Separation and divorce can be amicable, with the couple parting on good terms, each determined to put their children’s best interests first. In such circumstances, most parents reach satisfactory agreements between themselves on arrangements for the children.
What is a child arrangements order?
But what if the split is acrimonious and the parents simply cannot agree? Then the family courts will intervene in order to draw up a child arrangements order.
As the name suggests, a child arrangements order is legally binding court order setting down in writing those living arrangements considered to be in the best interests of children whose parents have divorced or separated: which parent they will live with day-to-day and when and for how long they will see the other. Time spent with the parent who lives elsewhere is legally termed ‘contact’. Reaching such agreements can be challenging in an emotionally fraught situation like divorce, so a formal court ruling can bring welcome clarity and certainty.
When enforcement is necessary
Unfortunately, obtaining a child arrangement order does not always conclude the matter. When couples part acrimoniously, some parents allow their emotions to get the better of them. A common tactic is for an embittered divorcee to try and hinder their ex-partner’s contact time with their children. Doing so will place them in breach of any previously issued child arrangements orders and in contempt of court. Enforcement may then be necessary.
What is an enforcement order?
If your ex-partner has not complied with the terms of a child arrangement order, such as, for example, interfering with the other parent’s agreed contact time, you should firstly try to resolve the matter between yourselves. It is far more cost-effective for parents to find a solution outside the courtroom – and it can be significantly quicker too. Of course, amicable agreements are not possible without mutual goodwill and co-operation. Guided mediation may be helpful in the absence of domestic abuse or other risks.
If an out-of-court agreement cannot be reached, you will need to return to court to apply for an enforcement order.
Obtaining a child enforcement order
The timing of such applications should be thought through carefully. The court will need to examine any alleged breaches and the reasons behind them.
Obtaining an enforcement order is not always a straightforward process. Family courts are always focused first and foremost on the welfare of the children involved – and in some cases, imposing an enforcement order might have a detrimental effect. If so, no order will be issued.
In cases where the parents are simply struggling to co-operate, they may order mediation (if that has not already been fried), or participation in the Planning Together for Children course run by CAFCASS on behalf of the Ministry of Justice. This is intended to support parents…
“…to put the needs of their children first while they are working out how they can parent together when they are in the process of separating and/or living apart.”
The course:
“…encourages parents to do their best to set aside their feelings and to work together to think about how they can communicate and work together to agree parenting arrangements without the need for more court hearings. The aim of the course is to protect children against some of the harmful effects of parental conflict.”
The Judge may also decide to change the terms of the child arrangements order – for example, the time allotted to the other parent – if he or she decides this could lead to an increase in co-operation between the parents.
But if a Judge does conclude that breaches have occurred without good reason,
penalties are also available to the family courts, including:
- Requiring the person in breach to carry out unpaid work – up to 200 hours in serious cases.
- Requiring the person in breach to pay compensation for any financial losses (for example, wasted travel costs or holiday bookings). This will become a debt owed by your ex-partner to you.
- Requiring children to move home and begin living with the other parent. This is known as a ‘change of residence’ and is typically only ordered for very significant persistent breaches.
If a parent’s ex-partner does not comply with the terms of an enforcement order, they can go back to court for further measures. Ultimately, family court judges can impose a custodial sentence under its general powers to deal with people considered to be in contempt of court.
In recent years, the courts have begun taking a tougher stance on non-compliance with child arrangement orders. Some recalcitrant parents have even received prison sentences.
Enforcement of a child arrangement order
It’s important to note that enforcement is only possible if you have an actual child arrangements order in place. Informal, private agreements cannot be enforced by the courts.
It is equally vital that your child arrangements order contains a warning, clearly stating that a breach of the measures set out in the order is an offence, and citing potential penalties for failing to comply, such as community service, fines or a prison sentence. Warning orders are normally added as a matter of routine but if yours does not contain one, you should apply for one to be added.
If your ex-partner does subsequently breach the order, you should apply for enforcement promptly. Judges will want to know why you think your ex-partner has broken the order, so be ready to show evidence of their non-compliance. The Judge will not issue an enforcement order unless they are satisfied beyond reasonable doubt that your ex has disobeyed the order, and has no reasonable excuse for having done so. If they believe they were justified in breaching the order, they will need to prove this in court.
Any penalties applied, such as unpaid work, must be proportionate to proven breaches of the order, and will usually be structured in a way that does not threaten the parent’s employment or education. Their financial situation will also be taken into consideration. Penalties also must not have a detrimental effect on the welfare of the children. A CAFCASS family court advisor may be asked to write a report for the court on the family’s particular circumstances. Unpaid work requirements are also typically also monitored by CAFCASS.
Enforcement orders are generally classed as urgent and issued quickly where appropriate: this is good news for parents missing out on time with their children.
A court fee of £215 is normally payable for an enforcement application, but this may be reduced or waived altogether for people on a low income.
If you have children and are going through a divorce, you should seek advice from a professional family law solicitor. Major Family Law are one of the best family law firms in the north east and we help clients to resolve all kinds of parental dispute. Our friendly and cost-efficient team can provide the expert advice you will need on child arrangements and enforcement orders in the event you and your partner cannot agree.
Video
Watch a video by Associate Solicitor, Stacy Williams, regarding changing a child arrangements order:
Contact our team of family solicitors today to arrange a free 45-minute no-obligation consultation.
