In addressing the Australian Bar Association earlier this month, the president of the Supreme Court, Lord Neuberger, criticised the current legal aid system and its failure to provide access to justice. These sentiments were echoed in the Law Society’s “LASPO: 4 Years On” report, also published this month. There are few areas, if any, where this inability to secure legal assistance has hit society harder than family law.
For those new to the post-LASPO party, until 2012, legal aid was widely available for almost all legal areas. Overnight, areas were removed from this scope, including private family law matters (without evidence of domestic violence or child abuse), such as divorce and finance and matters relating to children. Parties were left with a plain but painful choice – pay for representation, represent themselves or be denied access to justice altogether. In 2014, the National Audit Office found a rise of 22% in the number of private family law matters involving children where neither party was represented, in the year end of 2013 to 2014.
One area of family law often overlooked as part of the post-LASPO fall out, is the difficulty of parties to secure enforcement of orders relating to children. Individuals might instinctively sense that they might be successful with applications for contact or other section 8 orders – the bread and butter of private children cases – but will feel a sense of frustration at their inability to enforce any order against a non-compliant or intransigent parent.
In late November 2012, the then Conservative-Liberal Democrat coalition government proposed a review of the earlier joint DoE/MoJ “Co-operative Parenting Following Parental Separation” consultation document. The review was published in early 2013, in which, the government made clear its position on the issue of new sanctions against non-compliant parents – broadly, it was not in favour. The review of the literature had crystallised the government’s position that punitive steps against a parent in breach of an order was generally not conducive to the wider objective, i.e. promoting the future cooperation between the child’s parents. This position was taken despite the overwhelming support during the consultation process for new punitive sanctions to be made available from those making enforcement applications (86% are non-resident fathers).
Following the government’s review publication, the Children’s Minister then announced there would be “an enforcement-specific case assessment and intervention pathway”
In 2014, in conjunction with the Nuffield Foundation, the University of Exeter published “Enforcing contact orders: cases, courts and consequences”, which found three key points:
- Very few enforcement cases fit the popular media image of the implacably hostile resident parent. This stereotype does not capture the full picture available to the courts where most enforcement cases involve troubled or conflicted sets of parents or significant safety issues.
- Courts focus on problem solving and getting contact restarted rather than identifying whether or not a breach has occurred and sanctions needed. This orientation reflects the default approach of the family justice system that is pro‐contact, pro‐settlement and future‐oriented.
- The problem-solving approach can default to over‐rapid, “cookie‐cutter” case processing. In some cases, risk was inadequately assessed and/or managed. Some of the high conflict repeat litigation cases returned to court quickly after very limited input.
The report summarised that dealing effectively with enforcement cases is difficult. They are tough and complex cases.
When initially assessing an enforcement application case, it is important to check whether the existing CAO contains a warning notice. CAO issued after 08 December 2008 will automatically contain a warning notice to the other party about the consequences of non-compliance with the terms of the CAO.
FPR 2010 PD 12B
The Family Procedure Rules 2010 PD12B sets out specific provisions (paragraph 21) regarding the steps which must be taken to enforce a CAO.
On any application to enforce a CAO, the court will consider:
- Whether the facts relevant to the alleged non-compliance are agreed or whether it is necessary to conduct a hearing to establish them.
- The reasons for any non-compliance.
- How the wishes and feelings of the child are to be ascertained.
- Whether advice is required from CAFCASS on the appropriate way forward.
- Assess and manage any risks of making further or other CAO.
- Whether a separated parents information programme (SPIP) or referral for alternative dispute resolution is appropriate.
- Whether an enforcement order may be appropriate.
- The welfare checklist.
If the court considers there has been a breach of a CAO “without reasonable excuse” the powers available include:
- referral of the parents to an SPIP or mediation
- variation of the existing CAO
- an enforcement order under the Children Act 1989 (CA 1989), s 11J
- an order for compensation for financial loss under s 110 of CA 1989
- committal to prison; or
- a fine.
If the court is considering making an enforcement order or considering a compensation order in respect of financial loss, the court must determine the facts (if not agreed) in order to establish the cause of the alleged failure to comply, which may require a fact finding hearing under paragraph 21.7 of PD12B.
Enforcement orders can be made under s 11J(2) and (3) of CA 1989, imposing an unpaid work requirement on the breaching party, monitored by the probation service. The rules surrounding the making of these orders are complex, but in short before the court will make an enforcement order it must be satisfied that:
- the breaching party knew of the terms of the order which has been breached
- the breaching party has failed to comply with the CAO
- the breaching party had no reasonable excuse for the breach
- issuing the enforcement order is required to secure that person’s compliance with the order
- making the order is a proportionate step to take.
It should be borne in mind that before making an enforcement order the court will also have to obtain and consider information about the person on whom the order would be imposed and the likely effect of the order upon them, including any conflict with their religious beliefs or times of attendance at work or college.
If the court is satisfied that a parent has breached the terms of a CAO and the other parent has suffered financial loss as a result of the breach, the court can order that the breaching party pay the other compensation up to the amount of the financial loss (e.g. travel costs, holiday bookings etc).
Section 11 of CA 1989 gives the court the power to direct a breaching parent to take part in any activity which may promote contact, e.g. MIAM, SPIP. Often such courses are directed as part of the original CAO, if it is anticipated they might be of use to the parties.
Under s.11G the court can also direct CAFCASS to monitor a parent’s compliance with a CAO and to report to the court if there is a failure to comply. The monitoring period must be specified in the order, which cannot exceed 12 months. Given CAFCASS’ recent “Guidance on Use of Professional Time” it is unlikely that such orders will see the light of day in reality.
As a last resort, the court may consider making an order transferring residence of the child as a consequence of breaching a CAO. However, the court will only do so where it considers this to be in the best interests of the child. Taking such extreme action must be fully justified by affording paramount consideration to the child’s welfare, and is not to be imposed as a form of punishment to a parent.
Under s 63 of the Magistrates’ Court Act 1980 the court can consider imposing a custodial sentence for any breach of a CAO that may be proved in committal or family proceedings. Committal is only used in exceptional circumstances.
There is inevitably a balance to be struck between the demonstrating robust justice for a breach of an order, with a recognition that in the best interests of a child, a conciliatory and positive, rather than punitive approach may assist the majority of parties. The courts will be mindful of using a sledge hammer to crack a walnut however, and this may appear at first instance a demonstration to the offended party that the court lacks the teeth to bring a non-compliant party into line. If a breach is not forcefully addressed now, what incentive does it provide a breaching party to comply in the future?
Such issues are also to be weighed up in the context of the ability and ease of parties and the courts to engage in additional litigation, as costs rise and resources diminish. If an offended party has to travel significant distance to their nearest court, without legal advice and confront a non-compliant parent, before a judge without the resources to potentially assist, it is inevitable that confidence in the family justice system will erode.