement, off chart arrangements, orders, right that then brings me on to the other case that I wish to discuss it. And thats this case of re X, and this is one whereby the court did in fact decide to transfer residents to the father. So this was another example off enforcement in that regard. So that's the case of re x 2018 decision handed down by Mrs Just knows sitting in the High Court of Justice. It's a case where by uh, involved a six year old child, whereby the court had decided to switch the residents to the father and mother did appeal against this order. Eso The court had ordered that the child most analogy with the father on the court had also ordered that the father was to make the child available to spend a reasonable time with the mother on it had been recorded that it was expected that both parents would you agree the future arrangements for future contact with a view to preventing further emotional harm. Okay, Andi family court adviser recommended on the fax. But when when one was looking at transfer on enforcement, their family court adviser had actually recommended transfer to Father. It was felt that there were very few options available either to try and encourage Mother to continue to stick to the arrangements or toe actually switch residents in the circumstances. So the father had applied for enforcement on this is where, like, say, Kafka's had recommended a transfer off residence to the father. Now there were a number of key decisions that the court had made, and findings that they had made on have set this up for you. Firstly, the course satisfied that despite what mother was stating, she had a deeply ingrained hostility to father and his family. So you can see this is one of a number of cases where the level of implacable ity on alienation was being demonstrated. Also, what's the mother had come to accept me for contact the evidence shoulder. It had to be on her terms. Andi. She wanted to control. It's precisely she was wholly opposed to any form off overnight contact on the circumstances. On despite three family court advisers having had been involved. The Guardian, several hearings, even a family assistance order under Section 16, which can help to facilitate contact. In these circumstances, the Family Assistance Order can assist in transfer in handovers returns. So very useful order. Despite that being in place, it still had not proved possible to progress. The contact There be no overnight for several months, no holiday contact. Mother was prepared to use the court and indeed the authorities, including the police, to frustrate the contact. And even here, the court took the view that she had even obtained a normal station order, but for no reason or grounds, it was unsupported by any evidence. And this was really done just to pursue her belief, eso and in contact with the father. So you can see how this mother's actions were really born out here and how clearly one was looking at how her actions were showing that level of irrational, implacable hostility, which then led the court to have very little option but to switch residents to the father on what the methods could the court used in to ensure the orders were complied with was short of giving Mother yet further opportunity to building more time. More therapy, more counseling. Short of that, there was very little other options available to the court, so the court had switched residents. But mother did appeal, she said. There was a procedure ever in that neither guardian nor the judge had followed decrypt procedures of providing continuity. But in fact, on the facts, the court said that's not the case at all that had been continuity. In fact, this case had been caught for some time on the child had the benefit of the same guardian calf cast guardian. In fact, for a couple of years they've been four reports done by the by the same card, you know, in fact, yes, even though there is not necessarily the same judge every time to judge the court did feel that there was certainly sufficient continue Thio here, too. Uh, certainly not undermine the orders that were made on day. Also, this'll was a case where, by the trial judge had had the benefit. The advantage of seeing and hearing the mother and father give evidence in these matters, and therefore it is rare for an appellate court to go against what the judge's findings were. So therefore, on that basis, the appeal by the mother was refused. So again, you can see this case illustrating how inappropriate cases the court will switch residents if necessary. Good. Okay, so that brings this session to an answer. This the second session where, like, say, we spent some time looking at some of the other options relating to enforcement in the 3rd 3rd session, what I'm going to be doing is going through with you some of the other options. Now, in terms of enforcement, we're going to be looking at the options available under Section 11 off the Children active 89. We were going to be looking at matters related to, for example, the use of separated payment information programs. We're gonna be looking at enforcement orders were going to be looking at financial compensation on looking to see how those other options could assist in the mutters. Running enforcement off child arrangements. Thank you very much indeed for listening and I'll speak to you next time. Thank you. Bye. For now,

Webinar

41:24

