Disputes between separated or divorced parents concerning child contact are unfortunately not uncommon. When such disagreements cannot be resolved amicably, the Family Court in England & Wales may issue a Child Arrangements Order, which includes provisions for visitation – legally referred to as “contact”. These orders are binding and set out formal arrangements regarding with whom the child should live and how often they should have contact with the non-resident parent. But what happens when one parent refuses to comply with this court order and denies the agreed-upon contact? The consequences can be wide-ranging, affecting not just the relationship between the parents but, more importantly, the well-being of the child.
The Authority Behind Child Arrangements Orders
When a Child Arrangements Order is made by the court, it carries the full weight of the law. These orders stipulate who the child will live with and specify the nature and frequency of contact with the parent who does not reside with the child. Such contact can be direct (face-to-face meetings) or indirect (through telephone calls, letters, or electronic communication). Whether the contact is supervised or unsupervised depends on the case’s specifics, including any allegations of abuse, neglect or other risk factors.
The expectations are clear: both parties are to adhere to the terms set forth in the order. The orders aim to support the child’s right to have a meaningful relationship with both parents, assuming it is in their best interests. Non-compliance not only contradicts the court’s directive but also possibly undermines the child’s broader welfare.
Reasons Why Visitation May Be Denied
While denying contact that has been ordered by the court is a serious matter, it is important to consider why this may occur. In many cases, a parent might believe they have just cause. Reasons often cited include concerns over the child’s safety, emotional distress, a breakdown in communication between parents, or logistical difficulties. For instance, one parent may allege that the other has behaved inappropriately, poses an emotional or physical threat, or exposes the child to harmful situations.
In certain circumstances, the custodial parent might simply act out of vindictiveness or seek to punish the other parent. Unfortunately, when personal grievances are prioritised over the child’s best interests, the entire framework supporting the child’s welfare begins to erode. However, even if the parent believes they have legitimate concerns, taking unilateral action to prevent court-ordered contact is not the appropriate route.
Legal Recourse for the Aggrieved Parent
A parent who has been denied access in contravention of a court order has legal options. The first and most immediate step should be to document any missed contact, including dates, times, and the nature of the denial. Evidence such as text messages or emails explaining the cancellation or refusal can prove beneficial. Once initial evidence is collected, the next step is to apply to the Family Court to enforce the Child Arrangements Order.
The court provides a specific mechanism to deal with such situations, commonly referred to as an “application to enforce a Child Arrangements Order” under section 11J of the Children Act 1989. When this application is made, the Family Court will examine whether the order has been breached and whether the breach was reasonable. The burden will fall upon the non-compliant parent to explain and justify their actions. If the court establishes that there has been a deliberate breach without reasonable excuse, it may take a range of enforcement actions.
Enforcement Powers of the Family Court
The Family Court in England & Wales possesses several tools to enforce compliance with its orders. These powers are designed not only to uphold the rule of law but also to ensure that children’s relationships with both of their parents are protected when in their best interest. Possible measures include:
Warnings: A judge may initially decide to issue a warning in the form of guidance or a suspended enforcement order, giving the non-compliant parent an opportunity to follow the order moving forward without immediate penalty.
Varying the Order: If the court believes that the current arrangements are unworkable or against the child’s best interests, it may decide to amend the Child Arrangements Order. This could mean adjusting the frequency or method of contact in a way that better suits all parties.
Make-Up Contact: If a parent has missed multiple visits due to the other parent’s non-compliance, the court may instruct that “make-up” time be arranged to compensate for the lost opportunities.
Fine or Compensation: Courts may impose financial penalties, such as ordering the non-compliant parent to pay the other parent’s legal costs or offer compensation for expenses incurred due to the missed contact.
Unpaid Work Requirements: One of the more stringent options includes ordering the defaulting parent to undertake unpaid community work of up to 200 hours. This would be associated with the concept of a penal notice added to the original court order.
