Context

80.  The new enforcement orders proposed in clause 3 should be seen within the context of the other reforms proposed in the Parental Separation White Paper. As we have noted in our introduction, the Government, CAFCASS and the courts all intend that parents should be encouraged and assisted to resolve their differences without going to court, for example where appropriate through mediation. However, in a minority of difficult cases the courts will continue to have to make contact orders setting out the appropriate contact arrangements.

81.  The lack of effective enforcement measures when these contact orders are not obeyed is seen as one of the key failings in the current legal framework.[63] At present, courts only have the power to enforce contact orders through contempt of court proceedings, under which a non-compliant parent may be fined or imprisoned, or by transferring the residency of the child from one parent to the other. These measures are, for obvious reasons, rarely used.

82.  The draft Bill seeks to improve the effectiveness of contact orders in various ways. Under clause 1 a court could order a parent to attend a contact activity, with the aim of promoting agreement and facilitating contact (see Chapter 2). Under clause 2 a court could require CAFCASS or a Welsh family proceedings officer to facilitate or monitor compliance with a contact order (see Chapter 3). If these measures fail, the court will be able to resort to the new enforcement powers detailed in clause 3.

83.  Clause 3 would give the courts the power to make an enforcement order if a party to family proceedings has failed, without reasonable excuse, to comply with a contact order.[64] An enforcement order could impose an unpaid work requirement or a curfew requirement on a person. Where a curfew requirement was made, a court could also impose a compliance monitoring requirement (ie. electronic tagging). Before making an enforcement order, the court would have to be satisfied that the proposed enforcement order was "necessary to secure the person's compliance with the contact order". The court would also have to take into account any potential conflict with a person's work or study commitments or religious beliefs.

84.  We recommend that it be made plain on the face of the Bill that the court may not impose any of the enforcement measures available to it without first considering the scope for requiring a contact activity which might address the failure of contact arrangements in a more constructive way.

Curfew/time and place requirement

85.  Concerns were raised in a number of our written submissions about how a curfew requirement could be used to "secure compliance" with a contact order.[65] At our public meetings we discussed with witnesses whether a curfew should only be used to directly facilitate contact, for example by ordering the resident parent to be at home at the time the contact was due to take place, or to stay at home and not obstruct the contact while it was taking place; or whether a curfew should also be used as a punishment, perhaps by ordering the non-compliant parent to stay at home at a time that they might have wished to go out.[66] The Committee does not consider that it would be appropriate for a family court to impose a curfew upon a parent purely as a punishment. It is our view that such a requirement should only be imposed in an attempt, directly, to promote compliance with the court's original order, for example as a means of ensuring that a parent was in an agreed location at an agreed time to allow contact to take place.

86.  The Committee does not support the use of the term "curfew", given its punitive connotations. We would rather see a more facilitative provision, called a "time and place requirement", by which the court could require a parent to be at a specified place at a specified time in order to allow the contact to take place; or to stay at home for the duration of the contact, and not obstruct it. The criminal standard of proof would apply to a finding of a failure to comply with the contact order, and the finding should be formally recorded in the new court order so that it may be relied upon by the court in the event of any further breaches. The time and place requirement would in some ways be similar to the curfew requirement proposed in the draft Bill, though a specified place would not have to be the person's home. The order issued by the court would include a clear warning that breaching the requirement would lead to an enforcement order being made, which could involve unpaid work, a fine or imprisonment. Whilst the content of a "time and place requirement" might be contained within a condition or direction attached to a substantive contact order under section 11(7) of the Children Act 1989, we see this new form of order as being of a higher order than a condition or direction given that it will be made after a breach has been proved and given that the requirement will explicitly warn the parent of the consequences of any failure to comply with that which the court requires of them. Although it would involve a degree of enforcement, the time and place requirement would be designed to fill the gap between the making of a contact order and the imposition of a punishment for deliberately flouting the original order. We recommend that the full Bill should give a court the power to make a "time and place requirement", specifying what action a parent who is in breach of a contact order must take in order to facilitate the contact envisaged in the original order; and including a warning that breach would lead swiftly to the making of an enforcement order.

Compliance monitoring (tagging)

87.  The Government are considering whether to include in the full Bill a provision allowing the courts to impose a compliance monitoring requirement (meaning electronic tagging) in cases where a curfew requirement has been imposed. The provision appears in the draft Bill in square brackets, indicating the Government's ambivalence as to whether tagging is appropriate for parents who are in breach of a contact order.

88.  Some witnesses viewed electronic tagging as a measure that should only be used in extreme cases, and perhaps only when other avenues had been pursued and failed.[67] Other witnesses opposed any use of tagging to enforce contact orders.[68] The Minister for Children herself was clearly uncomfortable with the idea, telling us that "tagging feels to us disproportionate".[69]

89.  The Committee considers that the humiliating effect of a tagging device, and the possible effect on a child of subjecting a parent to tagging, mean that tagging is not a proportionate response to a breach of a contact order. We therefore recommend that the courts should not have the power to impose an electronic compliance monitoring requirement in proceedings relating to contact arrangements.