Hello. Welcome, everybody. When I'm softer, murmured, and I'm very pleased to welcome you to today's session through data law. This is Session three, where we're looking at private Children or cases dealing with enforcement of orders and also parental alienation. Now, as you know, with this session, what we're looking out over the course of these four sessions is to give you an update on some of the different methods through which one needs to look at enforcement, off child arrangements, orders. So we're looking at matters relationship, for example, activity directions commit or switching, living with unpaid work on compensation on also looking specifically at some of the case law surrounding parental alienation on also implacable hostility. Now, today's Session three. I'm going to be taking you through somebody options available in so far as the enforcement societies concerns. So we're going to be looking at the use off the Children Onda Adoption Act. In particular, the changes brought about two Section 11 of the Children activate. Nice. I'll be taking you through that. We'll be looking at the position with warning. Those seeds will be looking at how those work where we're looking at financial compensation. I'll also be taking you through family assistance orders on cometo. I also want to discuss with you what it means to make a child available for contact. So we'll have a look at some of the case law on that on. They will look at the impact off the covered 19 pandemic on Children matters generally towards the end of the session. Okay, so I started looking at and we're looking at this as of September 2020 right? So what I want to start with then, is the changes that came about a few years ago a result of the Children on Adoption Act of 2006 now this sect, and brought about changes to the Children Act of 89. And it brought about the sexual 11 amendments so that you've got first and foremost Section 11 a off the Children Act which relates to directions requiring an individual to take part in activity in relation to the HR. Concerned on also section 11 a subsection B which relates to the activities Andi, insofar as thes activity directions are concerned, these would require at one to take into account what types of directions thes are. So what do we mean by this? Well, let's put into context. Let's say I'm acting for Father, Aunt. He's applying for enforcement. So he's telling us that he is not being given the contact with these Children as pretty child arrangements order specified. Spend time with otherwise having contact. We would then complete AH form C 79 which would enable us to bring the matter back before the court. So we paid a fee. Bring the matter back before the court and one of the options available, followed by the court is to consider. It's actually 11 8 on B, and this is where you looking at activity directions and conditions. Directions could be on intra modest Onda. Uh, the conditions could be on any final order that's made. And this could be where by the court, for example, requires mother in this situation and father, depending on the circumstances to engage in, for example, work related to separated parents information programs. What's known as a spits that some of you will know in England separated parenting information programs in Wales referred to as W T Foresee, which is working together for Children on this could take the form off for example, having to engage in parenting classes, engaging and say domestic violence perpetrated. Work on good management work, mediation, My arms mediation information assessment meetings on there for these various options may be explored with a view to then enable in accord to be satisfied that by requiring this by ordering this, it's hoped that it will enable those persons that and facilitate at the process of enabling contact to be maintained and to be followed through. Now. This is where sexually 11 hate comes into play of the Children Act, which provides that the court can make an order for compliance of so for monitoring the order on, then to report the matter back before the court, it would fall upon Kafka's to monitor that compliance in that regard. So this is where by the court can then require that monitoring to then be undertaken by an office of Kafka's order whilst releasing his officer, and they would then be put back to the court in that regard sold to be certainly some provisions, insofar as that is concerned. So you consider the benefits of that now what type of work specifically can be directed and like I say this could be programs of work classes, counseling, sometimes guidance that may assist the person and establishing, maintaining and improving the contact between the child on the person concerned. So, for example, mother, in example I've been using could then be required to engage in a period of program parenting classes, for example, to help her to understand how by her blocking the contact without any good reason impact us having on the child on on the A father and child relationship and with a view to enable her to go on, understand that on then to hopefully improved the contact between the child and the father. Also, these programs could be involved in, so faras addressing that person's violent behavior enabled him to, for example, facilitate contact in that manner. So addressing anger management work, domestic violence, perpetrator works, for example, the sessions can also provide information advice regarding a making operating arrangements for contact, including make arrangements by work mediation, as I mentioned, so that could also be featuring this okay, and of course, in deciding whether or not to make a activity direction in this regard, the court would need to take into account the welfare of the child, which would be the court paramount consideration in this respect. Okay, so that's where that comes in. Now the other provisions than is warning notes, please. So all orders for child arrangements, as from the eighth of December 2000 and eight will take the form of having a warning notice attached under Section 11 I. So the court will attach this notice, warning the person of the consequences of failing to comply with the order, which could be that's the other party may then wish to bring the matter before the court with a view to dealing with it by way of activity, directions and conditions, and also applying for enforcement by way of enforcement orders on door financial compensation, for example. So it's there for a way of warning that person that if there was a failure to