Breach of child arrangements order – What are my options?

Posted on 4th May 2023 by McAlister Family Law

Breach of child arrangements order – What are my options?

Navigating decisions about arrangements for the children, house rules and holidays can be a very difficult task for separated parents. In cases where an impasse is irreconcilable, it may be necessary to secure a Child Arrangements Order to clarify matters and enable the parties to move on with their lives. Here, Agata Napora looks at the consequences if Court Orders aren’t followed.

Initial Steps

A constant breach can be very upsetting and cause a lot of uncertainty for the other parent and the child concerned which is far from desirable and should be handled with care. In first instance we would recommend that you always try to address all the issues direct as this may help break the ice between you and help resolve matters without the need of engaging a solicitor or taking your case back Court. However, should this approach be unsuccessful, the next step would be to contact a solicitor with a view to writing to the other party and reminding them of their obligation to comply with the Order and the legal ramifications if they continue to breach it.

A Child Arrangements Order has a “Warning Notice” attached to it which informs the parties about the consequences of failure to abide by the terms of the Order. From a legal standpoint, a breach of a Court Order is a serious affair as it constitutes a contempt of Court, and this may lead to sanctions being made against the non-compliant parent.

If correspondence from a solicitor does not achieve the desired effect and the other parent continues to act contrary to the terms of the Order, then you may need to consider applying to the Court for enforcement.

What Constitutes a Breach of an Order

When a Child Arrangements Order is already in place almost anything can amount to a breach including a lateness to the handover or a cancellation of contact due to an illness, or a prior work commitment. Whilst a one-off incident of this nature is unlikely to be enough for the Court to order a sanction against the other party, a series of minor breaches may have a profound impact on the welfare of the child and the Court will therefore take a closer look at the overall situation. It is therefore advisable to keep a record of all the instances and the frequency of the said breaches so that the Court can benefit from a full picture and is able to investigate the issues accordingly.

What the Court looks for in enforcement applications

The Court will determine the nature of the breach and look at the reasons behind the other parent’s non-compliance. The Judge will be interested in knowing as to whether there is a plausible explanation behind the other parent’s conduct or perhaps no valid justification at all. The Court will assess the effect of the breach on the child’s welfare and whether it would be in the child’s best interests for the order to be enforced. Every case is different, and in some circumstances, the Court may wish to obtain expert advice or a CAFCASS report or make a referral to social services to investigate matters in more detail before making a final determination.

How to make Enforcement application

An application to enforce a court order is made on a specific enforcement application form C79. There is also a Court fee payable of £232 unless you qualify for a fee remission. We would recommend that you seek legal advice on how to complete the form to ensure that your application is successful.

Enforcement and Sanctions

In deciding whether to enforce the Order, the Court must satisfy itself beyond reasonable doubt that such action is necessary and proportionate to the seriousness and frequency of the parent committing the breach and that the Enforcement Order is required to secure compliance with the Order. If the breach turns out to be minor or the parent in breach of the Order actively shows remorse and perhaps undertakes to the Court not to repeat the said misconduct, the Court is likely to consider that Enforcement Order is not necessary. Furthermore, if a parent in breach of the Order can show on balance of probabilities that they had a reasonable excuse for failing to comply with the order, then it an Enforcement Order will not be granted.

Whilst some parties may be referred to a separated parents information program (SPIP) or mediation to resolve their disputes, others could be ordered to pay a fine, undertake unpaid work or be committed to prison. It may also be possible for one parent to seek a compensation for financial loss suffered by reason of the breach.

Who pays costs of enforcement proceedings

The standard rule on costs in children proceedings is that there should be no order for costs. This approach however does not apply to applications for enforcement orders meaning that the applicant party have the right to seek costs against the respondent party and the Court has a discretion to order the unsuccessful party to pay the reasonable legal costs of the other side.

If you are considering applying to the Court for enforcement of the existing Child Arrangements Order, we would highly recommend that you seek specialist assistance.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Means free Legal Aid being extended

Posted on 18th April 202318th April 2023 by McAlister Family Law

Means free Legal Aid being extended

Government announces extension to the rules for family legal aid. The scope of means free Legal Aid is being extended for Parents and those with Parental Responsibility. This applies to opposing applications for Placement and Adoption Orders in public family law proceedings. Here, Clint Nicholls looks at what this means for you.

