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Overview of Child Arrangements Versus an Enforcement Order

Overview of Child Arrangements Versus an Enforcement Order

The starting point for any separated parent who cannot resolve parent-sharing arrangements with their ex-partner is a #ChildArrangements order (CAO) using a form C100.

There can be many reasons for applying to the court, such as a history of domestic abuse, parental alienation or hostility to contact, or a complete breakdown in communications and trust. The list goes on.

Through the CAO, the court will gather the necessary evidence to make the required welfare decisions for the child or children of the family. It will include:

o essential safeguarding reports o social worker reports (section 7 report) o the possibility of an evidential fact-finding hearing (FFH). This may become necessary to build a factual matrix of information. o recommendations and guidance from child-related professionals and o a final welfare hearing.

Dependent upon the complexity of the issues before the court, the entire process can take one to two years. For this reason, the court often requires parents to attempt mediation first and attend a MIAM (Mediation Information and Assessment Meeting).

However, because agreements made through mediation are not legally binding, parents often feel that mediation is pointless and unhelpful.

Disappointment then follows parties into the family court because parents do not understand the process, and the various professionals they may engage with do not adequately manage the expectations. This leads to frustration and, sometimes, a reluctance to accept the findings and decisions that a court will inevitably make should the parents not agree.

When disappointment occurs, what may follow is a summary determination by the live-with- parent not to comply with the order.

This is particularly the case where there are unresolved allegations of historical or ongoing domestic abuse that the live-with-parent felt were relevant to their reasons for stopping contact with the other parent in the first place. Essentially, the live-with-parent may deem it unsafe for the children to spend time with the other parent.

In such circumstances, we increasingly find that co-parenting relations become intractable; that is, there is no meeting of mindsets or willingness to compromise for the children's best interests. Such hostility to contact may become parental alienation. This may be a very entrenched and bitter war between the parents, with the children caught in the middle and often being pulled from pillar to post to side with whichever parent they live with.

Nevertheless, the court will produce a final order which follows the evidence and the recommendations provided by the child professionals (e.g., Cafcass, Independent Social Worker, Local Authority Social Worker, Child Psychologist etc.).

It then falls to the parents to uphold and comply with the final order, irrespective of whether they agree with it.

Failure to comply with any order of the court is contempt of the court and a breach.

When an order is breached, the first thing to consider is the reasons behind this. Did the breach occur once? Has it become a pattern? How was contact going before the breach? Did something else happen which may give rise to safeguarding concerns? Understanding the anatomy of what causes an order to become breached is essential.

As things currently stand, the remedy for dealing with a breach of a CAO (child arrangements order) is enforcement proceedings issued using form C79. But this is purely a gateway back to the family court. Once proceedings are issued, the court has multiple ways (tracks) for dealing with it.

In the first instance, the application will ask the court to restore the previous final order of the court.

But depending upon the reasons for the breach, the court may find itself unable to restore the previous #childarrangements order, especially if there are genuine safeguarding or child welfare- related reasons given by the party who has caused the breach.

It is worth noting too that parties are allowed to put ‘reasonable excuses’ before the court in justification for why they stopped contact – although also worth noting that there is a low tolerance threshold for excuses.

Suppose there are insufficient reasons to justify the ceasing of contact between a child and their non-resident parent. In that case, enforcement will become round two of the original #ChildArrangements order proceedings. Safeguarding will be undertaken, and another welfare report (section 7 report) will often be required.

The family court is loathed to punish errant parents without good cause and is often criticised for being too lenient.

If a matter returns for enforcement, the underlying causes may not have been adequately examined in the first set of #ChildArrangements order proceedings. In essence, the file is opened, up-to-date evidence is gathered, reports and recommendations are sought etc. What started as enforcement translates to a new final order as the end result. Eventually!

It is rare for one party to claim legal costs against the other party. There are, however, exceptions. And enforcement is one such exception.

If breaches have occurred, and there is a lack of acceptable justification, the question of costs arises through the enforcement proceedings route. This should be understood by any party who refuses to comply with a court order because costs can run into an eye-watering amount of money.

As a last point of note, enforcement applications must be taken very seriously. The failure of a parent to comply with a court order and to deny their child(ren) adequate time with the other parent risks a pathway to transfer of residence proceedings where the child may need to live with the other parent to ensure quality time with both parents.