What is the test for breaching a Child Arrangements Order?

The government’s recommendation to self-isolate or socially distance in light of the coronavirus pandemic creates an unprecedented circumstance for separated parents to work around.  If you are a parent with an existing child arrangements order in place, a frequently asked question is whether the other parent withholding or denying contact is a breach of the court order.  This blog outlines the test the court will consider if an application for breach is made.

In general terms, for the court to find one party has committed a breach, the law is clear:

1. A parent who wishes to enforce a child arrangement order must prove beyond all reasonable double that the order has been breached.
2. However the other parent may have a defence if they can prove they had a reasonable excuse for the breach. This is judged on the balance of probabilities, which is a lower standard of proof to satisfy in comparison to stage (1) above.
3. If the court find that the order has been breached without reasonable excuse, the court have various sanctions including ordering unpaid community work, fines, and even committing the parent to prison. These will depend upon the severity of the breach but the court often does not enforce severe sanctions if these would have a consequential effect detrimental to the children.

Therefore the key question for the court to consider is whether the pandemic and government advice to isolate is a ‘reasonable excuse’ to breach the order.

There is no pre-existing case law or guidance from the courts which gives a clear indication of how the court are going to treat such matters.

The court would expect parents to be co-operative during these uncertain times and to find creative solutions to the problems together, before taking the matter to court for enforcement. When the court is considering the reasonableness of the excuse, it will look at the facts of each particular case.

Parents should be encouraged to work together and it may be the case that they can agree a variation of the existing order to modify handovers (for example) to remain socially distant and as safe as possible.

Both the Courts and Tribunal Service and CAFCASS have issued guidance that the current government advice of self isolation and social distancing do not interfere with the existing terms of a Child Arrangement Order. The Order remains in force unless there is a medical reason for contact to not take place. Social distancing is not an automatic bar for contact to continue. 

Even if the court-ordered contact cannot take place due to genuine medical reasons, the the court will expect the 'spirit' of the order to continue. Therefore, at the very least, indirect contact with the non-resident parent will be expected. 

If you would like any further advice in relation to child arrangement orders in light of the governments advice on COVID19 and social distancing, our specialist family lawyers are happy to help. Our lawyers have offices based in Wolverhampton and Cradley Heath and provide assistance to clients across the West Midlands including: Stourbridge, Kidderminster, Birmingham, Dudley and Walsall.

For all new enquiries, please call 01902 328 355 or 01384 340569, alternatively you can complete our online enquiry form and a member of our team will respond.

Our lawyers are offering remote telephone appointments to assist clients during this time.