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Enforcing a Child Arrangements Order 

To enforce a Child Arrangements Order, there is certain criteria which should be met and/or considered prior to the filing of any application which we set to discuss within this article. 

  1. There must be a Child Arrangements Order
  2. A warning notice must be attached to the Order
  3. Meeting the threshold of unreasonable doubt
  4. Is there a reasonable excuse for failing to comply?
  5. Residence

A Child Arrangements Order 

A Child Arrangements Order, is an Order which regulates with whom a child will leave, spend time or otherwise have contact.  Child Arrangements Orders have been in force since spring 2014. As per the Government’s website “you can only apply to the court for an order related to enforcing a child arrangement if a child arrangements order has been made”. 

 Warning Notices 

It is essential that the Child Arrangements Order, contains a warning notice regarding the consequences if anyone the order applies to fails to adhere to the Order. Why?  Well, it is imperative that the individual has been warned of the consequences of failing to keep to the child arrangements order before any failure. 

From 8 December 2008, warning notices (a warning about the potential consequences if anyone the order applies to fails to adhere to it) are now automatically placed on a Child Arrangements Order and often reads as follows: 

“Where a Child Arrangements Order is in force and the arrangements regulated by it consist of, or include, arrangements which relate to either or both (a) with whom the children concerned shall live and (b) when the children shall live with any person, no person may cause the children to be known by a new surname or remove the children from the United Kingdom without written consent of every person with Parental Responsibility for the children or the leave of the Court. 

 However, this does not prevent the removal of the children, for a period of less than one month, by a person named in the Child Arrangements Order as a person with whom the children shall live (Sections 13(1), (2) and (4) Children Act 1989). 

It may be a criminal offence under the Child Abduction Act 1984 to remove a child from the United Kingdom without the leave of the Court. 

Where a Child Arrangements Order is in force:

If you do not comply with a provision of this Child Arrangements Order:- 

(a)          You may be held in Contempt of Court and be committed to prison or fined; and/or 

(b)          The Court may make an Order requiring you to undertake unpaid work (“an enforcement order”); and/or 

(c)          An Order that you pay financial compensation. 

If the Order was made prior to 8th December 2008, it may not contain a warning notice, if this is the case, please do get in touch so we can discuss the options available to you on this issue. 

Reasonable Doubt 

In matters where a party to the Child Arrangements Order has not adhered to the terms of the Order. The court can look to an Enforcement Order, on the basis that it is satisfied beyond reasonable doubt that the person with whom the Order is made against has failed to comply with the Order without reasonable excuse. 

Reasonable excuse 

A defence against an enforcement order, is that the individual accused of breaching the terms of the Child Arrangements Order, has a reasonable excuse for failing to comply.  The burden of proof will rest on the person claiming to have such a reasonable excuse on a balance of probabilities.  

It is important to note, that the court has wide discretion on this issue and matters will come down to the facts of each individual case. 

Prior to proceeding with an application for Enforcement, it may be sensible to discuss this issue with the other party to gain an understanding of why the breach may have occurred.   It may be possible that the issues can be rectified without the need to proceed with an application for an Enforcement Order, or it may be determined that the original Child Arrangements Order, needs varying, so it can be manageable and workable for everyone, in the best interests of the child(ren). 

 Residence  

An Enforcement Order will no longer have effect on an individual if they cease to be habitually resident in the jurisdiction of England and Wales. 

The Court’s Powers 

If it is determined that that there has been a breach of the Child Arrangements Order and an Enforcement Order is necessary, the court has a wide range of powers available.  Here are some examples of such powers: 

  • Financial compensation for any financial loss
  • Variation to the Child Arrangements Order
  • A fine
  • Mediation
  • Unpaid work

The paramount consideration for the court must be the welfare of the child(ren) and so the court must be satisfied with the following, before making an Order: 

  1. The Enforcement Order is necessary
  2. The effect of the Order is proportionate
  3. Can a provision for unpaid work be made in the local area in which the person resides
  4. Consideration of the individuals personal information, such as religion, financial effect

On the above, the court can and will often as ask Cafcass to assist with the matter and file suitability recommendations. 

If it is the case that you are experiencing issues with a Child Arrangements Order, or a party to the Order is raising concerns as to your compliance with the Order. Then please do get in touch with one of our specialists, so that we can help you and your family move forward. 

 

 

 

 

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