Application for an Enforcement Order
If a Child Arrangements Order is not being complied with and you have been unable to resolve the matter amicably you can make an application to the Court for an Enforcement Order. It may be appropriate to undertake Mediation first however Mediation is not always appropriate.
What you must show
The Court can only make an Enforcement Order if it is satisfied beyond reasonable doubt that a person has failed to keep to the Child Arrangements Order. The Court cannot make an Enforcement Order if it is satisfied that the person had a reasonable excuse for failing to keep to the Child Arrangements Order. The burden of proving a reasonable excuse is on the person in breach and the test is the balance of probabilities.
Factors which the Court will consider
On any application to enforce a Child Arrangements Order the Court will consider a number of matters including the reasons for any non-compliance, how the wishes and feelings of the child are to be ascertained, whether advice is required from Cafcass (Children and Family Court Advisory and Support Service) on the appropriate way forward, the welfare checklist (see below).
When the Court determines any question with regard to a child, the child’s welfare will be the Court’s paramount consideration. The Children Act 1989 contains a checklist of factors that the Court must consider when deciding what the children’s needs are and what Order to make. Those factors are:
- the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
- the child’s physical, emotional and educational needs
- the likely effect on the child of any change in their circumstances
- the child’s age, sex, background and any other characteristics of theirs that the Court considers relevant
- any harm the child has suffered or may be at risk of suffering
- the capability of the child’s parents (and any other person in relation to whom the Court considers the question to be relevant) in meeting the child’s needs, and
- the range of powers available to the Court under the Children Act 1989 in the proceedings in question
The checklist is not exhaustive.
Orders which the Court can make
Where the Court considers that there has been a breach of a Child Arrangements Order without reasonable excuse, the powers available to it include (but are not limited to):
- referral of the parents to a Separated Parents Information Programme (SPIP) or Mediation
- variation of the Child Arrangements Order
- an Enforcement Order or suspended Enforcement Order – an Order imposing an unpaid work requirement
- a Financial Compensation Order – an Order for compensation for financial loss
- committal to prison (in extreme circumstances)
- a fine
Get in touch
If you would like to get in touch for advice on family matters from any of our Family Law Solicitors, then please call 01323 841481. Or alternatively, please fill in the form below and someone will be in touch.
Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.