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Breach of Contact or Residence Order: What to Do

By: Abigail Taylor - Updated: 17 Aug 2018 | comments*Discuss
 
Court Order Contact Order Breach Courts

A 'contact order' is an order made by the court that determines who is entitled to communicate with a child (either through face to face meetings or telephone calls, or indirectly such as by letter). A 'residence order' is an order made by the court that determines where and with whom a child lives. From April 2014, these orders have been replaced with a single 'child arrangement order' which covers both issues (given that they are intrinsically linked).

You can apply to the courts for a child arrangement order. For most parents, this will be the end of the matter, and both parties will comply with the order. However unfortunately for some parents, this can be the stage at which further problems begin, if the other party breaches the order.

What is a breach?

Arguably anything that does not comply with the order is a breach. For example if the order states that the non-resident parent should have contact every Friday from 5pm and contact is not provided until 5:05pm, this is technically a breach of the order. However it is important to be reasonable; the courts are unlikely to take any action if the breach is insignificant.

The courts' guidance states that unless a breach is regular and intentional, they will not usually take action to enforce the order or punish the breach. Further it is important to consider the needs of your child first and so some flexibility may be needed on occasion.

"I have a contact order which says that I have contact with my 14 year old daughter from 6pm on three evenings a week. My ex-wife has agreed that she can play netball for her school team on Wednesday evenings until 6pm which means that I won' see her until 7pm. Can she do this?"

Whilst it would have perhaps been better for your ex-wife to discuss this with you first, try to be flexible. Does your daughter enjoy playing netball? The courts consider a child's welfare as paramount and so her participation in such activities (if she wants to take part) will likely take precedence here. However if this causes you problems, perhaps ask your ex-wife if you can swop the day that you see your daughter to a day when she is home earlier.

"I have lost my job and have been unable to pay child support. I have a court order to see them twice a week. My ex is now saying that if I can't pay child support, then I can't see my kids. Is this a breach?"

Any changes to a contact order must be agreed by both parties. One party cannot unilaterally decide to change the order or apply additional terms. If they wish to do so, they will need to refer the matter back to the Courts.

"I have met someone I really like and would like to introduce my kids to her. I have a court order to see my kids every Wednesday and Sunday. However, my ex has said she doesn't want the kids to meet my new partner and that I can only see my kids when she's not there. Can she do this?"

Concerns often arise over a new partner being introduced to children. However the Courts will not impose a restriction on whether this person can be present during contact unless they can be shown to be a risk to the child's welfare (e.g. someone with convictions for violence or sex offences).

What to do if there is a breach

1) Discuss

The first step in the event of a breach of an order should be to try to discuss this with the other party involved. Whilst this can often be awkward when a relationship between you has broken down, this is the quickest and cheapest way to resolve the problem. When approaching the discussion, try to be flexible. If the breach has occurred due to a change of circumstances (such as the child moving from primary to secondary school, or the other party changing jobs) then maybe you could agree a way to vary the order to something that could realistically be followed.

[The Court does not have to approve any agreed amendments to the order. However make sure that you have this agreement in writing to protect yourself should a further dispute arise.]

"I've had a court order for three years to see my children and everything was working fine, until we had an argument last week when she refused to let them come, after the third week in a row. Admittedly, it got a bit heated and we had a big argument on the doorstep. She called the police and now she has taken out a non-molestation order against me. What happens now?"

If you are unable to contact the other party directly (for example due to a non-molestation order) you may need to ask someone you trust to try to discuss the issue with them, or as per step 2 below, ask a solicitor to correspond on your behalf. In this situation, it is likely that some amendments will be needed to current contact arrangements so that you and your former partner do not see each other. For example one of you drops the children off at school and the other collects from school. Contact or Children and Family Centres will also assist with the transfer in such situations.

2) Write

If you are unable to get anywhere by discussing the issue with the other party, write to them setting out your concerns and proposals to resolve the problem. If you have a solicitor, you may wish to ask them to write to the other party reminding them of their obligations under the order. [Keep a copy of any letters / emails sent in case you ever needed to refer to these in court.]

