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Arrangements for the children – where one party breaches an agreement

Where a court order is in place and where no court order is in place

Where a court order is in place

It can be highly disruptive when one party breaches a court order in respect of arrangements for the child. The order may well represent the outcome of months of negotiations, with the final outcome having been reached by consent or following a contested final hearing. The costs – practical and emotional – of such negotiations and proceedings cannot be underestimated.

The party complaining of the breach will have to consider very carefully whether that breach is material. Returning a child 10 minutes late from contact may be irritating and unhelpful, but as a one off may not be avoidable. However, persistent late returns, or refusal to comply with court ordered terms generally, may mean that enforcement action becomes appropriate.

An application can then be made to the court for enforcement. At this point, the court will consider whether the facts of non-compliance are agreed or whether a hearing is necessary to establish those facts. Cafcass will be ordered to carry out safeguarding checks if the application for enforcement is issued 3 months after the final order was made.

In the event that the breach is admitted or found, the court has a wide range of orders, to include:

Referring the parents to a Separated Parents Information Programme:

  • Varying the order – crucially, this can alter the existing contact provision or even the living arrangements of the child;
  • A contact enforcement order, to include an order for unpaid work;
  • Order for financial compensation;
  • Committal to prison;
  • A fine.

The innocent party will in all likelihood wish to claim any legal costs incurred in bringing the application, and is likely to recover at least a proportion of those costs.

Parents therefore need to be aware that the implications of persistent, inexcusable and deliberate breach of court-ordered arrangements can be very far reaching. In exceptional cases, this can include transfer of residence to the innocent party, particularly where the breaching party has been found to persistently frustrate arrangements for the child to spend time with the innocent party. However, any orders the court considers making in the face of the enforcement application will of course have to be weighed in the balance against any resulting negative consequences for the child’s welfare. If punishing the breaching party results in consequently “punishing” the child, practically, financially or emotionally, then the court may find themselves in an extremely sensitive position.

Where no court order is in place

We have previously explained the limiting factors which will prevent many parents from seeking a “consent order” where arrangements for the child are agreed between them outside of court proceedings. The result is that often such parents will have devoted significant time and efforts to reaching agreement, only to find one parent then reneges. Without a binding court order, the above options for enforcement are not available. However, there are alternative routes to consider:

  • A strongly worded solicitors’ letter may assist in reminding the breaching party of the agreement reached, the considered and careful negotiations that produced that agreement and the negative impact on the child of failing to adhere to the agreement.
  • The parties could attend mediation, in an attempt to address those elements of the agreement which may perhaps be causing difficulties, whilst hopefully retaining the spirit of the overall agreement and avoiding starting from scratch with contested court proceedings.
  • Alternatively, the innocent parent may wish to apply to court, enclosing a copy of the written agreement which had been reached, and asking the court to make an order in those terms. That will not bypass or eliminate the need for Cafcass safeguarding checks or the court’s enquiry process, but any agreement the parties themselves had previously reached will be relevant, and may be pervasive. The court retains powers to make an order which may be of little relevance to the original agreement if it considers that the welfare of the child so dictates. However, in our experience the court will wish to strongly weigh up an agreement that the parties themselves had come to, considering it (at that time) to be in the best interests of the child.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Ellie Webster at eleanor.webster@weightmans.com.  

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