comply with the terms of disorder than the other person made and wish to consider bringing this matter back before the court and the Zadi consequences of doing so So all orders for child arrangements from that data I mentioned will have warning notice attached on them. Therefore, one of the options that's available is if the matter does, then returned to court. Andi, let's say, on form C 79 on one of the ops. Other options available is to seek on order by way of an enforcement order under Section 11 J off the Children Act of 89 On. This is where if the court is satisfied beyond reasonable doubt that a person has failed to comply with each other arrangements order it. May there Macon order imposing on that person on unpaid work requirement okay on the court will not be able to make such an order if it satisfied that the person had in fact, a reasonable excuse for failing to comply with the terms of the order. So you can see the importance of that. So you can see this is effectively criminalizing this to an extent, even though you won't end up where criminal offensive course. But it's bringing in the criminal kind of tests in a way in that regard, so that the coordinate to then look at has this person failed to comply with the terms of the order that they would have to show the balance of probabilities. But candy applicant, in this case, the father did have been using kensho beyond reasonable doubt that the mother has failed to comply with the terms of the order on this, sold any honest shifts on mother to be able to show that whether or not she's got a reasonable defense for failing to comply with this and the enforcement order could take the form, therefore of community service sort of person. Could them quite do good work in the community, sometimes in the region of around six hours a week, maximum off around two hours 200 hours a year, potentially. But in practice, you find that more times than not, de order may not be made, uh, requiring that level off expectation, but nonetheless it's their Andi. Therefore, the possibility of the court ordering this is, of course, of your possibility. Then we've also got Section 11 hour of the Children Act of Compensation for financial Loss. Now, one of the drawbacks with the ordered I've just mentioned the enforcement orders I've just mentioned is the court cannot order this if it's going to conflict with that person's religious work on, say, educational commitment. So, for example, they are required to do certain work in the local community which is going to conflict with, say they work commitments, then they wouldn't ordinarily be in a position to be able to do that. Sort of asked some limitations, of course, in order in this, which could be a difficulty going forward. But then the other option like to say, is one which relates to financial compensation. Let's say let's say we've got a case where by the father has booked a trip to take his Children on a day that is due to be having contact. Let's say he's booked a trip so that his due to take his Children to, uh, say particular theme park, for example, let's say, is booked a whole town, let's say de train fare and so forth and less her. A lot of this is non refundable, So if he doesn't go, he doesn't get his money back. Is a non refundable hotel booking, for example? Then, of course, if again, uh, hey can satisfy the course that on the day in question when as pretty order who was due to have contact and to take the Children, the mother has blocked, for example, him to court, he's satisfied that the mother has been in breach unless she had a reason for excuse for failing to comply with the order they can order the mother in those circumstances, Thio be ordered to pay compensation for financial loss. I do have to say, however, that if you're for the father in this situation, you do have to tread carefully whether or not he's going to go down this route. Because wonder is, of course, a core issue feeling to bear in mind. So there's the initial court feed is obviously the lawyers cost on top. Plus, even if he does get compensation, this isn't for his loss of earnings. For example, this is for, for example, the hotel costs, for example, the costs of the travel and so forth, and he's getting back. But is this really gonna facilitate on improve the relationship between him and the mother to such an extent that she will allow him to have contact with the Children next time? So that's where you do have to really weigh this up and ask yourself whether it's actually the right way forward, and I'm not saying that one should not apply for this, but you do have to try and ask yourself what is the ultimate aim we're trying to achieve in in going down this route? But at least the option is the event. In some cases, of course, it may be a very necessary option that is taken up by him. Okay, nine tens of the enforcement and the court may not make the order if the satisfied that the individual is in breach had a reasonable excuse offend to comply with the order. Okay. So again, this is in relation to a financial compensation. The honest does rely upon the mother and example we've been using to show them that she had a reasonable excuse for failing to comply with the terms off the order in in deciding the amount of compensation the court must take into account the mother's financial circumstances. Okay, so she may not even have the means to pay. And that could be another issue in itself. Or it may actually cause more harm than good in terms of financial, which in turn can an impact on. Of course, the Children also so therefore one has to look at that as well on the court will not be able to make order for conversation More than what the losses that Thea applicant has us sustaining the circumstances. So therefore one has to look at that as well. So you can see a number of issues which have to be weighed up, right? What other options are there? Well, as I mentioned in 13 earlier sessions, there is also the opportunity