Court enforcement of child contact orders: evidence review

2. Introduction: background to the review

2.1 This paper presents the findings from a rapid review of evidence prepared by the Scottish Government's Justice Analytical Services (JAS) on the ways in which international jurisdictions enforce child contact orders.

2.2 This paper was prepared to support the work of the Children's (Scotland) Bill and the Family Justice Modernisation Strategy. The Children (Scotland) Act 1995 ("the 1995 Act") is centred on the needs of children and their families. It defines parental responsibilities and rights (PRRs) in relation to children. It also sets out the duties and powers available to public authorities to support children and their families and to intervene when the child's welfare requires it. Part 1 of the 1995 Act covers PRRs and contact and residence cases relating to children when parents are no longer together. In 2018, The Scottish Government consulted on Part 1 of the Children (Scotland) Act 1995 and the Children's (Scotland) Bill was introduced into the Scottish Parliament on 2 September 2019.^[1]

2.3 The key policy aims of the Bill are to:

• Ensure the best interests of the child are at the centre of any contact and residence case or Children's Hearing;
• Ensure that the views of the child are heard in contact and residence cases;
• In cases involving domestic abuse, to ensure that victims are protected appropriately during the family court process; and
• Further compliance with the UN Convention on the Rights of the Child.

2.4 The Bill is an important step in improving the family courts. However this is only part of a wider programme of work to improve the court process and the operation of family justice. A Family Justice Modernisation Strategy was published alongside the Bill.^[2] This sets out:

• Work that is ongoing by the Scottish Government and others;
• Work that can be done through secondary legislation or by improved guidance;
• Areas covered by the Bill; and
• Areas that are for longer-term work.

2.5 The consultation on the Review of the Children (Scotland) Act 1995 sought views on whether there should be changes to the procedure in relation to enforcement of contact orders. The Scottish Government does not consider the option of making a breach of a contact order a criminal offence to be a useful option as this could mean more family cases would be dealt with in the criminal court. In addition, it may be disproportionate to introduce criminal offences in this area given that the person would receive a criminal record.

2.6 The Scottish Government also considered whether to create a new enforcement route apart from contempt of court. This could allow the court to order an individual to attend a parenting class, mediation or unpaid work. The Scottish Government recognises that mediation and other forms of dispute resolution outside of court can play a valuable role in helping to resolve family disputes. However, the Scottish Government fully recognises concerns that mediation should not be used when there has been domestic abuse, sexual violence or gender based violence. There are also concerns that requiring a person to attend a parenting class or do unpaid work may take a parent away from a child, and could have a negative impact on the child. Therefore, the Scottish Government has not amended the contempt of court route, but has included in section 16 of the Bill a provision that places a duty on the court to investigate the reasons for non-compliance with an order. This can be done either by the court itself or by the court appointing a Child Welfare Reporter. This option was supported by consultation responses.

2.7 Currently, if someone believes an order under section 11 of the Children (Scotland) Act 1995 has been breached, the person can go back to court and seek a further order (such as a variation of the order or a switch in residence), and/or ask the court to hold the person breaching the contact order in contempt of court.

2.8 This paper identifies and collates published evidence on enforcement of child contact orders. It sought to address the research question: 'How are child contact orders enforced by family courts in other jurisdictions?'

2.9 From a review of the available evidence it is concluded that the majority of courts across international jurisdictions are empowered to impose a variety of different interventions and sanctions in response to breach of contact orders, however in practice courts defer to a limited range of options, depending on the reasons behind the breach of order. Responses to breached child contact orders can be divided into two distinct categories: punitive and problem-solving.^[3] These will be described in more detail below, but it is clear from the available evidence that courts prefer to use one of the selection of problem-solving approaches to enforcement of child contact orders over punitive measures.