Dealing With Enforcement Orders

Hello. Welcome, everybody. My name's after my mood on a very pleased to welcome you to today's by psy session through data law today that I would be looking at private Children or contact Casey's onder in particular, dealing with suspects running enforcement off these orders. On in particular, what would be looking at is that somebody difficult situations that's running enforcement, half charred arrangements Order specifies playing time with what was having contact with, and I'm going to be looking specifically at. The various options available to the courts will be looking at, for example, activity directions, committal applications, switching, living with unpaid work provision and also compensation will also be looking at somebody developing case law in this field, particularly as it relates to parental alienation and also at the concept of implacable hostility. So what I'm going to start then, with its really looking at some options, which are available at one being committal now, a zeal appreciate This isn't going to be necessary. The first option that that's explored, but it is an option in this very old case, we m 2005 illustrates really how sometimes courts will make committal. Orders were really this is inappropriate on perhaps his disproportionate just to put this into context. What we're looking at is a situation where let's say you're acting for Father. He has the benefit off the chart arrangements order, which specifies that the child spends time with or the words has contact with. Or rather, the father has an order in place, which provides that he's to have contact with otherwise, spend time with otherwise, have contact with a child. Let's say the father, mother of the child, for whatever reason, is refusing to allow that so therefore effectively days a breach of the order. So this is where Father may then apply for committal. And Reem is ah, interesting case on that way here by Ah, it was a case where by one did look at committal proceedings. But interestingly, here it was one whereby the father was in fact, late in returning his daughter late funding contact, and the court in fact, made a suspended commit to Lord of because the period was that he was merely approximate 10 minutes late in returning, had the child falling contact late, even though, yes, this was technically in breach of the order committal proceedings even by way of a suspended order where was seen as very much a disproportionate step in the circumstances. Now, when you are looking at these types of matters, sometimes you may find because of issues off implacable hostility. Andi. Sometimes you got older Children expressing their views or there may be no contact taking place, A told them. This is where there may be a need to consideration to consider separate representation of Children, send a private join little context. This is where the child may actually be joined as a party. This is over 16.4 off the fpr 2010 comes into play. So if it appears to court lights in the best interest of the child up, the charge we joined as a party on this may be in order to enable to court into not only joined a part of China's A party, but the court made in appointing officer off of carcass that washed from the scenes officer or some other person to them, be the guardian for the child with authority than to take part in the proceedings, and especially specifically in so far as the a point is concerned that This is where, by making the child as a party under rule, 16.4, particularly paragraph 7.1 states that they should only be done in cases where there is significant difficulty, some of situations where you may find a reason. The receptor representational set out winning paragraph 7.2 off 16.4. The fpr such as, for example, when officer off calf class takes the view that the charge me made a party. It may be where there is an intractable dispute off child arrangements or spending time with the otherwise having contact with where contact may have seized or where there is irrational, implacable hostility to contact when a child might actually be suffering harm associated with the contact disputes. So that's where that this may well be necessary in those types off situations. Sometimes it may be where there's an older child who is expressing a view which conflicts with that of what the parents are saying in those circumstances. Okay, so that's really 16.4 appointment comes in. Not one of the options are they will. There is an option which is available to court to make costs orders, of course, and this is where the case of re t order for contact costs. This 2005 case comes into play and this is where objections to contact had been investigated. They had been unreasonable failure to implement various terms of the order. On Day four, it was open to the court on a fax here to find out Apparent had acted unreasonably. Onder had led to unnecessary litigation to circumstances and therefore here on the fact there was a cost automate. So as you know, this is a possibility when he looked at costs, of course, YouTube a mind part 28 off the fpr, particularly really 28.1 at generally and Children proceedings, the court may may make such orders they see fit insofar as costs but generally insured persons. You'll find that they will not be in order for cost made. But of course, this very much depends upon the particular circumstances off the case Now going back to the example that I mentioned earlier. If your four father, for example, and mother is failing to comply with the terms of the Child arrangements order specifying spending time with otherwise, I'm in contact with another option is that the father made in suggest that as a result of mother not compliant in terms of the order, the Children are suffering calm, emotional harm and psychological harm. Not maintaining that relationship with the father similarly can work the other way. Of course, I e. D Children Underwood Father, Mother has the benefit of a child. Arrangements oldest specified, spending time with otherwise on contact with On Against. You may argue the same thing now. This is where it is open to the court considered the use off Section 37 off the Children Act in. This is where the court could make a Section 37 direction. If the court is satisfied that in any family proceedings, that question has arisen in relation to the welfare of the child and appears to court that it may be necessary and appropriate to make it care with supervision order on the court within directing investigation into child circumstances. Eso again. This is another route in which one would need to investigate this to see whether do they need for looking at what safeguards can be put in place and potentially to see how the child's welfare will be safeguarded by way off seeing if public law proceedings are necessary in the circumstances. What other options are there will, of course, reedy intractable contact dispute publicity This was a 2004 case very, very important case whereby this was hurt by