The other parent is ignoring the Child Arrangements Order, what do I do?
If the other parent or adult is not adhering to the terms of the order without prior agreement, then an application can be made using Form C79 (Application Related to Enforcement of a Child Arrangements Order).
As with the majority of applications, the applicant would be expected to have made a referral to mediation to see if progress could be made using that route first. If not, then an application can be made.
However, if it is the parent who is to spend time with the child who is not complying - for example constantly cancelling arrangements or simply not turning up - then the parent with care can decide whether to leave matters and let the other parent take it back to Court, as sometimes it is better for the child not to see a parent at all than have them in and out of their lives.
Section 21 of Practice Direction 12B sets out the requirements of the Court when considering an application for enforcement as follows:-
On any application for enforcement of a child arrangements order, the court shall –
• consider whether the facts relevant to the alleged non-compliance are agreed, or whether it is necessary to conduct a hearing to establish the facts;
• consider the reasons for any non-compliance;
• consider how the wishes and feelings of the child are to be ascertained;
• consider whether advice is required from Cafcass on the appropriate way forward;
• assess and manage any risks of making further or other child arrangements order;
• consider whether a SPIP or referral for dispute resolution is appropriate;
• consider whether an enforcement order may be appropriate, and
• consider the welfare checklist.
Once the application has been received by the Court, the case should be listed within 20 working days of it being issued and, if possible, should be brought back before the same Judge that made the initial order. An application for enforcement should be concluded as soon as possible.
When the matter is allocated and listed, consideration will be given as to whether Cafcass should undertake further safeguarding checks. If the application for enforcement is made more than three months after the initial order was made then updating checks will be ordered.
If it is found that there has been a breach without reasonable excuse, the Court has a wide range of powers and at Section 21.6 of the Practice Direction these powers include, but are not limited to :-
(a) a referral of the parents to a SPIP or mediation;
(b) variation of the child arrangements order (which could include a more defined order and/or reconsidering the contact provision or the living arrangements of the child);
(c) a contact enforcement order or suspended enforcement order under section 11J Children Act 1989 ('Enforcement order' for unpaid work);
(d) an order for compensation for financial loss (under section 11O Children Act 1989);
(e) committal to prison or
(f) a fine.
If the Court is considering an enforcement order for non-compliance with the Child Arrangements Order or a compensation order in respect of financial loss, the Court shall, if there is no agreement as to the relevant facts, first of all determine the facts in order to establish the cause of the alleged failure to comply.
Section 21.8 of the Practice Direction sets down that :-
‘Section 11L Children Act 1989 provides that if the court finds that a breach has occurred without reasonable excuse it may order the non-compliant party to undertake unpaid work if that is necessary to secure compliance, and if the effect on the non-compliant party is proportionate to the seriousness of the breach. The court must also consider whether unpaid work is available in the locality and the likely effect on the non-compliant party. It is good practice to ask Cafcass/CAFCASS Cymru to report on the suitability of this order. Section 11L(7) also requires the court to take into account the welfare of the child who is the subject of the order for contact.’
The running of the Court process will be very similar to the proceedings when the initial application was made. The Court will consider whether a fact finding hearing is needed, whether statements from the parties are needed, and if any further evidence will be required for example an updated Section 7 Report is needed.
Sometimes, the parent with care who is alleged to have prevented contact from happening has justification for doing so, for example the child being at risk of harm in the care of the other parent. If the Court is satisfied that the order was breached with good reason then the other parent’s time with the child will be reassessed and any concerns investigated.
In many cases the Court will order that the initial final Child Arrangements Order should be reinstated, and in others that there should be variation. Only serious and repeated breaches will lead to more serious punishment.
A parent with care of the child needs to be careful if they continually breach the Child Arrangements Order and prevent contact with the other parent as the Court can ultimately order a change in where the child lives.