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Children Act 1989, s. 11J — Enforcement orders (verbatim)

Jurisdiction: England & Wales · Citation: Children Act 1989, s. 11J · Authoritative source: legislation.gov.uk — s. 11J

The principal enforcement provision for breach of a child arrangements order in England & Wales. Section 11J (inserted by the Children and Adoption Act 2006 s. 4, in force 8 December 2008; subsequently amended to reflect the Children and Families Act 2014 introduction of the "child arrangements order") empowers the court to impose an unpaid-work requirement on a person who has failed to comply with a child arrangements order without reasonable excuse. It is the operational English equivalent of continental-European astreintes and German Ordnungsgeld — see contact-order enforcement comparative.

Verbatim text (current consolidated)

s. 11J — Enforcement orders

(1) This section applies if a child arrangements order with respect to a child has been made.

(2) If the court is satisfied beyond reasonable doubt that a person has failed to comply with a provision of the child arrangements order, it may make an order (an "enforcement order") imposing on the person an unpaid work requirement.

(3) But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the provision.

(4) The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.

(5) An enforcement order may be made only on the application of—

(a) a person who is, for the purposes of the child arrangements order, a person with whom the child concerned lives or is to live;

(b) a person whose contact with the child concerned is provided for in the child arrangements order;

© any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the child arrangements order; or

(d) the child concerned.

(6) Where the person proposing to apply for an enforcement order in respect of a child arrangements order is the child concerned, the child must obtain the leave of the court before making such an application.

(7) The court may grant such leave to a child as is mentioned in subsection (6) if it is satisfied that the child has sufficient understanding to make the proposed application for the enforcement order.

(8) Subsection (2) has effect subject to sections 11K and 11L.

(9) The court may suspend an enforcement order for such period as it thinks fit.

(10) Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.

(11) Proceedings in which any question of making an enforcement order, or any other question in relation to such an order, arises are to be regarded for the purposes of section 11(1) as proceedings in which a question arises in connection with a section 8 order.

(12) Schedule A1 makes further provision in relation to enforcement orders (including provision about the unpaid work requirement, provision about revocation and amendment of enforcement orders and provision about consequences of breach).

Why this matters for PA

  • Beyond-reasonable-doubt standard. Subsection (2) imposes the criminal standard of proof for the breach finding — beyond reasonable doubt. This is an unusual elevation in family proceedings, where the civil balance-of-probabilities standard typically applies. The elevation reflects the punitive nature of an unpaid-work requirement; it also operates as a procedural protection against application as a routine harassment tool.
  • The reasonable-excuse defence. Subsection (3) provides an absolute defence: where the breaching party establishes a reasonable excuse on the balance of probabilities (subsection (4)), no enforcement order may be made. In PA cases this is doctrinally significant: a resident parent who establishes that the child's expressed refusal to attend contact was autonomous and welfare-protective may rely on this defence. The court determines whether the excuse is reasonable — a parent's bare assertion that "the child refused" is not automatically sufficient.
  • Subsection (5) applicants — including the child. The enforcement-order application can be made by the residence-parent, the contact-parent, persons subject to activity conditions, or the child concerned (subject to leave under (7)). The child as applicant is procedurally distinctive — Gillick-competence-equivalent assessment applies under (7).
  • Suspended orders under subsection (9). The court may suspend an enforcement order. Suspended orders are a behavioural-modification tool: the threat of activation upon further breach induces compliance without immediate punitive effect.
  • Subsection (10) — multiple orders. The court may make multiple enforcement orders against the same person on the same occasion. This permits a structured graduated response — for example, a partly-active and partly-suspended order, or an order combined with another procedural remedy.
  • Schedule A1 — operational detail. The unpaid-work requirement structure, revocation/amendment procedure, and consequences of breach are governed by Schedule A1 to the 1989 Act. Breach of an unpaid-work requirement under an enforcement order can lead to fines or, in serious cases, custodial sanctions.

Relationship to s. 11K, s. 11L, s. 11O

  • s. 11K — applies to a breach of a child arrangements order where the breaching party has unintentionally not complied with a provision; affects the s. 11J enforcement-order analysis
  • s. 11L — establishes additional conditions on enforcement orders including residence-of-the-person consideration
  • s. 11O — provides for compensation orders for financial loss suffered as a result of the breach (e.g. expenses thrown away on a contact arrangement that did not happen)

Together these provisions form the integrated enforcement regime — s. 11J the principal sanction, s. 11O the compensation route.

Procedural application

  • The competent court is the Family Court (post-2014); applications are usually made on Form C79 (application to enforce a child arrangements order)
  • CAFCASS may be involved in welfare assessment where the breach is contested
  • The unpaid-work requirement is supervised by the Probation Service under Schedule A1
  • The court must hold a fact-finding hearing where the breach is contested — see Practice Direction 12J for the procedural framework

Use in alienating-conduct cases

  • The principal English enforcement tool against resident-parent contact-frustration is s. 11J
  • Where alienating conduct is established, the s. 11J framework can be applied to impose unpaid-work or, in the alternative, to support s. 8 child-arrangements-order modification
  • The leading authority on enforcement-order practice is Re S (A Child) (Contact: Enforcement) [2009] EWCA Civ 1182, which established that the court must consider whether enforcement is in the child's welfare interest
  • The interaction with s. 91A barring orders provides additional procedural protection against vexatious enforcement applications

Cross-reference

Sources & authoritative references

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