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I got 99 problems...

View profile for Karen Johnson
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I got 99 problems and enforcing a child arrangements order is one of them!

Consider a situation; you separated from your partner some time ago. Whilst there was initially some difficulty is resolving the arrangements for your two young children, there is now a Court Order which sets out when the children are supposed to be with you and when they should be with your ex-partner. You thought that it would be alright now and that you could both move on BUT you are still having problems as your ex-partner is refusing to comply with the terms of the order. So what next?

Fortunately, in the majority of cases, a final child arrangements order is just that, final. However, it is also important to appreciate that, over time, the arrangements for the children may need to change to better meet their needs. This might be because they have started school, have extracurricular activities they want to participate in or because the parent’s circumstances have changed (perhaps with regards to work commitments), which means that with the best will in the world, the old arrangements simply cannot work anymore.

If you are being denied time with the children, the first question to try to understand is “why?”. Even where an order has been made, it is expected that the parents should continue to work together to promote a child’s best interests, which, in the absence of any safeguarding issues, should involve a meaningful relationship with both parents. In the event that either parent considers that the current arrangements are no longer in the child’s best interests, they should try to agree a way forwards with the other parent and, if an agreement cannot be reached, then an application should be made to the court to vary the child arrangements order by the person who wants the changes made.

If, however, there is no clear reason for the refusal to comply with the terms of the order, or you do not accept that the reason given justifies the failure to comply, then it is going to be necessary to consider applying to the court to enforce the order.

Whenever a court makes or varies a child arrangements order, it attaches a notice warning of the consequences of breach. The consequences for failing to comply with a child arrangements order include;

  • an enforcements order (between 40 – 200 hours’ community service)
  • an order for financial compensation; or
  • the use of the court’s sanctions for contempt (up to 2 years’ imprisonment and/or a fine)

Before the court will make any of these orders, they must be satisfied beyond reasonable doubt that the order has been breached and that the person who breached the order cannot prove that they had reasonable grounds to breach the order.

Although the court is able to take action against a person who flagrantly breaches a court order, the court must still take into account the welfare of the child who is the subject of the child arrangements order. Invariably, any action taken by the court will be with the aim of discouraging further breaches and to encourage the parent to promote and comply with arrangements that are considered to be in the best interests of their child. The aim is to get the arrangements “back on track” rather than “to punish”. As such, the court may look to the other options available which can include activity directions, possibly requiring a person to attend counselling, programmes or classes designed to help establish, maintain or improve the involvement of a person in the child’s life and monitoring them.

Unfortunately, there are some cases where there are repeated breaches of court orders. In this situation it remains important to establish the reason behind those breaches and whether enforcement proceedings can assist or whether this is a case that future compliance is unlikely. In some cases, this may mean that it is appropriate to consider changing the parent with whom the child shall live. This is not intended as a punishment or method of enforcement and can place the Judge in a difficult situation.

A court must, when looking at the arrangements for children, make a decision that they consider is in the child’s best interests, taking into account the following factors;

  • the child’s wishes and feelings
  • needs
  • parents’ ability to meet those needs
  • risk of harm; and
  • the effect of any change in circumstances

In cases such as these, the Judge has already considered that it would be in the child’s best interests to be spending time with both parents. However, going forwards, the refusal to comply with the order indicates a refusal or inability of the parent with care to recognise or act in the child’s best interests, and as such may not only be unable to meet their needs, but may also present a risk of harm. This must be balanced with the other factors, including the child’s wishes and feelings (which can present a real issue if the parent with care has either intentionally or unintentionally turned them against their other parent) and the effect of any change in circumstances. In cases such as these, it is likely that the Judge will seek for the child to be joined as a party to the proceedings and represented by a Guardian ad Litem and may also seek expert evidence to assist in understanding the problems faced and how they might best be overcome.

In the event that you are experiencing difficulties with the arrangements for children, early advice can be invaluable. We are able to provide clear practical advice specific to your circumstances as to where you stand and what your options are going forwards. Our solicitors are members of Resolution, and accordingly we aim to conduct matters in a way which is constructive, non-confrontational and which puts the needs of the children first. We find that our early involvement assists clients in managing issues so that applications to court are unnecessary because problems are addressed as they arise rather than being allowed to fester and generate more problems. If agreement is not possible, our advice and assistance will ensure that you are in the best position to secure the best outcome for you and your child.

For more information in relation this or other difficulties arising from a relationship breakdown, contact me for a free 15 minute no obligation chat. I am based in our Colchester office and can be contacted on 01206 217305, karen.johnson@birkettlong.co.uk or alternatively complete our online enquiry form here.

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