A problem that can unfortunately arise from having the benefit of a Child Arrangements Order is when a parent or other individual named in the order fails to comply with the provisions of the order.
To apply to enforce your Child Arrangements Order you must be the individual named in the order with whom the child/children are having contact with or you must be the individual named in the order with whom the child/children live with. Then you must meet the following criteria:-
1. A Warning Notice must be attached to the order
Firstly, you can apply to enforce your Child Arrangements Order if your Child Arrangements Order contains a ‘Warning Notice’ which states the consequence of failing to comply with the order. The Child Arrangements Order must contain this warning notice to allow an enforcement order to be made by the court.
2. Non-compliance with the Child Arrangement Order
Secondly, the individual named in the order has to have broken or not adhered to the Child Arrangements Order without a reasonable excuse.
Once the above criteria are met, you or a solicitor on your behalf can apply to the court to enforce the provisions within the Child Arrangements Order. In your application you will need to explain what happened and when this happened.
How will the Court decide?
Enforcement Orders are dealt with under Section 11J of the Children Act 1989. In deciding whether to make enforcement Order the court must be satisfied that it is necessary and proportionate to the seriousness and frequency of the individual breaking the order. The court has to be satisfied beyond reasonable doubt that an individual has failed to comply with a provision within the order. The burden of proof is on the individual failing to comply with the Child Arrangements Order to show that they had a reasonable excuse for breaking the order. The burden of proof is the balance of probabilities.
The court will consider the following criteria which are defined in Practice Direction 12B of the Family Procedure Rules (paragraph 21) including:-
- The reasons for the noncompliance;
- The effect of noncompliance on the child/children concerned;
- The welfare checklist including the best interests of the child/children involved;
- Whether advice from CAFCASS is required for moving forward;
- If the parents should attend any Separated Parents Information Programme or Dispute Resolution Programs
- Whether an enforcement order may be appropriate.
If an individual fails to follow the Child Arrangements Order they may be ‘in contempt of court’ and there may be some serious consequences including variation of the current Child Arrangements Order, a Enforcement Order or Suspended Enforcement Order, an order for compensation for financial loss, being fined or in extreme circumstances imposing a prison sentence.
If you need any help with enforcing a Child Arrangements Order or any family law matter it is advisable to contact a solicitor. We have a dedicated Family Children team who are able to assist on matters relating to Court and child welfare. Please do not hesitate to contact us on 01295 270999 or see our website.
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