Following separation, some parents are unable to agree amicable arrangements in relation to their children. Therefore, an application for a Child Arrangements Order may be their only option.
Under Section 8 of the Children Act 1989, Child Arrangements Orders regulate contact and living arrangements concerning children.
If you find yourself in a situation whereby an existing Child Arrangements Order is not being complied with, you may be able to make an application to enforce it.
When making a Child Arrangements Order, the Court is required to attach a “Warning Notice”. This warns of the consequences of failing to comply with the Order. A Child Arrangements Order must contain a “Warning Notice” in order for an Enforcement Order to be made.
You may be able to apply for enforcement of a Child Arrangements Order if you are the person named in the Order with whom the child lives with or you are the person named in the Order with whom the child spends time with.
When the Court considers whether to make an Enforcement Order, it must be satisfied that making the Order is necessary and proportionate to the seriousness and frequency of the person breaching it. The Court will consider:
- The reasons for noncompliance;
- The effect of noncompliance on the child concerned;
- The welfare checklist;
- Whether advice from CAFCASS is required on an appropriate way forward; and/or
- If the parties should attend at any Dispute Resolution Programs.
Where a Court is satisfied beyond reasonable doubt that a person has failed to comply with a Child Arrangements Order, it has the power to enforce it in a number of ways. These include:
- Referring the parties to a Separated Parents Information Program (SPIP) or mediation;
- Variation of the Child Arrangements Order which could include a more defined Order or reconsideration of the child living or contact arrangements;
- An Enforcement Order or Suspended Enforcement Order;
- An Order for compensation for financial loss;
- Committal to prison;
- A fine.
The Court takes breach of an Order very seriously. Therefore, if you are unable to comply with a Child Arrangements Order, you should consider making an application to vary the Order rather than placing yourself in breach.
In enforcement proceedings, the burden of proof is on the person in breach of the Order to show that they had a reasonable excuse for failure to comply and this is often a high hurdle to overcome.
Therefore, should you find yourself in a position whereby you believe may need to enforce a Child Arrangements Order, please do not hesitate to contact one of my colleagues or I for assistance.
T: 029 2034 2233
E: [email protected]
Author: Sam John
Published: 16/01/25