Dealing with a Breach of Child Arrangement Order
Dealing with a divorce or separation can be difficult. This is particularly the case when children are involved. Child arrangements orders were introduced to make the process more straightforward for all parties involved and put the needs of the children first.
Unfortunately, even when you have an order, there may be occasions when one party may not comply with it and a breach of a child arrangement order can occur. This is something which could turn into a serious issue if not resolved quickly. When faced with such a scenario, it is essential to seek guidance from a specialist family solicitors — somebody who can support you every step of the way.
What is a Child Arrangement Order?
Child arrangement orders stipulate the specific days and times for children to spend with their parents. The order acts as a legal intervention when separated couples are unable to reach a mutual agreement to this end. In such cases, the responsibility will fall on the parent with whom the child primarily resides to facilitate the necessary parental visitations,
As of 8th December 2008, child arrangement orders include prominent warnings to both parents, emphasising the importance of adhering to the specified guidelines, as well as the potential repercussions for violating the agreed terms. Additionally, these orders may be combined with a prohibited steps order, which explicitly outlines restrictions on certain assets that cannot be done by either parent, such as changing the child’s name without consent.
What Does Breaching a Child Arrangement Order Mean?
A breach of a child arrangement order occurs when one party fails to adhere to the terms set out. Examples of this include when the resident parent does not allow access to the other party on the stipulated dates and times, or if the non-resident parent does not return the child when expected.
If the non-resident parent is expected to collect the child and fails to do so, this can also be considered a breach.While there are times when an order can be broken with the consent of both parties — such as when one parent takes the child away on holiday — if permission is not sought or granted beforehand, this would be deemed a breach.
A child may also decide they do not wish to spend time with one of the parents. This can either be if something happened during a prior visit with the non-resident party, or if a situation occurred with the resident parent and the child does not want to return home. Should this happen, it is important to seek legal advice at your earliest opportunity. The Courts would expect parents to work together to encourage contact.
Courts will typically not act if a breach is only minor, or the offending parent has a reasonable excuse for not adhering to the rules. It will ultimately be down to that parent to prove they had a good reason, otherwise they could face significant consequences. Meanwhile, the other party should be sure to make notes each time a breach happens, as this could prove valuable if the situation does need to go back to court.
What is a Reasonable Excuse to Breach a Child Arrangement Order?
Reasonable excuses for a breach of child arrangement orders include situations where the child was unwell or the offending party suffered transport issues which prevented them from adhering to their obligations. As long as these circumstances are few and far between, there should be no cause for concern.
Unexpected events such as family emergencies or an injury to one of the parents can also be classed as a reasonable excuse. If the event can be easily explained and does not cause much disruption, it should be simple to resolve amicably.
What Happens if You Breach a Child Arrangement Order?
If you fail to comply with a child arrangement order, you will, first of all, be required to prove you had a reasonable excuse for doing so. This will be extremely tricky to do if you have let a pattern develop or persistently do not adhere to your responsibilities.
Potential penalties for a breach of child arrangement orders include:
- A fine or seizure of assets
- Compensation for financial loss
- An order to complete unpaid work
- The making of an enforcement order or a variation of the original order
- Commital to prison (only used in exceptional circumstances).
If you, for some reason, find yourself unable to comply with the order, it is important to speak with the other party to see if something can be arranged to make things easier for you. If an amicable resolution is not possible, you should consult a solicitor as soon as you can.
How to Enforce a Child Arrangements Order
If you are concerned that the child arrangement order is not being complied with, you should first of all speak with the other party to see if the situation can be resolved. This could potentially be carried out via mediation. Given the length of time and expense court action can take, finding an amicable solution is always preferred.
Should this not be possible, your next step is to apply for a child enforcement order. This can only be done if the original order had a warning notice attached to it (applicable for orders made on or after 8th December 2008). If not, one must be applied for first.
When you are ready to enforce a child arrangements order, you should complete Form C79 and send it to your nearest family court. There is also a fee to make the application, although you could have this waived or reduced in certain circumstances, such as if you receive benefits.
The court will then assess the case and decide whether or not an enforcement order is necessary. When carrying out this exercise, it will look at the following:
- Why the child arrangement order was breached and if there are any reasonable excuses
- The evidence gathered by both parties
- The effect the breach has had on the child
- Whether it would be in the child’s best interests to enforce the order (by assessing the welfare checklist)
- If the parents should attend any parenting programmes
- Whether the Children and Family Court Advisory and Support Service (CAFCASS) should be brought in
- If the matter should be referred to the local authority for investigation
Before looking to enforce a child arrangement order, it is always a good idea to seek legal advice at your earliest opportunity. Having a specialist law firm in your corner can ensure you are fully-prepared and understand all of your obligations.
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If you believe there has been a breach of the child arrangement order you have set up, or you stand accused of non-compliance, the Thursfields team is here to help.
We know that no two cases are ever the same, which is why we work with you to understand your circumstances and goals, before devising a bespoke solution that is built around you. Such is our expertise, the involvement of our team has often proved crucial in securing a positive result.
To find out more about how we can help, contact our team today.
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