Child contact, non-molestation and McKenzie Friends

Non-molestation and child arrangements orders



Re J (Children) [2018] EWCA Civ 115 (6 February 2018) raises at least the following issues:


  1. Hearing of cases of domestic violence and the period any non-molestation order;
  2. Case management and how long it takes a children case to come to trial;
  3. Litigants in person and their McKenzie friends (MFs);
  4. The fair trial of a parent’s case where he cannot obtain legal aid.


After nearly 20 years of marriage a couple separated in September 2014 when the father left their home. They had three children then aged around 16, 13 and 8. W obtained a not on notice non-molestation order in December 2014 (why she applied three months after the separation, the report does not say). This included that H should not communicate with W or the children; and it continued till 22 December 2016, though an earlier return date in January 2015 was fixed. H wanted contact with his children. He cross-applied for a child arrangements order and for his own non-molestation order. He alleged balancing abusive behaviour by W. A ‘finding of fact’ hearing was fixed before a judge on 2 July 2015.


At that hearing H had a McKenzie Friend (MF). But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction, with no contact by H and no findings still stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).


The father’s appeal


It was the decision at that hearing against which H appealled to the Court of Appeal on the following grounds:


  • The non-molestation order was allowed to run without determination of facts.
  • The MF had been wrongly denied a right of audience.
  • No findings of fact had been made.
  • The full powers of the court had not been used eg where their guardian admitted they were suffering emotional harm.


The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing on the contact application, said the court, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para [99]).


It will be striking in this post, that many of the legal principles applied are derived from a practice direction (eg FPR 2010 PD12J) and from ‘practice guidance’. Neither of these have the force of law in the way that, for example, a statute or the common law (judge-made law) have. It might have been possible for the father at first instance to have challenged the judge on the content of the McKenzie Friend practice guidance (considered below); but that is a discussion for another day.


‘Findings of fact’ hearings


Routinely family judges set down hearings for ‘findings of fact’. I have never understood quite what this means. It is the principal function of a judge in any case whatever the background that the court finds facts, applies any law to those facts and then, exercising any discretion vested in him or her, disposes of the case – ie makes an order. Having a ‘finding of fact’ hearing implies there is in some way a phased process, in which establishing facts is the first step. This is only rarely the case.


I can see that case management here might have demanded that the abuse issues between H and W needed to be resolved at one hearing. This would result in an order. A second hearing, probably before the special measure judge, might then involve further factual and welfare issues to be resolved for the boys. Any child arrangements order could then be made and the extent (if any) of the father’s contact resolved. Domestic abuse and contact might be separate issues; but each will call upon a court – as with all cases tried every day – to find facts on which a determination may be based.


Non-molestation order and its duration


The non-molestation order made for two years was not ever revisited. This was in breach of the then practice direction (re-enforced by Practice guidance 18 January 2017: Family Court – Duration of without notice orders): that without notice orders should have a return date of not more than 14 days from the first order (para 5(ii)).


I am not at all sure this is what the law (as distinct from a ‘practice guidance’) says. Family Law Act 1996 s 42, which enables a court to make a non-molestation order, says that an order can be ‘for a specified period or until further order’ (s 42(7)). For H in this case there is no doubt that the period should have been much shorter and the facts on which the original order was made should have been tested much sooner (as the Court of Appeal accepted).


Domestic violence: delay and case management


The courts had had what McFarlane LJ called a ‘wake-up call’ as to ‘the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse (para [39]) Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334. Practice directions have followed.


The most recent practice direction, was an amended PD12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm (October 2017) by which ‘courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case’ (para [40]). PD12J para 19 requires court to ensure that cases which may involve domestic abuse are resolved and emphasises the need for ‘the proceedings to be “conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties” (emphasis added by the judge)’ (para [45]).


McKenzie friends


The role of McKenzie friends are regulated by practice guidance Practice guidance: McKenzie friends (civil and family courts): 12 July 2010 [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.


By contrast common law backed by European Convention 1950 Art 6(1) (right to a fair trial) – and, perhaps, Art 6(3) (to be explained another day) – requires that anyone coming to court should have a fair trial. This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’; and this is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010 r 1.1(2)(c)).


The practice guidance provides a definition of what a McKenzie Friend is and what they may do. The case of Re J, said McFarlane LJ ([68]), did not provide an opportunity to set out guidance beyond what is in the 12 July 2010 practice guidance. So far as cross-examination by a McKenzie Friend is concerned, the court by implication was not prepared to consider this. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (MFPA 1984 s 31G(6)).


