Enforcing contact orders – sledgehammer to crack a nut?
What steps can a parent take to enforce the court order against the non-compliant parent?
Bring it back to court
The parent seeking to enforce the order may bring the action back to court and ask for the terms to be varied. The court may vary the times, location or impose the involvement of a third party, provided any changes are in the best interests of the child. This may be effective in some cases by removing the control from the non-compliant parent. However, this is unlikely to be effective in cases where there is implacable opposition to contact and where the non-compliant parent displays a deliberate lack of respect for the court order. In these cases, a more robust approach may be necessary.
If one parent refuses to comply with a contact order they can be held to be in contempt of court and, if found guilty, criminal sanctions can be imposed. The penalties available to a court include imprisonment up to a maximum of three months, a fine up to £2,500, or both. There are currently no alternative sanctions available to the court and the imprisonment of the child’s main carer is a draconian step.
In order to “succeed” in a contempt case the party who raises the action must not only prove that contact did not take place, they must show that it did not take place as a result of the other party’s “wilful disobedience” of the court order and that there was no justifiable excuse (AB, CD v AT 2015 SC 545). A non-compliant parent will usually have an arsenal of creative excuses as to why contact cannot take place and high on the list is the plea, “well I just can’t make them go”. Some may be “reasonable” excuses (illness of the child for example) and it can be difficult to prove the deliberate intent required for a finding of contempt. Failing to encourage and support contact can be subtle rather than overt and it can be challenging to elicit evidence which demonstrates the “wilful disobedience” required to make a finding of contempt.
Occasionally, the refusal to comply is blatant. In the case of G v B 2011 SLT 1253 there was demonstrable defiance involving a number of lies and delaying tactics which resulted in a custodial sentence of two months being imposed on the non-compliant parent. Such cases are rare and custodial sentences are imposed only in extreme circumstances.
There is no magical solution to the enforcement of court orders and it is a frustrating and sometimes demoralising process for parents. But the effect of losing contact with a parent can have lifelong negative consequences for a child and should be resisted. The lack of sanctions available to the courts makes it difficult to resolve the problem in a constructive way. In England the Court of Appeal has approved the need for new strategies and sanctions in the enforcement of contact orders. In certain circumstances it has gone so far as to remove a child from the non-compliant parent altogether ordering that the child live with the parent trying to exercise contact.
The Scottish Government has recognised that some reform may be required to deal with this complex problem and has sought views on the options for enforcement in their recent review of the Children Scotland Act 1995. The outcome of the ongoing consultation will not be known for a while and in the meantime the courts must operate within the restrictive parameters available to them. Until more creative solutions are adopted such as mandatory mediation or family therapy such cases will continue to challenge us.
If you have any questions about arrangements for your children please contact one of our experienced family law team members who will be happy to assist.