What is a Child Arrangements Order?
A Child Arrangements Order is an Order made by the family court which sets out with whom a child is to live, spend time or otherwise have contact with any person. It also sets out when the child is to live, spend time or otherwise have contact with them. The court’s jurisdiction to make such Order is provided for under section 8 of the Children Act 1989.
These Orders can also specify matters such as the duration, frequency and location of the contact, and the type of contact (for example: supervised, unsupervised, direct or indirect). A Child Arrangements Order that states who the children shall live with will last until a child is 18 years old. A Child Arrangements Order that specifies contact arrangements will last until a child is 16 years old – though it may last until 18 years old under specific circumstances.
Breaching a Child Arrangements Order
If the terms of a Child Arrangements Order are not complied with, the non-compliant party will be in breach of the Order. An example of a breach could be one party refusing to return a child to the other parent or refusing for them to have any contact with the other parent contrary to the terms of the Order that has been made.
When there has been a breach of a Child Arrangements Order, depending on the type and severity of the breach, there are circumstances in which parties may attempt to negotiate matters first to avoid further conflict or dispute. This can include attempts at Non-Court Dispute Resolution, for example, mediation. The breach can also be addressed by solicitors in correspondence to the other parent (or their solicitors) in an attempt to resolve matters in an amicable way. These options can be effective in the interests of saving time and costs of court proceedings, but if they are ineffective, a court application will need to be filed.
If the breach is of an urgent nature and/or leaves the child(ren) at risk of physical or emotional harm, then an urgent application to court may be necessary, subject to legal advice.
Enforcing a Child Arrangements Order
An enforcement application can be made to the court via a Form C79 (Application related to enforcement of a Child Arrangements Order).
Once the Form C79 enforcement application is issued by the court, the court will determine whether a Children and Family Court Advisory and Support Service (CAFCASS) officer will need to be involved. CAFCASS is an independent organisation that can be involved in children proceedings to recommend to the court what is in the best interests of the child(ren) who have been affected by the breach. They are required to be impartial and, while their recommendations are not binding, they can be influential on the court’s final decision.
Section 1 of the Children Act 1989 states that the court will have regard to the welfare of the children as its ‘paramount consideration’. To do this, the court will utilise the welfare checklist listed under section 1(3) of the Children Act 1989 which sets out all the aspects that will need to be considered to determine the best interests of the child(ren). These are as follows:
- the ascertainable wishes and feelings of the child(ren);
- their physical, emotional and educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics which the court considers relevant;
- any harm which they have suffered or are at risk of suffering;
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, are of meeting their needs;
- the range of powers available to the court under this Act in the proceedings in question.
The court will review the case and explore the reasons for the non-compliance of the Child Arrangements Order by the parent who is in breach. They will consider all the evidence available to them to determine whether the reasons for the breach are justifiable and reasonable.
It is important to note that enforcement proceedings can be lengthy and before making the Order, the court must be satisfied that making an Enforcement Order is necessary to secure the compliance of the parent in breach of the Child Arrangements Order, and the likely effect of the Enforcement Order proposed must be proportionate to the seriousness of the breach.
What Orders can be made by the court?
If the court finds that there has been a breach of the Child Arrangements Order without reasonable justification, then they have the power to make various Orders.
When the court first makes a Child arrangements Order, there must be a notice warning of the consequences if the terms of the Order are breached and there is a failure to comply. The warning generally refers to the following consequences in the event of a breach, depending on the severity:
- being held in contempt of court;
- committed to prison or being fined;
- being required to carry out unpaid work; and/or
- bring ordered to pay financial compensation as a result of the breach.
In addition to the Orders listed in the warning above, the court can also:
- refer the parents to a Planning Together for Children course (previously known as the Separated Parents Information Programme) which focuses on understanding and managing emotions and looking at things from a child’s point of view; and
- consider whether it may be beneficial to vary the Child Arrangements Order by reassessing the contact and living arrangements of the child.
After making the Enforcement Order, the court may ask a CAFCASS officer to monitor the compliance and report to the court if any issues arise (section 41 of the Children Act 1989).
Breach of Enforcement Orders
In the event that an Enforcement Order by the court has been breached and the parent in breach continues to not comply with the Child Arrangement Order, the court can amend the first Order to make it more onerous or make a further second Order with further consequences. This is subject to the court being satisfied beyond reasonable doubt that the court Orders are not being complied with.
For example, if the court made an Enforcement Order with a certain amount of unpaid hours of work. These hours may increase if the breach continues and the court has to make a further Enforcement Order. However, the court must be satisfied first that before the failure occurred, the person had been given notice of the Enforcement Order (Paragraph 9(8) of Schedule 1, Children Act 1989).
Legal Advice
Where there has been a breach of a Child Arrangements Order, the Court’s first priority will be the welfare and best interests of the child(ren) involved. It is important that you seek legal advice to help guide you through the legal process and understand your options.
If you believe that there is an immediate risk to the children, you may wish to contact the police first.
If you would like more information regarding the issues raised in this blog, please do not hesitate to contact us.