Enforcement powers

90.  If a parent was failing without reasonable excuse to comply with a contact order, we would expect the court usually to impose a time and place requirement before resorting to enforcement powers. We would not, however, wish to tie the court's hands: it may sometimes be more appropriate in the circumstances of a particular case to consider enforcement immediately.

91.  The enforcement powers in the draft Bill are intended to supplement, not replace, the court's existing powers to fine or imprison (under the Contempt of Court Act 1981) or to transfer residency of the child from the non-compliant parent to the other parent (under the Children Act 1989).

92.  We are concerned at the apparent disconnection between the enforcement orders envisaged in the draft Bill, and the court's existing powers under contempt of court to fine or imprison. It is unclear, for example, what would happen if the enforcement order itself was breached. The draft Bill provides that, if there is a breach of an enforcement order, the court may either:

• amend the original enforcement order so as to make it more onerous, or
• make a new enforcement order in respect of the breach of the contact order, as if the original enforcement order had not been made.[70]

93.  One of our witnesses, District Judge Walker, was unsure what "more onerous" actually meant.[71] Dame Elizabeth Butler-Sloss echoed these concerns, noting: "we should like to be reassured that breaches of enforcement orders carried the ultimate sanction of imprisonment for contempt".[72]

94.  The draft Bill fails to make a connection between the new enforcement orders and existing procedure and sanctions for contempt. If it is intended that the courts should have available to them a spectrum of enforcement provisions, ranging in severity, this should be made clear in the full Bill. This could be achieved by amending the draft Bill; or by amending section 14 of the Contempt of Court Act 1981 to expand the range of sanctions to include unpaid work.

Unpaid work

95.  Turning to the detail of the proposed unpaid work requirement, there were differing views amongst witnesses about what kind of work it would be appropriate to order. The Grandparents' Association suggested that unpaid work with organisations working with children could be used to change the attitudes of recalcitrant parents:

"there would be the educative effect of working with children, seeing how other people relate to them and seeing, importantly, how other people put the child's needs before satisfying their own emotional needs, because that is what this is often about".[73]

However, the Criminal Law Solicitors' Association (CLSA) asked who would be responsible for assessing the intransigent parent as being suitable to perform the unpaid work.[74]

96.  During our evidence session with the Ministers, it became clear that further clarification as to the type and form of unpaid work was not provided in the draft Bill because detailed thinking on this was still at an early stage. The Minister did, however, indicate that work with children would be a possible option which would also offer the parent "a good learning process".[75]

97.  The Committee recognises that it may appear desirable for defaulting parents to be required to undertake unpaid work which is in some way connected to children and which might contribute to a better understanding of their own children's needs. However, the difficulty of organising such work, and the inevitable concerns about the possible impact upon other people's children, suggest that this will seldom be practicable. That still leaves open the question of whether the unpaid work that parents will be required to undertake is to be organised separately from "community service" performed by offenders—and if that is so, who is to have responsibility for identifying and organising such work. We recommend that when the full Bill is introduced the Government clarify this point.

Monitoring and implementing Enforcement Orders

98.  In addition to providing information to the court about matters relevant to the making of an enforcement order, CAFCASS or a Welsh family proceedings officer could be asked by the court to monitor, or arrange for the monitoring of, an enforcement order. The draft Bill envisages that the local probation board would be responsible for organising the implementation of the order and that it would be the responsibility of the CAFCASS officer to act as the link between the probation officer and the family court.[76] However, when we questioned CAFCASS on this further extension of their role, they told us:

"I think others are far better placed and better experienced to do that. I think we would work with our colleagues in the probation service, who run community sentencing programmes day in, day out, to do that on our behalf, or on the court's behalf."[77]

99.  Given that CAFCASS does not envisage becoming directly involved in overseeing the enforcement of contact orders, we are unclear how the proposals will be operated and by whom. We are not aware of any consultation between the Government and the probation service concerning how the proposals for enforcement will operate. It is essential that the Government (a) clarify who will be responsible for monitoring, implementing and ensuring compliance with an enforcement order; and (b) quantify the resource implications.

