A breach of a child arrangements order is where one party has failed to comply with a condition specified in that order. This may be a relatively minor breach, or a culmination of breaches, for example, failing to adhere to set times for contact to take place. The breach may, however, be much more serious, for example, preventing any contact from taking place whatsoever.
What do I do if there has been a child arrangements order breach?
A child arrangements order is an order of the court regulating the arrangements as to where a child will live and with whom they will spend time or otherwise have contact. This type of order is typically made between separated parents where they have been unable to resolve a custody and/or contact dispute.
In the event of a breach of a child arrangements order, it is often best to see if the matter can be resolved informally. In many cases, this will be in the best interests of all those involved, including the child. Where the matter cannot be resolved informally, you can make an application to ask the court for an order relating to the enforcement of a child arrangements order.
Who can apply to the court following a child arrangements order breach?
You can apply to the court asking for an order relating to the enforcement of a child arrangements order if you are:
- the person who the child named in the child arrangements order lives with or is going to live with.
- the person whose contact with the child is provided for in the child arrangements order.
- any person a condition in the child arrangements order applies to.
- the child concerned. If you are the child concerned you must get the court’s permission before making an application. You should use form C2 to ask the court for permission.
When will the court make an order following a child arrangements order breach?
When an application is made to the court for an order relating to the enforcement of a child arrangements order, the court will, amongst other things, consider the reasons for non-compliance and whether the matter can be otherwise resolved, for example, via mediation.
The court will also decide whether the Children and Family Court Advisory and Support Service (CAFCASS) need to be involved. CAFCASS are a public body set up to independently advise the court in family proceedings.
Where the matter proceeds to a final hearing, the court will decide on the available evidence whether there has been a breach of the child arrangements order. The court can only impose a sanction if it is satisfied beyond reasonable doubt that a person has failed to comply with the child arrangements order.
Further, the court cannot impose a sanction if it is satisfied that the person had a reasonable excuse for failing to comply with the order.
In the event that the court finds that there has been a child arrangements order breach, without reasonable excuse, the court must also be satisfied that an order is necessary and proportionate to the seriousness and frequency of that breach.
What orders can the court make following a child arrangements order breach?
In circumstances where there has been a child arrangements order breach, the court has a wide range of powers, including enforcement orders and financial compensation orders. An enforcement order is a community-based order requiring a person to carry out unpaid work. The court can order that a person do between 40 and 200 hours of unpaid work.
A financial compensation order is where the court orders that compensation be paid by the party in breach of the child arrangements order, where that breach has resulted in financial loss to the other party.
By way of example, the court may grant a financial compensation order where the cost of a holiday has been lost as a result of a contact being prevented. However, an order for compensation will only be made for actual financial loss. You cannot claim compensation for injury to feelings or any inconvenience that may have been caused.
The court also has the power to impose a fine or, in more extreme cases, to impose a custodial sentence for contempt of court. That said, the court will not necessarily be looking to punish the party who is in breach of the order, rather the welfare of the child will always be paramount.
Accordingly, in many cases, the court may instead decide that a variation of the existing order is appropriate, for example, reducing contact or even changing the child’s living arrangements.
How do I apply to the court following a child arrangements order breach?
To make an application to the court following a child arrangements order breach, you will need to use Form C79. Once issued, your application will then need to be served on the respondent. The respondent is the person who you say has failed to comply with the child arrangements order.
You will also need to inform the CAFCASS officer if the court has ordered one to monitor the child arrangements order, as well as the child where they took part in the original child arrangements proceedings.
In an emergency the court may let you make an application without telling the respondent or any other relevant person. This is called making the application ‘without notice’. If the court subsequently makes an order, you may have to provide a copy to anyone who is affected by it.
If you only have in place privately agreed contact arrangements, you cannot make a C79 application to the court. You will first need to apply for a child arrangements order.
Warning notices in relation to a child arrangements order breach
If your child arrangements order was issued on or after 8 December 2008 it will contain a warning notice about the consequences of a failure to comply with the order. If the child arrangements order was made before 8 December 2008 it will not contain a notice.
Before you can apply to the court for an order relating to a child arrangements order breach, you must first apply for a warning notice to be attached to the order using Form C78.
The court cannot impose a sanction unless it is satisfied that the person alleged to be in breach has been warned about the consequences of failing to comply with the order. Further, this warning must have been provided prior to any child arrangements order breach taking place.
Should I seek legal advice following a child arrangements order breach?
Enforcing a child arrangements order can be time-consuming, costly and fraught with tension. Prior to applying to the court for an order following a child arrangements order breach, you may first want to consider all your options, including mediation.
An expert in family law can talk you through the options available to you. Your legal adviser can also guide you through the legal process, improving your chances of a successful outcome, whether this be applying for or defending an application for a child arrangements order breach.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.