Enforcement of an Order for contact or residence

This how to guide explains the steps that you can take to enforce a Child Arrangements Order if one party has acted in breach of its terms. 

A Child Arrangements Order for contact (also referred to spending time with) or residence (also know as living with) a child is a legally binding order. If the child is not made available as per the order, then it is possible for one of the parties to seek enforcement of the order.

The first step we would recommend is to write a letter to the party in breach of the order to remind them of the legally binding nature of the order, refer them to the warning notice and stating that if it is not complied with court action will be sought. 

If the party breaching the order does not return to following the arrangements as set out in the Child Arrangements Order, despite these efforts, then an application for enforcement can be made.
This is done using the following forms:

1. Form C79 – Enforcement of Child Arrangements Order application form. This has a £263 application fee.

2. Fee or Form EX160 (fee exemption) – please see EX160A for guidance.

During the enforcement proceedings, the court will consider whether a breach has taken place, the severity of the breach and whether there is a reasonable justification for the breach.

The court will, under Practice Direction 12B para 21.1:

• 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 on the appropriate way forward
• Assess and manage any risks of making further or other child arrangements order
• Consider whether a SPIP (Separated Parent Information Programme) or referral for dispute resolution is appropriate;
• Consider whether an enforcement order may be appropriate
• Consider the welfare checklist

The Courts will then refer to Section 11J of the Children Act 1989 2-4:

2) 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.

3) 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.

4) 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.

If it is found that a breach has taken place then the court will decide the punishment, if any, to be imposed. Penalties may include:

• A warning
• A fine
• Community Service
• In the most serious cases, a transfer of residence or a custodial sentence

If a person with whom the child is to have contact with under the order does not attend all of the contact sessions or is late to contact, the person the child lives with under the order could consider applying for a variation or a discharge of the order. It is important to consider what is in the child’s best interests, especially if the non-resident parent or other person named under the order is not wishing to spend time with the child(ren). The court are unlikely to enforce an order in these circumstances. 

If you feel there is an emergency situation and are the person a child lives with under a Child Arrangements Order, then you can apply for the child to be returned to your care by completing form C3 for Taking Charge and Delivery of a Child. You would need evidence as to why this is needed urgently. The order will authorise a police officer or member of court staff to collect and return the child to you. 

If you are unsure which form is applicable in your situation, then please call and speak to one of our legal advisers on 0300 330 5480. 

The parties at this time may also wish to consider if a variation of the order is needed, as set above. It may be that the order has broken down and aspects of it need to be revisited, for example the non resident parent’s contact may need to be altered or it may be that a shared residence arrangement needs to be implemented. Please see our page on Variation or Discharge of a Child Arrangements Order for more information.

Enforcement of Child Arrangements Order or Contact Order – Flowchart