What should I do if a family court order is not being followed?

As family solicitors, we know that it can be worrying when an order is not followed, particularly where children are affected. Clients often come to us feeling frustrated or unsure whether a breach means they must return to court straight away. In our experience, there is rarely a single solution that suits every family, so our role is to listen carefully, understand what has happened and identify a practical, proportionate way forward.

Taking stock before returning to court

Before starting formal proceedings, we would usually encourage clients to take stock of the position and consider whether matters can be resolved without returning immediately to court. We find it helpful to distinguish between an isolated difficulty and a pattern of non-compliance, as the history and context will often shape our advice. The court will generally expect both parties to have acted reasonably and, where it is safe and appropriate, to have explored practical alternatives first.

Exploring whether matters can be resolved away from court

We will often discuss whether non-court dispute resolution, such as mediation or collaborative law, could help. In our experience, a carefully framed letter, a suggested round table meeting or a focused mediation session can sometimes clarify expectations before positions become entrenched. Attempting a form of non-court dispute resolution prior to returning to court, where appropriate, can also show that court proceedings were considered only after other options. If the difficulty has arisen because of changing family routines or practical barriers, non-court dispute resolution can offer the quicker and more cost effective route than a return to the court process.

Building a clear picture of what has happened

If court action becomes necessary, a clear and factual record will help the court understand what has happened and what effect it has had. When advising clients, we often find that a short chronology is more useful than a large volume of unorganised messages. We therefore suggest keeping a note of:

• The dates and times of incidents, together with the particular terms said to have been breached. In financial cases this may include a missed payment, non-compliance to market a property for sale or not signing documents. In children cases this may include late handovers, a missed weekend visit or refusal to make the children available.
• Relevant written communications, including text messages, emails or messaging app records, which show what was agreed, a late cancellation or any admission or acknowledgment of the non-compliance.
• Receipts or other evidence of any direct financial loss. In financial cases this may include a subsequent transaction being unable to proceed, overdraft charges or a loss of a buyer. In children cases this could include cancelled travel bookings or unused tickets.

Children matters: starting with the order itself

Where children are concerned, one of the first things we check is whether the original Child Arrangements Order includes a formal warning notice. The warning notice explains each party’s responsibilities and the possible consequences of failing to follow the order. The court cannot make an enforcement order unless it is satisfied that before the failure or breach of a term of the order occurred, the person was given a copy of or otherwise made aware of the terms of the warning notice relating to the Child Arrangements Order. We also read the precise wording of the order carefully, because misunderstandings can arise where arrangements are expressed broadly or family routines have moved on.

The Court has a range of enforcement powers, including fines and unpaid work requirements, but these sanctions generally depend on the frequency/duration of the breach, its severity and the circumstances of the case, including the breaching party’s attitude and the impact on the child(ren).

When enforcement of a Child Arrangements Order may be needed

If attempts to resolve matters informally have not worked, and a parent continues not to follow the ‘spend time with’ or ‘living with’ arrangements, we can advise on making an enforcement application using Form C79. Before recommending that step, we look closely at the pattern of events, the available evidence, any explanation offered and, above all, the likely effect of further proceedings on the children.

Before discharging its powers to impose a sanction, the Court must be satisfied beyond reasonable doubt that the person has failed to comply with the terms of the order resulting in a breach. The person said to be in breach could raise the defence that they had a “reasonable excuse” to the breach, which they are required to prove on the balance of probabilities.

Is there a defence to the enforcement application?

A ‘reasonable excuse’ may include a genuine emergency, a serious illness affecting the child (supported by medical evidence), or a legitimate safeguarding concern backed by evidence. A general objection to the order or a relatively minor scheduling difficulty is unlikely, by itself, to amount to a reasonable excuse. Similarly, where a young child says they do not wish to spend time with the other parent, the Court will usually look at the steps each parent took to encourage and support the arrangements.

We explain to clients that the Court will examine the circumstances of the case, rather than apply a rigid checklist, so the quality and credibility of the evidence can be important. Every case is considered on its own merits.

