On the break down of a relationship, consideration will need to be given to the arrangements for any children, including with which parent they should live and how often they should spend time with the other. If parents are unable to agree these arrangements between them, an application will need to be made to court for a Child Arrangements Order. After the court process is finalised, the parents will have a clear court order setting out the arrangements for the children; however what happens if those arrangements break down after the order is obtained?
If a parent prevents the other from spending time with the children as set out in the order without real justification, this is a breach of the order. When making a child arrangements order, the courts are required to attach a notice warning of the consequences of failing to comply with it. The Court has a wide range of powers in the event of a breach taking place without reasonable excuse, and includes:-
If a court is to consider a breach of the order, a party will need to make an application to the court for enforcement. When the court considers whether to make an enforcement order, the court must be satisfied that making the order is necessary and proportionate to the seriousness and frequency of the party breaching the order.
The court will consider:-
Concern has however arisen amongst some practitioners that courts are often slow to respond to an application for enforcement and are reluctant to penalise the parent in breach; particularly if the defaulting parent is the one with whom the children live. It is felt that this sends a dangerous message in that court orders are optional not mandatory and that the relationship with the non-resident parent is meaningless.
The Family Justice Bill sought to make provision for the enforcement of Child Arrangement Orders, including times within which enforcement action must take place. The Bill had its first reading on 28 March 2017; however as a General Election has now been called and Parliament will be dissolved from 3 May 2017, the Bill falls and no further action will be taken. Regardless of this, it is likely that some will consider that a new approach is needed, and it is likely that further reforms will be suggested in the near future.
An application for enforcement is not the only option available to a party who has been prevented from spending time with their children as set out in a court order. They could consider mediation or other alternative dispute resolution methods. Therefore, if you find yourself still having difficulties in exercising contact with your children, despite there being an order, contact Rebecca Gladwin today on 01908 304560 or speak to another member of our team of specialist family solicitors to discuss the different options available to you.