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Children Act 1989, s. 11O — Compensation for financial loss (verbatim)

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

The compensation provision that complements the s. 11J enforcement order in England & Wales. Section 11O (inserted by the Children and Adoption Act 2006 s. 5, in force 8 December 2008) empowers the court to order a person who has breached a child arrangements order to pay compensation for financial loss suffered as a result of the breach. It is the operational mechanism for recovering wasted-expense costs — travel, accommodation, taken time-off-work — that a targeted parent incurs when a resident parent frustrates contact.

Verbatim text (current consolidated)

s. 11O — Compensation for financial loss

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

(2) If the court is satisfied that—

(a) an individual has failed to comply with a provision of the child arrangements order, and

(b) a person falling within subsection (6) has suffered financial loss by reason of the breach,

it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.

(3) But the court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the particular provision of the child arrangements order.

(4) The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.

(5) An order under subsection (2) may be made only on an application by the person who claims to have suffered financial loss.

(6) A person falls within this subsection if he is—

(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;

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

(d) the child concerned.

(7) Where the person proposing to apply for an order under subsection (2) is the child concerned, the child must obtain the leave of the court before making such an application.

(8) The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.

(9) The amount of compensation is to be determined by the court, but may not exceed the amount of the applicant's financial loss.

(10) In determining the amount of compensation payable by the individual in breach, the court must take into account the individual's financial circumstances.

(11) An amount ordered to be paid as compensation may be recovered by the applicant as a civil debt due to him.

Why this matters for PA

  • The civil-standard compensation route. Unlike s. 11J (criminal standard for the breach finding), s. 11O operates on the standard civil approach — the court must be satisfied that the breach occurred and that financial loss resulted. This is a lower procedural threshold than s. 11J and is the more accessible route where the targeted parent's principal harm is wasted expense rather than principle.
  • Same reasonable-excuse defence. Subsection (3) and (4) mirror s. 11J: the breaching party can defeat the application by establishing a reasonable excuse on the balance of probabilities. In PA cases, where the resident parent claims the child's expressed refusal as the reason for non-compliance, the court determines whether this constitutes a reasonable excuse.
  • What "financial loss" covers. The provision is broad: any financial loss "by reason of the breach." This includes:
  • Travel costs incurred for a contact that did not happen (fuel, flights, train)
  • Accommodation costs at the contact destination
  • Lost wages from time off work taken for the contact
  • Childcare costs for siblings if the contact did not occur
  • Therapy or counselling costs incurred to address the impact of the breach (in some interpretations)
  • Subsection (10) — financial-circumstances consideration. The court must take into account the breaching individual's financial circumstances. This prevents the compensation order being used to financially destroy the breaching party — it is loss-compensatory, not punitive. Where the breaching party has limited means, the order may be modest or instalment-based.
  • Subsection (11) — civil-debt enforcement. Once ordered, the compensation is enforceable as a civil debt. This means the standard civil-enforcement tools (charging orders, attachment of earnings, third-party debt orders) become available — providing real recovery teeth.

Procedural application

  • The competent court is the Family Court (post-2014); applications are usually made on Form C79 (the same form as for s. 11J enforcement orders) or via Form C79 + Form COMP
  • Evidence of financial loss must be supported with receipts, payment records, or other documentation
  • The court may make a s. 11O order alongside a s. 11J enforcement order; the two are not mutually exclusive
  • Costs of the application may be awarded under standard family-proceedings cost rules — typically the unsuccessful breaching party pays

Use in alienating-conduct cases

  • The principal operational use is for targeted parents to recover wasted contact-attempt expenses
  • The cumulative effect of multiple s. 11O orders over a series of breaches can be significant — it provides ongoing financial deterrent against further breach
  • The provision interacts with s. 11J (criminal-standard enforcement order) — the two are typically considered together in fact-finding hearings
  • The Family Court has emphasised that s. 11O is not a punishment but a compensation route — see Re S (A Child) (Contact: Enforcement) [2009] EWCA Civ 1182 for the leading authority on the integrated s. 11J + s. 11O regime

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

  • s. 11J — criminal-standard enforcement order with unpaid-work requirement (the punishment route)
  • s. 11O — civil-standard compensation order with financial-loss recovery (the compensation route)
  • s. 11K + s. 11L — additional procedural protections affecting both s. 11J and s. 11O
  • s. 11P — restrictions on application; s. 11O has restrictions parallel to s. 11J

Together these form the integrated CA 1989 Part II enforcement regime — the English equivalent of continental European astreintes (France/Belgium) and Ordnungsgeld (Germany).

Cross-reference

Sources & authoritative references

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