On the McKenzie Friend ground the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. However, acting as ‘counsel in a trial’ said the Court of Appeal was an ‘altogether different issue’ ([62]).


Fairness of an alleged abuser’s trial


This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This is for another day, with the current legal aid provisions and with the law – such as it is – on McKenzie Friends and Arts 6(1) and 6(3) fully in mind.

Intractable contact disputes




Contact difficulties and Children Act 1989


Failure of contact (sometimes extending to what is called ‘parental alienation’) is indicative of a problem in a family where the parent’s relationship has already broken down. The law can only help as a last resort. Powers are there to provide for, and to enforce disobedience to, contact orders in Children Act 1989 (CA 1989) ss 11A-11P; though how often are these powers used in practice?


Since April 2014 orders for contact (known as ‘child access’ before CA 1989) have become known with certain other children orders as ‘child arrangements order’. This article is concerned with ‘contact’ – ie how much the parent with whom the children are not living mostly will see the children. On occasions the term ‘contact’ will be used for the sake of clarity where CA 1989 tends slightly to obfuscate the subjects by using ‘child arrangements order’.


Where the law seeks to help, it must try to do so efficiently and without delay; though it can only do so where the parties or their advisers apply promptly, where other attempts to resolve the issue have failed. The speed of response of the courts depends entirely on HMCTS. Amendments to CA 1989 ss 11A-11P (considered below) can bolster enforcement arrangements; but they cannot directly influence the speed of response of the courts and Cafcass.


Children’s view and rights


Children can make their own applications in appropriate circumstances and their representation and involvement in contact disputes may be a feature which will develop. Family Procedure Rules 2010 (FPR 2010) Part 16 includes provision for children applications (with court permission) and representation of children; and Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 reminds all parties, practitioners, judges and Cafcass officers – so far as they need reminding – that the views of children must be ‘taken into consideration on matters which concern them in accordance with their age and maturity’ (Art 24.1). Further Art 24.3 asserts – as concerns this article:


3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.


Gender stereo-typing is difficult to avoid. It will be assumed that the child(ren) are living predominantly with the mother and that a father (or other person with permission from the court: eg a grand-parent) wants contact; though it may easily be a father with whom children are living. If contact is restricted or prevented it will therefore be the mother who is alienated; but mothers who do not have the children with them may as easily find themselves obstructed in their contact.


No order principle; and enforcement


CA 1989 s 1(5) introduced to children proceedings the concept of the no order principle: the court should only make an order if to do so is ‘better for the child than making no order’. If any order is to be made it must be because it is assumed that it will be obeyed; and if not obeyed, that it will be capable of being enforced.


The making of a contact order in the first instance is subject to the welfare principles in CA s 1 and to the s 1(3) checklist; though it will be seen that there are points in the contact enforcement provisions where the child’s welfare is but one factor for the court to consider.


Where the court is considering whether to make a child arrangements order the s 1(3) check-list applies (as relevant):


(3) … a court shall have regard in particular to –

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • his physical, emotional and educational needs;
  • the likely effect on him of any change in his circumstances;
  • his age, sex, background and any characteristics of his which the court considers relevant;
  • any harm which he has suffered or is at risk of suffering;
  • how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
  • the range of powers available to the court under this Act in the proceedings in question.


In dealing with an application under CA 1989 s 8 – in this case a contact order – the check-list must always be born in mind. Factors within it will be relevant to every contact application, some more than others. And where the issue is relatively simple the child may have a relevant view or understanding of the issues, even though his/her age is modest (s 1(3)(a)).


Presumption of ‘involvement’


Since April 2014 Children and Families Act 2014 has added to previous relative clarity of CA 1989 s 1 the following in relation to the making of a child arrangements order and in relation to parents’ involvement in their child’s lives:


(2A) A court [must] presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) … ‘Involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.


That is to say, ‘involvement’ means involvement of any kind, whether direct or not; and does not imply any particular amount of time or other involvement. The extent to which the court takes account of its enforcement powers under CA 1989 ss 11A-11P must be influenced by s 1(2A) (above) and the general presumption that parental involvement with a child will ‘further [that] child’s welfare’.


Children Act 1989 s 11(7)


Orders for a parent to see their child are made under CA 1989 s 8 (ie child arrangements orders, and for present purposes contact orders). Such orders may be subject to conditions under CA 1989 s 11(7), which – as it applies here – is as follows:


(7) A section 8 order may –

  • contain directions about how it is to be carried into effect;
  • impose conditions which must be complied with by any person –
    • in whose favour the order is made;
    • who is a parent of the child concerned;
    • who is not a parent of his but who has parental responsibility for him; or
    • with whom the child is living,

and to whom the conditions are expressed to apply;

(c) be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;

(d) make such incidental, supplemental or consequential provision as the court thinks fit.


