Hello and welcome everybody very pleased to welcome you to today's session through data law. My name's after Mahmoud. This then is session two of the four part series we're taking you through dealing with enforcement of child arrangements orders and cases of parental alienation. So this is the session two and as you know in these four part sessions I'm taking you through some of the practicalities law practice and procedure relating to enforcement of child arrangements and looking also at the developing case law insofar as this is concerned. Last time you remember I spent a fair bit of time going through with you describing child arrangements orders the use of section 11 7 the use of joined of Children to these proceedings of 16.4 and also spend some time about looking at the position with the judge, meeting with the child. The guidance as of april 2010. And then we also spent some time looking at some of the other options such as a metal as well as costs orders. So today I'm going to be developing some of the themes by looking at somebody developing case law related to some of the other options such as switching child arrangements. For example we'll have a look at that. Will also have a look at somebody developments surrounding particularly the use of the Children adoption act of 2006 and also spend a bit more time looking at what exactly it means to make a child Available for contact. So those are some of the things I'll be looking at in today's session with you. So the lawyers as of July 2022. So, what I want to start with then is another option which you may wish to consider what you're dealing with. The issue of enforcement is seeking for there to be what's previously known as a conditional residence order. Now, a conditional child arrangements order specifying living with basically. And this is based on the case of we M This 2012 decision. And what this particular case looked at was in relation to two Children aged eight and 10. They were living with their mother and it was the father who had the benefit of an order that the mother was to make the Children available to spend with their father. But sadly she wasn't doing it to be fair. Uh the mother was providing a very high level of care towards the Children, but sadly, given the level of hostility she had when the father that contact between the father and the Children were simply not taking place. And the evidence supported the fact that mother was persuading the Children have a very negative view of their father. Children, very loyal to their mother. And this is where the court didn't have the benefit of separate representation. So, in fact, the Children were joined as parties and then there were, had the benefit of a guardian. There was also a child psychologist who had also been instructed to give an opinion as well in this regard. And although some contact was taking place, it was very limited in the circumstances. Now this is where like I said, the mother wasn't promoting any form of contact and of the view that the Children should actually have no relationship whatsoever with their father. So you can see the mother was very opposed to the idea of the father being involved in his Children's life. And the court did decide on the fact that the Children did very much loved their father. But because of their loyal to their mom, Children felt they could express their true feelings. So this is where again you can see the issue of parental alienation can then come into effect in terms of the primary coaching, the negative views that have been given of the other parents and then that's where the child may then struggle to be able to express their own views. And also that may take on board the negative views of the parent with care in those circumstances. And like I said, the Children were otherwise doing very well, they were doing well at school, they were settled. But sadly this was a case where by the contact simply was not taking place. So what the court decided was they said, look, we would go down the route of switching residents to father, but we wouldn't necessarily want to do that straight away, but we will if we have to. So unless the mother allows the contact as directed and therefore unless she complies with that and therefore will give you one last chance basically unless she does that we will be switching child arrangements. So that was the kind of thinking behind this And that's where the idea of a so called shared residence order as it was then called came into effect. So you can see here that in paragraph 80 of the judgment, this is what his lordship provided for. So essentially provided for the fact that the event that the Children did not want to stay with their father for the periods referred to in the paragraph. So you can see the specifications relating to the contact and these orders to apply firstly. What would happen? And is there would be a residence order. Now of course a child arrangements order specifying living with which would provide that the Children should live with their father from the first date of the period in question. And the mother should then give up the Children to the father on that date. And if she failed to do so that an application would be made for recovery of the Children under section 34. The Family law Act of 86. Okay? So effectively it was you know, mother must comply with the terms of the order, but if she fails to do so then she must allow the Children to go with their father and she refuses to do some basically recovery order would be made and the effect of the recovery order would be to that enable the police to use reasonable force if need be to take the Children from the mother into place with the father. Okay, So I was just thinking behind this and certainly on the facts it did seem to work. So you can see some of these options may well be explored and utilized in these cases. So what other options are there? Well, like I say, sometimes there may well be a need to actually look at switching living with arrangements so therefore transferring of residents or living arrangements. And there's a case on this called re X 2018 decision by mrs Justice Knowles. And in this particular case, it's one where the mother appealed against the order had been made. This was a six year old who had been living with mother. Father applied for switching of residents living arrangements and the court had also ordered that the father should make the child available to spend reasonable time with the mother. And the court did say that there was an expectation for both parents and to agree as to the arrangements for future contact with a view to preventing further emotional harm to a child in those circumstances. And