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Contact - overviewGeneral principles
A contact order may be made under the Children Act 1989 (ChA 1989), s 8. It requires the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child to otherwise have contact with each other. When deciding whether to make a contact order and, if so, on what terms, the court must have the welfare of the child as its paramount consideration. In doing so, it should have regard to the statutory checklist. The court must also be satisfied that making an order is better for the child than not making an order.
The court can make a range of contact orders including:
direct contact between the child and the person named in the order
overnight staying contact
indirect contact through letters or cards
In certain circumstances the court can order that there is no contact.
Human rights issues, such as the right to respect for the parents' private and family life, may arise in disputes over contact.
There are certain categories of individuals who are entitled to apply for a contact order without seeking leave of (permission from) the court. They include (but are not limited to):
any parent or guardian or special guardian
any step-parent who has acquired parental responsibility
any person in whose favour a residence order has been made
any person with whom the child has lived for a period of at least three years
any civil partner in a civil partnership (whether subsisting or not) in relation to whom the child is a child of the family
any party to a marriage (whether subsisting or not) in relation to whom the child is a child of the family, eg a step-parent
Anyone not entitled as of right to apply can only do so with leave (permission). In deciding whether to grant leave (permission) the court must take into account the matters set out in ChA 1989, including the applicant's connection with the child.
The court has the power to attach directions and conditions to contact orders in favour of certain categories of people that define the scope and management of the contact, eg provision prohibiting a father from obtaining a passport.
Proceedings may be issued in the magistrates' court, the county court or the High Court.
The applicant must file a Form C100 and where there is an allegation of abuse, violence or harm, a C1A. The Family Proceedings Rules 1991 (FPR 1991) (for applications issued prior to 6 April 2011) or the Family Procedure Rules 2010 (FPR 2010) (for applications issued on or after 6 April 2011) prescribe who will be a respondent. The applicant must serve the respondent with the prescribed forms and file a statement of service. A directions appointment, which may be a first hearing dispute resolution appointment, will be listed by the court. If there is an allegation of domestic violence there may have to be a preliminary fact -finding hearing.
If leave (permission) is required, Form C2 is filed, setting out the reasons for the application with a draft of the application in respect of which leave (permission) is sought.
Effect of a contact order
A contact order cannot be made once a child reaches 16 years of age unless there are exceptional circumstances. An order will last until the child is 16, unless brought to an end sooner by the court, or unless the circumstances of the case are exceptional. An order will cease to have effect if the child's parents live together for more than six months.
Contact may be ordered to take place between children and persons other than their parents. It is generally accepted that it is beneficial for a child to know their wider family, such as grandparents and siblings.
Enforcement of contact orders
Effective enforcement of a contact order where the residential parent is opposed to contact has been notoriously difficult. The powers available to the court include:
in the magistrates' court orders can be enforced under the Magistrates' Courts Act 1980
in the county court and the High Court an application for contempt of court or sequestration can be made
an order committing the parent in breach to prison or a suspended order for committal
imposing a fine under the Contempt of Court Act 1981
the court may reverse residence in favour of the other parent
Such orders may, of course, have an adverse effect on the child and may be contrary to the child's interest. The court will endeavour to get the order to work or put something more workable in its place.
The court also has powers of enforcement under the Family Law Act 1986.
On 8 December 2008 the new sections inserted into ChA 1989 by the Children and Adoption Act 2006 (CAA 2006) came into force, giving the court a range of new powers to enforce contact orders. Contact orders made after that date must now have a notice attached warning of the consequences of breach of the order. If a contact order was made before 8 December 2008, an application may be made for a warning notice to be attached to the contact order.
Contact activity directions
These are directions requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned, eg parenting classes.
The court cannot make such a direction when making a final order, as the purpose of the direction is to enable the court to monitor a party's suitability for contact before making an order for it.
Contact activity conditions
These impose a condition on a party's contact with a child and are enforceable like a breach of a contact order. The court must be satisfied that the activity is appropriate and that a suitable provider can be found within reasonable travelling distance. The individuals on whom a condition may be imposed include the person with whom the child lives and a person whose contact with the child is provided for in the order.
A CAFCASS officer may be asked to monitor a party's compliance with a contact order. The period of monitoring must be specified.
A contact enforcement order imposes an unpaid work requirement, which can be between 40 and 200 hours of unpaid work in a 12 month period. The court can make an enforcement order only on the application of the persons specified in CAA 2006, which includes the person with whom the child lives and the person in whose favour a contact order has been made. The court must be satisfied beyond reasonable doubt of the failure to comply with the contact order or the contact activity condition. A defence is provided if the respondent can show, on the balance of probabilities, that they had a reasonable excuse for failing to comply.
These provisions do not apply where the respondent is under 18 at the time of the breach or not habitually resident in England and Wales.
The court must be satisfied that an enforcement order is necessary to ensure compliance with a contact order and that the effect on the respondent is proportionate. It must also obtain and consider information about the respondent and the effect of an order on them. CAFCASS may be asked to monitor the order and report on compliance. A notice must be attached to the order warning of the consequences of a breach.
Compensation for financial loss
An order for financial compensation may be made where a party suffers financial loss as a result of breach of the contact order. The application may be made by one of the persons specified, including the person with whom the child lives and the person in whose favour a contact order has been made.
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