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How to enforce a child arrangements order in the UK?

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One of the important issues a divorcing couple has to face is working out parenting arrangements for their children after the divorce. Ideally, the parents will be able to agree between themselves how they will share time with their children and have a joint role in making decisions that affect the children. This is sometimes agreed through a dispute resolution process such as mediation.

Often, the agreements made are documented in a Parenting Plan. Sometimes, though, the divorcing couple might choose to have the agreement they have made formalised by the court as a Child Arrangements Order. Or it might be that they are not able to agree on what the parenting arrangements will be and one parent asks the court to make a decision and make a Child Arrangements Order.

But what happens if your ex does not do what is specified in the Child Arrangements Order? Is there anything you can do to force them to comply with the agreement you made, or with what the court decided?

This article will explain what your options are if your ex does not comply with the terms of the Child Arrangements Order and what the possible consequences might be.

Can I enforce an informal agreement with my ex?

If you made an informal agreement with your ex – e.g., a Parenting Plan – and decided to leave it at that at the time, this cannot be enforced through the courts. There must be a Child Arrangements Order in place before the courts can enforce the agreement that has been made, or the conditions the court originally decided on.

What should I do if my ex is not doing what they are supposed to?

Before thinking about enforcement action, the first thing you should do is try to talk with your ex and find out why they are not sticking to the order that has been made. After all, what is important here is getting the arrangements back on track so you can keep having contact with your children as was agreed. It might be that your ex’s circumstances have changed and it is difficult for them to continue with the arrangements as originally made. If this is the case, you might be able to agree with your ex to make some changes to the order that you can both agree on. See our blog on Reasons To Vary A Child Arrangements Order.

Mediation is often the best and most effective way of having these difficult conversations with your ex and working through your differences, so you can come to an agreement that is best for your children.

If you are not able to discuss the problems directly with your ex, and if mediation – or alternative forms of dispute resolution – do not work, the last resort should be applying to the court to enforce the terms of the order.

Asking the court to take enforcement action is a big step to take. If your ex is not doing what the Child Arrangements Order says they must, this is a serious matter. They are disobeying the orders of the court, and the courts have powers to punish them. It is much better for everyone concerned if the situation can be resolved without court action. Your children do not want to see their parents in court battles over them. You want to have proper contact with your children with the least aggravation possible, and your ex probably doesn’t want to be punished by the courts for not cooperating.

This is another good reason for trying mediation as soon as you see that the order is not been complied with. The mediator will be able to calmly explain to your ex what the possible consequences of non-compliance can be and how a mediated agreement can be in everyone’s favour.

What do I need to say to the court in the application?

If all other efforts to get the Child Arrangements Order back on track are unsuccessful and court action is the only option left, you need to apply to the court using Form C79. There is a fee of £232 to pay. As usual with court fees, these might be reduced for people who have a low income and not much in savings.

After giving full details of everyone involved in the case, the relevant section of the form is number 7a – applying for an enforcement order. You need to prove beyond reasonable doubt that your ex is not complying with the terms of the order. So, you need to explain the exact clauses of the order that you say are being broken. You are likely to have to prove that it is not just a one-off, but that your ex is repeatedly failing to comply.

You also need to set out what you have done so far to try to get the other person to comply. So, how many times have you tried to contact them? When? What were the results? Have you tried to use mediation or another form of dispute resolution? What has been the result on your relationship with your children?

What will the court do?

When considering your application, and what your ex says in response to it, the court has to be satisfied beyond reasonable doubt that the terms of the order have been breached.

If your ex has a “reasonable excuse” for not complying, the court will not make an enforcement order. It would be up to your ex to prove to the court that they had a reasonable excuse. This is why it is important to try and discuss the situation with your ex, either directly or through mediation, before starting any court action. If you find out before starting court action that your ex does actually have a reasonable excuse, it will often be possible to work out a way to get round the problem.

If the court decides your ex has breached the order, they will then decide what measures to take. The court’s first consideration is what is in the children’s best interests. They might decide it is appropriate, and in the children’s best interests, to change the terms of the Child Arrangements Order, or they might order your ex to comply with the term(s) they have breached.

As well as correcting the situation as regards the contact the children have with each parent, because this is now a matter of disobeying the court rather than just a dispute between the two parents, the court has the power to punish your ex for non-compliance if they decide that the breach is serious enough. This might be by making an order for them to carry out unpaid work for the community, or to fine them, or to order them to attend a parenting programme. Very, very rarely, and only in the most serious circumstances, your ex could even be sent to prison for non-compliance.

Can I ask for compensation?

If you have actually lost money and can prove that to the court, you could ask for these costs to be repaid to you. Typically, this might be if you had booked to take your children on holiday in accordance with the terms of the Child Arrangements Order, but as a result of your ex’s breach you had to cancel the holiday and lost all or part of the cost you had paid. But you will not get anything above what you can prove you actually paid out and lost – i.e., you cannot claim compensation for stress caused, etc.

Conclusion

Failing to comply with a Child Arrangements Order can have serious consequences. It is disobeying the orders of the court and, as well as ordering the person who is breaking the terms of the order to comply in the future, the court also has the power to vary the terms of the order if they think that different terms would be more in the children’s interests in view of what they have heard. The court also has the power to punish the person for breaking the order. This could be a fine, or an order to carry out unpaid work, or attend a parenting programme, or even, in theory, sending them to prison.

It is better to find out the reasons why your ex is not complying with the order and make every effort possible to resolve the problem before starting enforcement action. This is usually the best way of your children still having a good level of contact with both parents and keeping the situation between all parties as calm as possible.

Mediation can be an enormous and inexpensive process. Talk to one of our friendly and experienced team to find out how we can help you.

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