Child Arrangement Orders were introduced in 2014 to replace Residence Orders and Contact Orders. They are put in place to regulate who a child is to live with or spend time with. However, issues can arise when parents or individuals named on the Order are not complying with the terms of the Order.

What can be done?

To enforce a Child Arrangements Order, the application must be made by an individual named on the Order who the child is having contact with or living with. The following criteria should then be met:

  1. A Warning Notice must be attached to the Child Arrangements Order, stating the consequences of failure to comply. This will give the Court the power to make an Enforcement Order.
  2. There must also be evidence of non-compliance. The individual must have broken the terms of the Order without a reasonable excuse.

The application made by the compliant parent should detail what has happened and when.

How will the Court decide?

Enforcement Orders are dealt with under Section 11J of the Children Act 1989. The Court will only make an Order in the event that they are satisfied that it is necessary and proportionate to the breach of the Order. The Court will not make an Enforcement Order if the person who has failed to comply shows that they had a reasonable excuse to break the terms of the Order. The burden of proof for deciding whether there was a reasonable excuse is the balance of probabilities.

Paragraph 21 of Practice Direction 12 B of the Family Procedure Rules outlines the criteria the Courts follow when determining whether an Enforcement Order is necessary. This includes:

  1. Reasons for the non-compliance;
  2. Considering how the wishes and feelings of the child are to be ascertained;
  3. Considering any advice from Cafcass;
  4. Considering whether an Enforcement Order may be appropriate, and
  5. Taking into account the welfare checklist.

What are the Sanctions for non-compliance?

An individual may be held to be in contempt of Court for not complying with a Child Arrangement Order. Paragraph 21.6 of Practice Direction 12 B lists some of the sanctions available to the Court (these are not limited):

(a) referral of the parents to a SPIP, or in Wales a WT4C, 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), (see paragraph 21.7 below);

(d) an order for compensation for financial loss (under section 11O Children Act 1989);

(e) committal to prison or

(f) a fine.

Here to Help

If you are having difficulties with the implementation of your Child Arrangement Order or need any further advice on Child Arrangement Orders, please do not hesitate to contact a member of our Family Law team on 0161 941 4000 or email the Family Law team.