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Please note this content was originally published in the Family Law Journal. April 2021 edition, best practice section.

Enforcing child arrangement orders is notoriously difficult, but, as was confirmed by the Court of Appeal in Re C (Contact Order: Variation) [2008] EWCA Civ 1389, [2009] 1 FLR 869, the court that made the order has a continuing responsibility to strive to make it work. It has a variety of methods by which it can do this. In this column we shall consider enforcement orders as provided by ss 11(J)–(P) of the Children Act 1989 ("CA 1989"), and some of the other routes available.

Getting the child arrangements order right

The court can only make an enforcement order where the original child arrangements order had a warning notice applied. A warning notice makes clear that if either party does not do what the order says they must, then they may be made to do unpaid work or pay financial compensation, and that they may also be held to be in contempt of court and imprisoned or fined, or their assets may be seized.

Since 8 December 2008, whenever the court makes or varies a child arrangements order, it must attach a warning notice to the order (or the order varying the child arrangements order) (s 11I, CA 1989). Whenever drafting child arrangements orders therefore, practitioners must ensure that this has been included. If the order predates 8 December 2008 or if it does not contain a warning notice for any other reason, an application to attach one will need to be made. This can be done using Form C78 (Family Procedure Rules 2010 ("FPR 2010"), r 12.33).

It is also important to ensure that the order is sufficiently clear. If there is any ambiguity in the terms of the order then the court is likely to amend the order in order to remove the ambiguity, rather than make an enforcement order.

What is an "enforcement order"?

The court can make an enforcement order imposing a requirement to carry out unpaid work on the person in breach (s 11J CA 1989). An application is made on Form C79, and must be served at least 14 days before the hearing or directions appointment. Ideally it will be dealt with by the same judge, and should be listed within 20 working days of issue.

If an enforcement order is made, it must be served personally on the individual found to be in breach, who can be required to carry out between 40 and 200 hours of unpaid work. The unpaid work must be carried out in the individual’s local area, and compliance is monitored by Cafcass. The order can be suspended in order to secure compliance of the order.

When will the court make an enforcement order?

Before it can make an enforcement order, the court must consider the following (s 11J, CA 1989).

Is the court satisfied beyond all reasonable doubt that the individual concerned has failed to comply with the order?

An enforcement order can only be made where the court is satisfied beyond all reasonable doubt that the person has failed to comply with the contact order. Often, it will be accepted that there was a breach of the order, but if not, then that must be proved beyond all reasonable doubt by the applicant.

Is the enforcement order necessary and proportionate?

An order can only be made where the court is satisfied that it is necessary to secure compliance with the contact order and that the effect on the person subject to the order is proportionate to the seriousness of the breach. If the parent in breach shows remorse, the court may not consider an order to be necessary. Further, if the breach is minor (for example a timing issue, or a one off incident) an enforcement order is unlikely to be considered proportionate.

How will the order impact the welfare of the child?

The court must also take into account the child’s welfare (but it is not the court’s paramount consideration). The court may not consider it to be in the child’s best interests if there is a childcare issue for example. It is good practice for the court to ask Cafcass to prepare a report for the court.

Did the individual concerned have a reasonable excuse?

An enforcement order will not be made if the parent in breach can show (this time on the balance of probabilities) that they had a reasonable excuse for failing to comply with the order. This is likely to be a contentious issue.

The enforcement order

The court can only order unpaid work to be carried out in the local justice area in which the parent in breach lives. It will also consider the likely impact on the parent, for example any conflict with their religious beliefs or any interference with the times that he or she carried out paid work.

The order will be drawn up by the court on Form C80 (FPR 2010, PD 12B). The enforcement order must itself also contain an appropriate "warning notice", alerting the person subject to the order that in the event of breach, the court can impose a further enforcement order, enhance the existing enforcement order or deploy conventional sanctions for contempt of court.

The order must then be served personally on the parent against whom it is made (FPR 2010, r 12.35).

