A Court order is legally binding and is expected to be adhered to and complied with. However, there may be occasions when a Court order is broken or ‘breached’. This could be for a variety of reasons and it is important therefore to attempt to establish why that is the case. So what can you do if a court order has been broken?
Why was the court order not complied with?
It may be that the child was ill or there was some extreme circumstance, beyond the control of the parties which meant that an order could not be complied with. It may even be that an issue has arisen which has led to a concern for the child’s welfare such that complying with the terms of the order may place the child at risk of harm.
If you are the parent who is unable to comply with the terms of the order, it is important that you obtain urgent advice from solicitors or the Local Authority Children’s Services. It may be necessary for you to make an application to Court to vary or suspend the terms of the existing order.
Broken court orders mean communicating with the other parent
Although this may not at always be possible especially as tensions are likely to be heightened due to a broken order, trying to keep lines of communication open will help and may avoid the situation escalating. This will particularly arise if the situation is likely to be temporary or because of discussions there can be agreed changes to the current arrangements.
Sometimes couples need a helping hand to get talking. Family mediation is an important aspect of family law and can be particularly useful when focusing on the arrangements for children, as well as various other areas in dispute.
Mediation will be led by an impartial mediator whose key aim is to help the parties reach acceptable solutions. However, family mediation cannot go ahead unless both parties give their consent and is completely confidential. Mediators do not make judgements and will listen to both points of view. Mediators cannot advise either party but can provide information in relation to the law to help the couple to make informed decisions. Mediation takes place in a neutral setting to put the couple at ease.
A mediator will strive to work with the couple to reach long-term solutions which will alleviate stress and hopefully improve communication moving forwards. It also helps the children by helping their parents to work together to plan and adapt for their future.
As an alternative the couple may wish to consider adopting the collaborative law approach. It is recognised that the best solutions are those that the couple have worked out for themselves together. With the collaborative law approach the couple each instruct their own separately trained collaborative law solicitors to represent them.
Discussions take place in a series of face-to-face meetings consisting of the couple and their own legal representative. The couple remain in control but with collaborative law solicitors present to provide guidance and advice. Sometimes it may be suggested that that the couple bring in other professionals such as a family consultant who can provide invaluable support focusing on the emotional aspects, to help the couple find a workable solution.
If a court order has been broken an application can be made to the court
In the event that a satisfactory reason has not been given for the alleged breach of an order, consideration may need to be given to an application to Court for enforcement. The Court has the ability to enforce the order in a number of ways.
A child arrangements order will have a warning notice attached which sets out the consequences of failing to comply with its terms. The range of powers available to the Court include an enforcement order, an order for financial compensation or, where the Court is satisfied that a breach amounts to a contempt, imprisonment, fine or the seizure of assets.
When an application is made to Court for enforcement, the Court will list a hearing at which it will hear evidence from the person alleged to have breached the order and it will be for that person to satisfy the Court, on the balance of probabilities, that they had a reasonable excuse for not complying with the order. If the Court is not satisfied that this is the case, it must then be satisfied beyond all reasonable doubt that the order has not been complied with before then determining how the order is to be enforced.
Unfortunately, there can be significant delays within the Court process. The couple may want to consider family arbitration which may prove a more attractive option. They choose an arbitrator, usually with the help of a solicitor. The arbitrator can make a decision about issues affecting the children.
The process is designed to enable the couple to address the dispute more quickly and cheaply adopting a less formal and more flexible approach. The process also allows the couple to deal with a specific aspect of the dispute as well as a broader range of issues and is therefore very focused on the couple and their family.
You can read more on broken child arrangement orders and broken court orders here. Additional reading material is contained in a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop.
Dawn Gore & Grant Cameron contributed to ‘Separating With Children 101’, 3rd edition, (Bath Publishing 2023).