The Nuffield Foundation has published a research briefing regarding research undertaken in respect of enforcement of contact orders (H/T Noel @children_law). It provides an evidential base consistent with my own feeling about how (in)effective enforcement is, and how widely the not-so-new enforcement tools introduced in 2006 are used (er… they aren't).
Of course there are those who will criticize this report simply on the basis that it comes from the Nuffield (which in the eyes of some is an anti-dad thinktank conspiracy machine), but I have no reason to think that the broad insight it appears to give us is wrong (it's just a briefing, I haven't seen the research it is based upon). It IS undeniably right that the enforcement tools at the disposal of judges are difficult to use without causing more harm than good for children. It IS undeniably right that not all cases warrant / justify the same response – some but not all are best dealt with in a punitive / draconian way, but many many more are best dealt with by problem solving, reassessing risk or generally looking again at the problem that has caused contact to breakdown.
So. What does it say?
86% of applications were made by non resident fathers. Only 4% were implacable hostility cases in the view of the researchers, whereas some 55% were about mutual conflict and 31% about risk. In 10% of cases the issue was children over 10 years of age refusing contact. Interestingly, the researchers found that rather than being too quick to dismiss enforcement applications, the judges were occasionally too quick to adopt a punitive approach rather than focusing on identified safety issues.
These percentages mask the fact that the number of applications made for enforcement is pretty low – we have a snapshot only, but only just over 200 were made in England over a 2 month period, approximating we assume to about 100 per month. Compare it to the approximately 46,000 new private law children applications made each year (CAFCASS Stats for y/e Mar 2013), and we can see that enforcement applications are running at around 2.5%. I think it’s a pretty safe bet that contact is not working well or at all in a good deal more than 2.5% of cases, and to me it suggests that applicants (mostly dads) are not applying for enforcement orders. In many cases that may well be because enforcement is very obviously going to be unhelpful or make matters worse. But in some, I sense, that non resident parents are applying back to court for directions, and asking for help from the court in form C2 or by letter, but not making specific applications for “Enforcement Orders” or “Financial Compensation Orders” within the meaning of s11O etc, and they are not doing it on C79. I suspect that this skew the stats – and more importantly the approach the court takes, which is more likely to be a “review hearing” type approach. If there is no C79 s11) is not triggered – there is no power of the courts own motion to make enforcement orders or other associated orders.
The report writers note a serious mismatch between the numbers of children at risk of emotional harm and those who received counselling or support. This is a little puzzling – I don’t think that the data they were looking at (CAFCASS files) would necessarily have been a reliable source of information about whether or not counselling or support was offered, since the provision of such services is not a statutory function of either CAFCASS or something that can be ordered via the court process. Of course, one might argue that things should be more joined up - it's probably right that lots of kids are at risk of emotional harm and don’t get support, but I’m not sure that this is linked directly to enforcement - although it would undoubtedly be a lovely idea if judges could make referrals for services I’m pretty sure that duck is dead before its even hatched in the current climate (you can't mix a metaphor without breaking some eggs you know).