How to enforce a child arrangements order
Understanding why and how to enforce a child arrangements order – the order that sets out with whom a child is to live, spend time with or otherwise have contact with, is dependent on the individual facts relating to each case and you should take specialist advice about your own particular circumstances.
Agreement, order or undertaking?
Not all of the terms set out in a child arrangements order are actual orders of the court. The order will have different sections to it and may include some agreements, undertakings and\or orders. You first need to establish which part of the order is being breached.
‘Agreements’ are not orders of the court and will not be enforceable. However, if they are not being followed, this may be a reason to apply to vary the order. Agreements are normally set out in the first part of the order, commonly under the heading ‘Recitals’
‘Undertakings’ are formal promises to the court and can be enforced by the court if they are broken. They will clearly state they are undertakings and there must be a warning about the consequences of breaching them. If an undertaking is not being followed you can make an application for the offending party to be committed to prison or to be fined for contempt of court. This is called a committal application, it is complex and the correct procedures must be followed, as it has serious implications.
The actual court ‘order’ will be set out under the words ‘the court orders that’ or ‘by consent the court orders that’. To be enforceable the child arrangements order must have a warning notice on the front of the order setting out the consequences of breaching it. To be enforceable it is not enough for the order to just state that there will be contact between a child and a party, it needs to require a party to do a specific action eg to make the child available for contact or to facilitate contact.
Application to enforce child arrangements order
When making an application to enforce a child arrangements order the court will take into account the welfare of the child, who is the subject of the order. The court will then consider whether the offending party has been served with the order, whether the order has been breached and whether there is a reasonable excuse for the breach. If they are satisfied it has been served and find that it has been breached without reasonable excuse, then the court will go on to consider whether making an enforcement order is necessary to ensure compliance of the order. It will also consider whether the proposed enforcement order is proportionate to the seriousness of the breach.
The court will normally ask both parties to prepare witness statements setting out their version of events and they will hold a hearing to determine whether or not ‘beyond reasonable doubt’ the order has been breached as alleged and whether or not there was a reasonable excuse. A reasonable excuse could, for example, be where the child suddenly falls ill and is taken to the doctors instead of contact. The court will not enforce an order, if there is a reasonable excuse
If an order is being breached then the court can make orders to ensure compliance in the future. It may be that the court changes the terms of the order to ensure it can be complied with rather than taking any punitive steps to enforce it. For example, it may make a prohibited steps order to prevent a party collecting the child from school on the days the other party is due to have them. Such an order could be shared with the school who can then prevent the child being handed over to the offending party. If such an order would resolve the issue of non-compliance, then consideration should be given as to whether the application should be for a prohibited steps order and/or an enforcement application.
The court can punish someone for breaching a court order. They can be imprisoned, fined, ordered to do unpaid work or to pay compensation for financial loss. The courts are often reluctant to send people to prison as this could impact on the child, but they have made such orders where it has been necessary. The court can also change where the child lives if they feel that the offending party is unable to promote a relationship with the other party to the point it is causing emotional harm to the child.
It becomes harder for the court to enforce the order if a parent has alienated a child to the extent the child does not want to see the other parent. The difficulty then is that the party who is not complying with the order, will argue that the child is not wanting to go and to force them to do so will cause harm. This could form part of their argument that they have a reasonable excuse for breaching the order. The correct course of action for them, in this case, would be to apply to vary the order but this situation requires a lot of unraveling by the court to get to the bottom of things. If you are in this situation, it is better to appoint a solicitor at the earliest opportunity. It is very important that delay is avoided, which could compound the problems. The court can make various orders in these cases for example, appointing a guardian, ordering supervised contact to assess the relationship between the child and the other party or ordering the child to attend therapy\counselling.
The majority of people comply with court orders and the court expects compliance. In the minority of cases where people do not comply, they are normally persuaded to do so when faced with the consequences of non-compliance.
If you make a successful application to enforce an order you can ask the court to make an order that your legal costs are repaid to you by the offending party. However, this equally means that if you are unsuccessful with your application the other party can ask for their legal costs to be paid by you. It is therefore always advisable to get legal advice at an early stage if you are considering making an enforcement application or you are defending one.
Fixed fee appointments
At Tollers we offer a fixed fee appointment with a family law solicitor for £100 plus VAT. We can give you tailored advice on your specific circumstances, an understanding of what you should do next and the benefits and risks of your next steps.
To arrange an appointment with one of our family law solicitors at our Northampton, Corby, Oakham, Milton Keynes or Stevenage office…Talk to Tollers on 01604 258558 our team is on hand to guide you through.