Sir James Munby, former President of the Family Division, says this:
“Other things being equal, swift, efficient, enforcement of existing court orders is surely called for at the first sign of trouble. A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that court orders can be ignored with impunity, and potentially also to the child.”
Committal to Prison – Why Not Jail?
Parents that do not turn up to court hearings, or disobey court orders must be punished – immediately. Ignoring court orders is a contempt, and a criminal offence. Judges can put offenders in prison.
Why is this not done?
Well, the traditional wisdom has been that putting a recalcitrant AP in jail is not going to help the child.
But putting a murdering mother in prison is not going to help her children. Putting a violent mother in jail is not going to help the children. Perhaps we cannot put any mother in prison for any criminal offence, lest she cries “but what about my kids?!” Mothers are put in jail all the time for all sorts of criminal offences, as are fathers. Why would there be an exception for breaking court orders that relate to the welfare of children, unless judges consider contempts of court in a child-related matter a somewhat trivial offence? Perhaps all criminals that are also parents should escape jail time!
In addition, putting an offending parent in jail will actually help. This parent is a bully. They are bullying you and they are bullying your child. They are even bossing the judge! Teaching them a lesson is desirable, and necessary. We are not saying that they should go to prison forever and the key thrown away. 24 hours in a cell is a very sobering experience. Like all bullies, they will not stop without a (metaphorical) punch on the nose.
And if the court is not minded to do this, there is, as indicated below, a range of other options.
The court can order the AP to pay you compensation for financial losses (S. 11 (O) of the Act):
“If the court is satisfied that—
(a)an individual has failed to comply with [F3a provision of the child arrangements] order, and
(b)a person falling within subsection (6) has suffered financial loss by reason of the breach,
it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.”
This can be ordered for APs that breach court orders, and can be used in conjunction with other orders. (Section 11 (J) of the Act)
The court can order a disobedient AP to pay a fine.
Normally in family cases, each side pays their own costs. This is because the courts try not to blame, and there are very good reasons for not wanting to venture down that particular rabbit hole, because in many cases there is blame on both sides.
In PA cases, however, I argue that there is invariably one parent only that is causing all the problems – lying, refusing to engage with the process, ignoring court orders and so on. In these cases, a lot of time is wasted both by the court and the TP, and it would be fair to order the AP to pay any costs ‘thrown away’ in this manner.
Additionally, if you have no lawyer, and hence no costs, you can, in theory claim for your own time, pursuant to the Litigants in Person (Costs and Expenses) Act.
The court can compound punishments – for example, the judge may order a period of imprisonment and a fine, and community service, and compensation, and costs, or any permutation of these.
Judges have a wide range of powers. They simply do not use them. In 2015 only 1.2% of enforcement applications were successful. Judges persist in ‘hoping’ and ask APs to give undertakings (promises) that they are never going to keep. Judges tell parents off! That is all well and good, but I ask for action and punishment, not hopes, promises and admonishments.
I simply suggest that judges use the powers given to them by the Act.
Put an end to ‘flabby judicial responses’!
Worth noting is that the standard of proof for a commital order is the criminal standard of ‘beyond reasonable doubt’ where for a compensation order the lower civil standard is applied (‘on the balance of probabilities’) [para 38 of Re L-W 2010] EWCA Civ 1253]
- Referring to the observations of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions) [ 1995] 2 FLR 124 and of Sir Stephen Brown P in Re F (unreported, 13 May 1996), Ward LJ said (at page 541):
“The stark reality of this case is that this is a mother who has flagrantly set herself upon a course of collision with the court’s order … In my judgment, it is time that it is realised that against the wisdom of the observations of Ormrod LJ is to be balanced the consideration that orders of the court are made to be obeyed. They are not made for any other reason … it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed upon him by Parliament.”
Beldam LJ said much the same, commenting (at page 542) that:
“the court has been placed by the mother in a situation in which it either has to yield to her obstinacy and back down from its own order or it has to enforce it. If the court were to yield to such persistent intransigence, respect for its orders and for the administration of justice would be at an end.”
- Dame Elizabeth Butler-Sloss P in Re S (Contact: Promoting Relationship with Absent Parent)  EWCA Civ 18,  1 FLR 1279, at para :
“the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent.”
At all events, whatever your judge feels about committal, there is, as we have seen a whole host of other options to deal with disobedient APs.
They must be used. And they are not.