Transfer of Residence: In very serious cases, where continued denial of contact is deemed particularly harmful to the child, the court may consider changing the primary residence of the child to the other parent. While such a move is rare and often seen as a last resort, it reflects the court’s commitment to enforcing its orders and the principle that ongoing frustration of contact cannot be tolerated.
Imprisonment: In cases of persistent and flagrant breaches, and where other enforcement mechanisms have failed, the court may order the imprisonment of the non-compliant parent. Although actual incarceration is rarely imposed, its threat is sometimes effective in prompting compliance.
What Constitutes a ‘Reasonable Excuse’?
Not all breaches of a contact order result in enforcement action. The key determining factor is whether there was a “reasonable excuse” for denying contact. The term is not strictly defined in the law but is interpreted contextually, depending on the circumstances of the breach. Commonly recognised justifications might include serious illness of the child, a medical emergency, or sudden and credible concerns about the child’s immediate safety which couldn’t be addressed beforehand through legal channels.
However, general feelings of discomfort, disagreements over parenting styles, or unresolved financial disputes do not usually meet the threshold for a ‘reasonable excuse’. In practice, if a parent genuinely believes the child is at risk, they should apply to vary the order or seek legal advice rather than taking matters into their own hands.
The Child’s Perspective and Welfare Considerations
Above all else, the law in England & Wales prioritises the welfare of the child. The Children Act 1989 places the child’s welfare as the paramount consideration in all family court decisions. While the presumption exists that contact with both parents is generally beneficial, the court will only enforce contact where it does not compromise the child’s safety and well-being.
As such, a child’s attitudes and feelings may be taken into account, especially for older children. The wishes of a mature teenager, for instance, may carry considerable weight and influence whether enforcement is deemed appropriate. Nevertheless, courts remain alert to the possibility that a child’s reluctance might stem from unjustified influence or parental alienation rather than genuine discomfort. In these scenarios, assessments by Cafcass officers or other professionals might be ordered.
Seeking Mediation and Alternative Resolution
Before returning to court for enforcement, many parents are encouraged to try mediation. The family law system in England & Wales emphasises non-adversarial resolutions where possible. Mediation is a voluntary and confidential process where an impartial facilitator helps both parties reach a mutually acceptable agreement.
While mediation cannot override a court order once issued, it can help address underlying issues, improve communication, and potentially result in variations to the current arrangements that better suit the child’s evolving needs.
It is also worth noting that before making any new application to the court—including applications to enforce—a party is generally expected to attend a Mediation Information and Assessment Meeting (MIAM), unless exemptions apply (for instance, where there are allegations of domestic abuse).
Preventing Future Breaches: Proactive Considerations
Once a contact arrangement is in place, it is beneficial for both parents to take steps to avoid future conflict. Clear communication, reasonable flexibility, and focusing consistently on the child’s needs can minimise misunderstandings and tension. If a situation arises where adherence to the contact schedule is temporarily impractical, honest, timely engagement with the other parent can often prevent escalation.
It may also help to create a co-parenting plan or use shared calendars and digital tools to keep both parties informed and involved. The more predictable and cooperative the arrangements, the less likelihood there is of future breaches and the greater the stability for the child.
Conclusion: A Legal Duty and a Moral Obligation
When a parent denies contact that has been ordered by the court in England & Wales, they not only contravene a legal obligation but also risk harming the dynamics of the child’s relationship with the other parent. The Family Court has a variety of mechanisms at its disposal to respond, ranging from warnings to more severe punitive actions, depending on the gravity and context of the breach.
Nevertheless, the overarching goal is not punishment but the promotion of arrangements that best serve the child’s welfare. This makes it all the more important for parents to act responsibly, seek support when conflicts arise, and avoid letting their personal disputes interfere with the child’s right to maintain crucial family relationships.
In a system that prizes the child’s welfare above all, the path forward is one of dialogue, respect for legal orders, and a persistent focus on what is truly in the best interest of the child.