Court enforcement of child contact orders: evidence review

10. Court enforcement of child contact orders: punitive responses

10.1 Punitive responses involve community service, such as unpaid work; fines; and imprisonment. Financial penalties are imposed in some cases, generally to provide financial compensation to one parent if they have incurred expenses due to the other's non-compliance. In England and Wales, the Children and Adoption Act (2006) gave new powers to the court to impose financial penalties and/or community service. These options are, however, rarely used by the courts. The Ministry of Justice considered introducing further more punitive responses to enforce child contact orders in 2013, such as the use of curfew orders and the withholding of individuals' passports and driving licenses, but after consultation decided against these measures.^[44]

10.2 Across international jurisdictions, punitive responses to breaches of child contact orders are used rarely and tend not to be considered in the best interests of the child.^[45] Cases where 'implacable hostility' was identified were most likely to be dealt with by a punitive approach,^[46] however these cases are in the minority.

10.3 The available evidence draws consistent conclusions on the low prevalence of punitive responses to enforcement of child contact. The Nuffield Foundation research noted that punitive responses are used very infrequently (in less than 1 in 10 cases) in response to breached child contact orders in family courts in England.^[47] Research from Australia found fines or imprisonment were used in approximately 15% of responses to breached orders.^[48] Another Australian study found that 9% of applications for enforcement to the court concluded a breach of order had occurred, with 3% resulting in a punitive measure.^[49]

10.4 In England, the courts have warned that they may use the sanction of unpaid work in a relative number of cases (as part of an assessment or suspended order) and this did appear to have the desired effect on the relevant parent.^[50] It is unclear that unpaid work actually works in these circumstances – only one active order reviewed in the Nuffield report encouraged compliance – but having the sanction there as a threat has been useful in some cases.^[51] An amendment was added to stage two of the Family Law Bill which became the Family Law (Scotland) Act 2006. This required the court when making or varying a contact order to attach a notice warning of the consequences of failing to comply with the contact order. This was aimed as a deterrent for non-compliance. This amendment was removed at stage 3 of the Bill as it was seen as possibly being unduly intimidating to warn parents, before either of them had done anything wrong, of the consequences of non-compliance.