This sub-section needs a little untangling:


  • It states that a children order – including a contact order – can contain directions imposed by a judge as to how the order is to be made effective (s 11(7)(a));
  • These conditions may be addressed to, and must be complied with by, the people listed in s 11(7)(b) such as the person who is to have contact ((i) – ie the first category) or the person with whom the child is living (iv); and
  • The order or conditions upon it may have a period specified by the court (s 11(7)(c)).


‘Any person’ may be the subject of s 11(7) conditions – eg the child or a friend or relative of one or other parent. Their party status may need to be considered if a non-party is made subject to conditions: that is to say if someone who is not already a party to the proceedings (eg one of the parents) then if conditions may have to be enforced against them it would be usual to join them as a party in the case. This sub-section, in theory, gives almost unlimited power to the court to impose conditions on a contact order; but in practice the more onerous the condition which is imposed, the more exceptional must be the case and the more carefully must the court’s reasons for it be.


The imposing of conditions may be on application or on the court’s initiative (ie the court decides to impose conditions because it decides independently of the parties to do so). They are imposed in the discretion of the judge (s 11(7)(d)) (ie the judge has a choice as to which course to take; though any course must be explained to the parties).


Warning notice on children orders


If the court makes or varies any contact order the court ‘is to’ (which means ‘must’) attach a ‘warning of the consequences of failing to comply with the … order’ (CA 1989 s 11I). FPR 2010 r 12.33 enables a party to apply for a warning notice to be attached; though given the mandatory nature of s 11I this might be thought unnecessary (or perhaps it applies only to orders made before the coming into operation of s 11I).





Children Act 1989 ss 11A to 11P


CA 1989 new ss 11A-11P came into effect in December 2008. These provisions confer additional powers on the courts, when they are dealing with applications for contact orders. Since then a court has powers:


  • to impose directions and conditions on child arrangements order orders; and
  • to impose an enforcement order (s 11J(2)) or compensation order.


If a child arrangements order is made, and the court is clear that it has not been complied with, the court can make an enforcement order requiring the person who has to complied to carry out ‘an unpaid work requirement’ (CA 1989 s 11J(2))


The court may ask a Cafcass officer to monitor, or arrange for the monitoring of, a person’s compliance with an enforcement order, and to report to the court on failure to comply and on any unsuitability to undertake the unpaid work (s 11M).


If the terms of an enforcement order are breached, the court may (in certain circumstances) amend the original order to make it more onerous, or impose another enforcement order: Sch A1, Pt II. See also FPR 2010, PD12N.


Formerly CA 1989 enabled courts to impose ‘contact activity directions’ and ‘contact activity conditions’. The word ‘contact’ has been airbrushed out, but the exact sense of what the court can order has been diluted in the process.


Contact activity direction


Where the court makes a contact order, or orders variation or discharge of a contact order (s 11A(1)) in circumstances where there is a dispute as to arrangements for contact (as ‘regards the provision about contact that the court is considering whether to make in the proceedings’).


Where there is a contact dispute the court can make an ‘activity direction’ (formerly ‘contact activity direction’: CAD) (s 11A(2)). A CAD is ‘a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned’ (s 11A(3). For example (s 11A(5)) CADs can include:


  • programmes, classes and counselling or guidance sessions of a kind that –

(i) may assist a person as regards establishing, maintaining or improving contact with a child;

(ii) may, by addressing a person’s violent behaviour, enable or facilitate contact with a child;

  • sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.


In any decision as to whether to make a CAD ‘the welfare of the child concerned is to be the court’s paramount consideration’ (s 11A(9)). In Guidance to Cafcass practitioners on their roles in supporting the courts in their use of the s 11A (approved by the then President) specifically refers to three types of CAD:


  • Information meetings about mediation – provided by approved providers, free of charge to both parties if either party is publicly funded. Both parties will be required to participate, but can initially be seen separately;


  • Separated parents information programmes – provided by Cafcass-commissioned providers, typically involving group sessions lasting for a total of 4 hours, free of charge to all. Generally, both parties are required to participate, though the programmes can be delivered to them separately;


  • Domestic violence prevention programmes – run by Cafcass-commissioned providers, involving an intensive programme of 60 hours’ intervention. In practice it is quite possible that the Cafcass officer will have suggested to the court that participation in a contact activity might be beneficial.


