The first thing to do is try and see if the matter can be resolved outside of court as, no doubt, the last thing you will want is another court battle if you have already had to go through one. For this reason, I would normally write to the other parent setting out their breach and put them on notice that if they do not immediately comply with the order then my client will instruct me to return the matter back to court to enforce it. In some cases, this early intervention will swiftly resolve the matter. It will make the other parent realise that you are taking the breach seriously and, like you, the other parent probably also does not want to enter into another court battle with the costs and stress that can cause.
What if my ex is stubborn and still refuses to comply?
In this instance I am afraid that your only option to enforce the Child Arrangements Order would be to return the matter to court. You would be seeking enforcement of the order previously made by the court. Unlike the first court application you brought, you would not be required to attend another mediation appointment before returning to court.
Should I bring the case back to court to enforce the Child Arrangements Order?
Generally, the court will expect there either to be a major breach (e.g. a complete suspension of the court ordered arrangements) or a pattern of breaches before taking an enforcement application seriously. A parent runs the risk of being criticised by the court should they prematurely bring an enforcement application over a relatively minor breach of the order. You need to be sensible and pragmatic.
However, if there is a major breach or a pattern of breaches, and if your ex ignores any warning letter from your solicitor, then you will, regrettably, need to return to court with an enforcement application.
What would the court do if I bring an enforcement application against my ex?
If the court finds that a parent is in breach of a Child Arrangements Order for no good reason then the court has discretion to impose a ‘punishment’ on that parent, including a fine, an order for unpaid work or, in the most extreme cases, even a term of imprisonment. However, it is important to stress that it is unusual for the Family Court to use these enforcement powers. The Family Court is set up to find solutions to problems and not to penalise or ‘punish’ parents. From experience of dealing with these cases, it is often the case that the Family Court will only seriously consider ordering these available enforcement measures in circumstances of egregious behaviour or multiple and continuing breaches by a parent.
Your main focus should be achieving the reinstatement of the previously court ordered arrangements. That is the approach the Family Court is likely to take.
Can the court change my Child Arrangements Order if I bring it back to court?
The simple answer is, ‘yes’, the court can do so if it considers circumstances have changed to justify a variation to your Child Arrangements Order. Often the parent in breach of the order will argue either that the ordered arrangements have not worked for the child or that circumstances have changed since your last court case which justifies the terms of the order changing (in other words, the parent in breach will invariably argue that they have a ‘good reason’ to breach the order).
Sometimes the parent in breach of the order will respond to an enforcement application by filing an application of their own to vary the Child Arrangements Order. If these arguments are made then the court will need to consider them and decide whether circumstances have changed for your child which means that the Child Arrangements Order should be changed, or whether the parent in breach has no justifiable, good reason to do so and therefore look to enforce the Child Arrangements Order. If the court takes the latter approach, then, as outlined above, it is unlikely on the initial application at least that actual enforcement measures will be made, but the court can warn the other parent of the importance of complying with the order. If that doesn’t work and you need to return the matter to court for a second or even third time to enforce the Child Arrangements Order, then the court may be more open to taking enforcement measures at that time.
Can the court change the Child Arrangements Order to my advantage if I bring an enforcement application?
Yes, the court can do this and will often prefer this approach as to taking punitive enforcement measures against the other parent. A Judge may take the view that the other parent is just incapable of complying with an order and of promoting contact and therefore decide to take the ‘nuclear option’ of ordering that there be a change of residence or an increase in contact to the other parent.
As can be demonstrated above, enforcement applications can be tricky, and they are not straightforward. It is important you seek specialist legal advice before taking any steps to enforce your Child Arrangements Order through the court.