3) Consider applying to Court

Court enforcement should only be used as a final resort, as this will be added expense, and will generally only serve to increase tensions between the parties.

In order to apply to the Court for enforcement of a child arrangement order (or contact order / residence order), you will need to fill in, issue and serve form C79 (which can be found on the HMRC website). The Court will wish to see that other methods of resolving the issue have been attempted, which is where copy letters (as in point 2 above) are useful.

If you wish to apply to vary a child arrangement order, you will need to use form C100 (which can be found on the HMRC website)

If you are considering making an application to Court, seek independent legal advice. The Citizens Advice Bureau can provide you with free and independent legal advice in this regard.

What can the Court do if a breach has occurred?

There are a number of options open to the Court in order to punish the offending parent and try to ensure that the breach does not occur. Which route the Court takes, will depend upon the circumstances including the severity and frequency of the breach, and where the child resides.
  • The Court can impose a community service order, requiring the parent in breach of the child arrangement order to undertake up to 200 hours of community service.
  • The Court can fine to the parent in breach.
  • The Court can impose a short prison sentence on the parent in breach. (This is however very rare, as the parent in breach is usually the parent with whom the child resides and the primary carer.)
  • The Court may also impose an order for the parent in breach to pay the other party financial compensation if the breach led to loss (e.g. a cancelled holiday).
If in doubt, it is always best to seek legal advice. Citizens Advice Bureau provide free and independent legal advice and can be contacted on 03444 111 444.

Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.

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nk - Your Question:
I have a Child Arrangement Order for my daughter to stay with me on 1st week of school hols and go on holiday with me on 5th week. Apart from cutting the 1st week short, her mother now is likely to not let her go on holiday with me (indicated by text messages 2 days before departure). I have made all the bookings and paid for the holiday. Should I go to court today for emergency enforcement or wait for the actual breach to occur (and lose all the bookings)? Thanksnk

Our Response:
Unfortunately, it would take too long to come to court. A solicitor's letter reminding your ex of her obligations to the order and the warning if she breaches it, also, that you will refer the costs to her if any bookings are lost (and the matter has to go to court as a result of the breach), may do the trick.
SeparatedDads - 17-Aug-18 @ 12:19 PM
I have a Child Arrangement Order for my daughter to stay with me on 1st week of school hols and go on holiday with me on 5th week. Apart from cutting the 1st week short, her mother now is likely to not let her go on holiday with me (indicated by text messages 2 days before departure). I have made all the bookings and paid for the holiday. Should I go to court today for emergency enforcement or wait for the actual breach to occur (and lose all the bookings)? Thanks nk
nk - 17-Aug-18 @ 10:41 AM
Raz - Your Question:
I have recently got a Child Arrangement Order for my daughter which states I have her every other weekend and school holidays are split down the middle. She wants to apply for Residence Order but I don't understand why she would need one as I feel everything is covered in the Child Arrangement Order. She claims its because she worried I will take away our daughter from her but I feel she has another reason behind it. What would benefit her by having a Residence Order?

Our Response:
If the child arrangement determines who your child should live with on a day-to-day basis, then this is effectively a residence order. As stated on the gov.uk link here. ‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. If your ex is withholding access for this reason, then she is in breach of the order. A solicitor's letter outlining the terms of the order and that she effectively has a residence order may be suffice for access to be re-instated.
SeparatedDads - 14-Aug-18 @ 10:06 AM
I have recently got a Child Arrangement Order for my daughter which states I have her every other weekend and school holidays are split down the middle. She wants to apply for Residence Order but I don't understand why she would need one as I feel everything is covered in the Child Arrangement Order. She claims its because she worried I will take away our daughter from her but I feel she has another reason behind it. What would benefit her by having a Residence Order?
Raz - 13-Aug-18 @ 2:08 AM
Jambo35 - Your Question:
I've had a residency order in place for over two years and my ex gets contact that I over see but she isn't keeping to the contact order and the children haven't seen there mum in 3 months and the last two visits where a no show with no reason or reply to why she didn't come in I am waiting to get back to court to cancel the order but can I refuse contact if she decideds she going to turn up this year alone has missed 12 visits out of 15