So far it has not been possible to find out if this has been updated; though in the 2017 (current) Cafcass Operating Framework there is no obvious reference to CA 1989 ss 11A-11P or of monitoring contact orders under CA 1989 ss 11G or 11M.


Activity conditions


If the court makes a child arrangements order by s 11C(2) it:


… may impose, or the child arrangements order may be varied so as to impose, a condition (an ‘[activity condition’) requiring an individual falling within [s 11C(3)] to take part in an activity that promotes contact with the child concerned.


Those to whom an activity condition (formerly a ‘contact activity condition’: CAC) refers (s 11C(3)) are:


  • In relation to the contact order ‘the person with whom the child concerned lives or is to live;
  • ‘the person whose contact with the child concerned is provided for in that order’; or
  • ‘a person upon whom that order imposes a condition under section 11(7)( b).


The court may ask a Cafcass officer to monitor compliance with a CAD or CAC and to report to the court if there is a failure to comply (s 11H). The court may ask Cafcass to provide information about the impact, beneficial or otherwise, of attendance, in terms of helping to address the issues in the case.


Warning notices


If the court makes or varies a contact order, ‘it is to attach’ a notice (as already mentioned) which warns the parties of the consequences of failing to comply with the contact order (s 11I). Consequences may include:


  • an enforcement order (for unpaid work) (ss 11J–11N);
  • an order for financial compensation (ss 11 O–P), and
  • sanctions for contempt of court.


Careful drafting of the order is essential so that the words are such that compliance or not can be accurately defined, and so that the order can be enforced (for an example of an order which could not be enforced because of imprecision see The Solicitor General v J M J (Contempt) [2013] EWHC 2579 (Fam), [2014] 1 FLR 852, Sir James Munby P). For example:


‘at a time to be agreed each Saturday for 4 hours’, would be impossible to enforce


‘10 am on Saturdays to 4 pm on Sundays on alternate weekends starting on Saturday ….; F shall collect the child from [address] and M shall collect her for return.’ Failure to comply with this order should be relatively easy to define and confirm in evidence for enforcement of an order.





Enforcement of contact orders under Children Act 1989


CA 1989 ss provide two new forms of order in connection with failure to comply with contact orders:


  • The ‘enforcement order’ under s 11J
  • ‘Compensation for financial loss’ under s 11O.


Existing rules and law as to committal for breach of a court order remain.




Application for an enforcement orders


Where a child order is in force and the court ‘is satisfied beyond reasonable doubt that a person [(R)] has failed to comply with the contact order, it may make’ an ‘enforcement order’ (s 11J(2)). Application for an enforcement order is by the following (s 11J(5)):


  • the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
  • the person whose contact with the child concerned is provided for in the contact order;
  • any individual subject to a condition under section 11(7)( b) or a contact activity condition imposed by the contact order; or
  • the child concerned (see further below).


An enforcement order consists of ‘imposing on the person an unpaid work requirement’ (s 11J(2). CA 1989 Schedule A1 makes further provision about enforcement orders: the maximum number of hours of unpaid work that may be required is 200 and the minimum is 40. The court has power to amend or revoke an enforcement order; if terms of an enforcement order are breached, the court may (in certain circumstances) amend the original order to make it more onerous, or impose another enforcement order.




Application for compensation


Where ‘an individual [A] has failed to comply with the contact order’ (s 11O(2)(a)), and B has suffered financial loss ‘it may make an order requiring [A] to pay [to B,] compensation in respect of his financial loss’. B is a person in one of the categories defined in s 11J(5) (above); and where B claims to have suffered financial loss (s 11O(5)).


Section 11O(6) is in the same terms as s 11J(5) and defines the same list of applicants. In the unlikely event of a child suffering financial loss and seeking to apply for an order, he can only do so with permission of the court (s 11O(7) and (8)). In deciding how much compensation a respondent should pay the court must ‘take into account the [his/her] financial circumstances; and must ‘take into account the welfare of the child concerned’ (s 11O(14)).


Limits on making the orders


If R satisfies the court that s/he ‘had a reasonable excuse for failing to comply with the contact order’ the court ‘may not make an enforcement order’ (s 11J(3)). The burden is on R to establish that he had reasonable excuse; and the standard of proof is the balance of probabilities (s 11J(4)).


