A Child Arrangements Order (‘CAO’) is an order made by the court under section 8 of the Children Act 1989. These Orders govern:
- With whom a child lives;
- With whom a child will have contact with, and how often; and
- Any other specific matters that the court feels it is necessary to make an order for (Specific Issue Orders and Prohibited Steps Orders).
When a CAO has been made by the court, and a party to it breaches the terms, there is scope for enforcement.
Who can apply to enforce the CAO?
Section 11J(5) of the Children Act 1989 confirms that the following individuals can apply for enforcement of a CAO:
- The person whom the child lives with or is to live with;
- The person whose contact is provided under the CAO;
- Any person subject to a condition under s.11(7)(b) of the Children Act 1989 or whom has an activity condition imposed by the CAO;
- The child
Further to this, claims for compensation due to financial loss can be made by any of the above applicants, who can prove they have suffered a loss.
However, it should be noted that if the child is a prospective applicant, the court’s permission is required, and will only grant permission if the child has sufficient understanding.
To make an enforcement application, a MIAM (mediation suitability) sign-off is not required. However, the application will carry the relevant court fee.
The application must also be served on the respondent.
What can the court do?
The court must be satisfied beyond reasonable doubt that a person has failed to comply with a CAO. If that is the case, there are a wide range of powers available to the court when considering the enforcement of a CAO:
- Making the enforcement order;
- Making an order for financial compensation for financial loss;
- A fine;
- Committal to prison (if there is a penal notice attached to the CAO);
- A variation of the CAO (the court will therefore consider if the original terms of the CAO are still fit for purpose);
- Referring the parties to mediation, or ordering attendance at a SPIP programme.
The court will need to consider the welfare of the child affected by the CAO, and further:
- That the making of an enforcement order is necessary to secure compliance with its terms;
- That the likely effect of the order is proportional to the seriousness of the breach;
- The provision of any unpaid work can be made in the local area in which the person in breach resides, or will reside;
- Gather information about the person who has committed the breach, and the likely effect of an enforcement order, such as any religious beliefs, financial consequences, etc.
Before making the enforcement order, the court must also be satisfied that the party in breach of the CAO had a copy of it, or was aware of its terms before the breach occurred.
If there is a repeated breach, the court will need to consider whether to make the first enforcement order more onerous or to impose a second order. In considering this, the court will need to be satisfied that the effect of the proposed changes is no more than is required to secure compliance and that it is proportionate to the seriousness of the failure to comply with the CAO and the first enforcement order.
Is there a defence to breaching a CAO?
A respondent to an enforcement application can argue that they had a reasonable excuse for failing to comply. The burden of proof is on the balance of probabilities, and the burden rests on the party claiming to have a reasonable excuse.
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If you would like to discuss further, please contact our Family Department at Kew Law to arrange an initial consultation.
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