Written by Sarah Wasaya

Senior Associate at Stone King

Sarah advises on all aspects of family law with particular expertise in international and complex financial matters and international cross-border children disputes.

Child Arrangement Orders (“CAO”) confirm a child’s living arrangements and with whom and how often achild is to spend time with their parents and others. It is common for a CAO to include arrangements for birthdays, school holidays and the Christmas period.

If parents cannot agree on the arrangements for their child, an application to the court can be made and a CAO may be ordered by the court. The court’s paramount consideration will be the child’s welfare having regard to the welfare checklist as contained in section (1)(3)Children Act 1989.

If parents cannot agree on the arrangements for their child, an application to the court can be made and a Child Arrangements Order may be ordered by the court.

Unfortunately, CAOs are not always complied with and this can have significant and long- lasting consequences for the child’s emotional well-being.

There are various options for parents in this situation which I set out below.

Mediation/third party involvement

Where a parent fails to comply with or breaches a CAO, it may not be possible for parents to resolve matters between themselves. However, careful consideration should be given to attending mediation or being assisted by a third party mutual family member or friend to attempt to resolve matters relating to the breach, resolve issues between the parties and to agree the next steps. This option can result in a quicker and cheaper resolution than an application to court. If this is not attempted or if it is unsuccessful, the parties can make an application to the court.

Mediation may not be appropriate if one parent has been a victim of domestic abuse by the other parent.

CAOs contain warning notices setting out the consequences of failing to comply with them. The notices confirm that a person who fails to comply with a CAO may be made to do unpaid work or pay financial compensation or they may be held in contempt of court and imprisoned, fined or have their assets seized.

The court has a wide range of powers where it believes that a person has failed to comply with a CAO without a reasonable excuse. The court can:

  • refer the parties to a Separated Parenting Information Programme (SPIP) or to mediation;
  • make an enforcement order (for the person who breached the CAO to undertake unpaid work);
  • make an order for the person who breached the CAO to pay compensation for financial loss;
  • commit the person who breached the CAO to prison or order them to pay a fine;
  • vary the CAO including ordering activity directions, utilising other available resources and amending contact and even living arrangements for the child.

The court will seek to determine the reasons for the breach and the second, third and fourth powers listed above are not frequently used although they are available in cases where it becomes necessary.

The court’s powers in relation to a variation of a CAO following a breach are discussed in more detail below.

Activity directions

The court may make a direction for a parent to take part in programmes, classes and counselling or guidance sessions that may assist them in establishing, maintaining or improving involvement in a child’s life or to address a person’s violent behaviour to enable or facilitate involvement in a child’s life (this is Section11A (5) Children Act 1989).

Child Contact Intervention

Cafcass may recommend a referral to CCI where an assessment confirms that a child is not spending time with a parent when it should be. CCI is funded by Cafcass for up to 12 hours and aims to ensure that the child has a positive contact experience with a parent particularly where there are parental alienation issues or where contact is being reintroduced after a period of no contact. As CCIs are funded by Cafcass, they may not be available the closer you are to the end of the financial year.

Family Assistance Order

The court can make an order requiring a Cafcass Officer or an officer from a local authority to advise, assist (and where appropriate) befriend any person named in the order (parents and the child) for up to 12 months (Section 16 (1) of the ChildrenAct 1989). A FAO is not widely granted and requires consent of every person to be named in the order (except the child).

Importantly, a FAO may direct the officer to give advice and assistance in establishing, improving and maintaining contact (Section 16 (4A) of the Children Act 1989). A FAO can also direct an officer to report to the court on such matters relating to an existing CAO and whether it should be varied or discharged (Section 16 (6) of the Children Act 1989).

Cafcass Monitoring Order

The court can make an order requiring Cafcass to monitor compliance with a CAO and report to the court for up to 12 months (Section 11H Children Act 1989). The consent of the parties is not required for this.

Joining the child as a party

In complex matters including where a child irrationallyrefuses to see a parent or where the views and wishes of the child cannot be adequately met by a report to the court, it may be beneficial for the court to join the child as a party to proceedings. A guardian (who is a Cafcass Officer) is appointed to consider and report on the best interests of the child to the court. The guardian will appoint their own solicitor.

Fact finding hearing

If allegations of domestic abuse are raised as a reason for stopping contact then it is important to request a fact finding hearing as early as possible so that these issues can be dealt with.

Transfer of ‘live with’ order

A ‘live with’ order was previously known as a residence order. It is rare but if there are continued breaches of a CAO, the court may consider that it is in the child’s best interests to live with the other parent. In a recent case, the court ordered that a child should move to live with a father after a mother continued to restrict progression of the child’s contact with the father (Re C (A Child) [2018] EWHC 557 (Fam)).

There is a presumption that involvement of a parent in a child’s life will further the child’s welfare unless there is evidence to the contrary (Section1(2A) Children Act 1989). In the absence of safeguarding concerns, it will always be in the best interests of the child to have contact with both parents.

The courts have a positive duty to attempt to promote contact and these attempts should be stopped only as a last resort and where it is believed that the child will no longer benefit (Re M (Children) [2017] EWCA Civ2164).

It is important to record all breaches in recitals to orders so that the position is clear to the next Judge who hears the case and the matter can be dealt with appropriately.

It can be more difficult where a breach has been continuing for a significant period of time and in cases relating to older children who oppose the CAO as more weight is likely to be given to the children’s wishes and feelings.

If there has been a breach of a CAO without reasonable excuse then you may want to consider without delay which of the above options are appropriate.

It would be beneficial to seek legal advice before and after making an application to the court, even if it is only on an ad hoc basis where full representation may not be affordable. You can receive free help from the Support Through Court at court who can help you to complete application forms and go with you to court to take a note of proceedings.

Additional Reading/Resources

If you are facing court alone many people have found Lucy Reed’s book, ‘Family Court Without A Lawyer’ particularly useful.

The Handover Book is a communication book for separated families. It allows both parents to always be aware of what is happening in their children’s lives as they go from one household to another.

If you want to read more about the emotional impact of separation and how to get yourself back on track Breaking Upwards is a good starting point.

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