Enforcement, contempt and committal proceedings in children cases

The other parent is breaching an order of the court, time and time again. It is frustrating, upsetting and unsettling for all involved — especially the children. But what can be done?

This article will explore the steps a person can take to ensure an order of the court is complied with in England and Wales.

Consider the wording of the order before you apply to enforce

It might sound simple, but you should have considered the exact wording of the order. The order should provide certainty; if it does not, then there may not be a breach. A court can only enforce an order if it is clear that steps have not been taken as directed by the court order.

If the order is silent on an issue, it is unlikely that there is a breach. An application to vary the existing order to provide clarity may be more appropriate.

Can the case be resolved without court action?

You should have exhausted alternative dispute resolution before you make an application back to court (unless in an emergency). This includes mediation, negotiations and correspondence with the other party. The court may say it is not sufficient that you have historically tried to mediate, so do not want to do this now, if the dispute arises a number of years later.

Negotiations should point out what steps you intend to take if the order is not immediately complied with.

Is an enforcement application needed or is a different application needed?

Enforcement is not always the correct approach. If one parent is not complying with an order you should examine the reasons why they are not complying.

A parent may say they do not want to breach the order but the child is refusing to visit the other parent. If this is the case, explore whether varying the arrangements would be preferrable, whether the child needs any assistance from a play therapist, CAHMS or other expert. You should consider whether a direction from the court for third party involvement such as Cafcass or an independent expert may help.

In circumstances where a parent is not complying with an order, and they are unable to separate their own thoughts and feelings about the terms of the order and compliance, or if there is parental alienation then a change of residence of the child may be appropriate.

Enforcement in children cases is complicated and making the wrong decision on which application you should make, if any, can impact the whole case. You should seek specialist advice before taking such steps.

Choose the right enforcement remedy

If you have considered all the above, and an enforcement application is the appropriate action, there are a number of ways to enforce a children order.

1. Reinstate the order that has been breached

The normal remedy for enforcement of a children order is that the order is reinstated where there was ‘no good reason’ that the order should have been breached. The court will analyse any reasons given by the parent not complying with the order.

2. Compensation for financial loss

If you have suffered financial loss as a result of a parent not complying with a court order, a court can calculate this financial loss and order the other parent to pay this to you. There are many circumstances where you may have lost out financially because of a breach, such as you and the children have missed out on a holiday or an important educational event.

3. Unpaid work and community service

Repeat breaches of enforcement orders mean that the court can look at penalties against the parent not complying with the order. The court has the ability to impose unpaid work of between 40 and 200 hours where the court is satisfied beyond reasonable doubt that a person has failed to comply with a provision of a Child Arrangement Order.

4. Committing a parent to prison

An order for committal is an order of last resort. Therefore, all other options of enforcement should be explored before you make such an application. If there is another enforcement mechanism that would provide a satisfactory solution and restore the arrangements, that option should be applied for first.

To apply for committal, a court order must have been breached, and that order must have had a penal note attached.

A penal notice is a prominent notice on the front of an order warning that if the person against whom the order is made disobeys the order, the person may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.

If your order does not have a penal notice, you will need to apply to court for one to be applied first.