If you’re reading this then we’re going to hazard a guess that you are either named on or have an interest in Child Arrangements Orders made under Section 8 of the Children’s Act 1989. We discuss these orders and give a brief overview of the process for enforcement.
What are they and in what circumstances might a court make a Child Arrangements Order?
child arrangements order means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person;Children Act 1989
In the event of a disagreement about arrangements for children following a separation or divorce, if the Courts are tasked with making an decision in Private Law proceedings (and they feel it appropriate to make an order), this is the type of order that they are likely to make.
Section 1 of the Children Act 1989 says that the Court will have regard to the welfare of the child(ren) as its paramount consideration. Generally speaking, lawyers (and litigants) will talk about what is in the children’s “Best Interests” when making their arguments for what they would like the court to order. The court should have regard to a seven point list in Section 1(3) of the Children Act which is commonly referred to as the “Welfare Checklist”. The same checklist will be referenced when making other orders under Section 8 of the CA89.
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)the range of powers available to the court under this Act in the proceedings in question.
“Welfare Checklist”, Section 1(3), Children Act 1989
Leaving aside the lack of detailed definition in this list (which is open to a huge degree of subjective interpretation) and also the issues we raise elsewhere on the VoC site about the suitability of CAFCASS and their advisory role in proceedings, we proceed under the assumption that the court makes orders that do in fact serve the child’s interest in the best possible way.
It follows logically then that if an order is made by the court in the “Child’s Best Interest” and either party named on the order does not comply with its terms then they “may” be acting in a manner that does not best serve the relevant child’s welfare. This is where we get onto the sticky wicket of “enforcement”.
So, you’ve been to court (at least) once and are named on a Child Arrangement Order. This could contain such detail as specifying a schedule of contact, outlining with whom the child shall live and with whom the child shall spend time with.
However, all is not going smoothly and the other person is not complying with the conditions of the order, what do you do? The process by which you ask a court to compel or impose punative measures onto a party is known as “enforcement”. This is not as straight forward as you might think…
To make the process easier to understand let’s use an example:
2 Parents have a Child Arrangement Order in respect of arrangements to their child “C”
The order says that the C lives with Parent A and spends time with Parent B on the following basis:
Every other weekend on from 3.30PM to 8.30AM Monday when Parent B would take C to school.
Parent A is also to make C available to spend 2 hours every Wednesday from 4pm to 6pm.
Parent A is also to make C available for calls on Facetime or Skype every Tuesday and Thursday at 6pm
Over the past months, Parent B has noticed that the phone times are either slipping (with an excuses from Parent A such as their Wifi was not working or that they were out with no phone signal). Most recently, C was not made available for the Wednesday contact time with no excuse given (they just were not at the arranged meeting place). On the most recent weekend, Parent A took C out of school early on the Friday so they were not available to spend time with Parent B. Phone calls were ignored.
Parent B tries to resolve the situation but Parent A does not wish to communicate for reasons unknown. Parent B makes the decision to take the issue back to court for an enforcement order.
Enforcement orders are dealt with under Section 11J of the Children Act 1989.
Paragraph 2 of that section says:
If the court is satisfied beyond reasonable doubt that a person has failed to comply with a provision of the child arrangements order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
11J, CA 1989
Note that unlike most aspects of Family Law, the court needs to be satisfied “beyond reasonable doubt”. The burden of proof is therefore set higher than the normal “balance of probabilities” hurdle.
Paragraphs 3 and 4 then go on to say:
But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the provision
The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
Subsection 11J CA 1989
So, if you are considering an enforcement application, be sure you can satisfy the court beyond reasonable doubt. If the court does not accept the excuse offered as being reasonable on the “balance of probabilities” then you may obtain an order for enforcement. It’s worth considering this before you file your C79 form (which is the application form you need for an enforcement order) and pay the associated fee (which is £215 at the time of writing).
The Judge should be using the process defined in Practice Direction 12B of the Family Procedure Rules (paragraph 21).
On any application for enforcement of a child arrangements order, the court shall –
- consider whether the facts relevant to the alleged non-compliance are agreed, or whether it is necessary to conduct a hearing to establish the facts;
- consider the reasons for any non-compliance;
- consider how the wishes and feelings of the child are to be ascertained;
- consider whether advice is required from Cafcass/CAFCASS Cymru on the appropriate way forward;
- assess and manage any risks of making further or other child arrangements order;
- consider whether a SPIP or referral for dispute resolution is appropriate;
- consider whether an enforcement order may be appropriate, and
- consider the welfare checklist.
Practice Direction 12B, Paragraph 21.1
Enforcement proceedings can be lengthy and it is highly likely that the court will want to engage the opinions of CAFCASS (who may be ordered to produce a Section 7 Report or to ascertain the “wishes and feelings” of the children involved. We have written about CAFCASS’s competence in other articles so won’t repeat everything here other than to say we have serious concerns about their professional competence both organisationally and individually.
If an order for enforcement is made then the Judge has a wide range of powers:
This range of powers includes (but is not limited to):
(a) referral of the parents to a SPIP, or in Wales a WT4C, or mediation;
(b) variation of the child arrangements order (which could include a more defined order and/or reconsidering the contact provision or the living arrangements of the child);
(c) a contact enforcement order or suspended enforcement order under section 11J Children Act 1989 (‘Enforcement order’ for unpaid work), (see paragraph 21.7 below);
(d) an order for compensation for financial loss (under section 11O Children Act 1989);
(e) committal to prison or
(f) a fine.
Practice Direction 12B
In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.
We speak for the children in Family Law so that, finally, the children have a voice.