Well, it will be a relief for many Parents as it will make it easier to obtain Legal Aid as the case will only be assessed on a merits basis, whereas previously applications were subject to the means test. Challenging an adoption or Placement Order is a daunting task especially for vulnerable Parents who may have little support if they cannot obtain legal help. If Parents can demonstrate that they have made changes and these changes are sufficient, then their case will be assessed on merits only and they will not have the added worry of their financial circumstances barring them from accessing legal help. This is a positive step from the Legal Aid Agency and should be welcomed and hopefully further steps can be made to allow more people to access legal services without having to worry about their financial means.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Maya Jama receives legal letter demanding £800,000 ring back

Posted on 26th January 2023 by McAlister Family Law

Maya Jama receives legal letter demanding £800,000 ring back

Maya Jama receives legal letter demanding the return of £800,000 engagement ring to ex-fiancé Ben Simmons. Here, Lisa Brown looks at what happens to the ring if an engagement is called off.

The new Love Island host and basketball player ended their relationship last summer after Ben’s proposal to Maya over the Christmas period. This week, Maya reportedly received a letter demanding the return of Ben’s engagement ring, but if one half of an engaged couple calls off the wedding, what happens to the engagement ring?

Not every engagement leads to a wedding, and even for those who do get married, there may be a divorce down the line. As divorce lawyers, it’s not unusual for the soon-to-be-ex-couple to argue about who keeps the engagement ring, particularly if the ring was expensive.

One half of the couple will put forward the argument that they bought it, so they own it. The other half of the couple, naturally, will advance the argument that the ring was given to them as a gift, so they can claim rightful ownership.

What does the law say about engagement rings?

The Law Reform (Miscellaneous Provisions) Act 1970 states:

“The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”

This means that unless there was an agreement to return the engagement ring if the wedding was cancelled, then the recipient is under no obligation to return the ring.

What if the engagement ring is a family heirloom?

If the engagement ring is a family heirloom, perhaps passed down through the family for many generations – and the recipient was made aware of this at the time – then it may be easier to succeed in an argument that the ring should be returned if the wedding is called off. However, no matter how sentimental the ring may be, if there has been no agreement made that the ring must be returned to the proposer, the Act still stands.

How do you ensure that you keep the ring if things don’t work out?

Many couples now enter into a prenuptial or postnuptial agreement. If the parties feel really strongly about it, provision for the fate of the engagement ring can be included in the agreement as a specific term should the couple divorce. Otherwise, the same general rule applies: the engagement ring is an absolute gift (and therefore not returnable) unless there was a condition made about the ring being returned when it was given.

So, if you are planning to ask your loved one to marry you this Valentine’s Day, maybe consider the future of the ring. We know that thoughts of break-ups and divorces should be the last thing on your mind, but if the ring has a lot of sentimental value, it might be worth protecting it in some way.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

School admissions season – what happens if we disagree?

Posted on 19th January 2023 by McAlister Family Law

School admissions season – What happens if we disagree?

January is never an easy month. It is one of the few times in the year where two 31-day months follow one after the other, spring feels like a lifetime away and pay day even further. On top of that, it’s school administration season. Here, Michael Compston looks at what happens if parents cannot agree on a school and how the choice can be made both inside and outside the court.

The local authority deadlines vary from authority to authority, but generally primary school deadlines are in place for the middle of January. Miss that deadline and your child runs the risk of not being accepted into their first-choice school and the application being considered as a late application.

Secondary school applications tend to run on a slightly different timetable, with deadlines being earlier in the academic year. However, we find that secondary school applications follow a more structured process as children/parents tend to be guided through this by the primary school during the child’s final year.

Children getting ready for primary school do not always have that information or guidance readily available, so this blog aims to consider how to resolve any issues arising out of primary school admissions.

Most if not all Local Authorities now process these applications online. The process is fairly straightforward; you go to the prospective schools, decide which ones you like or do not like, then select those schools in preferential order.

But what happens if you and the child’s other parent disagree? If you both have parental responsibility for a child, then it is incumbent on you both to come to a decision together. One of you may favour the school with strong academics or greater extra-curricular provision, whereas the other favours the school with more green space or a better pupil to teacher ratio. If you cannot agree on the preference order, how do you resolve matters?

Outside of court

The first solution is a simple one. Talk to each other. It might sound simple but actually discussing your preferences and why you think one school is better than the other can open up topics for discussion that you might not have considered.

If you are not able to reach a decision by discussing the matter between yourselves, then another option is to attend mediation. Mediators are trained to facilitate discussion between parents across a broad range of matters, not just limited to discussions around child contact. They can offer a neutral perspective and encourage back and forth discussion between the two of you.

