A Child Arrangement Order (CAO) is a court order which sets out the contact arrangements for a child following parental separation. This includes when and where the child is to live or spend time with each parent. The aim of a CAO is to ensure that the child’s welfare is protected and that all arrangements are made in their best interests.
In most cases, a CAO is only needed when parents cannot reach an agreement between themselves regarding future contact arrangements. As the court process can be lengthy and demanding, it can be particularly frustrating when one parent unilaterally does not to comply with the terms of the order.
‘Breach of a child arrangement order can cause distress for a parent, but also results in significant instability for children. At times it can even mean children are not permitted to see one of their parents, so it is important to understand your options when a breach occurs,’ says Olivia Clements, a Solicitor in the family law team at Nalders.
Olivia outlines what amounts to a breach of a Child Arrangement Order, and what your options for enforcing the terms of the order are.
What is a breach?
A breach is anything that is done which is not in compliance with the terms of the child arrangement order. The court must be satisfied beyond a reasonable doubt that a breach has occurred, and courts tend only to intervene when breaches are substantial and deliberate.
The court expects that a pragmatic approach is taken towards minor breaches, such as being delayed to a handover by a few minutes. Even if there is a more significant breach, it may not always be deliberate or something which a court would seek to enforce. For example, a parent that has been delayed in a traffic jam for several hours, or involved in an accident, would be highly unlikely to suffer any consequences at court as a result of such a breach.
If a parent repeatedly breaches the order, even if they are small breaches, or if they simply refuse to comply with the terms, then the court has powers to enforce compliance with an order.
Often a parent must make an application for enforcement when the other parent outright refuses to allow the other parent to see the child, without any valid justification.
What are the options if your former partner breaches a CAO?
When a breach occurs, there are several possible actions you may take as follows:
- If possible, it is best to speak to the other parent first about why the breach occurred. This may be sufficient to reassure you it was a one-off event, or it may 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 to collect their child on a Wednesday evening due to work commitments, it may be sensible to see if agreement can be reached on a later collection time, or even swapping the day. This can reduce future disruptions and lead to a more consistent routine for your child. If direct communication is proving difficult, a mediator may be able to assist in opening the lines of communication and helping you both to reach an agreement.
- If matters cannot be resolved directly, or direct communication is not suitable in your circumstances, then sending a solicitor’s letter to your former partner which sets out your concerns may be enough to ensure no further breaches occur.
- If resolution is still not possible, then you can file an application with the Court to enforce the order. You can do this to either seek enforcement of the existing order, or you may wish to seek some alternative order, such as a prohibited steps order preventing the other parent from taking a particular action with your child, or a variation to the terms of the existing order.
The best route will depend on your circumstances, and the reason for the breach. We can advise you on the most appropriate route for you.
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, assets to be seized, and in extremely rare circumstances the court can even order a custodial sentence. However, it is rarely in the child’s best interests for one of their parents to receive a custodial sentence due to a breach of a child arrangement order. It is important to remember that, when making any decision, the court’s paramount concern will be your child’s welfare.
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 to have contact with you. We have heard of parents stopping contact based on a rumour they have heard, second or even third hand, about the behaviour of the other parent. It is important to establish as soon as possible what their reasons for breach are and, if necessary, obtain evidence to counter their concerns or provide facts to disprove any mistaken beliefs.
This should lead to an earlier re-establishment of the contact arrangements. Early legal advice can mean less detriment to both you and your child.
Who will pay?
In court proceedings relating to children, the court’s starting position is that each party pays their own legal costs. Costs orders are intentionally rare to prevent financial strain from deterring parties from acting in a child’s best interests.
However, in enforcement proceedings, 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.
How we can help
One of our family solicitors will be able to advise you on the options available to you in respect of any breach of a child arrangement order. We can weigh up the routes available to you, and help you obtain the right legal advice to best meet you and your child’s needs.
Please contact Olivia Clements in the family law team on 01326 313441 or email orc@nalders.co.uk for further advice. Nalders LLP has offices in Truro, St Austell, Camborne, Falmouth, Helston, Newquay, and Penzance.
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.