Enforcement of Child Arrangement Orders
Child Arrangement Orders (CAOs) are court orders which regulate where a child is to live, and how much time they spend with their parents. They replaced the traditional residency orders and contact orders in 2014. However, what happens when one party does not adhere to arrangements included in a CAO? What recourse does a parent have against a party in default of such arrangements?
In the first instance, parties should always consider whether they are able to come to agreement privately or through mediation. Most CAOs allow for variations by agreement. A harmonious relationship between separated parents is, in most circumstances, in the best interests of any children. However, in instances where there has been a complete breakdown in communication and/or allegations of domestic abuse, or where one party has a pattern of non-compliance with the CAO, an application to the court may be in order.
If an application is made to the court, the courts have a wide discretion on remedies; for example, they may refer the parents to a Separated Parenting Information Programme (SPIP) or mediation. These courses focus on educating parents as to how to put their children first during separations and understand the impact a separation can potentially have on a child. Attendance may be particularly useful to parents who are struggling to overcome continuing conflict, or where there has been a communication breakdown between the parties and their children.
An application could also be made to vary the existing CAO. This may be appropriate where one parent is failing to adhere to defined schedules, or to minimise or maximise time spent according to work schedules. This may also be useful where contact determined by the CAO is not possible where the child is older and “voting with their feet”. The primary consideration of the court will be the best interests of the child, with particular consideration given to the wishes of the child as the child gets older.
Other remedies include applying for an enforcement order or suspended enforcement order under Section 11J of the Children Act 1989, which imposes an unpaid work requirement upon the defaulting party. This is similar to the community service punishment sometimes handed down in criminal matters. However, a court will only make such an order if it considers it appropriate, proportional to the seriousness of the breach and if no reasonable excuse or explanation is provided by the party. These Orders are not straightforward, and likely to exacerbate any tensions or conflict between the parties, so serious consideration should be given before making any application.
Where one party has experienced financial loss, an application can be made for an order to compensate for such loss. This is useful in instances where, for example, one party has failed to make a child available for travel or holiday plans. However, given there are inevitably going to be costs incurred in making such an application, a balancing exercise in the economy of making such an application is wise.
In the most extreme of cases, a court may order a party be committed to prison or pay a fine.
Parties should always have the welfare and best interests of children paramount in their minds when considering the merits of making such an application, and consideration as to whether mediation might be more appropriate to reduce conflict and support an ongoing relationship both between the parties, and between the parties and the children.
Please contact Kathryn Ainsworth or Faith Widdowson if you would like information about the issues raised in this article or any aspect of family law.