All too often we receive enquiries from parents who have walked out of Court, with the child arrangements order sought in hand, hoping their troubles would end there. Unfortunately, time passes, the other parent is refusing to abide by the order, and they’re left asking ‘what next’?. There are steps which can be taken to enforce a child arrangements order however, in some cases, these can be seen as ‘using a sledgehammer to crack a nut’.
When an application is made to the court to enforce a Child Arrangements Order the Court will list an initial hearing where, amongst other things, the court will consider the reasons for the breach/non-compliance and whether CAFCASS need to be involved. The court must, at all times, consider the welfare and best interests of the children involved.
Having considered these factors the court will decide whether a breach of the order has been made, without reasonable excuse and will then decide what should happen next.
Orders the Court Can Make
Where a child arrangements order is not being complied with, this may be due to a breakdown in communication between the parents, or the messages they are (often unknowingly) giving their children. In such cases, the Court can make a referral to a Separated Parents Information Programme [SPIP]. The purpose of a SPIP is to assist parents in managing conflict with the other parent and putting their children first in the face of the same.
The Court seeks to avoid creating a situation whereby parents are repeatedly returning their case to Court each time they reach a ‘speed bump’. Often, situations change as children get older and it is hoped that parties will be better able to agree on suitable new arrangements once there has been a period of calm following the original proceedings. The Court may therefore make a referral to mediation to give parties the opportunity to work together and take control of future arrangements, exploring creative solutions which work for them.
In some cases, there may be reasons why the original order is not being complied with. For example, it may be ill-defined, or circumstances may simply have changed. In such cases, the Court may vary the order accordingly. In deciding whether to do so, the Court is guided by the ‘no order’ principle and will take into account a range of factors such as the number of times an order has been breaches, the severity of breach, and the reasons for the same.
Under s.11J Children Act, the Court can make an ‘enforcement order’ imposing an unpaid work requirement of 40-200 hours on the party in breach of the order. To do so, the Court must be satisfied ‘beyond reasonable doubt’ that the parent has failed to comply with the order. The Court may not make an enforcement order where they are satisfied that the parent had a reasonable excuse for failing to comply with the order.
Committal proceedings whereby the party in breach is committed to prison are a last resort. This is because imprisoning a parent usually conflicts with the Family Court’s duty to act in the child’s best interests. This can be frustrating for many parents who feel that, for a Court Order to have any effect, it must be upheld.
Often, where a committal order is made, it is made on a ‘suspended basis’, i.e. it will only be implemented if the parent continues to breach the order. This sends out a strong message that it is the final opportunity for that parent to comply.
Again, fines are imposed as a last resort as the net effect is to take money from the parent which could otherwise have been spent on the child. However, in circumstances fines may be imposed to compensate the other parent for example if the cost of a holiday has been lost by the other parent’s refusal to comply with the order.
The problem with returning a case to Court through an enforcement application is, it does not necessarily provide the outcome the applicant parent truly wants- for the arrangement to work. Even if an order is varied, or the parent in breach is penalised, there is no guarantee they will go on to abide by the order. In fact, animosity between the parents is likely to be heightened and more money, which could be spent on days out or holidays with your child, will be spent.
Alternatives you should consider include:
- Keep dialogue open with the other parent, discussing their concerns with the current arrangements directly.
- You may also wish to self-refer onto a SPIP and invite the other parent to do the same.
- It will often be advisable to attempt mediation before making an enforcement application to the Court.
You should obtain legal advice as soon as possible to prevent a situation whereby the new arrangements dictated by the other parent become the ‘norm’. Where an enforcement application needs to be made, strict procedural rules must be followed, and it is therefore important that you obtain specialist legal advice.