At the bottom of any Child Arrangements Order you will find a “Warning” section which sets out the powers available to the Court should it be breached and an application for enforcement be received.
The powers available are:-
- You could be held in contempt of Court and committed to prison or fined; or
- You may be ordered to undertake unpaid work (for a max of 200 hours) and/or ordered to pay financial compensation.
Further, the Court has jurisdiction to amend the current Child Arrangement Order, which could include the transfer of residence from one parent to another.
Divorce: what will happen to my children?
The exercise of any of these powers need to be weighed up against the “Welfare Principle”, particularly if it is the parent who the child “lives with” who has breached the Order as any punishment could have an impact on the child.
The preferred choice, as it is the one which impacts on the child the least, is to order one or both parties to attend a CAFCASS approved course such as a Separated Parents Information Programme (SPIP). However, this is only useful in the cases where one parent may just need “a warning”, to be reminded of the consequences and should not be used in the more extreme cases. Similarly, Family Assistance Orders can be useful as the involvement of a neutral third party playing a role in the family’s life can prevent further breaches occurring.
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However, if the Judge is satisfied that there has been a breach, without reasonable excuse, he should opt to make an Enforcement Order as per (a) and (b) above. In doing so, he needs to be satisfied that the likely effect of the Enforcement Order is proportionate to the seriousness of the breach. CAFCASS may be directed to assess the potential impact on the parent and the child before the Judge decides to take this step.
Will the Judge really make an Enforcement Order?
Judges can be reluctant to use their powers to make an Enforcement Order as per (a) and(b) above, particularly against the party who the child lives with, as such an Order forces the primary carer to spend time away from the child to do the unpaid work. This is particularly the case where the family consists of multiple children or the family is of low income.
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Pre-Covid, a Judge explaining the gravity of any breach to the parties was usually sufficient to persuade all to comply with the terms of the Child Arrangements Order. Since March 2020 however, very few cases have taken place in person and it is accepted that a Judge may struggle to get the message across in the same way, especially over the telephone, as there is no face-to-face interaction/body language to be read.
Given what has been said above, you may wonder why these powers are in place if rarely used? The answer is simple, if there is the possibility/threat that such an Order could be made, including imprisonment, then most parents are prepared to comply for the fear of any repercussions. It is important therefore that anyone who is a party to a Child Arrangements Order is aware of their existence in a hope all comply, which ultimately is what is considered best for the child.
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