Child Arrangements Orders were introduced in 2014 and replaced Residence Orders and Contact Orders. They regulate with whom a child is to live or spend time with. They usually arise as a result of an application to the Court under the Children Act 1989 following a dispute between the parents. However, the issues between the parents rarely end at the conclusion of the proceedings and it is often necessary to enforce the Order made, because of non-compliance with its terms.
Who can apply to enforce a Child Arrangements Order?
Section 11J(5) Children Act 1989 sets out who can make the application to enforce. Those persons include:
- Anyone with whom the child lives/shall live with under the terms of the order;
- Anyone who is able to have contact with the child under the terms of the order;
- Anyone subject to a condition in the Child Arrangements Order;
- The child concerned (subject to the permission of the Court).
Before making an application to enforce the Child Arrangements Order, you must also check that the party who has allegedly breached the Order has been provided with a copy of it (particularly if the alleged breach occurred quickly after the hearing) and that a warning notice was attached to it, setting out the consequences of a breach. All orders made after 8th December 2008 should have a warning notice attached. However, if it does not, you should apply to the Court to have this attached to the Order.
How will the Court decide if there has been a breach of a Child Arrangements Order?
Whilst it may seem obvious that there has been a breach e.g., one parent has not been collecting and returning the child at the times specified in the order, the Court will only make an enforcement order if they are satisfied that a number of conditions have been met.
The Court needs to be satisfied that:
- Enforcing the order is necessary for compliance.
- The effect of the enforcement order is proportionate to the breach.
- The unpaid work (if this is to be ordered) can be carried out in their local area.
- The effect of enforcement will not impact on/conflict with their religious beliefs or the times in which they are required to work or attend an educational establishment.
The Court will not determine that a party is in breach of an order if they have a “reasonable excuse” as to why they have not complied, and this is determined on the “balance of probabilities.” The Court has wide discretion when it comes to deciding whether the breach is excusable (such as that parent being taken into hospital). It will largely depend on the individual circumstances of the case.
The Court will also take into consideration the wishes and feelings of the child (depending on their age), any advice provided by CAFCASS (the Children and Family Court Advisory Support Service) and will consider the welfare checklist set out in the Children Act 1989.
What are the sanctions for non-compliance?
The Court has a wide discretion when it comes to making sanctions. Their powers include, but are not limited to:
- Ordering the party in breach to complete between 40 and 200 hours of unpaid work, which will be monitored by the probation service;
- Ordering the party in breach/parties to complete a Separated Parents Information Programme (known informally as a SPIP) or attend mediation;
- Varying the original Child Arrangements Order, which could include making the original order more defined or changing the child’s living with/spending time with arrangements;
- Ordering compensation for financial loss (usually in cases where one parent has booked and paid for a holiday and as a result of the breach of the other party, the holiday has been unable to take place);
- Committal to prison (although this is uncommon); and
- A fine.
If the Court makes an enforcement order and the relevant party still refuses to co-operate, then the Court can take further action. Additional hours can be added to any unpaid work requirement, or a second order could be made. Enforcement orders can also be revoked if your circumstances have changed, if there are doubts as to whether the enforcement order should have been made or if you have kept to the arrangements and it is, perhaps, unnecessary to have an enforcement order in place. Unpaid work requirements can also be reduced or the timeframe in which to complete the work can also be extended.
It is not uncommon for one party to unilaterally seek to change the arrangements that have been ordered by the Court. Any changes need to be agreed with the other party and if an agreement is not possible, it is important to make an application to vary the existing Order, rather than risk being held to be in contempt of court and subject to enforcement proceedings.
The Roythornes team has extensive experience of dealing with Child Arrangements Orders – please get in touch if you would like to speak to one of the Family Law team.