Warning Notices and the Enforcement of Broken Contact Orders
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson
2010, 2011.
With
the introduction of the Children and Adoption Act 2006 came new ways of
handling matters where contact orders are not being complied with.
Before
you make an application to the Court to have a contact order enforced, you must
first have had a warning notice attached to the contact order. The warning
notice sets out clearly the potential penalties and enforcement measures that
are available to the Court if the contact order is broken.
Contact
orders made after 8th December 2008 automatically include a warning
notice.
Will the Court agree to a warning notice being
attached?
What do I need to do to apply for a warning
notice to be attached?
Must a warning notice be attached to a
contact order before I can apply to have the order enforced?
Who can apply for a contact order to be enforced?
Finding your local family court
Will
the Court agree to a warning notice being attached? <Back to
Top>
Yes.
Her Majesty's Court Services' guidance on the attachment of warning notices
states that a Judge does not have discretion in this area. Technically, he/she
must.
Be
aware that in practice, we are experiencing Judges first choosing to
consider whether the existing contact arrangements contained in the
existing contact order are viable and whether they need amendment. If the
contact order is varied, any new contact order would automatically
have a warning notice attached. Be aware that the other party (normally
the other parent) may choose to use your application to the court as an
opportunity to seek the court's agreement to vary the existing order.
What
do I need to do to apply for a warning notice to be attached? <Back
to Top>
Before
applying, we recommend you attempt to resolve matters without involving the
court. If this proves to be impossible, then you will need to:
·
complete Court
Form C78.
You can download this to a PC via our Court Forms page;
·
provide
a copy of the existing contact order (if available);
·
take these
to your local family court administration department.
Will
I have to pay a fee? <Back to Top>
In
most cases, yes, unless:
·
You are
in receipt of a specified means tested benefit; or
·
Your
gross annual income does not exceed a specified limit; or
·
You
would suffer undue financial hardship if you had to pay the court fee.
Further
information can be found within HM Court Service’s leaflet EX160A (you may need
to download this from a PC - EX160A.
How much is the fee? <Back
to Top>
Details
of court fees can be found on page 9 on our Court
Fees page.
Must
a warning notice be attached to a contact order before I can apply to have the
order enforced? <Back to Top>
Yes.
Who can apply for a contact order to
be enforced? <Back to Top>
·
You can
apply if the children live with you.
·
If you
are the person named in the contact order as the person with whom contact
should take place.
·
Any
individual subject to a condition or contact activity condition imposed by the
contact order.
· The child named in the contact order. If
you are the child, you will need to complete a form C2 asking the court’s permission to make
an application. You can download this to a PC via our Court Forms page;
What
must I do to apply to have a contact order enforced? <Back to
Top>
·
A
warning notice must first have been applied for (unless your contact order was made
after 8thDecember 2008);
·
You
must be in a position to prove, beyond reasonable doubt, that the contact order
was broken;
·
You
should be satisfied that there was not a reasonable excuse for the contact order
having been broken (e.g. the children were ill);
·
You
must complete form C79 and hand this into the court
administration department. You can download this to a PC via our Court Forms page;
·
You
will need to pay a fee, unless you qualify for an exemption (see above).
If
it is accepted that the order was broken, and there was not a reasonable excuse
to justify the breach, what can the court do? <Back to
Top>
·
If, as
a result of contact being broken, you suffered financial loss, the court can
order financial compensation from the party in breach. You cannot claim damages
for emotional harm/stress etc, but only for actual financial loss. Examples
would include travel costs having been unnecessarily incurred, the cost of a
lost session at a contact centre, or your having had
to cancel a holiday or arrange additional childcare.
·
The
Court can order that the party in breach carries out community service work.
This can be for a period between 40 and 200 hours.
·
The
Court may order that CAFCASS (the Court Welfare Service) monitor and/or assist
in contact taking place. This can be done through the Court making a Family
Assistance Order which can run for up to 12 months.
·
The
Court may order that the parties attempt mediation to try to resolve their
difficulties.
·
The
Court may order that one or both parties undertake counselling/therapy/anger
management counselling or other activities which the Judge feels are
appropriate and may be of assistance in the prevention or resolution
of conflict and to facilitate contact in the future. Such orders will
likely be dependent on there being available services locally.
What
else might happen? <Back to Top>
·
The potential
exists that the Court could:
·
Change the terms of
the Contact Order if the current arrangements are found not to be in the
children’s best interests and/or are impractical/unworkable.
·
In exceptional
circumstances, the Court could reverse residence in favour of the current
non-resident parent or commit to prison the person in breach.
·
There has recently
been a new development in cases where contact has been persistently frustrated
by the resident parent, the courts have suspended a
residence order as a firm warning. It cannot be overstated that this is a new
step, and comparatively rare. The court places conditions upon the residence
order which, if breached, see residence transfer to the other parent. Two cases
have been before the Court of Appeal, and case law to cite includes Re A
(suspended residence order) 2010 1 FLR 1679.
Applying to Court <Back to Top>
If you are using a solicitor, they will
do this for you. Otherwise, download and complete the appropriate form,
depending on whether you are applying for a warning notice (Form C78) or
enforcement of the contact order (Form C79). Print
and sign three copies of the appropriate form.
Check how much the court fees are, and either take a cheque, postal
order or cash for that amount when you go to the court.
It will assist both you and the judge if you write a brief ‘Position Statement’. Try to keep the
position statement to two to three pages, including details of when the current
contact order was made, what contact arrangements were set out in the order,
and the problems which have prevented contact. Be factual, and try to be
objective in what you write, and the language you use.
A position statement is not essential, but it helps inform the judge,
briefly and ideally succinctly, why you are applying for the order, and can
assist you in court so you do not forget any points you wish to raise.
Before setting off for the court building, ensure you have with you:
a] Three
completed and signed copies of the forms;
b] The
cash, cheque or postal order to pay the court fee;
c] Three
copies of your Position Statement.
Hand in the court forms, fee and
position statement to the court’s administration department.
Finding your local family court <Back
to Top>
You can use HMCS Court Finder
to do this. Once on that website, enter in your region under ‘Court Region
Search’. Then make sure that ‘Court Work Type Search’ is set to ‘Family Work’.
Then search under ‘Court Type’ and do a search first on ‘Combined Crown and
County Court’, then ‘County and Magistrates Court’, and then ‘County Court and
District Registry’. Choose the court which is closest to where you or your
children live and print the details.
Support <Back to Top>
The Custody Minefield offers support forums
where you can ask our team of experienced support staff questions about family
law, the courts and separation. Collectively, we have answered more than 10,000
posts on other family law related support forums. Visit our Support Forum Page on The
Custody Minefield website to find out how to register.