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If residence and contact arrangements for your child are enshrined in a Child Arrangements Order, you have legal recourse if either party fails to adhere to the order. So what happens if one parent breaches an order? Can you enforce it? And what are the penalties for non-compliance?
Can I still see my children during the lockdown?
Yes. If your child lives with their other parent, you can continue to see them even though the government advice is that people from different households should not mix.
The government’s official guidance on social distancing says: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
However, if some in either your home or the other parent’s home is exhibiting symptoms of coronavirus, it is advised your child remains in one place.
What is a Child Arrangements Order?
Governed by section 8 of the Children Act 1989, a Child Arrangements Order outlines:
- Who a child should live with
- Who a child should have contact with or spend time with
- When a child should have contact with another person
As every situation is different, each Child Arrangements Order reflects the particular circumstances of an individual family. There is no standard order.
Normally, a Child Arrangements Order is only made if you cannot agree contact and residence issues with the other parent, either through negotiation or mediation.
Can a Child Arrangements Order be changed?
Over time, circumstances change and your child’s needs may evolve as they get older. So, you may find yourself in a position where you have to make changes to the Child Arrangements Order you have in place.
Reasons why you might wish to vary an order include:
- Your employment has changed, and you cannot fulfil your contact in the way the order sets out
- You are moving home
- Your child’s needs have changed, perhaps as they get older
If you want to vary an order, you will have to show that your proposed changes are in the best interests of your child.
It is always advisable to come to an agreement with the other parent to change the Child Arrangements Order, rather than making a unilateral decision. Getting consent to make a change is the best course of action.
If you do not get consent, you could be in breach of the order and this can mean you are subject to sanctions including a fine, community service or even a prison sentence.
If you cannot reach agreement through negotiation or mediation, you can apply to the court to vary the order. At this time, the wishes and feelings of your child are likely to be considered, probably through a CAFCASS (Children and Family Court Advisory & Support Service) report.
What happens if one party breaches a Child Arrangements Order?
Even though a Child Arrangements Order may be in place, you could find yourself in a situation where the other parent decides not to abide by the order. As courts do not monitor adherence to Child Arrangements Orders they won’t ever be aware of any breaches unless you make an application to enforce such an order.
Experts suggest that you seek legal advice as soon as possible. If you don’t, you could end up in a situation where the new arrangements become a ‘new normal’.
You can make an application to the court to enforce the order. At the initial hearing, the court will examine the reasons for non-compliance and establish whether CAFCASS need to be involved. The best interests of your child are always the court’s primary concern.
The court has a range of options available:
- Refer you and the other parent to a Separated Parents Information Programme which aims to help parents to communicate and put their child first
- Refer you and the other parent to mediation in an attempt to get you to agree on solutions that work for all parties
- Vary the order in accordance with changed circumstances. The court is always guided by the ‘no order’ principle and will consider range of factors including the number of breaches, how serious the breaches are the reasons for the breach
- Enforce the order and impose community service of between 40 and 200 hours on the party who breaches the order. An order will not be enforced if the court believes a party had a reasonable reason for not adhering to the order
- Fine a party, particularly if the breach has left one party out of pocket (for example, the cost of a holiday has been lost by one parent’s refusal to comply)
- Imprisoning a parent who repeatedly breaches an order. Such a ‘committal’ is rare, and most times a court will tell a party that they will only be imprisoned if they continue to breach an order.
How do I enforce a Child Arrangements Order?
Note that you can apply to enforce an order if it contains a ‘warning notice’. This states the ramifications of not adhering to the order, and such a notice must be included if you want the court to enforce such an order.
Before a court enforces a Child Arrangement Order, they must be satisfied beyond reasonable doubt that one party has failed to comply. It can mean that if breaches have only happened occasionally, and are not serious, a court may not be prepared to enforce it.
The individual who has failed to comply with the order has to demonstrate that they had a reasonable excuse to break the order. The criteria the courts consider include:
- The reasons for not adhering to the order
- The effect of non-compliance on the child
- The child’s welfare and best interests
- Whether CAFCASS need to be involved
- Whether enforcement is appropriate.
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