Court proceedings

Should mediation not work, then the last recourse is to ask the court to make a decision by making a Specific Issue Order to decide that specific point. Alternatively, if the other parent is refusing to allow you access to the application and is preparing to submit the application themselves, it could be an application for a Prohibited Steps Order to prevent them submitting the application. Either way, both applications would be considering the same thing – what is in the best interests of the child.

This can be a costly exercise and a time-consuming exercise too. You are essentially asking the court to make a decision that, ultimately, is about what is best for the child. The court has not met your child, the court does not have the knowledge of the schools that the parents have, so you must think carefully before asking the court to intervene and make a decision that will have a long-lasting effect on your child’s education; if the child remains in their school, they will be in primary for seven years or secondary for five, so it is an important decision.

If you do end up in court proceedings, the court must consider what is in the child’s best interests. The court would almost certainly say initially that this is a decision that the parents should come to themselves; after all, the parents know the child better than the court. You would most likely both need to prepare witness statements on why you consider that your order of schools is the most suitable and then be prepared to argue your case in front of a judge.

Whilst this is very much a last resort, it is important to remember that this is the last recourse for the court. If you cannot agree, the court will likely want order you both to give evidence. It is far, far better if you can resolve matters between yourselves, with or without the help of a mediator, rather than reverting to the court process.

One Final Thought

Throughout all of these avenues for resolving any dispute on school choices, it is important to remember that the ultimate decision on where a child goes to school is down to the Local Authority in terms of state schools. The order of preferences is still important, as it will help to inform the decision of the Local Authority, but the decision is ultimately one for them.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

A Child’s Wishes and Feelings in Children Act Proceedings

Posted on 26th May 2022 by McAlister Family Law

A Child’s Wishes and Feelings in Children Act Proceedings

When proceedings concerning a child need to be issued at Court it can not only feel like an arduous task, but also overwhelming in an already worrying time. Here, Jemma Wentworth looks at how the wishes and feelings of a child are taken into consideration when a court decides what is in their best interest, and how factors such as age and understanding play a role in the decision-making process.

Proceedings may be necessitated for various reasons, for example, the need to define the time that the child spends with both parents, to address a specific issue surrounding the child such as changing their name or deciding which school they should attend, or even to determining whether permission should be given for leaving the jurisdiction.

Within Children Act proceedings, and as part of the Court process, the child’s welfare is of paramount importance and various factors need to be taken into account. These factors form the ‘Welfare Checklist’ and one of these factors is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.

If there is a disagreement between parents or those with parental responsibility, the Court may be asked to make decisions. In doing so, the Courts overriding objective is what is in the child’s best interests? Often, the most effective way to ascertain this is to speak with the child. This is where the child’s age and understanding plays particular significance.

An organisation called CAFCASS, the Child and Family Court Advisory and Support Service, shall be appointed by the Court and the officer dealing with the case shall speak with the child as part of the assessment process. In so doing, consideration of the Welfare Checklist forms their role, and the officer shall give full consideration to each individual child’s ability to express their view in light of their age and understanding.

Children as young as four or five shall be spoken to by the CAFCASS officer, but it shall be fully appreciated that a child of such young age is clearly limited in terms of their ability to communicate or form a viewpoint on significant life matters. Generally speaking, the older a child becomes, the more their expressed views will have relevance to the decision-making process.

Generally speaking, by the time a child is approaching High School age their viewpoint will be competently and pragmatically considered by CAFCASS, who in turn will file a report to assist the Court. Each case is determined on its own merit, but the important factor is not only a child’s age, but also their level of maturity and understanding of what is being proposed and how such decisions will affect them. These are all considerations that will be considered by CAFCASS within their report for the Court.

However, it is important to remember that not every child is the same and every case will be different. These issues need to be discussed openly by the parents with an understanding that just because a child may express a certain view, does not automatically mean that the Court will make an Order on that basis. The voice of the child is critically important to the Court, and it is only right that the child should be able to say what they would wish the Court to order. However, it is a balance of factors that the Court must take into account, and the ascertainable wishes and feelings of a child is only one of those factors. The older the child, the more the Court will consider their wishes and feelings in their decision making.

It is also incredibly important for parents to be mindful that regardless of where their child is at, developmentally, intellectually and emotionally, it is the Court who ultimately makes the decisions and therefore providing a child with the burden of the decision making could have a negative impact upon them as for some children that burden of having to ‘choose’ between parents is ultimately too much for them to carry.

If parents, and those with parental responsibility, are unable to agree important decisions for a child’s future, the Family Court alongside the involvement of CAFCASS, may well be the last resort. Having the right support and the right legal advice is crucial. Here at McAlister Family Law we have an experienced and large Children Team who will be able to navigate you through what can be a difficult and emotionally charged process.