Making decisions about child care, house rules, and holidays can be extremely challenging for separated parents. In circumstances where a stalemate is intractable, obtaining a Child Arrangements Order may be necessary to clarify matters and allow the parties to move on with their lives. In this section, we look at the repercussions of failing to follow Court Orders.
First Steps
A consistent breach can be unpleasant and produce a lot of uncertainty for the other parent and the child involved, which is not acceptable and should be handled with caution. In the first instance, we would advise you to try to address all issues directly, as this may help break the ice between you and help you resolve matters without the need for a lawyer or taking your case back to court. If this approach fails, the next step would be to contact a solicitor with the intention of writing to the other party and reminding them of their need to comply with the Order and the legal consequences if they continue to breach it.
A “Warning Notice” is appended to a Child Arrangements Order, which advises the parties about the implications of failing to follow the conditions of the Order. A breach of a Court Order is a significant legal matter because it involves contempt of Court, which may result in consequences being imposed on the non-compliant parent.
If a notice from a solicitor does not have the desired impact and the other parent continues to act in violation of the conditions of the Order, you may need to consider filing an application with the Court for enforcement.
What Constitutes a Breach of an Order
When a Child Arrangements Order is already in place, practically anything can be considered a breach, including being late for the handover or cancelling contact due to illness or a prior work commitment. While a single occurrence of this sort is unlikely to be enough for the Court to order a punishment against the other party, a succession of minor violations may have a significant impact on the child’s welfare, and the Court will thus take a closer look at the overall case. It is therefore advisable to keep a record of all incidents and the frequency of the aforementioned breaches so that the Court has a complete picture and may explore the concerns appropriately.
What the Court looks for
The Court will evaluate the nature of the violation and investigate the grounds for the other parent’s noncompliance. The Judge will want to hear if there is a plausible explanation for the other parent’s behaviour or if there is no valid rationale at all. The Court will consider the impact of the violation on the child’s welfare and whether enforcing the order is in the child’s best interests. Every situation is unique, and in some cases, the Court may seek to request expert advice, a CAFCASS report, or make a referral to social services to further investigate concerns before making a final decision.
How to file an Enforcement Application
A specific enforcement application form (C79) is used to make an application to enforce a court order. There is also a court fee of £232 to pay, unless you qualify for a fee waiver. To ensure that your application is successful, we recommend that you seek legal guidance on how to fill out the form.
Enforcement and Sanctions
When deciding whether to enforce the order, the court must be satisfied beyond a reasonable doubt that such action is both necessary and appropriate to the gravity and frequency of the parent’s breach and that the enforcement order is required to ensure compliance with the order. If the breach is modest, or if the parent in breach of the Order actively demonstrates contrition and possibly promises the Court not to repeat the alleged wrongdoing, the Court is likely to rule that an Enforcement Order is not required. Furthermore, if a parent who is in violation of the Order can demonstrate that they have a valid justification for failing to comply with the Order, an Enforcement Order will not be obtained.
While some parties may be directed to a separated parents information programme (SPIP) or mediation to resolve their disagreements, others may be fined, ordered to perform unpaid labour, or imprisoned. One parent may also be able to seek compensation for financial losses incurred as a result of the breach.
Who pays the costs of enforcement proceedings?
In children’s procedures, the general norm is that no expenses should be ordered. This approach does not apply to applications for enforcement orders, which means that the applicant party has the right to seek costs from the respondent party, and the Court has the discretion to order the unsuccessful party to pay the other side’s reasonable legal expenses.
We strongly advise you to get specialised advice if you are considering going to court for enforcement of an existing Child Arrangements Order.