of having a family assistance or that it is called by Section 16 off the Children activation, and it is a very good orders. I would suggest these are very good. This could be either be made in the on right or attached to one of the other orders that are made. So this provides that were, according any family proceedings has the power to make a Section eight order. It can also make a family assistance order. Okay, so it might be that if the court does make a chart arrangements order specified, spend time with it. Otherwise, up contact with. Alongside that, it may also make a family assistance order under Section 16 on what this requires is a person such as maybe a social worker to advise the system, befriend on the person in can he repair into child in any other person. William Child lives. So this could be where, if, say, for example, local authority consents, It could then enable the social worker to assist and advise in that situation. Sometimes it could be if the means available to even assist in the handover. For example, it could be assisting in, so far as contacting each other. Parties concerned to promote, to emphasize the need for allowing the charity have contact in the circumstances. Now these orders, if they made could be, could be such that you have the willingness and the consent on it and social work of the local authority. Plus, it could be other public bodies, such as Kafka's who, uh, part and parcel of the 16 Section 16 order three, or it could be made for up to 12 months on, also under section 16 a off the Children up to cork and even direct a risk assessment. We done by, for example, the social according God in this catheters offices, if appropriate in the circumstances, so you can see the benefit of these on the names. Persons, as you can see, will be a parent and a child. In these circumstances, well as any other person in charge of living with or drill drill in place. So they are very good disorders and can be used in those high conflict cases in particular way, one is trying to ensure that contact is maintained. So what other options are there were in the previous session? You remember that we did talk about the possibility of committal. So we looked at the case of Ri M, for example, the 2005 case on also the case of Beav the S the 2009 case, for example, on you can see that committed is not necessarily going to be the first port of call on. But it may well not be something that will be applied for it all. But if one is apply for cometo to make sure you're familiar with part 37 off the family procedures, this change, then the procedure which we have used to have previously in relation to committed applications. So this is part of its seven other family procedure rules of 2014 okay. And this then applies where person is seeking to apply for committal, for breach of an order or in undertaking and family proceedings. So this isn't limited to just Children case. Of course, this is across the board in relation to other matters as well, which relate to both uh, maybe Children. But it could also be saved matters related to finances, also or otherwise. Andi essentially, for this if let's say I was acting for father and he does seek cometo, for example. So he's seeking an order that say the mother is committed to prison under the contempt of Court Act of 18 1 for breach of the Chart Arrangements Order specifying Living with then first and foremost, What we've got to do is make sure there is a peanut notice attached to the order, and I'll come back to that shortly when we look at another case on that. But let's assume the pin also was attached, which warned mother of the consequence of failing to comply with the terms of the order. If we do, then go for committal that the application is made using what's called a Part 18 procedure in the proceedings in which the judgment told the order was made or the undertaking was given. So it's percent to 37.10. The application notice must set out and for the grounds on which the committal application is made. So it must set out and for the grounds. And it must set out and identify numerically and separately the each of the alleged incident. So, as you can see here must identify separately and numerically each of the elect acts of contempt, if not together with a date off each of the alleged hacks. So very, very important that so what I would suggest you do is when you are filling in New York a mental application using the part 18 procedure you set out not in numbered paragraphs, uh, each of the alleged at times when the order may have been breached. So you need to set up first on form of what the terms of the order were on. Then he set out separately, numerically in chronological order, each other times it was breached on how on then, what you need to do is you need to support that within affidavits, a sworn statement affirmed containing all the evidence. So that's where of course, you can expand on that on then. That is far that court. You then need to get a hearing. The hearing would ordinarily be in public Unless the court decides to have it heard in private. You need to arrange personal service off this application unless the court directs an alternative methods of service. Okay, So very, very important to get that done. Also like to say for the hearing itself, it would have to be in public. A Leicester court directs. Otherwise it would have to be in open court, as we used to call it. Now, this is where you've got the case off ch on D C t this 2018 decision. Okay, this is one whereby, uh, there was a chart arrangements order specifying spending as time would otherwise have in contact in favor of the grand parents on Did they sought contact? Mother, sadly, did not make chart available. Suppose it any time with or otherwise having contact on. Therefore, they applied for enforcement. Now they don't complete the right. Formed, in fact, completely see 79. But they were seeking committal off under failure on the part of the mother