Senior family lawyer Lucy Jones explores enforcing a Child Arrangements Order.
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Child Arrangements Orders set out with whom and when a child should live, spend time, or otherwise have contact following relationship breakdown. Following my recent article on this subject, I now turn to the topic of enforcing a Child Arrangements Order.
Whether the terms of the order were the result of mutual agreement or the court’s decision after hearing evidence, a Child Arrangements Order is a legally binding order of the court. Consequently, non-compliance with any of the terms of the order entitles another party (usually the other parent) to apply for an enforcement order (using Form C79).
Common examples of non-compliance include:
- turning up late (or not at all) to contact meetings;
- not returning the child on time to the parent with whom they live; and
- taking a child on holiday without the other parent’s permission.
The party in breach of the Child Arrangements Order is responsible for showing they have a reasonable excuse for breaching its terms.
On receiving an application for an enforcement order, the court lists the matter for an initial hearing where the judge considers whether the facts concerning the alleged breach are agreed, and if not, whether a hearing to determine those facts is necessary. The judge must also consider whether to involve CAFCASS. At all times, the court must consider the welfare and best interests of the child.
Contempt of Court
Breaching a Child Arrangements Order may result in the person being held in contempt of court. Indeed, endorsed on the order is a warning notice to that effect. If held in contempt, i.e. the judge does not believe they have a reasonable excuse, the court may order the person to:
- pay a fine or
- undertake between 40 and 200 hours of unpaid work or
- repay any money lost due to not following the terms of the order.
In the most serious cases, breaching an order can result in imprisonment.
Conversely, the court may decide not to enforce the order if the judge believes:
- the person had good reason not to comply with the arrangements or
- it’s in the child’s best interests to come to another arrangement.
The court might also refer the parents for mediation or to a Separated Parents Information Programme.
What happens on breaching an enforcement order?
If a party fails to comply with an enforcement order and the court is satisfied that they do not have a reasonable excuse, it can make a further enforcement order called a second order. For example, this can add additional hours to the original unpaid work requirement.
Take early advice
There are many reasons why the terms of a Child Arrangements Order might no longer work. However, a parent should never simply decide to breach the order, potentially allowing the other party to apply for an enforcement order. Remember, the court typically takes a dim view of breaching its orders and a robust approach to enforcement.
Therefore, take early advice on applying to the court to vary the terms of the original order. But if you are already in breach, taking prompt advice is even more crucial.