A Child Arrangements Order is a Family Court Order which specifies with whom a child is to live and who they shall spend time with. These types of Court Orders were previously referred to as a ‘residence’ or ‘custody’ order.
The Court may grant a Child Arrangements Order upon an individual (usually a parent) applying to the Court when there is a dispute as to where a child should live or how often they should spend time with the other party. Once the Child Arrangements Order is in place, it is legally binding. It is essential that the Order includes a Warning Notice detailing the consequences of breaching the Court Order.
What happens if you breach a Child Arrangements Order?
If you breach a Child Arrangements Order, you may be held in Contempt of Court, which is punishable by fine, seizure of assets or even imprisonment.
The Child Arrangements Order must include a Warning Notice which states “If you do not do what the child arrangements order says you may be made to do unpaid work or pay financial compensation. You may also be held to be in contempt and imprisoned or fined, or your assets may be seized.”
Where there has been a breach of a Court Order which includes a Warning Notice, the other party may apply to the Court to enforce the Child Arrangements Order by completing and filing a C79 Form.
When considering an application to enforce the Order, the Court may be asked to impose a form of punishment to the party who is not sticking to the Order, such as Ordering them to undertake unpaid work or make a payment to compensate for any financial loss the other parent has suffered. A Financial Order may be appropriate where an individual has taken time off work to spend time with the child, or has a holiday or activity booked and this has not taken place due to the breach.
What is a reasonable excuse to breach a Child Arrangements Order?
There may be times that it is necessary or reasonable not to comply with a Child Arrangements Order. The Court in these circumstances will need to determine whether the individual who has allegedly breached the Order has a reasonable excuse for doing so and this will be entirely dependant on the circumstances of the case.
For example, if a parent was late in dropping a child off for contact and this was a one-off occasion due to unexpected traffic or an appointment running over, the Court are unlikely to find that the parent is in Contempt of Court or should be required to undertake unpaid work. However, if that parent is repeatedly significantly late and there is no reasonable excuse, and the child’s time spent with the other parent is being impacted as a result, the Court may determine that there has been a breach of the Order.
In some circumstances, a parent may be required to breach the Court Order due to safeguarding concerns, for example, if the parent has concerns that the child will suffer, or be at risk of suffering harm if the Order was to be complied with. If you have concerns that your child would be at risk of harm, it is advisable you obtain urgent legal advice. The Court in these instances would be required to consider the alleged harm suffered, or the risk of harm, to determine whether the individual has been reasonable by not complying with the Order.
The Court’s paramount concern is always the child’s welfare and therefore if there is a genuine risk of harm, there may be a reasonable excuse for breaching the Order.
The reasonableness of a party’s actions when breaching a Court Order is always case specific and it is therefore strongly advisable you seek legal advice before failing to comply with the Order.
Variation of a Child Arrangements Order
If you have a genuine reason for not complying with a Child Arrangements Order, for example due to safeguarding concerns, it may be appropriate to make an urgent application to vary the Child Arrangements Order.
To vary a Child Arrangements Order, you must complete a either a C100 or C2 form, depending upon whether there are existing proceedings. It may be that you are simply asking the Court to vary certain arrangements, such as the time and location of handover if there has been a change to your work arrangements and you can no longer attend at the previously ordered time. There may also be more serious circumstances, such as varying the Court Order to change a child’s residency or suspend a parent’s contact.
When considering an application to vary a Child Arrangements Order, the Court must consider the ‘welfare checklist’ at s1 Children Act 1989 to determine what is in the child’s best interests.
Taking steps to make an application to the Court to vary the Order can be made on an urgent basis if necessary and this might be the appropriate course of action when you have decided not to comply with the Court Order for a specific reason. In such circumstances, you are making the Court aware of the breach and requesting a change to the Order, rather than waiting for the other party to make an enforcement application where you risk being held in Contempt of Court.
The Law relating to breaches of a Child Arrangements Order and enforcement can be complicated. Laker Legal can offer specialised advice to support you through these matters.
Please contact our expert Family Law Solicitors today to discuss your situation.