CHAPTER 5: Compensation for financial
loss (clause 4)
108. Clause 4 would give the court the power
to order the payment of compensation for financial loss incurred
as a result of a failure by a party to comply with a contact order.
Compensation would be ordered only after an application by a party
to the contact order proceedings was made to the court, and only
if the other party did not have a reasonable excuse for their
failure to comply.
The amount of compensation would be determined by the court but
could not exceed the amount of financial loss suffered by the
applicant. When making
an order for financial compensation, the court would be required
to take into account the financial circumstances of the person
and the welfare of the child concerned.
109. A number of witnesses queried how a compensation
order would operate in practice. The Association of District Judges
"Whether it is workable will depend on the financial
resources of the particular parties and the ability of the person
causing the financial loss to pay without adversely affecting
the needs of the children."
110. Mr John Furness proposed that unless the
compensation was taken from benefits or a person's salary, the
provision would be unworkable.
Judith Masson suggested that it would be inappropriate to make
the resident parent pay compensation to the non-resident parent
if the latter was in arrears of child support payments.
111. The draft Bill provides that an amount paid
as compensation may be recovered by the applicant as a civil debt.
This approach was criticised by several witnesses, on the basis
that a civil debt would be difficult to enforce. Dame Elizabeth
"I think we ought to be able to treat that as
contempt, and say, 'you pay, otherwise you go inside'; but to
treat it as a civil debt means they have got to go to the county
court and they have got to enforce it. The procedures in the country
court are slow on enforcement, and I think it will be lost in
112. District Judge Walker told us:
"If we ordered compensation, then I think it
ought to be as a criminal fine, rather than as a civil debt, so
that there is a very clear message that this is something which
has got to be paid and has got to be paid relatively quickly rather
than at whatever small amount would otherwise be paid each week."
113. When we put this suggestion to the Government,
they told us:
"To take this approach would
a system intended to punish the non-payment of the amount ordered
by the court, rather than providing methods of ensuring that payment
114. We recognise the concerns of a number of
our legal witnesses that recovering financial compensation by
way of a civil debt may be difficult to enforce if a person fails
to comply with the order. We recommend that the Government
re-evaluate this provision in order to place the onus firmly upon
the court making the order to ensure that the debt is paid or,
failing that, to ensure that other measures are substituted for
the compensation order.
115. We further recommend that it should be
made more clear, either on the face of the Bill or in guidance,
that an application for compensation for financial loss can be
made by either the non-resident or resident parent.
87 Clause 4, new section 11I Back
Clause 4, new section 11I(6) Back
Ev 87, para 15. See also Ev 175, section 4 and Ev 181-182.
Ev 163. See also Ev 165, para 6. Back
Ev 142 Back
Clause 4, new section 11I(8) Back
Q 100 Back
Q 286 Back
Ev 120, para 6 contd. Back