to comply with the terms of the order. But they were seeking cometo on. I relied upon the warning notice the warning notice, which, as I mentioned earlier, is attached to orders. But it warns him about the consequence of failing to comply with the order, whereby the consequences could then be applications for, uh, the programs that work that I mentioned. The spit chips, the unpaid work orders, the enforcement orders on the financial conversation. So it's those elements. The warning notice doesn't entitle court then to go on and deal with any committed application because it's not the same as a peanut notice. And that was the mistake that was made here. Both the applicants and indeed also the court didn't pick up on that era, so the warning notice seemed to have been mixed up with the penal notice on that morning. Notice, as you say, is very different was a peanut notice is different to a warning notice. All charred arrangements orders that's from the eighth of December 2000 and eight will have a warning notice attached to him. But not all child arrangements orders will have a peanut notice attached to them on Lee. Those where it's necessary only those where one applies for it, for example, awaits necessary where, for example, there's a risk risk or consideration, or perhaps need to consider, maybe committed in the future. Okay, so that was the problem in this case. And therefore, what the court had to do is because there was a mixed up off the penal notice with the warning notice. The actual application committee was defective, and they thought that couldn't be proceeded with on the facts, and therefore one had to. Therefore, we re look at that and we consider the circumstances so you can see that importance of making sure that the two are dealt with appropriately. That brings me on to the issues surrounding making a child available for context. Now, as I mentioned early in the first session because of the president's guidance on standard Children and other orders, you'll notice that the the format of the orders is now somewhat different. What it used to be previously. So in the last couple of years, you noticed that the standard order specifically provided for the fact that the child is such that the mother, for example, she is the resident parent, is not to necessarily make the child available, but to ensure that the child is available for contact or spend time with otherwise having contact with the other person. Now, this is where this case of L W. Is very important. This case off the court appealing the year 2010. This case involved a 10 year old. A mother did apply for enforcement as well as in a compensation order for financial loss. She was safe station that the child lived with father at 10 year old. She was she had the benefit of a child arrangement, spending time with order, she said. Dr to Father's home to have contact, only to find that every time she turned up, she said the child was not available because she was saying that the father had got the child ready. But the child, who was 10 year old, was stating that idiot which to go. So she claimed enforcement order to say that the father had beyond reasonable doubt, breached the terms of the order and she also sought compensation in the form off seeking financial loss for her petrol costs off driving on, attending to contact, only to find that she was not bringing a child back with her. So with that in mind, she saw those orders and those orders at first instance were in fact, granted. Now, Kafka said, that they had reported that the child did not wish to see the mother. So this was a case where the CAFTA's officer did speak to a child. Onda child was stating that didn't wish to have any relationship with the mother deal. Wish to speak to Mother? So what was really the courts for you on what is a reasonable excuse for the purposes off not making a child available for contact? Because that's the first question that needs to be looked at when one is looking at breach. Has the mother beyond reasonable doubt breached the terms of the ordering? And what's the reasonable excuse? If any and of course, said there's no breach If, for example, a parent who is prevented from taking a charge for contact is prevented from going on, always delayed by unforeseen transported, weather problems such as and you might remember. And this time in 2010, there was the concerns that airlines had over the volcanic ash you might remember because of that, certainly some flights were being delayed as a result of that, so if, for example, she is prevented because off matters which were beyond her control really so unforeseen travel or whether problems then there would be no Bridget. All but reasonable excuse would be where she has failed to comply with the terms of the order. But she's got reason to excuse on a balance of probabilities. And this is where even though the person could have taken the child and was able to do so, she would argue that she has a good reason for not doing so suddenly. Such as, for example, if the child suddenly fell ill on the defendant. Taking a chart toe doctor was such that that's what she did, as opposed to She was opposed to contact, so that's a reason execution could provide in those circumstances. Okay, So the court gave examples off both in the circumstances on Dhere, the trial judge had the court appeal said, overstated what the contact orders required father to do. The father was stating that he was making a child available. He was getting charged ready. But as Kafka said, the chart simply didn't wish to go on. The trial judge had overstated what the contact orders required father to do and hunt wrongly rejected impossibility of performance is being a defense false obligation. Under the orders were these toe allow contact and to make the child available for contact toe. Allow us to concede or to permit, so to allow the child to go to say you are allowed to go. I'm not going to stop you. I'm permitting it to go on to