Safety concerns

100.  The draft Bill proposes that, before a court could make an enforcement order, it would have to be satisfied that the contact order had been breached "without reasonable excuse". Women's Aid were concerned that this safeguard was insufficient to ensure that the possible reasons for the breach of the contact order, particularly concerns about abuse or violence, were fully taken into account.[78] The NSPCC recommended:

"the first step in any case of non-compliance would be consideration by the court as to whether the order in its current terms is consistent with the court's responsibility to protect the welfare of the child. Such consideration would include both a full assessment and investigation of the potential risk to and the likely impact on the child of enforcing the contact order, including the risks arising from the child's involvement in domestic violence (s.120) and the need for separate representation of the child and his or her interests within the proceedings (s.122)."[79]

101.  In the light of these concerns, we recommend that, before making an enforcement order, the court should explicitly be required to consider the safety implications for each parent and for the child of making such an order; and should not make an order unless it is satisfied that it is safe to do so.

Welfare of the child

102.  Section 1(1) of the Children Act 1989 provides that when a court determines any question relating to the upbringing of a child or the administration of a child's property, "the child's welfare shall be the court's paramount consideration". This same "paramountcy principle" will apply in the ordering of contact activities.[80] But when a court considers making an enforcement order under the draft Bill, new section 11G(9) provides that it must "take into account the welfare of the child".[81] This difference was commented on by a number of witnesses. Academics from the Centre for Research on the Child and Family at the University of East Anglia argued:

"It seems inappropriate… that the lowest welfare test is to be applied in the most difficult cases where the court's intervention is at its most drastic and the potential gains for the child may be at their most marginal. In these cases the court has to balance the possible gains to the child from enforcing an order, with possible losses in terms of increased parental hostility and a negative impact on parental functioning. The use of the lower welfare test in the most difficult cases risks giving the impression that the court is more concerned with imposing its will rather than securing the best outcomes for the child."[82]

103.  The NSPCC and NYAS were also critical of the non-application of the paramountcy principle.[83] They argued that as a result the prime focus of the draft Bill changed from protecting the child to asserting the rights of adults.

104.  The legal witnesses to our inquiry tended to support the current wording of the draft Bill. Mrs Justice Bracewell explained:

"Once an order has been made, then the court has a public interest in seeing that that order is enforced. Obviously, you do take into account the welfare of the child, but not to be paramount, and there are many occasions, many other applications in which welfare is not the paramount consideration, so I personally do not have a problem with that."[84]

105.  Families Need Fathers argued that reference to the welfare of children could be deleted from the draft Bill altogether, on the grounds that the welfare of the child had "already been settled" in the making of the contact order. It proposed that the requirement to take the child's welfare into account should be replaced with a requirement to apply the minimum sanction necessary to ensure compliance with an enforcement order.[85]

106.  The Minister for Children told us that, in making an enforcement order, the court would be:

"… looking at the culpability of the parent in relation to a flagrant failure to abide by the contact order. The contact order is the thing that has the paramountcy of the interest."[86]

107.  In paragraph 94 we recommend that clearer connections should be made between the enforcement powers proposed in this draft Bill, and courts' existing powers under the Contempt of Court Act 1981. It is well established, though there is no express provision in the 1981 Act, that a family court must carefully weigh in the balance the interests of the child concerned when considering whether to fine or imprison a parent who is in breach of a contact order. It would seem logical for family courts to perform the same balancing act when considering enforcement action under the powers proposed in the draft Bill. The wording of new section 11G(9) has been criticised by some of our witnesses, and was the subject of considerable discussion within this Committee. It does not seem to have had the desired effect of providing clarity. We conclude that the Government should consider removing new section 11G(9) from the Bill altogether. It would be consistent with this conclusion for proposed new section 11I(9) also to be deleted from the Bill.

64   New sections 11G-11H Back

65   Ev 163; Ev 99; Ev 202 and Ev 141. Back

66   See Q 29 and Q 84 Back

67   Ev 37, para 1.8; Q 139 [Baroness Pitkeathley]; Q 314 [Ms Cronin]; Ev 182, section 2; Ev 2, para 7 Back

68   Q 148 [Mrs Tyler]; Q 315 [Ms Harwin]; Q 272 [District Judge Taylor]; Q 88 [Dame Elizabeth Butler-Sloss]; Q 89 [Mrs Justice Bracewell]; Ev 185, para 1 Back

69   Q 343 Back

70   Schedule 1, para 7 Back

71   Q 281 Back

72   Ev 10 Back

73   Q 207 [Mr Harris] Back

74   Ev 153, para 7 Back

75   Q 341 [Margaret Hodge MP] Back

76   Schedule 1, clause 3(1)(a) Back

77   Q 130 [Mr Douglas] Back

78   Q 317. See also Ev 180. Back

79   Ev 103, para 2 Back

80   Clause 3, new section 11A(8) Back

81   Clause 3, new section 11G(9) Back

82   Ev 141, para 3 Back

83   Ev 103, para 3; Ev 185 Back

84   Q63; see also Q64 [Butler-Sloss] Back

85   Ev 57, para 6 Back

86   Q 331 [Margaret Hodge MP] Back