Q. I separated from my husband last year and he has got a court order to see our son every week. My son has recently told me that his father is very often mean to him and if he does not do as he is told his father smacks him and locks him in his room. Can I stop the contact or will I be punished for breaching the Order?
A. As the Contact Order was issued after the 8 December 2008 it will contain a warning notice about the consequences if you fail to comply with its terms. If you stop the contact your ex will be able to apply for an enforcement Order. The punishment for breaching the Order can range from undertaking unpaid work to being committed to prison. However, the Court must be satisfied beyond reasonable doubt that a person has failed, without reasonable excuse, to comply with a Child Arrangements Order.
The Court has to take into account the welfare of the child concerned and be satisfied that the making of any order is necessary to ensure compliance and that the enforcement Order is proportionate to the breach.
The Court would be bound to investigate the circumstances and if it found that your ex was indeed smacking and/or being mean to your son, it may be decided that you had reasonable excuse to breach the Order.
You should give some thought to applying to the Court yourself to vary the Order. The Court would then look again into the issue of the child’s welfare rather than simply looking at whether the Order has been breached. A good family lawyer will be able to help you make this application.