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Always try out mediation first before court
Q I have a contact order in my favour but the mother of my children is not abiding by it. Is there anything I can do?
A In children matters, when an enforceable order is in place and that order is broken, you can apply to the court to enforce it.
The ultimate sanction for breach of a contact order would be imprisonment by attachment of penal notice (breach of which entitles the court to jail the offender) and/or a fine for contempt of court. Such powers are very rarely used and even more rarely for the first breach of an order.
The court also has powers to order parents to attend parenting and other programmes, and even to impose community service-type penalties, which I shall deal with below.
However, before thinking about going back to court the parents should always consider whether mediation could be a way forward to deal with disputes in relation to children.
Remember that Legal Aid still exists for family mediation, and it is widely available. Even if you don’t use a legally aided mediator, private mediation is often a cheaper option than each of you instructing your own solicitors.
If the only way forward is an application to the court, the court could direct that the person breaching the order attend an information/ assessment meeting about mediation (MIAMs), a parenting information programme or any other programme deemed necessary by the court. Alternatively, the court could ask CAFCASS (Court Advisory Service) to monitor and report on a parent’s compliance with the order (during proceedings and/or up to 12 months after), and set a review date for another hearing.
The court must attach a warning notice to every contact order or variation of contact order. Such warning notice sets out the consequences of failing to comply, namely that an enforcement order can be made and the subsequent consequences of breaching it.
The court can impose an unpaid work requirement (i.e. community service), however, for this sanction to be imposed the court must be satisfied that there is no reasonable excuse for non-compliance.
In such instances the court would consider the necessity of an enforcement order to ensure compliance, the likely effect of such an order, the availability of locally unpaid work, and welfare of the children. CAFCASS would be sent a copy of the application and would make checks as to any reported non-compliance. If you have suffered financial loss as a result of the other parent’s non-compliance with the order (i.e. you paid for holidays etc.) the court could make an order for financial compensation.
Quite a drastic sanction would be change of residence. Although such a severe step is unlikely to be taken lightly by the court, the courts have been known to change the residence of the children in some cases. I’d always advise that every attempt is made to try and reach a solution without the need for court proceedings. That may be done via text or email) if the parents feel that they are not able to speak face to face, maybe meeting in public place to discuss arrangements.
I would always advise for parties to consider mediation before embarking on any court proceedings. Even if in the past you have attempted mediation and not found it helpful, it is sensible to consider trying it again, perhaps with a different mediator or with another organisation.
In Oxfordshire, remember you can also access Family Matters, a free service available to those on benefits and a low income, who can be contacted on 01865 406038 or 406009.