Our Response:
Yes, as your ex has breached the order then you can refer the matter back to court. A solicitor's letter stating this is what you will do if she doesn't keep to the order may be the best option first in order to encourage your ex to keep to the order. Also, if the matter goes to court it can be used as evidence that you have tried to rectify the matter outside of court first.
SeparatedDads - 9-Aug-18 @ 2:12 PM
I've had a residency order in place for over two years and my ex gets contact that I over see but she isn't keeping to the contact order and the children haven't seen there mum in 3 months and the last two visits where a no show with no reason or reply to why she didn't come in i am waiting to get back to court to cancel the order but can I refuse contact if she decideds she going to turn up this year alone has missed 12 visits out of 15
Jambo35 - 8-Aug-18 @ 4:43 PM
Hailsellie - Your Question:
I have a residence order (after 2014) for my 2 children 11 & 13. My daughter (13) ran away and is now staying at her Dad's he is now refusing me contact. Is there a breach of order? Is there anything I can do? What are can a child say who they want to live with ? Thank you

Our Response:
If you have a residence order through the courts, the police can intervene and should be able to return your child to you.
SeparatedDads - 31-Jul-18 @ 10:34 AM
I have a residence order (after 2014) for my 2 children 11 & 13. My daughter (13) ran away and is now staying at her Dad's he is now refusing me contact. Is there a breach of order? Is there anything I can do? What are can a child say who they want to live with ? Thank you
Hailsellie - 30-Jul-18 @ 12:18 PM
my ex gained a residence order and child arrangement order where my 9 year old son is living with him term time I see my son every Wednesday from school till 7 pm and fortnightly Friday through to the Monday morning where I drop him back at school since the orders have been put in place he has breached it every Wednesday turned up 10 mins before our son is to be collected and waiting outside my property I also have half of the school holidays times and dates to be agreed state's in the order I have been trying to arrange that contact for this summer holiday since June via letters via his solicitor's he has then waited until july 18th to respond with a book handed to me via our 9 year old son which I do not feel was the best way to go about it as that's putting our son in a position that he should not be in refusing my proposal and dictating what contact I am having even though I refused this proposal in june and proposed something that was more beneficial for our son when I tried to speak to my ex about this I was shot down with I have got to agree to his demands or I do not have any contact with our son now I am scared to collect him tomorrow night from school for my term time contact because technically he school term ends tomorrow and I do not want to breach the court order as well also would it be a breach if I did collect him and then refuse to hand back until my half of the holiday is up
missy - 19-Jul-18 @ 8:05 PM
Baz - Your Question:
Hi there is a court order in place for my little boy I have him every other Friday to Sunday and Sundays the following week it also states he can't be taken away for more than 4 weeks in any 12 monthsMy ex is forever breaking this order and now plans to take him away for 4 weeks in August which includes his birthday again in October and Dec I'm at the end of my tether now any advice would be appreciated

Our Response:
A solicitor's letter reminding your ex of the terms of the agreement and the repercussions if the matter has to go back to court may work. This will show the court that you have attempted to rectify the matter out of court. If your ex ignores this, then as stated in the article you would have to refer the matter back to court for breach.
SeparatedDads - 17-Jul-18 @ 3:23 PM
Knowlesy - Your Question:
Does a Contact Order expire at age 16? There is no expiry date on mine. It's not a Child Arrangements Order as it was drawn up before the 2014 change. If I don't see my kid after age 16, what can I do? I'll admit I haven't followed all the recommendations like a seperated parent course I was ordered to go on, and sending stuff in the post and birthday cards. Can it be discharged if my kid wants to do this when he gets to 16? What action can I take? Can I take it back to court when he's 16? My ex has never refused contact and always made sure he comes, but we haven't spoken in over 5 years and I'm not starting now. Cheers.

Our Response:
A contact order expires when the child in no longer under parental responsibility at aged-18.
SeparatedDads - 17-Jul-18 @ 2:45 PM
Separateddad - Your Question:
Ok thank you but how do I put that application in if I don't know the mother's address (where my children are residing) and the form asks me for it ? And she also has an injunction out on me.

