Contact order?

[Hebemajeebe]

My DH has a contact order to see his DCs. His ex had been restricted contact to about 1 overnight a month and would almost always demand last minute changes of plan or cancel in addition.

The contact order has already helped somewhat - they have a list of holiday dates and he now has every other weekend. However she still has been insisting on altering the odd date here or there which DH tries to be flexible with wherever possible but on a couple of recent occasions it has been really inconvenient due to the last minute nature of the request ( ie 3 hours before to swap an entire weekend)

During a last exchange of texts where he tried to address this DHs ex states that she does not have to obey the court order as 'it was only a consent order' and that she simply cannot always stick to what was ordered due to her other commitments and DH will just have to lump it.

The details of the order was agreed between them but the judge signed it off and DH got a typed copy through the post that looks pretty official so surely it is an order? She had a very good barrister on the day who we are pretty certain convinced her she didn't have much of a case and helped negotiations enormously! but she arrived just for the day and wasn't looking after ex on an ongoing basis or we might have been tempted to ask her to speak to ex. DH self represented and ex hasnt got another solicitor at tge moment. There was no other hearing ordered so we are left in a situation where DH says it is an order and ex simply says it isn't.

Can anyone confirm what we are fairly certain of - a consent order is still a proper order - and can anyone suggest something we can do to convince ex of this, given that she is never going to listen to anything from DH?

Look for a warning on the order about what happens if the order is breached. It should warn the ex that she risks punishment if she breaches the order.

Yes, DH pointed that out to her already. She just accuses him of being threatening and that it is just a consent order 'you stupid man' so doesn't count

As I say she discounts anything he says automatically. I think he could point out the grass is green an she'd swear blind it was pink.

I should say when all this started DH saw a solicitor just to see if an official looking letter stating what he wanted might help but that was dismissed too as DH's solicitor was 'just a paid monkey who didnt know what he was talking about'. As it also extends to anyone employed by DH we've discounted shelling out for another appointment and solicitors letter which we could ill afford at the moment anyway. She only listened to her own barrister who she considered on her side and the judge.

On the other hand we really don't want to have to apply to court again to clarify it really is an order or do we have no choice?

A consent order is legally binding and can be enforced by the courts. The court won't clarify it any further. If she breaches the order your DH can go back to court and ask for the order to be enforced or get a contact order. Obviously you need to consider whether it is worth it.

I wonder how she would feel if your DH regarded compliance with the financial provisions of the order as optional.

If you want to point her to something official that says a consent order is legally binding you could tell her to look at www.gov.uk/money-property-when-relationship-ends/apply-for-consent-order.

If he wants to apply to court for enforcement then he'd need to complete form C79. He can find one online I'm sure.

Thanks both, it's very frustrating as he doesn't really want to go back to court for something that should be so basic and he doesnt really want the mother of his children to suffer some of those sanctions which seem a bit overkill. It seems ridiculous when we suspect it just needs someone she trusts/ someone with sufficient authority to confirm she has to obey the order.

Anyway thanks for confirming for us that it is indeed a proper order. Will try sending her the link though not holding out much hope!

Hi Hebemajeebe,

you are absolutely right in your assumption. A court order is a court order, even if it is by consent. The fact that she actually consented to it makes this worse for her.

Practically I would keep a diary (if you don't already). Make a note of the number of breaches to that court order. Then enforce it. You can do this yourself on a C79 form at the court (You can download this). Be careful that you don't let too many breaches go by. You don't want to be setting a status quo or a precedent. These are often difficult to overturn in court.

Best of luck and keep us posted.

Thanks McKenzie, DH really doesn't want to be unreasonable. We always try to think of it in terms of what would be normal behaviour if it were a more amicable relationship like a friend or grandparent - you wouldn't for example make a fuss about not having enough notice for a slight change of plan like meeting a hour or so later so we normally let those ones go. Equally sometimes the DCs have family parties she wants to take them to or something which is reasonable to be flexible over but it's hard to draw the line between that and times when things seem booked in when they could be done another time. However, the difficulty is the arguments when we can't accommodate the changes. They all feel like fairly small things in themselves but add up to a lot of inconvenience and unnecessary rearranging. I reckon in the 4 months since the order she has officially breached about 50% of the time but perhaps 30% of those were not totally unreasonable or excusable in some way. Though most of them were probably avoidable if she really took it seriously - we have never had any problems sticking to the exact letter of the order for example.

I worry about what you mean by setting a precedent - at what point do we judge we must go back to court?

My DP had the same problem. He was advised by the court to immediately apply for an enforcement order. We were told that the courts very rarely use the 'punishments' available to them. However, it cost £200 to apply for the enforcement and it was enough for the court to tell the EXP that if they saw her in court again they would impose community service. Since then the order has been complied with.

Hebemajeebe - `I worry about what you mean by setting a precedent - at what point do we judge we must go back to court?'

It means that the longer you allow a certain contact regime stand the stronger the argument that the status quo is that it should remain as it is.

For example - imagine you have a contact order for one night per week and the ex decides that she is only going to allow contact one night per fortnight. You do nothing because you don't want to rock the boat but eventually decide it's not right and take her back to court.

The first thing her solicitor will say is `If you weren't happy with it why didn't you raise it as a concern when it first happened instead of 2/3/4 months later. And besides - the children need stability so now this status quo has been set it should remain'.

Courts are big on not changing status quo - partly because of the `no order principle' (in the 1989 Children Act that states orders should only be made if it is in the best interests of the child to do so) and also a reluctance to make an order both parents won't agree to.

As a general rule you should be able to demonstrate a) an established pattern of breaches of a court order are made (3 times in a short period is a rule of thumb) and b) that you have pointed out to the other party you do not agree to this. There is no point attempting to take the other party to court for one missed session - children do get sick, etc. and courts always err on the side of caution.

Finally - don't worry about the ex being penalised...it almost never happens. Courts very rarely make penal or committal notices and even when they do are notorious famous for not enforcing their own orders even when blatantly ignored.

Bottom line is that if the ex is breaking court orders, the clock is ticking for you do something.

As always, at this point I strongly suggest you contact Families Need Fathers.