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right I think we'll get started now I.don't wanna keep you much longer then I.need to for today thank you very much.for joining me today on this rather.sunny Friday afternoon at today's.webinar will be discussing the.enforcement of child arrangements orders.the webinar is going to be recorded and.the webinar recording and the slides.that I use today will all be made.available on the Goldsmith chambers.website and our email you are today to.confirm where you can access those and.how you can download them if you need a.copy there will hopefully be time at the.end of today's webinar for you to raise.any questions that come up and for me to.do my best to answer them I'd suggest.using the Q&A function if you do have.any questions that you'd like to raise.and I can have a look at those at.towards the end of the webinar so let me.start off by looking at the making of an.application in the procedure and then.I'll move on to a question of.reasonableness in terms of and equally.the question of breach of the order.itself it's worth noting that an.enforcement order unlike some other.orders can only be made in response to.an application the court can't make an.enforcement order of its own volition so.where you have a party who is concerned.about the compliance with an order and.then really an application should be.made because the court otherwise.wouldn't be able to make an order an.enforcement order should be made on an.application form c79 that form covers.both an application for an enforcement.order and also an application for an.order for financial compensation I'll.come on to an order for financial.compensation in due course in this.webinar and you'll note an application.for committal for breaching an order is.made under a separate procedure that's.the part 18 procedure and really that.application will be seen as an.application of last resort and you.should really be looking to an.application for enforcement.before you're looking at an application.for committal and there are different.considerations that the court will need.to look to before it will make an.application for committal an application.for an enforcement order needs to be.accompanied by the appropriate fee.that's currently 125 pounds or a fee.exemption form you'll need to attach a.copy of the order that you are asking.the court to enforce and you'll need to.ensure that the application is filed.with sufficient copies so that the.respondent or respondents can be served.as well as calf casts being served with.a copy of the application and any.supporting documents the application.once issued should be served with.sufficient time for the respondent to.file a response that was in 14 days of.being served and certainly not less than.14 days before the hearing the court in.an ideal world will list an application.for enforcement order within 20 days of.being issued that setting was the.guidance before coffered 19 and.unfortunately there are likely to be.delays in the courts capacity to list.any applications at given the current.circumstances there is in any event an.emphasis on the court conducting without.delay in concluding without delay.applications for enforcement orders.because it's the very nature of the.order that you're seeking to enforce.wherever possible and ideally an.application for an enforcement order.should be allocated to the judge.previously allocated when the original.child arrangements order was made when.considering the application the court.will be looking to a number of factors.first and foremost is going to be.whether or not the factual basis alleged.for the non-compliance is agreed where.it's not agreed the court will need to.list the matter for a hearing so that it.can establish the factual basis of the.non-compliance the court will also want.to have an eye.of any reasons that the respondent is.seeking to advance for non-compliance.and the court will want to have some.consideration for the wishes and.feelings of the child and how those can.be ascertained whether there is any need.for advice from calf casts the risks.that may well arise or may be apparent.in making either a further child.arrangements order or indeed a variation.of the current order and also whether.there is a need for any safeguarding.checks certainly where an order was made.more than three months after three.months before the application for an.enforcement order it's more than likely.that the court is going to order.safeguarding checks to be provided.certainly one of the things that it is.advisable to consider before making an.application for an enforcement order is.in is whether the child arrangements.order you're seeking to enforce is in.fact enforceable that is does that order.have attached to it a warning notice.giving a clear indication to the parties.about the consequences if they were to.fail to comply with that order the court.must ordinarily attach a warning notice.to a child arrangements order whenever.one is made or buried but certainly.where there are child arrangements.orders made pre December 2008 there may.well be no warning notice attached to.the child arrangements order and in.orders made pre April 2014 the warning.noticed might only be attached to the.contact provisions within the child.arrangements order and not the residence.provisions within the child arrangements.order so you need to be sure that there.is a warning notice that is attached to.the appropriate parts of the order that.you are seeking to enforce if the.warning notice isn't attached to the.order that you're seeking to enforce.you'll need to make an application for.the order to be varied so that the.warning notice is attached to the order.you'll need to make sure that the other.party or parties are.aware of that warning notice and so.before any