Enforcement of Child Arrangements Orders

When an Order Can Be Enforced

An enforcement or compensation order needs two things: the order, and a warning notice attached to it. Where arrangements were only agreed privately, HMCTS guidance CB5 says an enforcement application is not open to you, and the route is to apply for a child arrangements order instead.

Section 11I of the Children Act 1989 requires the court to attach a warning notice whenever it makes or varies a child arrangements order, telling the people it applies to what can happen if they do not keep to it. That duty covered contact orders only until 22 April 2014, so a residence order from before then, and any order made before 8 December 2008, may not carry a notice. Where the order does not carry one, form C78 asks for a notice to be attached, an application the court cannot refuse. A contact order counts as a child arrangements order once it is before the court.

The court cannot make an enforcement order or a compensation order unless the person was warned before the failure you are complaining about. The Children Act 1989 sets out who may apply:

• the person the child lives with or is to live with under the order
• the person whose contact with the child the order provides for
• anyone a condition in the order applies to
• the child, with the court's permission, asked for on form C2

Having parental responsibility for a child you do not live with does not mean you have a right to spend time with them. The power to enforce comes from the order, not from parental responsibility.

The Test the Court Applies

For an enforcement order the standard of proof is the criminal one. Under section 11J of the Children Act 1989 the court may make an enforcement order only where satisfied beyond reasonable doubt that a person failed to comply with the order, and not where satisfied there was a reasonable excuse. Proving a reasonable excuse is for the person claiming it, on the balance of probabilities.

The Act does not define a reasonable excuse, so the court decides on the evidence. Under the Child Arrangements Programme it considers whether the facts are agreed or need proving, the reasons given, how the child's wishes and feelings are to be found out, whether it needs Cafcass advice, any risk to the child, and the welfare checklist.

Section 11K restricts who can be made subject to an order: the person must have been given the warning notice, or told its terms, as the rules require, no order can be made for a failure that happened before they turned 18, and they must be habitually resident in England and Wales.

Section 11L requires the court to be satisfied that an enforcement order is necessary to secure compliance and proportionate to the seriousness of the breach. Unpaid work must be available in the local justice area, the court must obtain information about the person and the likely effect on them, including conflict with religious belief or interference with work or education, and it must take the child's welfare into account. Section 11J also lets it suspend an order, or make more than one at once.

What the Court Can Order

An enforcement application has no single outcome, and the court does not have to enforce at all. Practice Direction 12B, the Children Act 1989 and Cafcass describe a wide range of powers:

• An activity direction under section 11A: a programme, class or counselling or guidance session that may help a child keep a relationship with a parent, but never medical or psychiatric treatment, or mediation.
• A referral to mediation or to a parenting programme such as Planning Together for Children.
• A change to the arrangements, where the order no longer fits: see varying a child arrangements order.
• An enforcement order: 40 to 200 hours of unpaid work, monitored by the probation service.
• Compensation for financial loss, the cost of a lost holiday for example.
• Contempt of court, where the powers include a fine and committal to prison.

On making an enforcement order the court asks a Cafcass officer to monitor the unpaid work and report back, and where it varies the arrangements it can have compliance monitored for up to twelve months. If an enforcement order is broken without a reasonable excuse, the court can add hours up to the maximum or make a second order.

Compensation covers money actually lost, not hurt feelings or inconvenience, and only the person who lost it can apply. It cannot exceed the loss, the court takes the payer's finances into account, and it is recoverable as a civil debt. Everyday support for a child is separate: see child maintenance advice.

Contempt of court is governed by Part 37 of the Family Procedure Rules, and a contempt application must confirm that the order carried a penal notice, a prominent warning on its front.

Evidence and Common Problems

Enforcement turns on detail. A chronology of each missed handover, with dates, times and the messages around it, carries more weight than a general complaint, and compensation needs receipts.

The problems that come up most often are these:

• An older order with no warning notice, which form C78 deals with first.
• An order worded so loosely that it is hard to say what was breached.
• Welfare concerns raised in answer, which may lead the court to list a fact-finding hearing first.
• Arrangements that stopped working as the children grew, where changing the order is the honest remedy.
• A dispute about one decision rather than the arrangements, which belongs to a specific issue order or a prohibited steps order.

If you do not want the other person to know your address or your child's address, leave it off the application and give it to the court on form C8.

Where there has been domestic abuse, safety comes first and the court approaches the case differently: our page on child arrangements and domestic abuse covers that. In immediate danger call 999, and the free National Domestic Abuse Helpline is 0808 2000 247.

How the Enforcement Process Works

1. We read the order and check the warning notice, applying on form C78 first where it has none.
2. Where it is safe we try to resolve the breach without a hearing. Cafcass advises resolving matters amicably, and says mediation can help unless there are, or have been, issues of domestic abuse or other risks identified: an out of court option may be quicker.
3. The application goes in on form C79, which also covers compensation, action after an enforcement order is broken, and setting aside or changing one. Apply to the court that made the order or to any family court, and check the fee and help with fees on the GOV.UK court and tribunal fees page.
4. The respondent is the person you say broke the order. You also tell any Cafcass officer monitoring it and anyone who represented the child in the original case.
5. Under the Child Arrangements Programme the gatekeepers list an enforcement application for hearing, before the previously allocated judge where possible, and the practice direction says enforcement cases should be concluded without delay.
6. The court decides whether the facts are agreed or have to be proved, and may order safeguarding checks or a Cafcass report.
7. It then chooses from its powers, and can decline where a reasonable excuse is established. If an enforcement order is later broken, a further C79 application follows.

When Legal Advice Is Especially Important

The standard of proof, the reasonable excuse defence and the proportionality test mean an application built on frustration rather than evidence can fail, and one framed in the wrong terms invites the court to look again at the arrangements.

Take advice early where there has been domestic abuse or allegations about a child's safety, where a child is resisting the arrangements and you are being blamed, where the other side answers by asking to change the order, and where committal is being raised against you.

Some situations sit outside this page. A child taken out of England and Wales, or kept abroad after a trip, is urgent and handled differently: see international child abduction. Moving abroad is covered on relocating with a child, a single trip on taking a child abroad, and unpaid money orders on enforcing financial orders.

How RakLAW Solicitors Can Help

RakLAW Solicitors is at 42 Shad Thames in Southwark, a short walk from Tower Bridge, and we act on both sides of these applications. Rakesh Prajapati founded the firm. Our children law services cover our wider work for parents.

We read the order and its warning notice, say plainly whether the evidence reaches the standard the court applies, and advise where a variation would serve your child better. We prepare the C79, the chronology and any schedule of loss, and represent you at the hearing. We are privately funded and do not undertake legal aid work: legal aid may be available to someone facing committal to prison, though not from us, and GOV.UK explains who qualifies. Our family law fees page explains how we charge. The first 15-minute consultation is free: call 0203 345 2000.