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 firstname.lastname@example.org.
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?