What can you do if a parent breaches a court order?

Posted onNovember 19, 2020

There is nothing quite as frustrating as securing a children court order, whether it is a child arrangements order, specific issue order, or prohibited steps order, only to find that the other parent breaches the court order. In this blog we look at your best options if a parent breaches a court order.

Online London based children and family law solicitors

At London based OTS Solicitors the children and family law team can answer all your children law queries, and if necessary, provide robust legal representation in children court proceedings. Call us on 0203 959 9123 or complete our online enquiry form to set up a video conference, skype or telephone appointment with one of our specialist children lawyers to get the help and legal advice you need on child contact and custody.

Is a child arrangements order legally binding on both parents?

A child arrangements order sets out the living arrangements for a child after parents have separated or divorced. A child arrangements order is rather like the old style custody and access orders or residence and contact orders. The court will only make a child arrangements order if it is necessary to do so and the order is in the child’s best interests. That means that the court won't make a child arrangements order ‘just in case there is a disagreement in future over the current agreed child care arrangements’ or because one parent wants an order. That is because the law says that it is best that parents don’t get children court orders as an automatic response to a separation or divorce as parents should ideally agree the arrangements for their child without needing to apply to court for a child arrangements order.

However, if you felt the need to apply for a child arrangements order for your child and the court granted an order then the children court order is binding on you and the other parent. That is the case whether or not:

The other parent turned up to the final hearing of your child arrangements order application or
The other parent doesn’t agree with the child arrangements order or
The other parent wants to appeal against the child arrangements order (unless the court stayed the operation of your child arrangements order pending the other parent’s appeal hearing) or
The other parent wants to apply back to court to change the child arrangements order.

If a parent is contemplating not following or obeying a child arrangements order then it is best to take children law legal advice before doing so. That’s because the parent will be:

In breach of a court order – this is called contempt of court
Potentially prejudicing any future child arrangements order or other children law applications that they may make because the court may take a dim view on their failure to comply with the court order.

Are there ever any circumstances when a parent can breach a child arrangements order?

In a genuine emergency situation it may be appropriate to consider not complying with a child arrangements order and then making an application to court. For example:

Not returning a child home to the parent with care if they are so inebriated or under the influence of drugs that a young child would not be safe. The parent should take legal advice and, if appropriate, apply for an order that the child live with them or agree that the child should live with a grandparent until the parent has addressed their alcohol or drug issues
Not sending a child for a contact visit if the parent is obviously drunk and plans to drive the child away with them or the parent is in the company of someone that the court has ordered that the child should not come into contact with, such as a relative of the parent who is a registered sex offender
The child is due to have contact with their other parent but has tested positive for Covid-19 or the school has advised the child to self-isolate because the child has come into close contact with another child with Covid-19. In that scenario, other contact alternatives should be considered such as phone or facetime contact or extra contact after the child has recovered from Covid-19 or is out of self-isolation.

Whether the situation is a genuine emergency needs to be carefully assessed. A parent having one drink doesn’t render them incapable of looking after a child or driving a car so it is all a question of degree. In that type of scenario, you might want to take legal advice and monitor the situation or make an application to court.

If you don’t comply with a court order in an emergency situation then it is important that you record why and think about whether you need to make an urgent application back to court to change the court order. For example, if the child’s other parent has resumed using drugs and because of the age of your child and the extent of the parent’s drug usage you don’t think contact is safe, you may want to urgently ask the court to suspend contact whilst the parent gets additional help with their drug addiction or that contact only takes place in a supervised setting.

What happens if a parent breaks a court order?

A child arrangements order or other type of children law order (such as a specific issue order or prohibited steps order) is legally binding. If a parent breaks or breaches a children law order then they will be in contempt of court. If a parent is found to be in contempt of court that could result in:

The court imposing a fine or an order for compensation for financial loss
Impose an unpaid work requirement (from between 40 and 200 hours)
The court making an enforcement order or suspended enforcement order
Imprisonment – also referred to as committal to prison
Referral of both parents to a separated parents information programme or family mediation
The court being more willing to consider varying or changing the children order. For example, if a parent is continuing to refuse to agree to the other parent seeing the child and there is no reasonable excuse (such as a genuine emergency situation) the court could be more inclined to find that there is parental alienation and to change the child arrangements order, and in extreme cases, even changing the child’s home base.