Our Response:
You can fill in a C4 form which is an application for an order for disclosure of a child's whereabouts, please see link here . This allows the court to put a trace on your child to allow you to bring the matter to court.
SeparatedDads - 17-Jul-18 @ 2:37 PM
Does a Contact Order expire at age 16? There is no expiry date on mine. It's not a Child Arrangements Order as it was drawn up before the 2014 change. If I don't see my kid after age 16, what can I do? I'll admit I haven't followed all the recommendations like a seperated parent course I was ordered to go on, and sending stuff in the post and birthday cards. Can it be discharged if my kid wants to do this when he gets to 16? What action can I take? Can I take it back to court when he's 16? My ex has never refused contact and always made sure he comes, but we haven't spoken in over 5 years and I'm not starting now. Cheers.
Knowlesy - 16-Jul-18 @ 9:50 PM
Hi there is a court order in place for my little boy I have him every other Friday to Sunday and Sundays the following week it also states he can't be taken away for more than 4 weeks in any 12 months My ex is forever breaking this order and now plans to take him away for 4 weeks in August which includes his birthday again in October and Dec I'm at the end of my tether now any advice would be appreciated
Baz - 16-Jul-18 @ 9:14 PM
Ok thank you but how do I put that application in if I don't know the mother's address (where my children are residing) and the form asks me for it ? And she also has an injunction out on me .
Separateddad - 13-Jul-18 @ 8:28 PM
Concernedfather - Your Question:
Hi I have a court order in place for me to gradually build up contact with my children, the other o my children has an injunction out on me but I am allowed to see my children and I don't know why she has stopped any contact I had with my children. I've sent letters and birthday cards to caffcass in the hope they would send them on (they haven't and they're aware she is breaching an order).I tried to see if I could sort it out through court but when I rang them they said because I didn't have the other party's address I couldn't put an application for an enforcement of an order but that can't be right surely? I just want to see my kids

Our Response:
You can refer the matter back to court if your ex has breached the order. Alongside the C79 enforcement order, you would have to fill in a C4 form. This is an application for an order for disclosure of a child's whereabouts, please see link here . This will allow the courts to put a trace on your children in order for you to be able to bring the matter back to court.
SeparatedDads - 13-Jul-18 @ 12:41 PM
Hi i have a court order in place for me to gradually build up contact with my children, the other o my children has an injunction out on me but I am allowed to see my children and I don't know why she has stopped any contact I had with my children. I've sent letters and birthday cards to caffcass in the hope they would send them on (they haven't and they're aware she is breaching an order)...I tried to see if I could sort it out through court but when I rang them they said because I didn't have the other party's address I couldn't put an application for an enforcement of an order but that can't be right surely? I just want to see my kids
Concernedfather - 13-Jul-18 @ 12:43 AM
DD1985 - Your Question:
I've been given a contact order which states:During summer holidays each parent shall have 1 full week in july & aug.Other than that contact shall remain as wed 10am -sat 6pm for the non resident parent.I asked to start my holiday week from sat 6pm - following sat 6pm. This would give me wed-sat normal contact & holiday week sat-sat.My ex is trying to say if I start my holidays with my child on a Saturday -saturday I lose my previous weeks contact wed-sat as im not allowed 10 overnights however my ex gets 11 overnights if they start their holiday on a Monday. The solicitor is saying I forfeit my previous weeks contact.which actually loses me days.No where in the court does it say I need to start my week on a Monday, also I can't be expected to take my child on holiday only on a Monday for the next 12 years.Am I wrong here?? Please enlighten me if I have this wrong. I'm now worried my ex will take my child on holiday & nor agree to mine so I will lose more time. Can I do anything?