make available was to put the ones disposal within one's reach. So therefore, to make the arrangements for the chart to go, that was the father's obligation normal on no less the fact the child was allowed to go. The fact that the father was permitting the child to go on the child was stating that they wish to go. That was not a breach off on the part of the father. Therefore, he was not friend to comply with the order beyond reasonable doubt. So they found that basis the orders that were made were had to be set aside so concealing importance of this case and therefore how it brings this into context. Having said that a few years later, in 2015, there was a case of hey HB contact this 2015 decision on this case involved two older Children there were aged 14 and 16. Now their father sought direct contact, the Children living with their mother on the law court tragedy. The court at first instance, refused direct contact, but only allowed father to have indirect. He was to be provided with school reports and allowed to visit the Children's schools at certain times. On order was also made in 1914 until Children under 18 saw that father was not permitted to make any further application in relation to Children unless he sought leave first. And this was certainly for the next couple of years at least, or certainly four years. In the case of a 14 year old. Now, the father appealed, which both the mother and the Children opposed on. This was a case where by the court took the opportunity to really remind all of a sudden, of course, the parties in these proceedings about parental responsibility and about duties and responsibilities. And you can see here Paragraph 71 of the judgment. His lordship did say his eye. He's on a he had to say, Mr Justice, uh, Lord Justice Mumbi. So I'm just reminding myself who handed down the leading judgment here, but also, at the first instance case you had his other judge, Marble Qc, who also commented on this. And, um, one of the things that was highlighted here is the court was saying that too often you got parents who focus on their rights. WAAS are overlooking and minimizing perhaps their duties and responsibilities. Okay, and you can see that gorgeous is, McFarlane was quoted in the case of 2012. Well, it's not so much about parental rights, but it's about parental responsibility. Okay, so duty on one parent to ensure that the rights of the other are respected and vice versa. Unlinked With that, we then had the then president Family Division, Sir James Mumby, where by his Lordship, specifically a paragraph 76 that emphasized, uh, the concept of ensuring that contact does take place. So this is where you can see a paragraph 76. His lordship said that what? What can one reasonably demand not merely as a matter of law, but also has a fundamentally as a matter of parental obligation and his lordship said day, if it needs to, whether by argument, persuasion, cajole, mint blandishments, inducements sanctions, such as in granting call from confiscation of mobile phones and computers, and all the electronic equipment or threats falling short of brute force or a combination of all these factors. This is what's required to ensure the apparent does the level best to ensure compliance and example his lordship gave was a rebellious teenager who is foolishly, as the judge said, refusing to do GCSE. S o l levels are dropping out into a life off drug fueled crime. Why should we expect anything less of apparent? His rebellious teenager child is refusing to see their father so you can see very, very powerful points that were on had been made by the judge. In this particular case, you consider thinking behind that right? That then brings me on to where we at the moment with the coronavirus crisis. And of course, since early March 2020 the world has changed in a way that I don't think any of us will forget really going forward, Aunt. Of course, we're still very much in the middle of the pandemic has off the third week of September 2020 on. Do you remember that back in early March, there was a lot of anxiety amongst, uh, parents in this context in relation to Children matters over what was to happen in relation to Children who were, uh, certainly dividing their time between different households was that permitted was in accordance with the state Home rules. This is where the president of Family Division, Sir Andrew McFarlane, handed down some very significant and relevant guidance at that time. So this was the coronavirus Christ. His guidance on compliance with family, a court chart arrangements. Orders on this was handed down on the 24th of March 2020. So what his Lordship said was that during the coronavirus crisis, some parents whose Children were the subject of charred arrangements orders made by the family court had understandably been concerned about the ability to meet the requirements off these court orders. So, of course, understandably, people worried. So if you've got an order in place, child arrangements, order with a child, has one week with Mom and then one week with Dad, was that goingto happen? Could the child move from one house or to another? And that's what the anxiety that was there, what the president issued this statement to offer some advice, but at the same time, it was advice in the general term form on His Lordship's had. That parental responsibility rests very much with the parents, so it rests with the parents they have parental responsibility on. Therefore, with that in mind, uh, when you got a child is subject to a child arrangements order made by the court on the parents need to exercise parental responsibility safely and carefully on. Of course, we're in the middle of a public health crisis on an unprecedented scale, as his lordship set. The expectation is that parents need to work together to sensibly make arrangements for their Children On. With that in mind, His Lordship said that at that stage, of course, we must abide by the current government