One of the most frequent queries we get at OnlyDads is parents asking if they have to comply with their contact order. The reason for them asking is invariably concern over the other parents behaviour (drugs/alcohol/general irresponsibility) and the safety of their child. Here we have asked Myers Lister Price to set out the ground rules for us…
…Most family lawyers acting in children cases will have experience of the client who comes to them:-
a) wanting to stop contact/ being threatened with enforcement of a contact order, or
b) claiming that the ex spouse/ partner has stopped contact or is threatening to stop contact
Where it is being alleged that there is a potential risk to a child owing to the parent who is having contact taking drugs, is drunk or is simply irresponsible whilst the child is with them. Is the fact that the child’s safety is considered to be in issue a justification for breaching a court order? Section 1 of the Children Act 1989 provides that “the child’s welfare shall be the court’s paramount consideration”
Under the welfare checklist in Section 3 the matters to which the court is to have regard include
“(e) any harm he has suffered or is at risk of suffering
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs”
If it is being claimed that the parent who has the benefit of an order should no longer have contact owing to there being an issue with drugs, alcohol or the child’s general safety then that could potentially fall to be considered under the above paragraphs. Clearly the court has to consider the validity of the allegations which it will normally do as a separate exercise commonly called a “finding of fact” hearing and it will then move on the consider what impact that should have on contact.
Breach of a court order can amount to a contempt of court for which the ultimate sanction is committal to prison. Obviously this is an extremely serious matter and would only follow if the court considered that the breach was unjustified and wilful. In addition to committal the court has power under Section 11J of the Children Act to make an enforcement order. Subsection 3 specifically provides that the court “may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order”. The burden of proof is on the person claiming to have a reasonable excuse and the standard is that of the balance of probability. At the end of the day the protection of the child is paramount.
Breach of a court order is a serious matter and advice should always be sought from an experienced family solicitor.
For further advice please contact the family department at Myers Lister Price Solicitors on 0161 926 9969 or info@mlpsolicitors.co.uk.
We are holding free 30 minute family law advice evenings on the 5th October, 2nd November and 7th December 2011, to book an appointment please call us on the number above.
Have you ever been forced to break a contact order? It would be interesting to hear why and how and what happened to you?
Good advice above from Myers Lister Price. The trick is to find the right solicitor. So many of them will just say that a contact order must be complied with and not be prepared to fight the case. Three particular cases spring to mind from when I was in practice, where children were clearly distressed by contact but it was hard to prove how the fathers were harming them. I fought two of the cases for several years before eventually getting the contact stopped. In all cases the guilt the mothers felt about having sent their children to contact against their better judgement was heart-breaking. Parents know their children best and must put them before an order of the court. But they must not just ignore that order: they need to ask a solicitor to write to the other parent and/or return the matter to court. If that solicitor will not do it, they need to find another who will, and a solicitor who is a member of the Law Society Children Panel as well as Resolution may be better able to help. The difficulty for solicitors of course is to know which are the genuine cases and which ones are just one parent using the children to get back at the other.
Diana Jordan
http://www.dealingwithdivorce.co.uk
myself and wife are currently in the situation where contact has been stopped, the children reside with their mother 9my wife 0 and have weekend contact with their father via a court order.over the last several weeks there has been many comments made by both children and my wife was concerned and had worries over the emotional and phycological well being of her children and so after seeking legal advice has stopped contact completely.she has since received a nasty letter from her ex’s solicitor saying that they will be applying for a warning notice to be attached to the contact order due to her breaching it. we will be representing or self as her ex is going to apply to the courts to regain contact, her ex is a very narsatistic person and we now have the hard job of proving that my wife has a resonable reason for breaching contact. any advice or refernce points would be welcome.
mr& mrs craig
Thank you for the question – it’s good that you are seeking advice.
There are a couple of things that I would say:
Breaking a Court Order is a serious matter. The Court will have established an Order for Dad to see his children after receiving input from advisors (CAFCASS) and presentations from both Mum and Dad.
Have you considered asking for a variation of the Order – perhaps (and I don’t know the circumstances) a different pattern of contact needs to be established?
If you want – contact us on info@onlyDads.org if you want to talk through this situation in more detail.
My final point is that Courts and Judges do not take to broken Court Orders lightly. As the article above states, it can be considered “contempt of court” which in turn can give rise to serious punishment.
Thanks for contacting us
Bob
hi bob, thanks for your reply. the contact order was made at the brgining of 2007 before i met my wife, this order was shown to a solicitor and we were told that there was nothing within the court / contact order which prvents my wife from ending the contact at any time. all contact orders from 2008 have a warning notice attached upon them to prevent the parent with care from with holding all contact. in this case the non residential parent (the childrens father) has began to emotionaly upset the children and use them as a weapon against my wife trying to turn them against her. he has been buying there affection when he has them and making the point to the children them neither their mother or myself buy them gift (toys) like he does when they are with him, despite the fact that my wages goes to putting a roof over their heads and food on the table. the father has not paid any proper maintanence for over 18months and does all he can to avoid doing so yet works to suit himself earning more than myself, he is currently being re-assesed by that of the csa again. i myself have been on the reseving side or the side upon where he is as i was a single parent for 15 years and have brought up two sons on my own with no contact of help from the childrens mother in nearly 20 years, so i now where most fathers are coming from 1st hand. with all this in mind i am being objective but at the same time i am disapointed and disgusted with the comments and actions of this individual giving all good fathers a bad name. i am now taking a stand to help my wife and protect my step children, i will pass on your email address to my wife so if she decides to she can contact you in more detail for that of a better understanding as to what to do and ecpect. many thanks ewan
myself and wife are currently in the situation where contact has been stopped, the children reside with their mother (my wife ) and have weekend contact with their father via a court order.over the last several weeks there has been many comments made by both children and my wife was concerned and had worries over the emotional and phycological well being of her children and so after seeking legal advice has stopped contact completely.she has since received a nasty letter from her ex’s solicitor saying that they will be applying for a warning notice to be attached to the contact order due to her breaching it. we will be representing or self as her ex is going to apply to the courts to regain contact, her ex is a very narsatistic person and we now have the hard job of proving that my wife has a resonable reason for breaching contact. any advice or refernce points would be welcome.
mr& mrs craig