Court enforcement of child contact orders: evidence review

13. Appendix 1: An overview of international jurisdictions

In early 2016, policy colleagues within the Scottish Government contacted civil servants across the European Union about responses to enforcement of child contact orders in other jurisdictions. This has been supplemented, where relevant, with the research from the 2007 Scottish Government report on dealing with child contact issues.

Information provided by other jurisdictions is detailed below, however it should be noted this information is based on a brief research, much of which has not been triangulated, and should therefore be treated with caution.

In Australia the current system for enforcing compliance with contact orders is based on the Family Law Amendment Act, 2000. This reform supplemented the previous system, to provide the court with a number of new strategies. These had a strongly problem-solving approach, with a focus on ordering parents who breach orders to attend parenting support programmes. As discussed above, there are some concerns with the implementation of these new approaches, but this reform signalled a move away from more punitive approaches in Australian family law.^[59]

In Croatia, fines or imprisonment are possible responses to breach of contract. The vast majority of enforcement proceedings are suspended, in the interests of the child.

The Civil Code in the Czech Republic provides that "if a parent having the care of the child permanently or repeatedly prevents the other parent from having contact with the child for no reason, such behaviour constitutes grounds for a new court decision on which of the parents should have care of the child."

Denmark has three measures in place to support parents and children around contact. It takes a more administrative approach to divorce and child custody. These measures are: free, professional, voluntary, and confidential counselling for parents who are in dispute over contact of custody. This is something offered by regional governments (who also make custody and contact decision). Also offered is free mediation for parents who disagree about contact or custody, which parents must both agree to attend. It will always be co-mediation (two mediators), one of which will be a lawyer and another will have experience of child cases Finally, meetings for children with other children whose parents live apart are provided. Children have the chance to meet other children of a similar age going through similar things, with counsellors there for support.^[60]

England and Wales now have "child arrangements orders" rather than residence and contact orders. In England and Wales, if one of these orders is breached the court may treat the breach as contempt of court (as in Scotland); refer the parent to a parenting programme; vary the order (as in Scotland); require the breaching parent to undertake unpaid work (where there is no reasonable excuse for breaching the order) and require the parent to pay compensation for financial loss. In practice, unpaid work and financial compensation are little used and committal to prison and fines are rarely used.

The Ministry of Justice has responsibility for child contact and tries to provide information and advice to parents. They encourage the use of alternative dispute resolution, such as in-court conciliation, mediation, and flexible powers to the court in contact cases.^[61] Parents now have to attend a mediation information session before they can proceed to court.

In France there are criminal sanctions for non-compliance, but these are only used when a parent is seen to be repeatedly and wilfully refusing to respect the court decision. We understand the French Government is considering reforms to improve the enforcement of decisions and this might involve the introduction of civil penalties to sanction the non-compliant parent.

France has developed a system of mediation for reaching agreements and encourages family members to use mediation to resolve disputes. It also uses contact centres extensively, where there are concerns or high conflict disputes. Overall, the aim is to encourage parents to reach informal agreements and a civil judge will meet separately with each parent in a divorce hearing to discuss the importance of this with them, encouraging agreement and compliance.^[62]

In Germany, the courts can impose administrative fines or administrative detentions an enforcement mechanisms.

In Ireland, the court can impose a penalty (fine/imprisonment) and the injured parent can also bring a motion to find the offending parent in contempt. In practice, the courts rarely fine or imprison the offending parent; the injured parent is often reluctant to have a penalty imposed; and a warning is usually sufficient. Sometimes the injured parent is given additional contact. New provisions have also been passed recently empowering the courts to order the offending parent to compensate the other for any expense incurred as a result of the breach and to order the offending parent to attend a parenting course or family counselling.

Malta appears to have a broadly similar process to that which operates in Scotland.

New Zealand now uses the terminology of 'parenting orders' instead of custody or access orders, to try to shift the focus away from rights of parents to responsibilities of parents to cooperate with each other to care for their child after separation. Parents must try to agree informally initially, but if they cannot then the Family Court will intervene using mediation, counselling, and formal court heating. Parenting orders are considered a last resort after these measures have been tried.^[63]

Procedures in Northern Ireland are very similar to Scotland in that if a contact order is breached the court may be asked to vary the order or to hold the person who breached it in contempt of court. A person held in contempt of court may be sent to prison or fined or both. The Department of Finance and Personnel in Northern Ireland has invited views on whether any additional penalties should be made available and will be further exploring the issues in relation to enforcement.

In Poland, the court may order the offending parent to provide financial compensation to the injured parent.

In Portugal, the court can impose fines and compensation if the injured parent can show economic loss (e.g. paid for a holiday). In addition, the repeated and unjustified non-delivery of a child to the other parent is a criminal offence which can be investigated by the Police.

In Slovenia, one party may file an application to vary the order. There is also provision to impose fines and in exceptional cases to ensure protection of the interests of the child to send in an enforcement officer [a bailiff or a sheriff officer] in the presence of a professionally qualified worker appointed by the court. In some circumstances (e.g. when one parent detains a child), the bailiff may request the assistance of the police in carrying out the enforcement.

There is no specific family court in Sweden. Instead social services are trained to work with parents in the first instance to resolve conflict, and the courts will only be resorted to after this stage. There is an expectation of shared care in Sweden, unless circumstances prove this is not appropriate.^[64]

Federal nations such as Australia, Canada, and the USA allow some level of state/territory/province discretion in making family law, but the extent of this varies. Australia has a guiding set of principles largely adopted across the states/territories. Canada takes child contact cases on a case by case basis and encourages informal agreements wherever possible, using mediation, arbitration, and counselling for access enforcement. Courts also have a range of options to enforce contact, which vary by area. These include civil contempt, fines, imprisonment, and compensatory access. The USA has highly varied provision across states. Education programmes have been introduced as an initial stage of enforcement, with mediation used also. There are also a number of other options: 'parenting plans, parenting education programmes, parenting coordinators who help parents to contain conflict and make joint decisions, mandatory and voluntary mediation, and programmes to address non-compliance with contact orders.'^[65]