Our Response:
As in many court orders the terms are ambiguous. Your only option is to refer the matter back to court for the court to decide, if you cannot agree through mediation or between you.
SeparatedDads - 10-Jul-18 @ 12:54 PM
hine - Your Question:
My partner has a contact order and shared parental rights. He has contact every other weekend and half of school holidays.His daughter has been spoiled at her mothers and now at 13 has decided she does not want to see us or her half brother and sister at the moment.Her reason was that she was worried her mother would not look after herself properly while she was here as her mother is diabetic.We raised this with the mother and the school as a potential welfare concern, asking the school to provide some more information on diabetes as his daughters request.We agreed that we would give her some time to 'sort things out' after discussing this with the mother.After one period of no contact we asked when his daughter would be returning. To be told that she is going through some personal issues at the moment and seeing us would just stress her out. Wee spoke to the mother again who advised it was just 'boyfriend drama' and was all sorted. We tried again but got the same thing, his daughter will not tell us the reason she doesn't want to come. She hasn't said that she does not want to come at all just not at the moment.It has now been three months.We have informed the mother that contact needs to be reinstated and she has replied that it is up to her daughter.Where do we stand here? Is this a legitimate reason to refuse contact?

Our Response:
I am sorry to hear this. Unfortunately, the three options are to discuss the matter with the other parent and/or child directly and try to resolve her issues, suggest mediation, or refer the matter back to court. As the child is now 13, her opinion will be considered in court. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first.
SeparatedDads - 10-Jul-18 @ 12:19 PM
The Diplomat - Your Question:
I have a situation to which I haven't seen any other. I gained shared custody for my child through the courts. this is after fighting for two years to prove to every govt organisation that I am a genuine father to my child and I intend on being a part of his life. my ex/separated wife went to the CMS and lied that I am not taking care of my child. I told them that they were wrong and that I don't need their assistance as I am taking care of my child since he was born. I told them I had evidence they said they were only interested in the last three months. to which they still rejected now they have gone into my salary to take monies this is not preventing me from taking care of my child hen he is with me.what should I do nowand why is it that the CMS is over-riding the court order to sit their pockets

Our Response:
Unfortunately, your only option is to refer the matter back to court. If your consent order contained an agreed order for child maintenance, it contains the 12-month rule which means either party can opt out after one year. You haven't said whether your ex is the person claiming child benefit, if she is then she is the parent who can apply for child maintenance. You may wish to seek legal advice in order to explore your options.
SeparatedDads - 10-Jul-18 @ 10:03 AM
My partner has a contact order and shared parental rights. He has contact every other weekend and half of school holidays. His daughter has been spoiled at her mothers and now at 13 has decided she does not want to see us or her half brother and sister at the moment. Her reason was that she was worried her mother would not look after herself properly while she was here as her mother is diabetic. We raised this with the mother and the school as a potential welfare concern, asking the school to provide some more information on diabetes as his daughters request. We agreed that we would give her some time to 'sort things out' after discussing this with the mother. After one period of no contact we asked when his daughter would be returning. To be told that she is going through some personal issues at the moment and seeing us would just stress her out. Wee spoke to the mother again who advised it was just 'boyfriend drama' and was all sorted. We tried again but got the same thing, his daughter will not tell us the reason she doesn't want to come. She hasn't said that she does not want to come at all just not at the moment.. It has now been three months. We have informed the mother that contact needs to be reinstated and she has replied that it is up to her daughter. Where do we stand here? Is this a legitimate reason to refuse contact?
hine - 9-Jul-18 @ 9:55 PM
I have a situation to which i haven't seen any other.I gained shared custody for my child through the courts. this is after fighting for two years to prove to every govt organisation that i am a genuine father to my child and i intend on being a part of his life. my ex/separated wife went to the CMS and lied that I am not taking care of my child.I told them that they were wrong and that i don't need their assistance as I am taking care of my child since he was born. I told them i had evidence they said they were only interested in the last three months. to which they still rejected now they have gone into my salary to take monies this is not preventing me from taking care of my child hen he is with me. what should i do now and why is it that the CMS is over-riding the court order to sit their pockets
The Diplomat - 9-Jul-18 @ 4:11 AM
I've been given a contact order which states: During summer holidays each parent shall have 1 full week in july & aug. Other than that contact shall remain as wed 10am -sat 6pm for the non resident parent. I asked to start my holiday week from sat 6pm - following sat 6pm. This would give me wed-sat normal contact & holiday week sat-sat. My ex is trying to say if I start my holidays with my child on a Saturday -saturday i lose my previous weeks contact wed-sat as im not allowed 10 overnights however my ex gets 11 overnights if they start their holiday on a Monday. The solicitor is saying i forfeit my previous weeks contact ...which actually loses me days. No where in the court does it say i need to start my week on a Monday, also i can't be expected to take my child on holiday only on a Monday for the next 12 years. Am i wrong here?? Please enlighten me if i have this wrong. I'm now worried my ex will take my child on holiday & nor agree to mine so i will lose more time. Can i do anything?
DD1985 - 7-Jul-18 @ 11:42 PM
hi,i am curenntly in mid of court proceedings,my ex was stopped to see children until s7 report and next hearing,he is trying to see kids in school which I have mnaged to prevent until now and now school needs some sort of proof that he cannot see kids.in letter from last hearing is nothing like that in writing but it was obvious so my solicitor didn't included it,now school needs proof and I have nothing,my solicitor is on holiday and I need some advice asap can anyone help?
monmon27 - 6-Jul-18 @ 4:16 PM
Doc - Your Question:
In court I was granted every second weekend though the x mentioned in between 8 weeks she has plans and that it was in my new contact time.note her plans were already planned even though it tied in my old contact time of every friday for 24hours.daughter was going to be flower girl sat so I suggested my daughter stays with me friday and she collects my daughter sat morning.she refused this and started offering me friday at 11am till 7pm knowing I work mon to friday.i suggested thursday at 9am till 3pm friday this was refused.we couldnt get a judge to correct this so she told me if I cant get my daughter friday then I wasnt getting her at all.can she do this and how would this show in court

