My ex is breaching our child arrangements order. What can I do?

A child arrangements order is the name given to a legally binding court order that decides where a child lives, when a child spends time with each parent and when and what other types of contact take place. 

If the court has made a child arrangements order (CAO) relating to your child but your ex is not complying and now you're wondering what you can do, this blog is for you.

What is a CAO?

Each child arrangements order, or CAO, is decided on the circumstances of the individual family and on what is in the best interests of that particular child. This means that there is no such thing as a ‘usual’ arrangement.

CAOs replaced “residence orders” and “contact orders” in April 2014.

How long is a Child Arrangements Order in force for?

The contact arrangements set out in a Child Arrangements Order remain legally binding until the child reaches the age of 16 unless the order specifically states otherwise. This is in accordance with section 91(10) of the Children Act 1989. After this point it will be up to the child to decide how much contact they would like to have with the parent they do not live with.

The ‘live with’ element of a Child Arrangements Order remains legally binding until the child reaches the age of 18, however the Court are very reluctant to enforce such orders beyond the age of 16 unless there are exceptional circumstances.

What if we agree to change the arrangements set out in the CAO?

If everyone agrees to the change, it’s not a breach of the order to depart from its terms. However, you do need to be aware that these changes would not be t legally binding unless the order was formally varied by the court. This means that if the informal change comes to an end at any point, you’ll have to go back to the terms of the original order.

Can a CAO be varied?

Family circumstances change over time and children’s needs change as they get older. It’s perfectly possible to vary a CAO by going back to the court. The person making the application will have to demonstrate that their proposed changes are in the child’s best interests.

What happens if your ex breaches your CAO?

The court is unlikely to monitor your CAO once it’s been made and it’s very likely it won’t be aware of any breaches unless a formal application for enforcement is made. The Family Court will only make an enforcement order if it’s satisfied that your ex has failed to comply with the order.

While in theory, anything that doesn’t comply exactly with the wording of the order is a breach, it’s unlikely that the court will take any action if the breach is insignificant. Instead, the Court will need to be convinced that the breach is substantial and intentional and that there is no "reasonable excuse" for the order not to have been complied with. It’s still important to keep a record of any minor breaches as evidence of a series of minor breaches on top of more significance breaches may convince the court to take action.

Since 2008, all CAOs contain a standard warning notice. This sets out the consequences of failing to comply with the order. This warning notice is what allows you to go back to the court to enforce the order if your ex is not complying with it. 

The punishments available to the court will depend on the nature of the breaches and how often they are occurring. Ultimately, the court has the power to order unpaid work (between 40 and 200 hours), financial compensation, a fine, transfer of the child's residence from one parent to the other and in the most serious cases, the imprisonment of the uncooperative party.

If you find yourself in this situation, then the first step is to try and discuss the breach or breaches with your ex (provided it’s safe to do so). Hopefully you may be able to reach an agreement without having to go back to court. The court process can be stressful, takes time and is expensive. If you find it difficult talking to each other, you could try mediation. However, it’s not always possible to discuss or agree on arrangements and if you do need to go back to court, speaking to a specialist children lawyer will give you invaluable guidance. 

Our children lawyers have a great deal of experience resolving disputes over child arrangements, including advising parents who are looking to enforce a CAO and those parents who are allegedly breaching a CAO. For clear, practical advice, contact them today.

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