Sir James Mumby sitting as a judge of the family court back in 2004 the parents had been involved in an intractable contact dispute. The child was only 87 but the parties had been involved in this intractable contacted speak for several years. In fact, running into some five years have been some 43 hearings, 16 different judges, and it was a case where there were allegations made. It would pain Nazis. There was suspended orders and finally a period of imprisonment. But the case we ultimately the father's quest for maintaining and labeling the contact to take place have to come to an end, will. Ultimately, the president, Mr James Mumby, took the view that the system had failed. The father under a child in the circumstances that they had been far too many a a German said that far too many issues litigated on. It was a case where by there was not enough judicial continuity in that regard. So this very much emphasized time porting what it was to ensure that the system was set up with an unaddressed fully and appropriately under. With that in mind, sometimes you'll find that there may well be cases where by a Z other mentioned there may well be a need for parent to be sentence for breaching a contact provisioned and displayed a case of being s. This 2009 quarter of pure case illustrates that this is where the mother had, in fact, failed to comply with the various contact order provision. Penal policies have been attached. A mother had been founded to comply with the terms off the order. Mother was committed to prison for three concurrent terms of 28 days for not making a child available for contact with her father. Mother, however, had been breastfeeding. Her three month old child, with her current partner under court, assumed a seemed at the prison would in fact allow mother to also take the child in indoor circumstances, which ultimately was was allowed to sort. This was a case where, by the quarter appeal, Appel D lock tried judges at decision to imprison a mother. In the circumstances and in particular, the court appeal took the view that carers of Children cannot as human. That they rollers cares, protects them from being centers to immediate terms of imprisonment. For clear repeated on deliberate breaches, off contact orders. He conceits a very powerful case, which emphasizes some models key aspects there. Now that brings me on to some of the other options, of course, which are available dealing with enforcement on dirt. This old case of Reem this 2012 case is very useful to note. This is where, by the case involved two Children aged eight and 10. They left with Mother and to be fair to the mother, she was meeting the Children's needs. But it was a case where by she was not allowing to contact to be maintained between the Children on their father. And this is where the fathers and brought committal proceedings. Now the court ultimately took the view that this was a case where, by mother had not been promoting any form of contact under court felt that they needed to be done. Maintenance of relationship between the Children on their father the Children have with do very well at school. There was settled on what the court decided here was rather in switching residents to father the court instead, talk to view that would effectively make a suspended order. And that is they would need to be mother, mother, mother needed to comply with the very soldiers for contact. And if mother was to fail to comply with doors provisions, then the Children would actually end up. Then moving in with the father's effectively was what was known in those days as a suspended residence order so effectively recovery orders made under Section 34 off the family. Luwak saw that effectively, Mother refused to allow the Children to have the contact as perp prescribed in the order. Then the police would done have the authority to use reasonable force to take the Children and place would father for necessary. So you can see the thinking behind that. What other options are There were liveries, the various forms off enforcement which came about as a result of the Children Adoption Act of 2000 to ah, large part of this act, which came to effect on the eighth of December 2000 and eight in particular, there was brought in Section 11 a, which relates to activity directions on conditions so that the court can when one is dealing with issues related to enforcement and also of the cases. Bingo progressed Make orders for mediation, for example, for separated parents. Information programs on bond also make provision for syrupy or certainly invite parties to engage in classes. Counseling and programs will work there with a view to facilitating and encouraging that the contact takes place on its Afar's monitoring. This is concerned Cath Class or the world's family proceedings officer would be expected to monitor compliance with the order and to report back court in that regard, also for child arrangements Order specifying spending time with otherwise I'm in contact with us from December 2008 will have the benefit of warning notice attached under Section 11. Any of the Children act whereby the one you noticed and warns the person of the consequences of failing to comply with the terms of the order on this is where there is specific provision for enforcement orders under Section 11 j. So like that, of course, is satisfied beyond reasonable doubt that person has failed to comply with the child arrangements order it made and Macon order imposing on that person on unpaid work. Requirement on the court won't be up to do this. However, if the person has a reason, excuse or flank fame to comply with the terms of the order, the burden does rely upon. A person claimed to have had a reasonable excuse to satisfy that standard debt. To have to satisfy the court on it is on a balance off probabilities in case let's with those provisions common and any other provision, of course, is it sexually 11 are which relates to compensation for financial los. So if the court has made a child of angel sword under court is satisfied that the non resident parent in those circumstances has suffered financial loss due to the breach, the court made them make an order requiring the other person to pay compensation due to financial loss that they've suffered so that could cover fix on port travel fares, for example, which have been expended cost towards going on activities where the Children were by that person may have been suffered that form of loss due to to contact not taking place, for example, and sexually 11 0 in particular provides that the court may not make such a financial order if they are satisfied at the individual, who is a reason breach had a reason or excuse for failing to comply with the terms of the order on the Honest relies upon that person to show that had a reasonable excuse. And again, this has to be shown on the balance of probabilities. That then brings me on to at the question mark as to what we actually mean by what does make available for contact actually mean