Court enforcement of child contact orders: evidence review

4. Prevalence of enforcement of child contact orders

4.1 Internationally, the majority of child contact arrangements are decided privately between parents, without the involvement of civil or criminal court.^[12] Every jurisdiction explored in this review encouraged 'out of court' agreements in the first instance.

4.2 The reasons for enforcement cases can be categorised into four main groupings, in order of frequency, as follows:

• High conflict between parents that prevents them from cooperating, meaning contact orders are not practicable or reliable;
• Parents' safety concerns for the child during contact with the other parent;
• Older children choosing to stop contact with one parent;
• Implacably hostile parents who wilfully breach court order(s) to prevent contact.^[13]

4.3 Trinder and colleagues found that these cases may have risk attached to them – histories of violence, for example – but that they may also include other issues such as parents not agreeing on their respective roles and highly negative feelings towards one another as people and in terms of their parenting ability.^[14] They also note that cases where child protection issues had been recognised and addressed by the courts could require far less court involvement to enforce agreements than these more intractable cases, where multiple issues were involved that were not being appropriately.^[15]

4.4 Research suggests the child contact cases that return to court for the purposes of enforcement tend to involve a relatively low number of high conflict/intractable family cases, although it is also recognised that these cases can be highly emotional and stressful for the parties involved.^[16] Research from England found about 10% of separated parents involve the court to decide parenting arrangements, and a very small proportion of this number return to court to seek enforcement.^[17] Approximately 1400 cases per year are returned to court in England.^[18] In approximately a third of the cases examined in research from England, the reason for non-compliance was allegations by one parent about neglect, child abuse, and/or domestic abuse.^[19] The Ministry of Justice produces a quarterly publication on Family Court Statistics. Child contact proceedings are categorised as 'Private Law' matters, and while this can include a variety of arrangements for a child, it is noted that "The vast majority of private law applications are for Section 8 orders, which include a child arrangements order determining who the child should live with and when and who a child should have contact with or spend time with."^[20]

4.5 A review from Australia found similar rates of enforcement. The study assessed 100 court files and found nine cases resulted in the court concluding that a breach of order had occurred.^[21]

4.6 It is worth noting that there is less comprehensive data on these issues for Scotland. There is limited data on the number of child contact orders that are breached because, where conviction data is available at all, it does not specify the type of order breached. There is also limited data on the number of requests made to vary orders, some of which could be in response to perceived breaches. Generally it is believed that a low number of child contact breaches are brought to court.

4.7 Data from the Scottish Legal Aid Board suggests that over the past three years there have been 361 applications granted for Legal Aid to seek to hold a person breaching a contact order in contempt of court.

4.8 Civil imprisonment statistics show that there are very low numbers of civil imprisonment per year in Scotland. Between 2011 and 2018, there have been between 0 and 3 people civilly imprisoned per year for cases which include breaches of child contact. Unfortunately, contact cases are included within a wider data category that includes other types of civil imprisonment, so it is not possible to identify the exact number. Nevertheless, it is possible to conclude that cases of civil imprisonment for child contact breaches are very low in Scotland.