this is where despite expecting this sadly the contact arrangements were not being complied with. And in fact when the court officer got involved in family court advisor, they recommended that in fact they should be transfer of residents to father in these circumstances. Father, as part of that applied for enforcement and in fact what Kafka's had recommended was that this was a case where despite what the mother said in that she would comply with the terms of the order. In fact, she had a deeply ingrained hostility towards the father and his family. So you can see again, emphasizing the level of intractable hostility there. So she had this ingrained hostility towards the father and his family. And whilst the mother in principle was prepared to accept the need for contact between the Children and their father, she was very adamant in saying it had to be exactly on her terms had to be strictly and precisely controlled in those circumstances. And even though there was an expectation to allow the contact to then become overnight between the Children and the father, sadly, that wasn't happening. Mother had not been allowing an accommodation, that she was wholly, wholly opposed to the overnight contact in those circumstances. And this is where there had been involved until three family court advisers. The Guardian has been appointed to 16.4 appointments, several hearings. There was even a family assistance order made under section 16 of the Children active age nine, to facilitate this process. But sadly, despite all of that significant professional important involvement, the contact could simply not be progressed. There'd be no overnight contact for several months. In fact, several months, no holiday contact, numerous contacts had been missed and what the court said here, and really, really hammers home, really with some of these cases of hostility is what the court has said here is that mother was prepared to use the court and indeed the authorities, such as the police, for example, to frustrate that contact. Okay, so, for example, mother had sought a non molestation order against the father, but the court's satisfied that actually there had been no reasonable grounds for her even having pursued anomalous station or the most, which was actually entirely unsupported by any evidence that this was really applied for on mother's part to really pursue her. Her goal to put father in a in a very bad light, in terms of pursuing her belief surrounding the fact that there should be no contact with her father. Uh, and you can see therefore how this was very much going against what was in the child's welfare best interests. So, with all of those factors uh, in mind what the court thought was that, well, what else can we do? You know, is this a case where mother would be open to the idea of facilitating contact? But sadly, there's very little else that the court could do in these circumstances and therefore they had to go down the route of therefore making that record in order of a switch of residents in favor of father. But that's where mother did. In fact appeal. So she appealed against the making of disorder in the circumstance, and she claimed that firstly, there was a procedural error in that neither nor the judge had followed the correct procedures or provided continuity, but in fact, the court said that's not the case at all. In fact, here, there had been continuity. In fact, there had been the same guardian who had done several reports in those circumstances. And if anything, this case had a lot more continued than other cases would have done. And secondly, in terms of procedural areas, in terms of gaps, the courts actually satisfied that the trial judge had actually addressed the issues raised throughout the judgment. The judge had even had the benefit of seeing and hearing the mother and father giving evidence and that, as you know, is very important because it allows the child to the judge in those circumstances to have a very much a firsthand view on the views of the parents and obviously hearing from them first hand by word of hearing live evidence. And therefore, the court did say that the judge in deciding to switch residence was a decision which was within the judge's discretion. And therefore, the appellate court would simply not be interfered with that judgment on the fact that there wasn't enough here at all to suggest that that was a decision that was wrong. So, you can see the circumstances how this case very much emphasizes the need for ensuring that these cases are appropriately dealt with. So what else can we do then? So if there are cases that you're involved with whereby there are issues of enforcement of child arrangements, what else can be done? Well, this is where the Children and adoption Act 2006 comes into play and this act, most of which came into effect in 2008, then gives a number of provisions within it Insofar as they're looking at the possibility of enforcement. So you've got for example, section 11 a of the Children Act which specifically then provides for any direction to be made requiring an individual to take part in an activity in relation to the child concerned. And 11 a paragraph being and sets out the activity so that this could be for example matters relating to a person engaging in safe separated parenting information programs working together for Children for example. So it could take the form of parenting classes that the person is then required to engage in with a view to then helping them to understand how their behavior is impacting on a child. Sometimes these activities can take the form of participating and for example, anger management work. Sometimes domestic violence perpetrator work for example, again with a view to then encouraging that person and to engage in these activities to them promote and enable contact then to take place in these circumstances. So sometimes these types of sessions may have that could be engagement in mediation, for example, in my hamster mediation information and assessment meetings, for example, will have you looking at other ways of resolving matters in this regard. So that could be an option. And with that in mind, Section 11 H provides that the court can make an order monitoring for monitoring the order and to report back to court. And this could would often ordinarily fall upon Kafka's cafta's coming in Wales then to monitor that uh to monitor whether or not that person is or is not complying with the terms of the order. So that's the thinking behind that and then there's other options and you can see therefore that in terms of these orders I've just mentioned, it could then involved maybe programs or work classes, counseling