It can often be extremely difficult for separating couples with children to reach agreement about the care and contact arrangements for the children. In cases where parents are unable to agree it may become necessary for the Court to make an Order clarifying a child's living arrangements. Unfortunately these Orders are not always complied with. When this happens, it often leaves one party asking what action they can take against the party refusing to follow the Order. This article will give a brief outline on the steps that can be taken and the powers of the Court if your ex-partner does breach a Child Arrangement Order.
What is a Child Arrangements Order?
A Child Arrangements Order is an Order made by the Court which prescribes where your child lives, when your child spends time with each parent and when and what other types of contact, like phone calls, take place. Child Arrangements Orders replaced 'Residence Orders' and 'Contact Orders' in April 2014.
What amounts to a 'breach'?
Whilst in theory anything that does not comply exactly with the wording of the Order is a breach it is unlikely that the Court will take any action if the breach is insignificant. Instead the Court will need to be convinced that the breach is substantial and intentional and that there is no "reasonable excuse" for the Order not to have been complied with. It is still important to keep a record of any minor breaches as evidence of a series of minor breaches on top of more significance breaches may convince the Court that the offending party needs reprimanding and the original Order is in need of alteration.
What Action should be taken if there is a breach?
It is always important for the parties to try and discuss the potential breach with one another before making a Court Application. This is often the quickest and cheapest way to resolve a party's refusal to comply with a Child Arrangements Order. If discussions between parents prove to be unsuccessful then you may be left with little choice than making an Application to the Court to enforce the Original Order. This should always be considered a last resort as enforcement proceedings can be expensive and will often further damage the relationship between parties
What powers do the Courts have to enforce the Order?
After 8 December 2008 all Orders contain a standard warning notice at the end of the Order. This will set out the consequences of failing to comply with the requirements of the Order. Orders made before 8 December 2008 will not contain the warning by default. Instead it will be necessary to make an Application to the Court requesting that the notice be attached to the Order. This will have to be done before making an enforcement Application.
The punishments available to the Court will largely depend on the nature and frequency of the breaches. Ultimately the Court has the power to order unpaid work (between 40 and 200 hours), financial compensation to the other party, a fine, transfer of a child's residence to the other parent and in the most serious cases, the imprisonment of the uncooperative party.
These extensions of the Court's powers to impose a punishment were widely reported in the media when they were introduced. They were brought in with the aim of ensuring that the parent who moves out of the family home cannot be cut out of their children's lives following an acrimonious separation. Instead the Court is looking to promote the Child's equal right to have a proper relationship with both parents. It is important to bear in mind that all the punishments discussed above will most likely have an adverse impact on the child. The Court will therefore only order the punishments when it is in the child's best interests. Instead the Court will try to promote the Child's equal right to contact by ensuring contact is maintained with both parents rather than just looking to punish the non-compliant party. It is very rare for the offending party to be committed to prison as they are often the child's primary carer and it will clearly have a negative effect on the child.
To find out more or discuss your individual requirements in further detail, our dedicated Family Law Solicitors will be delighted to help. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.