1 December 2022

Enforcing child contact arrangements at Christmas – and beyond

By Emma George, Family Solicitor, Hayes + Storr.

Following the breakdown of a relationship, most parents can reach an agreement amicably regarding the arrangements of their children. Ensuring practical working arrangement requires both parents to behave sensibly and in the best interests of each child. Unfortunately, as any family lawyer will tell you, that does not always happen.

Plan ahead

Christmas can be a particularly contentious time for separated families. It is considered as a special time of year, especially for children, where family and friends can spend quality time together celebrating the festive season. As Christmas approaches, it is important to think about where and how children will spend Christmas, and how their time will be split between parents.

Is Christmas covered in your Child Arrangements Order?

If you have already obtained a child arrangements order (CAO), it is possible that Christmas arrangements will have been covered. Child access at Christmas is often based on alternating the years between parents. However, this is not always the case, so check your child arrangements order before assuming access arrangements are already covered.

If you are abiding by the court order, but the other parent is not

If you are supposed to have your child on Christmas day but the other parent has refused, your first step should be to try and discuss the breach with your former partner. Whilst this is a serious matter, it is unlikely to be rectified immediately. It is important that you keep a record of what happened in case you need to make an application to the court to enforce the CAO.

Should I call the police?

Usually there is no point in calling the police as they will not get involved with breaches of CAO’s because the order is made by the family court, not a criminal court.

It is important in such emotive circumstances, to try and approach the situation from the perspective of your child, working on the assumption that they will want to spend time with both parents. Always keep their best interests in mind with any action you decide to take.

However, if you feel your child is in immediate danger or at risk of being abducted by the other parent you should call the police immediately.

When one parent doesn’t turn up

There may be a valid explanation, such as an emergency or a car breaking down. It is wise to keep a note of the dates of any breaches and details of the reasons your former partner has given. Anything that is not permitted in the court order is technically considered a breach, however it is important to take a practical approach.

If your former partner is a few minutes late now and again, while annoying, it is perhaps to be expected that this may happen. If, however, your former partner regularly doesn’t turn up without warning or excuse, then this could be disappointing and even emotionally damaging to your child.

The courts will not take any enforcement action in relation to minor breaches of the order, and they will expect that both parents will adopt an element of flexibility in order that the welfare interests of their child are met. If you reach an alternative arrangement with your former partner, then it is wise to have this recorded in writing. This will help avoid future disputes over what you both intended to happen.

Is it worth enforcing the CAO?

If your former partner is regularly refusing to take your child for the length of time that is stipulated in the court order, then you need to weigh up if this is worth seeking to enforce.

It may be detrimental to your child to be spending time with a parent who has been forced to do so. In these situations, looking at reducing the level of time may be the best option. This way your child will benefit from consistent time with their parent, at a level your former partner can commit to. This will hopefully improve the quality of the contact as well.

If your attempts to resolve matters directly have failed, then you should contact your solicitor who will be able to advise you. They will seek to reach an amicable resolution with your former partner by writing to them. If this is also unsuccessful then you may need to consider bringing the matter back to court for enforcement.

Court enforcement

Any breach of a court order is considered a contempt of court. If your order was made after 8 December 2008 then it will automatically contain a warning setting out the consequences of breaching the order. If your order was made prior to December 2008, then an initial application to the court to attach a warning to the order will be made. This amended order will then be sent to your former partner so that they are put on notice of the consequences of their breach.

You can make an application to the court to enforce the terms of the court order. The court will consider the full circumstances of a case, including the reason for any alleged breaches. If the court is satisfied that a breach has occurred, then it has a range of powers available. It must always do what is in the welfare interests of the child. The court’s powers include:

•  referring both parents to mediation;
• requiring unpaid work for the breaching parent of between 40 and 200 hours;
• a fine or compensation to be paid by the breaching parent; or
• in rare cases, the parent in breach of the order may even be imprisoned.

If you are the parent breaching the court order

It is not uncommon for parents to breach the terms of a court order as they believe they are acting in the best welfare interests of their child. This may be the case, but it is important to be aware that court orders cannot be changed by one parent. If both parents agree to a change, then it is important that you have this recorded in writing. If both parents do not agree to the change, then you must apply back to court to seek a variation of the order.

If you have concerns over your child’s welfare while they are in your former partner’s care, then it is important to raise these concerns as soon as possible. Ideally you should do so verbally with your former partner and then follow up any conversation with a text or email so that a record is kept that can be used as proof in court if needed.

If you have immediate welfare concerns for your child, such as your former partner being incapacitated through drink or drug usage, your paramount concern will be to ensure your child’s safety in stopping your child seeing their parent in that state which you are able to do by exercising your Parental Responsibility. In these circumstances you should contact your solicitor immediately so that urgent action can be taken to ensure you are not deemed to be in contempt of the court order.

Regular breaches of the order, or breaches that are found to be unwarranted, risk a finding of hostility being made. Ultimately, in cases of implacable hostility, the court has the power to transfer where the child primarily resides. It is important that you seek legal advice if you have breached or are contemplating breaching a court order as the consequences to you can be significant.

For further information, please contact Emma George in the family law team on 01328 863231 or email: emma.george@hayes-storr.com.

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.