guidance with a view to then facilitating improving the contact. It could be used then to deal with somebody's maybe violent behavior to enable that contact to be facilitated. So the domestic violence perpetrator programs, for example, that the person may need to participate in in that regard. And obviously the child's welfare will be paramount in these decisions in this regard. Now, what else is available? Well then you've got section 11 I uh and that relates to warning those season. This is where by the court will when they are making a child arrangements order also attach a notice which will then warn the person of the consequence of failing to comply with the terms of the order. So this isn't the same as a penal notice. Penal notice remember is one and that warns the person that they must comply disorder. It's an order of the court, an undertaking, a breach of which has content for which the other person made an apply for them to be fined or sent to prison. So that's your penal notice was here. When you've got a child arrangements order made, then that will have a warning notice which are warned both parties that must comply with this order. And if not then the person who's favored the order is made and who should be facilitating and making available needs to be warned in particular that the other person made and apply for enforcement. Whether it's for example activity conditions, directions, unpaid work provisions and financial compensation. So that's the thinking behind these warning notices which will be attached to these uh child arrangements orders. And if wonder needs to rely upon enforcement and that's where they will complete and submit to the court to form C 79 with a view to potentially seeking quantities enforcement orders under section 11 J. Of the act. And the way this works then is if the court is satisfied that the other person has beyond reasonable doubt fail then to comply with the child arrangements order, it can then make an order imposing on that person an unpaid work requirement, which is basically a form of community service. Uh And the court would not be able to make such an order if to satisfy that the person had a reasonable excuse for failure to comply with the order. Now disorder if it's made, cannot conflict with the person's work commitments, with the educational commitments, with their religious cultural commitments in that regard. And the unpaid work could take the form of them doing work in the community. For example, in this regard to like say it's a form of community service and the court can impose this. The court can impose about six hours a week. About Uh potentially 40 hours hours a year, about 200 hours maximum a year if needs be so they can impose this. And sometimes this may then be an option that one needs to look at. And the aim again has to be that by ordering this. The aim is then to encourage that person to abide by the terms of the order. With a view to again, uh encouraging the person to comply with the terms of the provisions that are set out. And then another option of course is compensation. So, ordering compensation for financial losses. Section 11 oh. Uh So the way this works is uh this is where if it's found that the person has failed to comply with the terms of the order and the person who is supposed to be having contact then has missed out on that contact. Uh then the person in breach if they could then be required them to pay for compensation for any financial loss that bank may have been suffered. Unless it can be shown that the reasonable excuse for failing to comply with the terms of the order. So this could be relevant where say let's say the father was due to have his contacts on the weekend and he's booked a trip already to take the Children somewhere has already spent money on maybe train fares on the activities he was going to take the Children to and it's something that he can't claim his money back. If for example the Children were unable to go, mother refused to let them go and sadly the mother has refused to let them go. She's come up with a reason which isn't one that's plausible. She's saying that she's got the dates mixed up but actually it was very clear what which dates they were And in all circumstances if the father has suffered a loss then he can bring an application on former c. He can obviously he'll have to pay the coffee. There is obviously the legal fees but he can claim compensation for that loss if needs be. And again the aim is to hopefully encourage the other parent then to comply with the terms of the order going forward in this regard. But with this order that he may well be seeking in these circumstances the court will only be able to make this order if they're satisfied that the individual breach had a reasonable excuse for failure to comply with the, it may not make this. Uh if it satisfied individual had a reason, excuse for failing to comply with the order and the onus does very much therefore rely upon the person is trying to suggest otherwise. And when it does come to the amount of compensation that's powerful, the court does have to take into account the individual's financial circumstances in that regard. So they're not gonna make an order if they feel that the person, the payer does not have the means to pay, for example. So therefore that has to be carefully weighed up in the circumstances. Also. Now, as I mentioned, there are other options that are available, such as maybe a family assistance order under section 16 of the Children. And so that's another option. And this is where, where the court in any family scenes makes a section eight order. You can also make a family assistance order in those circumstances. And this is where the court cannot make an order requiring, say the social worker or maybe another professional sometimes or some other person uh to advise a system befriend at the named personally in those circumstances, which could be the parent, the child, any other person the child is living with or having contact with. And the idea behind his family assistance soldiers say it's maybe the local authority or say an officer of Kafka's, where there may then be in a position to be able to assist in the process of enabling uh the contact to be maintained, whether that's for example their their their offices being used or contact venue or facilitating the contact in terms of even assisting in the collection returning in that regard. But normally with the family assistance order, in most cases you are going to need the consent of the person who is then going to be doing the facilitation in this regard to make sure that they are able willing to participate and provide that assistance that's