If parents cannot agree arrangements for where their children will live and when they will spend time with the other parent, they can apply to the courts for a Child Arrangements Order. Unfortunately, this isn’t always the end of things.
I receive a number of calls from frustrated parents who have a Child Arrangements Order (formerly called a residence or contact order) in place but there is a breakdown in that the other party is not adhering to the order. This can be because they are deliberately preventing or obstructing contact. Or, as in a recent case I dealt with the mother had an order in place which clearly defined the times when the child was to be collected and returned and by a third party but their former partner was returning the child two hours late and bring the child back themselves.
The mother was very upset that the order was being ignored and she had even tried to call the police for assistance but other than moving the former partner on they had advised her to contact a family lawyer about the matter.
Enforcing a child arrangements order is always an option however it is not a simple thing to do. It can be difficult and long winded. You must also be aware that the Family Court will consider whether the order could be amended in order to make it work rather than enforcing or “punishing” the party who is not adhering the its terms.
In Re C, a case involving enforcement of contact Thorpe LJ said: “Where a contact order is not operating smoothly, the court that made the order has a continuing responsibility to strive to make it work, and that responsibility is all the greater where a litigant in person is before the court and plainly frustrated by the obstruction.”
How to enforce a Child Arrangements Order
When an application is made to the court to enforce a Child Arrangements Order the case is listed for an initial hearing when the court will, amongst other things consider the reasons for non-compliance, whether CAFCASS need to be involved, whilst of course considering the welfare and best interests of the children involved.
Having considered all these factors the Court will decide whether there has been a breach of the Child Arrangements Order, without reasonable excuse. At this point the Court has a number of options it can use. The Court could for example refer the parents to a Separated Parents Information Programme, explained in this blog (Why a parenting course may be just what separating parents need), or for mediation. The Court may decide that a variation of the order is appropriate, this might include reconsidering contact or even living arrangements for the child. The Court has the option to issue a contact enforcement order, impose fines or in extreme circumstances impose a prison sentence.
Advice for parents
It is frustrating when an ex does not comply with your wishes, even more so when these wishes have been embodied in a Court order but it is almost always better to try and resolve the dispute between yourselves if you possibly can. The Courts are not necessarily interesting in ‘punishing’ the party who is in breach of the order, their concern will be for the welfare of the child, so if you possibly can you should try to reach an agreement, resolve any practical difficulties and keep dialogue open with your ex, rather than resorting to the lengthy and often costly process of asking the courts to intervene.
Divorce & family lawyer, Ludlow