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What to do if your former partner is not complying with a child arrangement order?

17th January 2024 by Amber Tarrant

Categories: What's New?
Tags: arrangement, child, order

A child arrangement order (sometimes referred to as a CAO) is a court order which provides for a child to spend time with another person by way of contact following parental separation, or for where a child should otherwise live or reside.  These orders are meant to be ensure the continuing involvement of both parents in the child’s life for the sake of the child’s welfare. 

This type of court order is normally only needed when parents cannot reach agreement between themselves over what is best for their child and ordinarily the court will not make any order unless it considers that it would be better in the interests of the child’s welfare for there to be an order made. The court process can be lengthy, as well as being stressful for all concerned and so it can be extremely disappointing when once the court has made an order between a child’s parents that is considered to be in that child’s best interests when one party fails to comply with it.

‘Breach of a child arrangement order can cause distress for a parent, but also results in significant uncertainty for children.  At times it can mean that a child is not able to see one of their parents, so it is important to understand your options when a breach occurs,’ says Amber Tarrant, a legal executive in the Family team with Laceys Solicitors in Bournemouth.

What is breach of a Child Arrangements Order?

A breach of a CAO can be anything that is done not in compliance with the terms of the order.  It may be a failure to make a child available to the other parent for the purpose of contact or the failure of a parent exercising contact with the child to return that child to the parent with whom the child lives at the end of a period of contact. The court must be satisfied beyond reasonable doubt that a breach has occurred, and that there is no reasonable excuse for non-compliance where for example matters may be beyond a parents control through problems with transport or the illness of a child. 

The court will expect that a practical approach is taken towards minor breaches, such as the handover of a child being delayed a short while which may be made up in time adjusted for the child’s return.  Even if there is a more substantial breach, it may not always be deliberate or something in which a court would seek to intervene. 

However, if a parent repeatedly breaches the order, even if they are small breaches, or if they simply refuse to comply with the terms on a continuing basis such as refusing to return the child after the end of a period of contact, then the court has powers to enforce compliance with an order.

If a parent is in breach of the terms of a CAO and believes that they have reasonable grounds for doing so related to the child’s welfare then they should make application to the court for the variation of the order and have the opportunity then of persuading the court to make a different order with which they do feel able to comply.

Typically, a parent will have to make an application for enforcement when one parent refuses to allow the other parent to see the child contrary to the terms of a CAO and without any apparent justification. 

What are the options if your former partner breaches a CAO?

When a breach occurs, there are several possible steps that you may wish to consider taking:-

• If possible, it is best to speak to the other parent first about why the breach has occurred. This may alert you to a genuine concern on the part of the other parent as to the child’s wellbeing and upon your reassurance being given amount only to an isolated event that allows the CAO to continue to be performed. It may then give you the opportunity to discuss how the breach could be avoided or overcome in the future, or to agree an alternative arrangement for your child.  For example, if one parent is consistently late in collecting their child on a Wednesday evening due to work commitments, it may be sensible to see if agreement can be reached over a later collection time, or a different place for handover, or even swapping the day.  This can reduce disruption for the child and lead to a more consistent and satisfactory routine for your child.  If direct communication is proving difficult, a third party perhaps a family member or mediator may be able to assist in opening uplines of communication and helping you both to resolve the problem.
• If matters cannot be resolved directly, or direct communication is not possible in your circumstances, then instructing your solicitor to communicate with your former partner setting out the breach of the CAO may be enough to remedy the breach and ensure no further breaches occur in future.
• If resolution is still not possible then you can refer the breach back to court. This can be done to either seek enforcement of the existing order, or to seek a different order, perhaps a prohibited steps order that prevents one parent from removing the child form the care of the other parent, or a variation to the terms of the existing order for example, to change the arrangements for handover or to reduce amount of the time the child spends with one parent. 

The best course for you to take in the interests of your child’s welfare will depend on the circumstances, and the reason for the breach and effect of this upon the child.  One of our expert Family law team can advise upon this and what order the court might be expected to make in response to an alleged breach or variation application.

In enforcing the court order, the court has several powers and steps that can be taken against the parent that is in breach of the order, including ordering a fine, community service, and in extreme cases the court can even order the committal to prison of a parent in breach of a court order endorsed with a penal notice.

Child welfare

Your former partner may be concerned over the safety of your child if they were to comply with the order and permit your child contact with you.  Their concerns may be exaggerated or even invalid.  It is not unknown for parents to stop contact based upon a rumour that they may have heard, second or even third hand, possibly upon social media about the behaviour of the other parent.  It is important to establish as soon as possible what the explanation for any possible breach may be and if appropriate to provide suitable explanation to counter any valid and correct any misunderstandings if possible before making application to the court as such an approach can lead to the earlier restoring of contact arrangements to the child’s benefit.  Early legal advice can lessen harm to both you and your child.

Who will pay?

During enforcement proceedings, the court has a discretion to order compensation to be paid by a parent in breach of a CAO to another who has suffered financially as a result of that breach.  This will be of course dependent upon the reasons for breach.

The court has the power to order legal costs against one parent if the court is satisfied that it is fair and reasonable to do so.  In determining this, the court will consider the facts of the case and the nature of the breach.  One of our Family team can guide you as to the likely costs of your case, and the likelihood of securing an order for costs against the child’s other parent. 

How we can help

One of our Family team will be able to advise you as to the options available to you in respect of any suspected breach of a child arrangement order.  We can assist you in communication with the other parent and if required assist you in taking the most appropriates steps to ensuring that the court order is obeyed or if necessary application made for a change of that order so that the child’s best interests prevail.

Please contact Amber Tarrant in the Laceys Solicitors Family team on 01202 377807 or email A.Tarrant@laceyssolicitors.co.uk  for further advice. 

Laceys Solicitors has offices in Bournemouth and outreach in New Milton and Southampton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.