Gareth Protheroe
More than five million households in the UK currently consist of a couple with dependent children, according to Statista. However, with 42% of marriages ending in divorce, according to the Office for National Statistics, this landscape is constantly changing and separating parents across the country are having to learn how to navigate co-parenting while going through what can be an incredibly stressful period in their lives if the split is acrimonious. Gareth Protheroe, Legal Director and Family Law Solicitor at Nelsons, explains how child arrangement orders can provide a solution to divorcing parties who are unable to agree on living arrangements for their children.
A child arrangement order, found under section eight of the Children Act 1989, is designed to regulate contact and living arrangements concerning children when the separating parties can’t agree on how much time will be spent with each parent. In these circumstances, the court has the power to make the decisions and specify:
- Where the child(ren) lives;
- When and where the child(ren) will see their other parent; and,
- Other specific matters relating to the child(ren)’s welfare and well-being.
What’s the process?
When making child arrangement orders, the court is required to attach a ‘warning notice’, the purpose of this is to encourage the parties to comply with the order and warn of the consequences of failing to do so.
The child arrangement order must contain the warning notice for an enforcement order to be made. In other words, the person who is in breach of the order must know of the existence of the warning notice. This could be by having a copy of the child arrangement order with the warning notice attached or being otherwise informed.
When a parent fails to comply with the contact arrangement, as prescribed in the order, a party may decide to make a further application to court if they need to enforce it.
If there is a breach in the child arrangement order, the court must consider whether an enforcement order is needed. Before this, the court must first be satisfied that making the order is necessary and proportionate to the seriousness and frequency of the party breaching the order.
Before the court decides to force action, they will consider:
- The reasons for the non-compliance;
- The effect of non-compliance on the child concerned;
- The welfare checklist;
- Whether advice from Cafcass is required on an appropriate way of moving forward; and,
- If the parties should attend any dispute resolution programmes.
How are child arrangement orders enforced?
In cases where the court is satisfied beyond reasonable doubt that a person has failed to comply with a child arrangement order, it has the power to enforce it in several ways. These include:
- Referring the parties to a Separated Parents Information Program (SPIP) or mediation;
- Variation of the child arrangement order, which could include a more defined order or reconsideration of the child’s living or contact arrangements;
- An enforcement order or suspended enforcement order;
- An order for compensation for financial loss;
- Committal to prison; or,
- A fine.
What happens if someone breaches a child arrangement order?
Any breach of an order is taken incredibly seriously and the court will often impose sanctions. For example, it can impose a requirement to undertake between 40 and 200 hours of unpaid work or make an order for the person in breach to pay the applicant compensation.
Therefore, if you do not agree with the stipulations set out in the order, it is better to take advice and make an application to vary the order rather than placing yourself in a situation where you may breach it and face the consequences.
Top tips:
- Think of what’s best for the children: In such a complicated, and often emotional, situation, it can be easy to get wrapped up in the proceedings, therefore it is crucial to consider how your actions will affect your children.
- Be open and willing to compromise: This is paramount in order for all parties involved to craft the best solution for you and your children.
- Find a family lawyer who specialises in children’s law: If you have a child arrangement order in place and a party to that order is failing to comply with the terms, then your first port of call is to try to resolve the issue privately. If this is not possible then you may wish to seek mediation or an application to a court for enforcement.
For more information on child arrangements please visit: www.nelsonslaw.co.uk/children-law/child-arrangements/
