What is the legal test for breaching a Child Arrangements Order?

Separated parents may have a Child Arrangements Order in place detailing how their children are to spend time with them. It is common for an order to state the child lives with one parent and spends time with another; and there may be details within the order as to handovers, birthdays, school holidays and so forth.

When the terms of the order are not followed, one parent might consider bringing an application for enforcement against the other parent. This would bring the matter back to court and in front of a Judge or bench of magistrates.

The court will consider the alleged breaches and determine whether the order has, in fact, been breached. The test that will be applied is as follows:

1. The parent who wishes to enforce a child arrangement order must prove beyond all reasonable doubt that the order has been breached. (note this is a higher threshold in comparison to the ‘balance of probabilities’).
2. However the other parent may have a defence if they a reasonable excuse to justify the breach. This is judged on the balance of probabilities, which is a lower standard of proof than stage 1 of the test.
3. If the court find that there is not a reasonable excuse for the order being breached, the court will then consider what sanctions (if any) are appropriate. The court have the power to order the parent in breach to undertake unpaid community work, issue a financial penalty, or even commit the parent in breach to prison if the breach is sufficiently serious.

The court may elect not enforce severe sanctions, or any sanctions at all, if the punishment of the parent would have a detrimental effect to the children. The court in most instances are most concerned with contact being re-instated as opposed to punishment.

If you have an enquiry, please call 01902 328 355 and you can speak to Aimee Stokes, a family law solicitor in George Green’s dedicated family law team.

You can also complete our online enquiry form and a member of our team will contact you for an initial discussion. 

George Green Solicitors have offices based in Wolverhampton and Cradley Heath and serve clients across the West Midlands and Black Country including Stourbridge, Wolverhampton, Halesowen, Birmingham and beyond.