If the residence and contact arrangements for your children are set out in a Child Arrangements Order and one parent breaches the terms, can you change a Child Arrangements Order?

The simple answer is you can, but as with all family law matters, the circumstances will dictate when, how and why a Child Arrangements Order can be changed.  We will look into the detail in this blog.

What is a Child Arrangements Order?

Child Arrangements Orders are governed by Section 8 of the Children Act 1989.  A Child Arrangements Order is usually made if those who care or have responsibility of the children cannot agree through either negotiation or mediation, either contact arrangements and/or where the children should live.  

The Order has power to decide:

• Who/where a child should live with
• Who a child should have contact with
• Who and/or when a child can spend time with specified people

There are no standard terms for a Child Arrangements Order;  every family’s position is different therefore the terms will be different and drafted specifically to reflect the family in question’s situation and requirements.

How do I enforce this type of Order?

When the Order is drawn up, you need to make sure it contains a ‘warning notice’.  

A warning notice confirms the legal implications if one party does not adhere to the Order.  It must be included if you want the court to enforce the Order.

Even though a Child Arrangements Order may be in place, one parent might choose not to abide by the terms.  If this happens it is the other parent’s responsibility to make an application to the court to enforce the order as the court will not be monitoring both parents’ adherence to the Order.

Once you make an initial application, often with the  assistance of a specialist family lawyer, the court will schedule an initial hearing.  During this hearing the court will examine the reasons for non-compliance and establish whether CAFCASS (Children and Family Court Advisory and Support Service ) will need to be involved.

The individual who has failed to comply with the Order has the opportunity to explain exactly why they broke the order.  In many cases the reasons may be linked in some way to the parent’s belief that their actions protected their child’s welfare and best interests.

The court must be satisfied that one party has failed to comply with the terms of the Order.  If the breach has only happened once, very occasionally or in a way that the court believes isn’t serious, the court may decide not to enforce the breach with punishment.

Depending on the circumstances and the court’s perceived seriousness of the breach/es, they have a range of options available to them:

• They could refer the parents to a Separated Parents Information Programme
• They could refer the parents to mediation so they can discuss how best to move forward
• They can vary the terms of the Order
• They can enforce the order and even impose community service on the party who has breached the order
• They can fine the offending party, particularly if the breach incurred financial losses for the other parent
• They can, if one parent has repeatedly breached the Order, consider a custodial sentence

Can you vary a Child Arrangements Order?

As the court is sympathetic to the fact a family’s circumstances and children’s needs can change over time, it is possible to vary a Child Arrangements Order. This may be necessary if the two parties cannot agree the changes. If they do, a variation of the order may not be necessary as there will usually be a clause in the original order that further agreements and/or changes can be made as agreed between the parties.

If no agreement can be reached and in order to make changes, the applicant must be able to demonstrate their proposed changes are in their child’s best interests in terms of their health, welfare, and overall individual needs.  The common reasons for wanting to change the terms of a Child Arrangements Order are:

• One parent has relocated which makes it difficult for them to follow the original conditions of the Order
• A medical condition or special educational need has altered a child’s requirements drastically
• The child wants more contract or less interaction with one parent
• One parent’s job is making it difficult to adhere to the terms of the initial Order
• One parent refuses to adhere to the terms set out in the initial Order

The process to vary a Child Arrangements Order is the same as the process for the initial application.  You will need to complete a new Form C100.

However, as a first step it is recommended that the parents try to address their concerns and agree to mutually acceptable modifications out of court.  This can be done via mediation or simply by talking to each other if the lines of communication are still open. 

In terms of who can apply for a variation order in family court, the new application can be made by anyone with parental responsibility including:

• A parent or guardian
• A step-parent or another person who has been given responsibility for the child by way of a parental responsibility order/agreement
• A person with a ‘live with’ child arrangements order
• A person with parental responsibility having been named in a Child Arrangements Order as someone the child can have contact with or spend time with 
• A person who has the consent of either those with parental responsibility for the child or those who have a ‘live with’ order in their favour
• A father married to, or in a civil partnership with, the mother but is not named on the child’s birth certificate
• A foster parent or other relative if the child has lived with them for one year or more immediately before the application is made  
• Any person with whom the child has lived with for three years or more
• A person who has the relevant authority’s consent if the child is in local authority care

As Child Arrangements Orders are put in place to protect a child’s welfare and best interests, they must be approached both with care and with the support of an experience family law specialist.  If you are trying to put an Order in place or enforce or vary an existing Order, please contact us today to arrange a meeting with one of our highly experienced family barristers.