Similarly, the court may not make a compensation order if it is satisfied that the individual in breach ‘had a reasonable excuse for failing to comply with the contact order’ (s 11O(3)). The burden of proof is on ‘the individual claiming to have had a reasonable excuse’ (s 11O(4)).


Where the court makes either enforcement order, it must attach to the order a notice warning of the consequences of failing to comply with the order (s 11N).


Conditions on making an enforcement order


Before the court is permitted to make an order for enforcement for breach it ‘must be satisfied that –


  • ‘making the enforcement order proposed is necessary to secure the person’s compliance with the contact order’ (s 11L(1)(a)); and


  • ‘the likely effect … of the enforcement order proposed to be made is proportionate to the seriousness of the breach of the contact order’ (s 11L(1)(b)).


Before the court makes the order it


  • must ensure (‘satisfy itself’) that ‘provision for the person to work … can be made in the local justice area in which the person in breach resides or will reside’ (s 11L(2)).


  • ‘must obtain and consider information about the person and the likely effect of the enforcement order on him’ (s 11l(3)).


The court must ‘take into account the welfare of the child who is the subject of the contact order’ before it makes an order (s 11L(7)). In this instance the child’s welfare in this instance is not necessarily paramount.





Child’s application to enforce


A child may apply for enforcement (s 11J(5)). If so s/he ‘must obtain the leave of the court before making such an application’ (s 11J(6)). Leave will only be granted to a child if the court ‘is satisfied that he has sufficient understanding to make the proposed application’ (s 11J(7)) (and see reference to Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 (above); and CA 1989 s 1(3)(a))).


It would appear that FPR 2010 r 16.6(3) (proceedings where a child does not need a guardian) applies:


  • the child seeks permission him/herself (r 16.6(3)(a))); or


  • the child has a solicitor and the solicitor considers the child to be of sufficient understanding to give instructions (r 16.6(3)(b); and see Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278 (child of age and understanding instructing a solicitor to act on her application for a s 8 order)).


Enforcement of orders: child does not wish to go


Where the parent’s obligation is to ‘allow’ contact and to ‘make [the child] available’ for contact, that wording does not place him in breach of the order if the child refuses to co-operate (Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2011] 1 FLR 1095). Before deciding that a parent is the source of a child’s resistance to contact so that he can be made the subject of a coercive order, the court must be sure that the parent is still in a position to reverse the child’s attitude.


A court may have to be prepared, if it comes to enforcement, to accept what might be thought to work originally – when the order was made – has turned out to be wrong: eg where the child has internalised the residential parent’s hostility so that punishing that parent could no longer produce the intended outcome and might produce the opposite.





Committal to prison for contempt


Application may be made for committal for contempt of a court order. Courts seem to be taking a firmer line on such applications than used to be the case (Re W (Family Proceedings: Applications) [2011] 1 FLR 2163; Doncaster MBC v Watson and Haigh [2012] 1 FLR 599). Applicants seeking a committal order must ensure that they follow all evidential and pleading rules are obeyed (Hussain v Hussain; Egeneonu v Egeneonu [2017] EWHC 2451 (Fam) (30 August 2017), MacDonald J).


Proof to justify committal is to the criminal standard: beyond reasonable doubt (see eg a recent committal application in child support proceedings: Gibbons v CMEC; Karoonian v CMEC [2012] EWCA Civ 1379; Iqbal v Iqbal [2017] EWCA Civ 19).


Where the respondent’s breach is an active breach that directly strikes at the heart of what the court ordered, it may be appropriate to impose a custodial sentence (Re X (A Child by His Litigation Friend) [2011] 2 FLR 793; Slade v Slade [2010] 1 FLR 160).


Where the court allows an application to purge contempt it cannot then suspend the relevant term of imprisonment. It has three choices: (1) grant the application and order the immediate release of the contemnor; (2) defer the contemnor’s release until a stated future date; or (3) refuse the application  (Doncaster Metropolitan Borough Council v Watson (No 2) [2012] 1 FLR 619).





Mediators are now seeing children both as the subject of proceedings and, where they have a view, as parties or prospective parties and as subject.


This creates issues of confidentiality; and as to when a mediator is seeing a child as a party and – if it is true mediation – the child’s views and thoughts on settlement must be passed on to the parents. An to what extent are mediators bound by Working Together and bound to ‘share’ safeguarding information where this is also confidential (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224).


Involving children in mediation – if they want to be involved (see Art 24.3) – may be a powerful tool as between the child’s warring parents; and it must be born in mind that CA s 11J(5) and (6) plainly envisages children being involved in contact enforcement processes.