staying at home rooms at that stage in at that stage, you remember back in early March, the position was that the stay at home rules were very much strict. You remember the lock down whereby one could only leave the home in four situations. Andi. Short of that, it was not possible. But then, where did that leave? For example, if the child was ordinarily prior to this dividing their time between, say, the mother and the father. Well, this is where the state home rules were issued on the 23rd of March, with doubt specifically with child arrangements and if the government had issued guidance. Would said that where parents do not live in the same household, Children under 18 can in fact be moved between their parents homes on. The president said that this therefore established an exception to the mandate trees their home requirement. It doesn't mean have that chilled Children must be moved within their homes, but it enables that to be done as long as it's safe to do so on a decision. Whether a parent child is to be moved is for the parents to make. After a sensible assessment of the circumstances, you gotta look at the risk you could look at present health. You gotta look at risk of infection on obviously looking at other individual members in the household. So this is where the president has been saying that parents need to communicate with each other the best ways to communicate, and to think about trying to iron out these anxieties. That would be a practical way on to iron out and reach a sensible decision between them on. Even if some parents think it's safer contact place, it may be reasonable for the other parent to say that they're worried about it. So with that in mind, President did say that where parents acting an agreement exercise their parental responsibility to conclude that the arrangements in the order should be temporarily varied. Then they were free to do so, but they need to keep a careful record of it, whether it's email, not otherwise. So if, for example, the order provided that the child was to spend one week with Mother one week with Father, but then following discussions, consultation between the two of them, it was felt that its benefits temporary, varied saw that the child continues to live with mother, for example, dune foreseeable future, then that should be carefully recorded. But of course, it may be the case that in that situation, London has to look at alternative arrangements in those circumstances. Andi, If, of course, it's felt that the there is no agreement then, of course, in that situation, if the one parent does decide to very D arrangements temporarily unilaterally, they must then if and when the matter is returned to court or it's brought before the court, there must then be in a position to justify why they decided to do that voluntarily on unilaterally. So what about alternate arrangements? So this card is also emphasizes how important it is for the parties to look at alternative arrangements. So whether there is a temporary variation of agreement other by way off agreement or by unilateral variation by one arm or the parents, then a child, then they for the child does not get to spend time with the other parent. Then the court will expect, at the very least, alternate arrangements to be put into place to maintain that relationship between the child and the parent. So, of course, if that means looking at dealing with matters remotely by FaceTime, WhatsApp, Zoom or the video connection. But the president did emphasize that the key message has to be that with coronavirus restrictions, cause the letter of the court or to be very dispirit of the order should be delivered by making safe alternative arrangements. And I think that's the advice that many of us do need to be given to our respective clients going forward very, very important. And if there is no agreement, as I say, then the president did say that where the parents couldn't agree. Then if a parent feels that they need Thio unilaterally, verily agreement, then so be it. But there must then be able to justify that if they are questioned at a later date. And many of us have had cases which have come back on whereby the parent has been asked to justify why they decided to vary The agreement has date did right now because of this, Where are we at the moment? So here we are, looking at the position with going forward Now. As off yesterday 22nd of September, many of you will know that the prime minister in England, both Johnson, he announced that they are further restrictions that are going to be imposed us from the 24th off. September Thursday, 24th of September. There's different restrictions coming into effect in England, as in Scotland, Ireland and Wales. Andi. Because of that, the health protection coronavirus restrictions need to be keep amended. Thio, bring that into place. So we did have not too long ago the health profession. Coronavirus restrictions number to England Regs came in on the third of July. We had the number four version of these, which came in under 14th of September, more back gatherings on. Then There are changes that are due to come in from the 24th of September 2020 so that many of you know, for example, in England three expectation is for, uh, persons to certainly, if it's safe to do so, to continue to work from home, certainly until at least it's suggested next six months. Uh, there's limitations related to social gatherings, for example, maximum of six people in in gatherings in that regard and also, uh, the limitations insofar as for example, uh, clubs and pubs and other restaurants and so forth being expected to close knowledge and 10 PM in England. So you've got the restrictions. But in so far as these, uh, the guidance that the president gave back in March 2020 that remains, as far as I can tell and therefore, of course, in those situations a za long as it's safe to do so. And that's the important thing that the president has given. And of course, that guidance