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The court’s focus on a proportionate solution

The Judge will review all of the evidence before finding whether or not the breach and any defence is proven.

If the Court decides that an order was breached without a reasonable excuse, it will look for a response that is appropriate to the circumstances rather than simply punitive. We usually prepare clients for a range of possible outcomes and explain that enforcement is often intended to restore workable arrangements, not merely to punish past behaviour. Depending on the case, the Court may order the breaching party to complete unpaid work, ask a parent to attend an educational course, or award compensation for a direct financial loss caused by the breach.

The Court may also look carefully at whether the existing arrangements remain workable. It can vary the order to make the terms clearer and, in exceptional cases involving serious concerns such as alienating behaviour, may consider changing the substantive arrangements.

Where there has been persistent and deliberate contempt of court, the Court also has the power to impose a fine or a custodial sentence. These types of outcomes are rare and in exceptional circumstances.

Financial matters: Finding the right approach to an unpaid financial remedy order

In most cases, alleged breaches of financial remedy orders are much more black and white than in children cases. Where an order has not been followed, our first step is usually to understand how and why the order has been breached, for example why the payment has not been made, whether there are any reasons outside of their control, and what assets or income may be available to remedy the breach. We consider which course of action is likely to produce a meaningful recovery without creating unnecessary cost or delay. We can then help identify the most suitable way to enforce the financial order. The right route will depend on the sum owed, the circumstances of both parties and the practical prospects of recovery.

In most cases, alleged breaches of financial remedy orders are much more black and white than in children cases. Where an order has not been followed, our first step is usually to understand how and why the order has been breached, for example why the payment has not been made, whether there are any reasons outside of their control, and what assets or income may be available to remedy the breach. We consider which course of action is likely to produce a meaningful recovery without creating unnecessary cost or delay. We can then help identify the most suitable way to enforce the financial order. The right route will depend on the sum owed, the circumstances of both parties and the practical prospects of recovery.

Enforcement methods include:

• An attachment of earnings order can require the paying party’s employer to deduct maintenance or other payments from salary before the balance is paid to them;
• A charging order can secure the debt against property or land, and thereafter the party can apply for the sale of the asset to ensure compliance;
• A third party debt order can freeze and transfer money held for the paying party by someone else, most commonly funds in a bank account;
• A writ or warrant of control can authorise enforcement agents to take and sell non-essential belongings to meet the unpaid judgment;
• The appointment of a receiver may help preserve and realise particular assets or income for payment of the debt. This can be useful where another method, such as a charging order, is unavailable or unsuitable—for example, where the paying party has a life interest in land, an interest under a trust or certain other assets;
• In serious cases, the court can commit a non-compliant party to prison for contempt of court. This does not itself recover the debt, but it may be used to encourage compliance and uphold the authority of the court’s order; and/or
• A writ of sequestration can allow property to be seized and retained until the court order is complied with.

Enforcement Process

If you have been unable to resolve the issue of non-compliance away from the court, and an application is necessary, there are a number of steps to follow.

1. You must complete an application form setting out the amount due under the order and how the order has not been complied with;
2. You must apply for the specific form of enforcement you require or ask for an order for such method of enforcement as the court may consider appropriate;
3. The application for enforcement should be submitted to the Family Court that made the original financial order that you seek to be enforced ;
4. On processing the application, the Court will issue an order with a penal notice attached requiring the debtor to attend Court on a certain date and to provide information relating to their financial circumstances; and
5. The Court will determine the question of enforcement and will make appropriate orders to remedy the breach. An application for costs may be made by the Applicant, which the Judge will assess at the conclusion of the proceedings.

How we can help

As family solicitors, we understand that the breakdown of court-ordered arrangements can create uncertainty at an already difficult time. We will explain the available options in straightforward terms, weigh the pros and cons of each option and devise the appropriate strategy. Our aim is to provide advice that is legally sound, realistic and sensitive to the needs of the family. If you would like advice tailored to your circumstances, please speak to our family law specialists or complete the form below and a member of the team will get back to you.