required in these circumstances and in hiding with that, as I mentioned in the previous session, you remember that committal is an option and this is where, as I mentioned earlier, there is the possibility of seeking an order for committal for breach of an order or breach of an undertaking in these circumstances. And this is where we must then ensure that if one is going for committal, either need to look at the use of part 37 of the family procedure rules, which allows them an application was made to commit a person for breach of an order, undertaking in family Proceedings. And this is where specifically I refer to rule 37.10. We ordinarily, if you're going to be going to commit or for you to comply with the terms of an order and you do need to make your application by way of an application notice is what's called a part 18 procedure. So you need to set out in the application notice in full the grounds upon which the application has been made. You need to identify and set out numerically separately, each alleged act of contempt. So when it is what dates it's alleged that they breached the terms of the order, uh and in what circumstances. So you need to specify that again, thirdly, then there's the issue about service. So normally, an application committee does require the person to have had been served personally with the application the court dispensing service or made an alternative order for alternative service. And there is that form that I mentioned earlier last time to form fc 600 which is what's required as from 30th of july 2021. Do it in evidence should be in the form of an affidavit or affirmation. And as I mentioned previously, one has to be able to satisfy the court that your client claimed. Believe that the person who gave me undertaken understood its terms and consequence of failing to comply with it. And on what basis they held that belief. Okay. And in terms of the statement of truth, the truth. Many of you will know has changed in family proceedings. So now it's a much more detailed statement of truth which specifies the fact that the person is saying the truth understands that they do need to hold an honest belief in the information they are providing and they understand that by not doing so this can lead to contempt of court proceedings brought against them. So very important to make sure that you are using the updated statement of truth when you're doing applications and witness statements in that regard. So as I mentioned earlier, there is a big difference between a warning notice and a penal notice and that was really emphasized in this case of C. H. And C. T. This case of 2018 and this was a case whereby the grandparents had the benefit of a child arrangements order specifying spending time with or otherwise having contact with. And it was the mother who was to make the child available to spend time with them. But sadly she failed to comply with the terms of the order and hence the grandparents then sought enforcement and in fact they went for committal, so went for commercial and then they sought for a suspended sentence or otherwise and a fine. And even though the mother had not been served, the court was prepared to extend to entertain the application. But on appeal, what this case really showed is that there was a fundamental lack of understanding as to the procedure involved in seeking committed in these circumstances. And one of the things which was identified in this case is that it was not understood uh that there is actually a difference between a warning notice and the penal notice and the two had actually been mixed up. So all child arrangements orders as I mentioned earlier will not have that warning notice as I mentioned earlier but you're not going to get peanut notices attached automatically to all section eight orders. You're only going to get those attached where you need to when for example things are not going the way they should. There are problems in that the person is not complied with the terms of the order. You're then looking at committal. Hence you do need to be looking at applying for penal notice which then warns the person that must comply with the terms of the order. Otherwise there could be an application for committal which they could be fined or sent to prison and there is a difference then if you haven't got to be in a notice and of course you won't be able to pursue the committal application. So the two are obviously very different things and here the two will be mixed up. And also the procedure for committal had not been complied with here and that the mother hadn't even been informed by whatever the formal application that committal application was being sought against two in those circumstances. This thing brings me on to the issue of what do we actually mean by making available for contact. And this is when a case of L. W. Comes in L. W. Children. This 2010 decision this was a 10 year old child living with his father and his mother who had the benefit of a child arrangements or specifying spending time with otherwise having contact with. So she would drive to the father's home and would seek to have contact with the child except when she went there. The father would say that the child didn't want to go with him and he'd rather spend the day with his father. So she was understandably very upset and she would drive back without the child. And this is where she sought enforcement. So she sought an enforcement order by way of community service and also compensation order for financial loss. In terms of the petrol costs of driving to contact only to find that the child was not being handed to her and then she was driving back. So therefore she was seeking the enforcement insofar as that is concerned, insofar as financial compensation. And she was alleging that the child had not been available for contact on certain dates in that regard. So she was seeking enforcement on that basis. And this is where caf casting did a report and they reported that in fact the child did not want to see her mother, his mother. And the issue was then what is the difference between there being a breach and there being a reasonable excuse? And the court gave example. So they said, a situation where the person has not breached the order would be where the person has been prevented from taking a child for contact because of, say, unforeseen transport to weather problems. And in this case, some of you may remember back in 2010, there were some cases and concerns about the volcanic ash. You might remember about the problems with the airlines. So that was an example that was given where she could have made the child available because there were transport problems where