Enforcing Access and Custody Orders

In a post-divorce setting, a parent may sometimes face difficulties in enforcing the Court Order that awards them Access to their child. It may also be the case that a parent breaches the Custody, Care and Control arrangement as ordered by the Court.

Where a parent has breached the Court Order (whether by restricting Access, or disregarding the Custody, Care and Control terms), the other parent’s only form of recourse would be to institute Committal Proceedings in an attempt to enforce the Court Order under the current rules. The process can be lengthy if it is contested.

The Women’s Charter (Amendment) Bill 2021 has introduced amendments intended to help the affected parent.

The changes aim to ensure that the rights accorded to the affected parents are protected by providing more alternatives in terms of enforcement.

Read more: Decoding the Child Custody Concept by Gloria James-Civetta

Changes regarding Enforcement of Custody Order

The new section 126A in the Women’s Charter applies where:

• There is a Court Order in place for a child to be placed in the custody or the care and control of the parent; and
• The child leaves or is removed from the physical custody of that parent.

To enforce the Court Order, the Court may:

• Order that the child be returned to the physical custody of the parent; and
• Direct the bailiff (i.e. an Officer of the Court) to seize and deliver the child to the physical custody of that parent.

The impact of Section 126A means that a parent will not be limited to bringing about Committal Proceedings. Instead, a parent will be able to enforce the Court Order and have the child back in their physical custody more efficiently.

This new change will help to streamline the process and minimises any potential impact to a parent’s relationship with the child.

Changes regarding Enforcement of Access Order

The new section 126B in the Women’s Charter applies where:

• There is a Court Order in place for a parent to have access to the child; and
• The parent with care and control of the child breaches the Court Order and restricts the other parent’s access.

The impact of Section 126B is that the affected parent will be able to apply to the Court to enforce the Court Order against the restricting parent (“Access Enforcement Application”). In hearing the affected parent’s application, the Court has the powers to do all or any of the following:

• Order the restricting parent (A) to provide make-up access to the affected parent (B) as a result of the breach (the make-up access cannot be more than what Parent B was entitled to under the Court Order);
• Order Parent A to compensate Parent B for any reasonable expenses incurred as a result of the breach;
• Order Parent A, Parent B and the child or any of them to attend any or all of the following:
  1. Counselling;
  2. Mediation;
  3. A therapeutic or an educational programme (specified by the Court);
  4. A family support programme.
• Order Parent A to execute a bond (as determined by the Court) to secure future compliance with the Court Order;
• For every breach of the Court Order by Parent A, to sentence that parent to a fine not exceeding $20,000 and / or to imprisonment for a term not exceeding 12 months.

It can be seen that Section 126B will allow the Court to make a variety of orders intended to ensure that Parent B’s entitlement to access pursuant to a Court Order is protected.

The new Section 126B empowers the Court to make a brevity of orders that may very well dissuade Parent A from breaching the Court Order’s terms on Parent B’s access.

This aim is also counter-balanced against the risk of Parent A being punished twice. To that end, Section 35(6) of the Amendment Bill has also expressly stipulated that Parent B may bring either an Access Enforcement Application or Committal Proceedings against Parent A, but not both.

When will the new changes take place?

While Parliament has passed the Amendment Bill, this is not yet in effect. The changes to be introduced by the Amendment Bill will only come into operation on a date that the Minister appoints by notification in the Gazette. It is anticipated that it will be effective sometime in 2023.

Until then, a parent at the receiving end of a breach of the Court Order will still have to file an application for Committal Proceedings.