A Cafcass officer will then monitor compliance with the order.

Financial compensation

An order for "compensation for financial loss" can also be sought against a person who has failed to comply with the contact order. This application is also made in Form C79.

The order is to compensate for financial loss suffered by reason of the breach, and is not a punitive order. For example, it may be to compensate one parent for travel or holiday costs that were wasted as a result of the other parent’s breach of the child arrangements order. The court will set the level of compensation having regard to the defaulting parent’s financial circumstances but the total must not exceed the amount of the actual loss. The court must also take into account the welfare of the child.

Once again, the court will not make an order if it is satisfied (on the balance of probabilities) that the parent in breach had a reasonable excuse.

Costs

It is important to note that the usual approach in children proceedings of no order for costs does not apply to applications for enforcement orders. Therefore the court has discretion in relation to costs pursuant to Civil Procedure Rules 1998, r 44.3 and does not have to start from the presumption that there would be no order as to costs. Anyone faced with such an application is entitled to be represented, and if they are successful in defending the application, they have a right to apply for costs (see Re R (Costs: Contact Enforcement) [2011] EWHC 2777, [2012] 1 FLR 445).

Other powers of the court

The court can refer parents to a separated parents information programme or mediation. These options can particularly assist where problems with contact have arisen as a result of poor communication or conflict between the parents, or there are practical difficulties with the original order.

It is also open to the court to vary a child arrangements order. This can enable the court to ensure that the child arrangements order itself is clear and free of any ambiguity, so that it can be complied with by both parents. Alternatively, the court has the power to vary the order more drastically by changing the parent with whom the child lives. The subject of changing a child’s living arrangements is far broader than there is scope for here, and is made very rarely, but it is important to note that it is not to be considered a ‘last resort’; the only principle to be applied by the court is the paramountcy principle. The court will consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s 1(3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine how to best meet the child’s welfare needs. (Re L (A Child) [2019] EWHC 867).

Finally, the court also has the power to order the committal of the parent in breach. However, again, in practice it will very rarely do so as it is very unlikely that it will be in the interests of a child for their parent to be imprisoned (see H-R (Children) [2014] EWCC B80).

How does the COVID-19 pandemic impact the enforcement of child arrangement orders?

A reasonable excuse?

The current pandemic has undoubtedly resulted in some parents failing to comply with child arrangement orders. The question is therefore whether it provides a reasonable excuse for that breach. This will be fact specific. In considering reasonableness, it is important to consider the guidance in place at the time of the breach. Parents should undoubtedly comply with a child arrangements order provided that they can do so safely within the government guidelines in place at that time. Regardless, even where the precise arrangements cannot be maintained, the spirit of the order should be maintained by making safe alternative arrangements.

Timing

The other main impact of the current pandemic is on the length of time that an enforcement application is likely to take to be listed before the court. Although applications for enforcement orders should be listed before the court within 20 working days of issue (para 21.2, PD 12B) present restrictions and the pressures on the court service generally are likely to make this a difficult target indeed.

As can be seen, bringing enforcement proceedings in respect of child arrangement orders can be both difficult and expensive. Even where a breach is established, the court may still not make an order. There is an inherent difficulty in punishing the parent with whom the child lives when that may not be in the best interests of the child. This can be difficult for clients but a pragmatic and realistic view is required from the outset.

As always, prevention is better than any potential cure – lawyers and parents should be mindful when agreeing child arrangements how they can work best for the children and the parents in practice. For example, minimising potential flash points such as handovers (which could take place via the school day if possible), considering in the drafting what will happen on important days such as birthdays, religious holidays, mother’s / father’s day etc. and having in place a clear system whereby the calendar for the year is agreed well in advance and ideally with provisions that allow little or no further discussion, with an agreed process of what should happen if there is a disagreement.

If you require further information about anything covered in this briefing, please contact Sarah Hutchinson, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2021

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