Parties named in a court order must follow the order. A party found to be in breach of an order may be fined, imprisoned, ordered to undertake unpaid work or have their assets seized. The penalty is at the discretion of the court.
It is important to view each breach in context of the circumstances of the breach. Taking action for a minor breach may not be appropriate, i.e. the other parent has returned the child 15 minutes late from contact. However, taking action regarding a serious breach or repetitive breaches may be appropriate.
Variation of an order
It is common in family proceedings that the terms of an order granted by the court may not be appropriate for the duration of the order. Therefore, any party to a court order may apply to vary the order to ensure compliance. This may be where contact arrangements need to be updated as the children grown up.
Many child arrangements orders contain a provision that states that “any other contact as agreed between the parties”. Therefore, as long as it is agreed between both parties the order will not need to be amended.
It is strongly advisable that if any party to a court order becomes aware that they are unable to abide by the order, they should make an application to vary the order before they become non-compliant. It is also advisable to notify the other party in advance of the non-compliance to see if an alternative reasonable solution may be agreed.
Enforcement of an order
The court does not check whether parties are complying with an order. The court has the option to ask a CAFCASS officer to monitor compliance with a child arrangements order for a period of up to a year after making the order. If a party is in breach of the order, the other party may make an application to the court to enforce the order.
The court may direct the parties to undertake activities designed to help them understand the importance of complying with the order.
All orders in family proceedings are now drafted on standard templates (updated 01 August 2019) which contain warnings at the start.
Where the court is satisfied beyond reasonable doubt (not on the balance of probabilities) that an individual has not complied with an order, the court may order the individual to complete a period of unpaid work. This penalty may also be suspended.
The court will not make an order where the individual had a reasonable excuse not to comply with the court order. The burden is on the individual in breach to prove reasonable excuse on the balance of probabilities.
The maximum penalty the court can order is 200 hours of unpaid work.
The court may make an order for financial compensation where an individual has incurred a loss due to a party breaching the order. Before making an order, the court must take into account the welfare of the child and the financial position of the party in breach.
Committal to prison for contempt
For serious breaches a party may be committed to prison. The maximum sentence is 2 years imprisonment. The court will be reluctant to commit a party to prison where the order could be satisfactorily enforced by a less draconian measure. The court may also suspend this sentence.
The order must prominently display a penal notice as follows (or in words to substantially the same effect) to enforce the order by way of committal:
“If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized”
A child arrangements order was granted for the child to ‘live with’ the father and ‘spend time with’ the mother on a limited basis. The mother was unable to care for the child. The court had issued a prohibited steps order prohibiting the father from removing the child from the jurisdiction (England and Wales) for a period exceeding 14 days, a penal notice was attached to this order.
The father relocated out of the jurisdiction but within the United Kingdom. He did not apply to vary the child arrangements order or the prohibited steps order. The mother subsequently obtained a specific issue order requiring the father to return the child to the jurisdiction, a penal notice was attached to this order. The father did not return the child to the jurisdiction.
I represented the mother in the enforcement proceedings. The mother applied for the father to be committed to prison on the basis that he had repeatedly flouted several orders.
The court ordered that the father be committed to prison for a period of 14 days, suspended for 1 year. This reflected the seriousness of the father not abiding by the court orders but recognised that there was no one within the jurisdiction that could care for the child. The father was given leave to take the child out of the jurisdiction until the next hearing, provided that he applied to vary the prohibited steps order at court that day.