Some parents may have deliberately used it as an excuse not to fulfil their obligations, while other parents will have been able to rely on covid-19 as a reasonable excuse for their breach.

Judicial guidance from early in the pandemic set out how parents should best exercise parental responsibility in light of their duties under child arrangements orders (CAOs). It made clear, for example, that the spirit of the order must be delivered – even if the letter of the order cannot be.

Enforcing a limited CAO

So how will the courts approach breaches of an order where both the spirit and the letter of the order are broken? As with any breach of a court order, the parent in breach is at risk of enforcement proceedings. Persistent breaches could lead to imprisonment – something any reasonable parent would wish to avoid.

For the other parent, enforcing a CAO, eg under section11(J) to(P) of the Children Act 1989, is not a simple process. Importantly, the court can only enforce the order if a warning notice was applied to the original order.

A seminal case on the enforcement of children arrangement order is RE L-W (2010), which concerned a contact order in respect of two children aged 11 and 9, the elder of which refused to have contact with her mother (M). M applied for enforcement and compensation orders against the father.

The Court of Appeal overturned the High Court’s ruling made in M’s favour (this included a committal order in respect of F’s breaches) because the judge had made fundamental errors:

He had overstated what was actually required under the terms of the contact order. All F had been required to do was to “allow” and to make the children available for contact, not to make sure they actually went for contact with M. That was not how the judge had treated the orders.
F had argued that performance was impossible. The judge had wrongly rejected this defence.

An important point made by the appeal judges which practitioners would do well to note, is that committal is “an essential weapon in the court's armoury”. But the ruling shows the limits to which that armoury can be utilised.

It’s clear that the wording of the original CAO must be carefully considered. In Re L-W, it was the appeal judges’ view that though F may have been under a parental or moral obligation to make sure his daughters actually had contact with M, the fact was, “on the wording of these orders he was not under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to ‘ensure’ – that contact actually took place”.

Making it work

While a breach of the order will be treated seriously, it has to borne in mind that the court has a duty to try to make it work. In Re C (Contact Order: Variation) [2008] EWCA Civ 1389), Thorpe LJ stated: “Where a contact order is not operating smoothly, the court that made the order has a continuing responsibility to strive to make it work.”

By implication, the parents themselves must also do what they can to make the arrangement work – for the sake of the children but also for themselves.

In Re C, a residence order had been made in respect of four children to the grandparents, and a limited contact order in favour of the children and their father. Unfortunately, it did not go smoothly, and F applied for more contact, saying the grandparents were being unreasonable.

The original judge dismissed F’s application – a decision that Thorpe LJ described as “rough justice”. F’s appeal succeeded, with the judge making an observation about “the mechanics of a contact order that was not working”.

The cost of having to resort to court action to enforce a CAO is not just financial – the risk of negatively impacting relations between the children and parents is real and should be avoided where possible.

Family lawyers tasked with drafting such orders need to take special care to ensure the terms are clear and unambiguous – and that they expressly state the extent of each parent’s legal obligation.