very much still remains in place now because of that. There's, of course, been, uh, concerns about this, not just on the private law side, but also on the public law side. So therefore, this case of D. S, for example, which is a public law case, was also looked at by the court appeal on the Fourth of August this year on this was a care case whereby the mother's application was for contact to her three Children, who was subject to an interim care order. There were age one and a half, 37 on It's a case we had a case manager here in the mother said that as matters has progressed, the older charge was returned to school on the local authority. We have been asked to really re established face to face contact in light off the government guidance, which was that there was now small groups who could form households to meeting opens bases with social distancing. So the mother was station that this should be permitted to enable her to have face to face contact with her Children. In that regard on his Lordship said that the key point is that the contact your agent should be assessed on a case by case basis on that. When it comes to applications for contact with Children and care, one has to look obviously the practical difficulties. But you do need to make sure that the spirit of the order is maintained, so that's very much where it comes from. Just for the final part of that, I wanted to also mention the case of Re are about switching residents as you'll appreciate. Sometimes there will be cases where one of the options will be whereby the court may be invited by the party. Consent is which residents as a method of enforcement, and this was such a case on the 29th of January last year we are on. This was a case where, by the various findings have been made against Mother I've been found, actually had encouraged a child to make allegations against the father to the police, which were untrue. It's been found that the mother had coached and primed a child to make allegations against the father, which were untrue. Mother had lied about the father for some years. Mother had bean implacably hostile towards the father on should alienated a child so you can see a number of key issues which were being raised here on this is where the trial judge also decided there from the fact that because the child was therefore showing a significant unwillingness to have anything more than in direct contact with a child the first instance, judge decided then to only permit contact to be indirect. But as we on appeal, um, this was this was reversed. The evidence of a clinical psychologist was that further efforts should have been made to reinstate contact in those circumstances. The evidence was that this child was suffered significant harm if the relationship with the father was lost, which is what was happening here. Given the level of any nation given the level of implacable ity, even though the contact was indirect, even that may to go after a while of the court had placed in sufficient weight on a medium to long term harm that the child may suffer as a compared to the short term harm by the continuation of the preceding. So the fact that the prisons would continue the court relied too heavily on that as opposed to the long term effect off this child, effectively seizing to them. Have a relationship with the child's father on the court did say, bearing in mind cases such as Reem this 2017 case that contact between a parent and the child is a fundamental element of family life. Most in most cases, it's interesting. Charges on contact should only be terminated. Only the most exceptional cases where they're called reasons. And in fact, there is a positive duty upon the state on they found a judge on the facts of this case to take measures to maintain and reconstitute a relationship. So here there was a need for balancing exercise. Yes, if you keep the matter in court and the elongated proceedings that can cause harm because of the delay on the fact that the matter remains in court. But then you gotta weigh that up against the consequences off season the proceedings now and therefore having a potential detrimental effect on that relationship between the child and the parent. So therefore, as a psychologist emphasized on a given opinion on the end of the road here had not been reached, Mawr could and should have been done to certainly work towards facilitating that face to face contact between the child and the father. So therefore on appeal, the father's application was successful, right? So that brings this session to an end. So you can see I've covered a number of things that they particularly looking at the changes brought about by the Children and Adoption Act on. Also, we looked at, for example, warning Nazis. We looked up in the Nazis. Committal, unpaid work, financial conversation. We've looked at the covered 19 situation and obviously dio the situation that we've got at the moment with child arrangements, orders going forward in the final session. And I'm going to be developing some of the case law further with you, where we'll be looking at some order case law, particularly on parental alienation. Can I thank you very much indeed. On. I'll speak to you soon. Thank you very much. Bye. For now

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Enforcement of orders, Parental alientation, Private children law, Private children law cases, COVID-19, COVID-19 pandemic

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Safda Mahmood

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Safda is a senior solicitor, with a public authority, having had practiced in both Private Practice and Local Government. Safda is on the Law Society Children Panel and specialises in Children Law and Adoption. He delivers training across the country and writes regularly for various journals including Family Law Journal, Legal Executives Journal and Law Society Bulletin.

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