“They’re ill.”
“You were late by five minutes.”
“They don’t want to see you.”
“It isn’t on this week, you have your dates wrong.”
Above are just a handful of reasons that a parent might hear as to why a Child Arrangements Order cannot be complied with. But is this right and does this ultimately trump a court order? Associate Melissa Jones explains.
How can you enforce a Children Act Order? If you have been involved in Children Act Proceedings and obtained a final court order, there are consequences if a party breaches an order, as follows:
(a) They may be held in contempt of court and be committed to prison or fined; and/or
(b) The court may make an order requiring them to undertake unpaid work (an enforcement order) and/or an order that they pay financial compensation.
How does this really work in practice?
Essentially, the court makes the order and expects parents to ensure it works on the ground. There may be times though when a child is ill, or there is an emergency, for example , which might mean that the child arrangements cannot go ahead on occasion. However, this should not happen repeatedly and if it does then unless the other parent has “reasonable excuse” for not allowing the contact, then they would appear to be in breach of the order.
What is the enforcement court process?
There is still an expectation that you take steps to resolve matters before applying to the court. As you may have heard before, the court is a last resort. It is best practice, before an application is made, to address the issue with the other party and inform them of the implications of not doing so. If the matter is not resolved, then you may have little choice but to apply to the court for enforcement.
What happens when I make my application?
You can make an application to enforce the order if you feel that it has not been complied with. At the first hearing the court can be asked to consider the facts of the alleged breach and, in some cases, if these breaches are not agreed, list a hearing to determine those facts. The court can also decide, if after listening to the reason(s) for non-compliance, if CAFCASS or Social Services need to get involved.
The court process usually follows the same process as your last case (the one where you obtained your final order), that is:
* First Hearing Dispute Resolution Appointment (FHDRA)- the purpose of the hearing is to try and agree matters as much as possible
* Review hearing- this will be listed if matters cannot be resolved at the first hearing and the non-compliance issue remains live. It might have been that a report was ordered at the FHDRA for CAFCASS or Social Services to complete, for review at this hearing
* Final hearing- where the court will make an order after listening to evidence from the parties
The bottom line in these types of cases is, that there is an order in force, and it should be adhered to. If a parent is not able to comply with an order, they are able to make an application to ‘vary’ the order to ensure that they do not indirectly continue to breach an order.
If the court finds that a party has not complied with the order it can take a number of steps as detailed above, but one of lesser known options, and quite a rarity, is to order a transfer of residence, with the child going to live with the other parent. The latter happened in the following case: Re C (A Child) [2018] EWHC 557 (Fam)
Given the implications of not adhering to an order and the court’s robust approach, it is best to get advice as early as possible.
