Enforcing Child Contact and Compensation Orders
In the case of Re LW, the father and mother had two children and after the marriage split one child (M) lived with the father, the other with mother. There were long running contact problems between M and the mother. The court made a contact order (with a penal notice attached), allowing the mother to have contact with M. Many planned contacts went on to fail and a similar order was made, followed by an order for compensation. An enforcement order was later made with a penal notice attached, followed by another in similar terms the same month—both reciting the father’s failure to comply. Some months later, a suspended committal order was made against the father on the basis of contempt of court for continuing to fail in allowing the mother to have contact with M. He was sentenced to 28 days’ imprisonment and five orders under the Children Act 1989 were made.
The case went to the Court of Appeal, which was to consider for the first time the application of contact enforcement and compensation orders available under the Children Act 1989.
Munby LJ gave the leading judgment. He emphasised that different standards are required to prove 1) a breach of a contact enforcement order and 2) a compensation order. For contact enforcement orders the standard of proof is ‘beyond reasonable doubt’, which is the criminal standard, whereas a breach of a compensation order is proved on the ‘balance of probabilities’, a civil standard. Once a breach of either has been established, the burden of proof shifts to the respondent, who must prove there was a reasonable excuse for non-compliance. The standard for demonstrating a reasonable excuse is the civil standard. Therefore each specific breach must be considered separately.
Munby LJ went on to suggest that an early application to enforce a contact order would be most prudent, not only to avoid the persistent breach continuing over an extended period, but also to stop it influencing the child’s thoughts and attitude.
Elizabeth Bettes
Published on 19/01/2011