Children solicitors say that it is best to take specialist legal advice on whether a situation amounts to an emergency or the situation is so concerning that a children court order should not be complied with because of the implications of a parent breaching an order. Normally, it is preferable to make an urgent application to court to change or vary the order. Likewise, if a breach of a court order is relatively ‘minor’ it is best to take legal advice on your best options before starting enforcement court proceedings.

What should I do if a parent breaches a child arrangements order?

If a parent breaches or breaks a child arrangements order (or any other type of children law order such as a prohibited steps order or specific issue order) then it is best to:

Take specialist children law advice on your best options
If the breaches aren’t an emergency scenario, keep a record or a diary of the breaches. For example, if your ex-partner is half an hour late for contact on a one off occasion then you would view or see this a technical breach of the order but not if late arrival or return happens on most occasions when the child is collected or returned. If the child is distressed by a late arrival or a ‘no show’ then make a diary or phone note. If a child is being taken into school late after an overnight contact visit with a parent then it’s equally important to ask the school to keep a record
Tell your ex-partner about how the breaches are impacting on you or your child so that if you do have to go back to court to enforce the order the court can see that you drew the breaches to the other parent’s attention and explained the impact of the breaches on you and/or your child. For example, the other parent not collecting the child on time from nursery might result in fines from the nursery or failing to turn up for contact may make the child anxious about whether the next contact visit will go ahead or not returning the child on time may trigger an anxiety disorder on your part.

If you do nothing about persistent but minor breaches of children court order then the other parent may assume that you or the child aren’t bothered or the status quo may develop that your ex-partner is always thirty minutes late for collection and/or return. It may be the case that either directly, through solicitor negotiation or family mediation you can sort out the issues leading to relatively minor but persistent and annoying breaches of the court order. For example, agreeing to a different collection or return time or a different day for mid-week overnight contact.

However, in some scenarios, where the breaches are serious or your ex-partner won't accept your concerns about the impact of regular breaches of the court order or discuss them, it is necessary to apply to the court to enforce the original child arrangements order or other children order.

How do you apply to court to enforce a court order?

An application to court to apply to enforce a court order is made on a specific enforcement application form. Ideally the court will list the application before the judge who made the original children court order so that there is judicial continuity.

When the court receives an application to enforce a children law order they will consider:

Does the other parent accept that they breached the court order or is the breach or breaches of court order in dispute?
What is the explanation given for breaching the children court order?
Subject to the age of the child, what are the wishes and feelings of the child? For example, turning up late for contact can be extremely annoying for both parent and child but is the child very keen to continue contact even though the other parent regularly doesn’t turn up or is late?
Whether there is need for independent expert advice or a CAFCASS report or a referral to social services for investigation and report. For example, where a parent says the other parent is breaching the court order as they are taking illicit drugs and a condition of contact was that they stayed drug free then drug testing may be necessary
Consider the welfare checklist and the best interests of the child
Assess what orders are appropriate, such as a separated parents information programme referral or an emergency order to suspend contact.

Every family situation and breach of contact order is different and has to be assessed. For example, late arrival may be explained by a parent undergoing chemotherapy or dialysis treatment or, in other family scenarios, may be wholly unacceptable as contact breaches and failure to comply with the court order are a means of one parent trying to exert control and cause distress to the other parent. That’s why it is best to take legal advice on your best options and whether to apply to court to enforce a children law order or ask the court to change a child arrangements order.

Online London based children and family law solicitors

If you need help with enforcing a children court order or applying back to court to change a child arrangements order then the children and family law team at OTS Solicitors can help answer your children law questions and provide strong representation in children court proceedings. Call our friendly and approachable children law solicitors on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you.