Divorcing couples with children often encounter challenges in reaching agreements about their children’s care post-divorce or separation. When parties cannot reach an agreement amicably, they may turn to the family court for resolution. Either party can apply for a child arrangements order, specifying the days and times each parent will spend with the child.
However, what if one party refuses to comply with the terms of the order and denies the other party access to the children?
Child arrangements order “warning”
It’s important to remember that a child arrangements order is legally binding. Each child arrangements order includes a “warning notice” outlining the potential consequences for failing to comply with its terms.
What many people may not realise is that this warning applies universally, whether the order results from a mutual agreement or a court decision based on evidence.
Typically, the warning notice is prominently displayed in bold at the end of the order. It specifies that failure to comply with a child arrangements order (formerly known as a contact or residence order) may constitute contempt of court, potentially leading to imprisonment, fines, community service, or financial compensation.
Breaches of a child arrangement order
If you believe that a former partner has not adhered to the terms of a child arrangements order, you can apply to the court for an enforcement order. The initial step the court takes is to assess whether the facts surrounding the alleged breach of the order are agreed upon. If there is disagreement on these facts, the court will determine whether a hearing is necessary to establish them. Additionally, the judge will consider any reasons provided for non-compliance and determine whether involvement from Cafcass (Children and Family Court Advisory and Support Service) is necessary in the case.
How to enforce a Child Arrangements Order
When an application is submitted to the court to enforce a Child Arrangements Order, the case is scheduled for an initial hearing where the court will assess various aspects, including the reasons for non-compliance and the potential need for involvement from CAFCASS (Children and Family Court Advisory and Support Service). Throughout this process, the welfare and best interests of the children involved are paramount.
After considering all relevant factors, the court will determine whether there has been a breach of the Child Arrangements Order without a reasonable excuse. At this stage, the court has several options available. For instance, the court might recommend that the parents attend a Separate Parents Information Programme or undergo mediation. Additionally, the court could decide that modifying the order is appropriate, which may involve reassessing contact or living arrangements for the child. Furthermore, the court has the authority to issue a contact enforcement order, impose fines, or in severe cases, order a prison sentence.
Changing arrangements for the care of your children
There are various reasons why the arrangements specified in a child arrangement order might break down or become unworkable. However, it’s important to note that a parent should not take matters into their own hands by breaching the order. As a family law solicitor, my advice is to seek a variation of the order instead of denying access or breaching its terms, which could lead the other party to initiate enforcement proceedings.
It’s preferable to approach the court and explain the problem, requesting assistance in resolving it, rather than facing court action for non-compliance with an order. Such actions could result in criticism from a judge and potential penalties, including those outlined earlier. Therefore, it’s advisable to address issues through legal channels to ensure a fair resolution and avoid potential legal consequences.
If the court determines that there is no “reasonable excuse” for non-compliance with the order, it has several options available, including:
- Requiring the parties to attend a Separate Parents Information Programme
- Modifying the existing order
- Issuing an enforcement order for the non-compliant party to perform unpaid work, usually based on a recommendation from Cafcass that such work is appropriate and proportionate to the circumstances
- Ordering compensation for any financial losses incurred
- Imposing a fine
- Sentencing the non-compliant party to prison
Courts now take a more stringent approach towards parents who fail to comply with child arrangements orders. It’s advisable to be proactive rather than reactive in such situations. Seek legal advice promptly to address and resolve issues before they escalate.