when one is then looking at the issue off enforcement. And this is where we've got the case off in a matter off our W Children. This was a 2010 Court of Appeal decision. Essentially, this is a case where, by they were orders made for contact. Onda father had appealed against to enforcement orders that made in compensation orders. The child concerned was a 10 year old who lived with the father and mother sort and obtained a benefit of a contact provision. But contact didn't happen on the basis that the father was staged. A child did not wish to go with the mother. And that's where mother applied for enforcement towards, as well as a compensation order for financial loss in terms of her travel costs and attending to contact. And this is where, by at a court took the view that the father was obliged to exercise parental control of a child on dad to make the child available for contact. But what does actually make available for contact mean on the court did say here that make it to make available means just that. It means to ensure that one deals with making the child available for contact in so insofar as to allow contact and to make child available to allow is to concede or to permit to make available was to put up one's disposal on that. That that was the obligation on the part of father. Nothing more, nothing less. And here, uh, there was almost this assumption that the obligation was own father, to make sure or even to ensure that the child went on, the contact took place. But the court took the view that this was not legally enforceable obligation. Now, that case don't have to be read in light of the later case of HB contact. This was a court appeal case handed down in April 2015. This case involved two Children aged 14 Onder, 16 on a father saw contact. The order did not, did he? Contact did not take place and the father claimed up. The mother was not making a Children available for contact. And this is where the president of family division at the time said James Mumby emphasised, particularly that there will be, as in this case, strong willed teenagers, uh, where it could be. Very Tom's toxic taxing in terms off really invited them to do what is in their best interest. And in particular His lordship did side up parental obligation. Have a responsibility. Musslit shrivel away merely because a child is 14 or 15 and 20 Obligation requires. Want to take all reasonable steps to ensure that a child of that age does what it ought to be doing and not what it should be doing. And therefore what His Lordship set is that one what one reason to be demands not just a matter of law but also as a matter of parental obligation is not apparent whether it's by argument by persuasion, by inducement, by sanctions, for example, such a grounding or taking confiscating more bar forms, for example, does what is necessary, even if it's a combination of these to ensure compliance. And the example of President gave was, if we got a rebellious teenage child who is refusing to do GCSE is away levels while on duty No circumstances. Why should we expect apparent in that situation to encourage the child to study when we are not expecting that child to expect them to be encouraged to see their father when they're refusing to do so? So consider thinking behind that. That has been a more recent case on the position with enforcement of contact. This is the case off CH on D. C. T. This 2018 case on what this case emphasizes, which involved a case by paternal grandparents who were looking to enforce the child arrangements order specified Spending time with otherwise I'm contact with is the fact that would do is a difference between a warning notice and a penal noticed under here to court the trial judge mistakenly thought that enforcement notice the warning notice Rather was sufficient to enable the court then deal with the matter by with committal proceedings. But this wasn't the case at all. The core hadn't allowed and required the procedure for contempt to be dealt with. That requires complies with Part 37 particularly Rule 37.10 which requires a committed application made by way of an application notice, usually Part 18 procedure and here on the facts that had not been done on the court also emphasized the fact that therefore they had been no formal application to commit on that the warning notice had been mixed up with deep in Ortiz or contact orders has form eighth of December 2000 and eight by way of child arrangements of spending, spending time with otherwise on contact with We love to benefit warning notice. But Pena Nazis will only be a touch when necessary, and therefore if one is looking to commit to prison for breach of in order. And of course it's the peanut notice that must have been attached, one that needs to apply formally by wherever notice to commit and with a view today enabling the application we heard using Apart 57 procedure so very, very important to ensure compliance with that. And finally, I want to mention a case of Ri Extras 2018 case, which was handed done recently. And this is one whereby the child had been residing with mother. Child was 86 years old. Mother was refusing to allow the father to have spending time with the child. And the overnight contact, which was to be progressed, did not happen. Litigation had been going on for some time. This was one of those cases that bean so many hearings over sustained period of time. Underfunded court adviser recommended that in fact, distributes Richard residents in favor of the father. The court is satisfied that this was a case where mother was hostile on continued to be hostile towards the father, and she effectively was deeply ingrained insofar as wanting matters to be dealt with only through her, on her terms and precisely controlled the court satisfied. A relationship between the father and the child was very good, and the contact had been very positive on the court was satisfied that mother would use the court system and the authority, such as the police, to frustrate at the contact on on the facts. The court did switch residents to the father so that the child lived with at the father in the circumstance. And despite mother appealing on balance, the court was satisfied that this transfer of residents to father was the appropriate water in the circumstances. So again, you consider to thinking behind that case our case we can see today. I've spent a fair bit of time looking at the various types of provision that are available in terms of enforcement contact and see this a very significant area off Children or proceedings. And although there's many options available to court, you'll see that in practice, a lot of these are going to be depend upon the particular circumstance of the case to see what works, what can work, what have you turn showing that this is done in accordance with what's in the child's best interest. Okay, so can I thank you very much indeed for the Stinger, Hope has been a useful sexual for you on our speaking. Next time. Thank you. Bye. For now,