108.  Clause 4 would give the court the power to order the payment of compensation for financial loss incurred as a result of a failure by a party to comply with a contact order. Compensation would be ordered only after an application by a party to the contact order proceedings was made to the court, and only if the other party did not have a reasonable excuse for their failure to comply.[87] The amount of compensation would be determined by the court but could not exceed the amount of financial loss suffered by the applicant.[88] When making an order for financial compensation, the court would be required to take into account the financial circumstances of the person and the welfare of the child concerned.

109.  A number of witnesses queried how a compensation order would operate in practice. The Association of District Judges submitted:

"Whether it is workable will depend on the financial resources of the particular parties and the ability of the person causing the financial loss to pay without adversely affecting the needs of the children."[89]

110.  Mr John Furness proposed that unless the compensation was taken from benefits or a person's salary, the provision would be unworkable.[90] Judith Masson suggested that it would be inappropriate to make the resident parent pay compensation to the non-resident parent if the latter was in arrears of child support payments.[91]

111.  The draft Bill provides that an amount paid as compensation may be recovered by the applicant as a civil debt.[92] This approach was criticised by several witnesses, on the basis that a civil debt would be difficult to enforce. Dame Elizabeth Butler-Sloss submitted:

"I think we ought to be able to treat that as contempt, and say, 'you pay, otherwise you go inside'; but to treat it as a civil debt means they have got to go to the county court and they have got to enforce it. The procedures in the country court are slow on enforcement, and I think it will be lost in the mist."[93]

112.  District Judge Walker told us:

"If we ordered compensation, then I think it ought to be as a criminal fine, rather than as a civil debt, so that there is a very clear message that this is something which has got to be paid and has got to be paid relatively quickly rather than at whatever small amount would otherwise be paid each week."[94]

113.  When we put this suggestion to the Government, they told us:

"To take this approach would… establish a system intended to punish the non-payment of the amount ordered by the court, rather than providing methods of ensuring that payment is made."[95]

114.  We recognise the concerns of a number of our legal witnesses that recovering financial compensation by way of a civil debt may be difficult to enforce if a person fails to comply with the order. We recommend that the Government re-evaluate this provision in order to place the onus firmly upon the court making the order to ensure that the debt is paid or, failing that, to ensure that other measures are substituted for the compensation order.

115.  We further recommend that it should be made more clear, either on the face of the Bill or in guidance, that an application for compensation for financial loss can be made by either the non-resident or resident parent.

88   Clause 4, new section 11I(6) Back

89   Ev 87, para 15. See also Ev 175, section 4 and Ev 181-182.  Back

90   Ev 163. See also Ev 165, para 6. Back

91   Ev 142 Back

92   Clause 4, new section 11I(8) Back

93   Q 100 Back

94   Q 286 Back

95   Ev 120, para 6 contd. Back