How to enforce a contact order

You have an order. It says alternate weekends and every Wednesday evening. The other parent has decided, for reasons that shift from week to week, that it does not apply this weekend. Then the next one.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

There is a great deal of anger in this situation and very little information, and the anger tends to produce the one response that makes things worse.

What you are enforcing

Contact can be regulated in three ways, and enforcement depends on which one you have.

A court order. Made on divorce, in a Rule 43 application, in the children's court, or by the High Court. Includes a parenting plan made an order of court.

A parenting plan registered with the Family Advocate, or a parental responsibilities and rights agreement registered with the Family Advocate or made an order.

An informal arrangement. Whatever the two of you agreed by message and have been doing since the separation.

The first two are enforceable in the ways described below. The third is not, and a parent relying on an informal arrangement needs to get it formalised before there is anything to enforce. Our guide on parenting plans explains how, and our guide on the Family Advocate explains the free route to getting there.

The criminal offence

Section 35(1) of the Children's Act 38 of 2005 provides that any person having care or custody of a child who, contrary to an order of a court or a parental responsibilities and rights agreement, refuses another person who holds contact or parental responsibilities and rights under that order or agreement to exercise them, or prevents that person from exercising them, is guilty of an offence.

The penalty is a fine or imprisonment for a period not exceeding one year.

Section 35(2) adds a related duty: a person with care of a child must notify the other person in writing of any change of residential address, and failing to do so carries the same penalty. A parent who moves without telling you, so that handovers become impossible, has committed a separate offence.

Practically, the criminal route means laying a charge at a police station. Our guide on how to lay a criminal charge sets out the process. Two realities about it:

It is a real remedy and it is under-used. Many police officers are unaware that section 35 exists. Take a copy of the order and a copy of the section with you.

It is a blunt instrument. A prosecution of the other parent affects the child, and it does not itself deliver the missed weekend. It is most useful as a demonstration that the order will be enforced, and it tends to change behaviour when it is used once.

Contempt of court

The civil route, and usually the more effective one.

A court order must be obeyed. A person who wilfully and in bad faith disobeys one is in contempt, and the court that made the order can punish it: a fine, a suspended sentence, committal to prison, or an order for costs. The threat of committal, suspended on condition of compliance, is what actually produces compliance in most cases.

The applicant must show that there was an order, that the respondent knew of it, and that it was breached. Once that is shown, the respondent bears the burden of raising a reasonable doubt as to whether the breach was wilful and in bad faith. A parent who says the child was ill needs to produce something; a parent who says the child "did not want to go" is explaining a breach, not excusing it.

Contempt is brought by application in the court that made the order. It is not free and it is not instant, and it is more effective when the record is clear, which is the next section.

The record is the case

Both routes turn on evidence, and the parent who wins is almost always the one who kept it.

Keep a contact log. Every scheduled handover: date, time, place, whether it happened, what was said if it did not. A notebook or a spreadsheet, kept contemporaneously.

Communicate in writing. Confirm each handover by message the day before. When contact is refused, respond calmly in writing: "The order provides for contact this weekend from 17:00 Friday. You have refused it. Please confirm you will make the time up on [date]." No insults, no threats, one sentence.

Keep every message, including the ones that make you look bad. A selectively edited record is worse than none.

Note the reasons given and whether they change.

Where the child is said to be ill, ask in writing for the doctor's note.

Do not record the child or involve them in gathering evidence.

Consider a neutral handover point, such as a school, so that a refusal is witnessed by somebody other than the two of you.

Six weeks of that record is a case. Six months of angry voice notes is not.

What not to do

Every one of these has been done by a parent with a strong position, and every one of them has ended it.

Do not collect the child outside the order. Arriving at the school on a day that is not yours and taking the child is not enforcement; it is a breach, and in some circumstances it is an offence. You have converted yourself from the applicant into the respondent.

Do not keep the child beyond your time to make a point.

Do not withhold maintenance. Maintenance and contact are separate obligations, and neither is conditional on the other. A parent who stops paying because contact was refused now has a maintenance default on the record and has handed the other side its own enforcement case. Our guide on what to do if maintenance is not being paid shows how easily that runs against you.

Do not involve the child in the dispute or ask the child to choose.

Do not go to the other parent's home in anger. A protection order application is the predictable result, and it is granted on a low threshold at the interim stage.

Do not post about it. Anything written publicly will be read by a court.

When contact is refused for a stated reason

Some refusals are pretexts and some are not, and the record has to distinguish them.

Alleged illness. Ask for a doctor's note; offer to make up the time. A pattern of illness that coincides with your weekends is itself evidence.

The child does not want to go. A refusal by a young child is the responsibility of the parent with care to manage, in the same way as a refusal to go to school. An older child's views carry more weight, and a court will want to know why they have changed. If this is genuinely happening, the answer is the Family Advocate and possibly a psychologist, not force.

Allegations of harm. Where the other parent alleges that the child is at risk with you, the correct response is to take it seriously and to have it investigated properly, through the Family Advocate or a social worker. A parent who is genuinely concerned should be applying to vary the order, not simply ignoring it, and a court will notice which of those they did.

Unpaid maintenance. Not a lawful reason to refuse contact. Say so in writing, once, and continue to build the record.

Getting the order changed

If the order no longer works, the remedy is variation, not unilateral departure.

Where circumstances have changed, either parent can apply to vary the arrangements, and the court will again ask what is in the child's best interests. Our guide on the difference between custody and guardianship explains the concepts a court uses, and our guide on relocation with a child deals with the commonest reason contact orders stop working in practice.

Mediation is usually required or expected before litigation, and the Family Advocate will attempt it for nothing.

Worked example

This example is illustrative. A father has an order for alternate weekends and Wednesday evenings. Over three months the mother refuses six of the seven scheduled weekends. The reasons vary: a birthday party, a cold, a school project, and twice no reason at all. Wednesdays continue.

The response that fails. He drives to her house on the Friday of the seventh weekend, an argument happens on the pavement in front of the child, and he leaves with the child. She obtains an interim protection order the following week, and the contempt application he had been planning is now answered by his own conduct.

The response that works. He confirms each weekend by message on the Thursday. Each time contact is refused he replies with one calm sentence recording the refusal and the order. He asks for the doctor's note on the cold and receives nothing. He keeps a log. He does not miss a maintenance payment.

After the fourth refusal he writes proposing mediation through the Family Advocate. After the sixth, with the record in hand, his attorney brings a contempt application. The court finds the breaches established, the mother's explanations do not raise a reasonable doubt about wilfulness, and a suspended committal order is made conditional on compliance with the contact order and make-up time for the missed weekends.

Contact resumes the following weekend. It had never really been about the birthday party, and the suspended sentence made that plain in a way that six months of argument had not.