the problems she physically couldn't get there couldn't bring the child. So that was no breach. But reasonable excuses. Where even though the child could have taken the child and was able to do so, they had a good reason for not doing so. Such as a child may be falling ill, for example, and I want to take her doctor. So that's a reasonable excuse. So there's that. But here the court did say that in making these orders against the father, the trial judge had actually overstated what contact was required the father to do and hear father's obligations. The court said under the terms of the order, were to allow contact and to make the child available for contact. To allow us to concede or to permit to make available was to put at one's disposal or within one's reach. That was the father's obligation no more, no less. So it was to allow us to consider permit so to allow the child to go. But it wasn't to compel, it wasn't to necessarily ensure it wasn't to encourage, even to an extent it was to make available on that basis. It wasn't accepted that the father was in breach In that regard. Having said that this case then has to also be looked at in light of a later decision of HB 2015 decision by the court of appeal in this particular case. In 2015 there were two Children aged 14 and 16. Their father sought direct contact and the court had only allowed indirect contact. He was providing school reports and allowed to visit the school at times. An order was also made in the section 91 14 so that no further application could be made by the father until the Children were 18 unless he could show a change in circumstances. And he appealed In the circumstances. And one of the things that the court did raise here and you can see here at paragraph 71 that the court said is the court said too often where parents focus on their rights was overlooking what their duties and responsibilities are. So it's not just about rights of course parental responsibilities, about duties, responsibilities that person has in relation to their child also in that regard and we're two parents or two parents and share parental responsibilities, the duty of one to ensure that the rights of the other respected. So it's brought into play this notion of ensuring in that regard and this was taken even further if you look at paragraph 76 of the judgment where the then President of final division, Sir James Mumby said that what can one reason we demand, not merely as a matter of law, but also and more importantly and fundamentally as a matter of natural parental obligation. Is this that the parent, whether by argument by persuasion, cajoling, blandishments, inducements, sanctions, for example, grounding a child, confiscating mobile phones, taking electronic equipment from the maybe the ipad or otherwise threats falling short of brute force or a combination of these does their level best to ensure compliance. And the point That the judge made here was that is what one would expect of a parent whose rebellious teenager child is fully she refusing to study for GCS levels. Why should we expect any less of a parent who's a rebellious teenager is refusing to see their father. So you can see some very strong points were being made by the president here and you can see here these Children the facts were older Children who are 14 and 16 year olds and I'm sure you'll agree with me. Each case has to look at his own facts and certainly I'm sure you'll agree that some of these matters, some of these ways of approaching these cases, some maybe more possible and some may be more problematic in some cases, you know, you may be able to induce, in some cases you may be able to impose sanctions, but it's not easy, is and I think a lot does depend upon the individual circumstances of the case. And I just really wanted to finish this part of session and by just reminding you of course of somebody changes. We had as a result of coronavirus crisis. So you remember back on 24 March 2020 where the president following division sector one handed down this guidance, which was vital as a consequence of the first lockdown we had so that people were clear about what the position is with Children having arrangements for child arrangements when they were divided their time between two or more houses. In light of the government restrictions, in terms of social distancing and the president did say that parental responsibility does of course rests with the parents at the same time, but parents must abide by the stay home rooms. But when it comes to child contact arrangements, one of the exceptions, Another exception to the state homes was in terms of allowing child arrangements in these circumstances, parents didn't need to communicate with each other. They could temporarily vary the child arrangements. It was felt that it was inappropriate to allow that child to divide their time between two more households, even though they may be in order in place and by agreement, the parents could temporarily vary that in the circumstances, but then they got to look at other ways to maintain that relationship. But if there wasn't that agreement, so if the parents then they fell out with each other and say the parent care felt that it was inappropriate for that child to then go to the other person's home. In the circumstance at that stage, they could vary if they felt it necessary, but then they did have to be in a position to justify their actions. Should there be challenged by the other parents later in court otherwise, and should the court asked them to justify. So it's very, very important in those circumstances and then you've got to look see what other arrangements they put into place to ensure that the arrangements for spending time with or otherwise, we're still being maintained. It's very important therefore, to bear this mind. And even though we're now out of the lockdown, as you can see, some of these elements are still very much there and as you know, the infection rates have been going up again and therefore nobody really knows as to how far the restrictions may need to come back and in some form. So therefore it's important to bear in mind some of these guidance going forward. Okay, so that brings us to the end of this second session and I hope this has been a useful session for you. So, in the third session, I'll be developing the themes in terms of looking at the other ways in which we are looking at enforcement and particularly we'll be looking at some of the elements surrounding parental alienation. So thank you very much indeed. And I look forward to speaking to you next time. Thank you very much. Bye for now.
Session One
Session One Slides
3089 Users
170 Courses
156 Reviews