Our Response:
If there is a contact order in place and you cannot agree a re-arrangement of the contact times, then you would have to refer the matter back to court.
SeparatedDads - 6-Jul-18 @ 1:55 PM
In court i was granted every second weekend though the x mentioned in between 8 weeks she has plans and that it was in my new contact time .note her plans were already planned even though it tied in my old contact time of every friday for 24hours.daughter was going to be flower girl sat so i suggested my daughter stays with me friday and she collects my daughter sat morning .she refused this and started offering me friday at 11am till 7pm knowing i work mon to friday .i suggested thursday at 9am till 3pm friday this was refused .we couldnt get a judge to correct this so she told me if i cant get my daughter friday then i wasnt getting her at all .can she do this and how would this show in court
Doc - 4-Jul-18 @ 6:15 PM
Hi, I live in Northern Ireland and have just been awarded a contact order for my son. It states that both my ex and I can have 1 full week hols in July and 1 full week hols in August with him. The thing is it does not say that the 'one full week' must begin on a Monday, which is the day she is trying to force me to take him from. Can anyone help? Please......
JoJo - 30-Jun-18 @ 10:50 PM
i would like sum advice my x she is very nasty women she withholds my daughter at of spite now i have always paid child support for beautiful little ray of sunshine .now she has just finished high school and going to uni .i was just wondering if you still have to pay at uni she turns 18 on the 3 of sep .your advice please ??.
roo shooter - 19-Jun-18 @ 11:53 PM
My children are older now. My ex has always been very controlling. He uses my children to manipulate me. I have a court order that he has agreed to, stating that he will pay maintenance until the boys finish education. It doesn’t state what level. My youngest son is just finishing secondary school , but has to stay in school until he is 18. The older son is also going to college in september. My ex has stopped paying maintenance as he is spiteful. He is trying to get my son to move out at 15 to live on his own to go to college. Now schooling she is up to 18, can I stop my son from moving out?
Roo - 19-Jun-18 @ 9:28 PM
Hugga - Your Question:
Hi my husband has a child by his previous partner there was a court order in relation to residents in mothers favor made about 5 years ago however the child is now 15 he messaged her at 10:30pm saying he wasn't going back to hers he wasn't happy there to which she responded "no worries" I contacted police and social services as he is now living with me and dad however she is refusing to give any of his clothing or belongings we've requested his passport for a holiday and she's ignored the request and blocked all means of contact what can we do

Our Response:
Your husband would have to refer the matter back to court. The mother is under no obligation to provide the child's belongings. With regards to the passport, please see link here .
SeparatedDads - 18-Jun-18 @ 11:08 AM
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