alleged breaches of that.order can then be brought before the.court for enforcement it's also as.considering whether or not and to what.extent the terms of the child.arrangements order that you're seeking.to enforce are sufficiently clear and.you'll see further on into this webinar.that certainly one of the considerations.for the cords and the powers that the.court has is where it's faced with an.application for enforcement it may ask.itself whether the engagement and.compliance of a party can be.sufficiently secured by a rephrasing or.variation of the order and I've.certainly seen at cases where it's.alleged a party has failed to comply.with an order but there has been a.fundamental misunderstanding between the.parties about certain terms in the order.for example what the meaning of 7 days.is should it be counted on day one or.should it be counted as seven clear days.and small details like that make it a.consideration for the court as to.whether or not in fact an enforcement.order is necessary or whether actually.the issue can be better and more.adequately dealt with by clarifying and.varying the child arrangements order.itself the respondent must be over the.age of 18 and habitually resident in.England or Wales for the order to be for.an enforcement order to be enforceable.against them so certainly before.engaging in the process it's worth.checking that and before you make the.application and also that the child.arrangements order must not be an.accepted order so when can the court.make an order for when can the court.make an an enforcement order the court.needs to be satisfied of a number of.things before it can make an enforcement.order first and I was touched on this.earlier is that the court needs to be.satisfied that the failure to comply.with the child arrangements order.occurred after a party so the respondent.party was made aware of the terms of the.warning notice.and the consequences for failing to.comply with the order it's for that very.reason that it's very important that you.make sure before you make the.application for an enforcement order.that the order does in fact have that.warning notice attached to it the court.must be satisfied beyond all reasonable.doubt that the respondent has failed to.comply with the child arrangements order.I've underlined beyond all reasonable.doubt because that's the criminal.standard of proof and so a much higher.burden on the individual making an.application for it the enforce for an.enforcement order I've touched on this.already but the court also needs to be.satisfied that an enforcement order is.necessary to secure a person's.compliance and as already indicated it.may well be that the court can find that.an individual has failed to comply with.an order but may say that actually there.are less onerous steps that can be taken.to secure that person's compliance with.the order the court must be sure and.satisfied that the effect on the.respondent party of the proposed.enforcement order is proportionate to.the seriousness of the breach remember.we're talking here about securing a.person's compliance and it needs to be.that the court has the sufficient power.sufficient bite to ensure that that.compliance is effected kaif Qasim will.ordinarily obtain information from the.respondent about the likely impact of.the proposed enforcement order an.enforcement order being an order for.unpaid work so we're CAF cases looking.at information about the impact it will.look to the the respondent circumstances.their childcare obligations work.obligations any vulnerabilities that.they may have any religious.considerations that need to be taken.into account so that the effect of any.proposed enforcement order can be fully.evaluated.the other consideration is also that the.enforcement order can in fact be made in.the area where the resident result at.respondent resides if it can't be made.within that area then the order is not.going to be effective lastly you'll see.that the court must take into account.the welfare of the child and ordinarily.you'd expect that if a parent the.resident parent is is now going to find.themselves having to undertake.additional unpaid work and their.availability to the child is going to be.reduced.that said the welfare of the child is.not going to be the paramount.consideration when the court is looking.at making an enforcement order does the.respondent have a reasonable excuse and.this is arguably stage two in a two.stage test the first stage being this.prison here whether the court is.satisfied beyond all reasonable doubt.that the respondent has failed to comply.with the order and the court should.treat this as a two-stage test it should.first be satisfied that there is in fact.a failure to comply and then turn it's.mine to whether or not the respondent.has a reasonable excuse for failing to.comply with the order and you'll note.here that I've underlined and that this.is on the balance of probability so it's.on the civil standard not the criminal.standard when the court is considering.it and the burden is on the individual.who's seeking to rely on that reasonable.excuse to present it to the balance.within the balance of probabilities in.terms of examples of whether court might.deem an excuse to be reasonable and the.Court of Appeal has recently given an.indication for example of a child being.ill a parent being expected to make that.child available for contact and the.parent instead taking the child to a.doctor or hospital instead of taking.them to contact the court has indicated.that that may well be a reasonable.excuse in the circumstances when looking.at a reasonable excuse the court may.asked itself a series of questions along.the lines of whether or not the parent.at will what was the parent required to.do the court will have to look at the.order and what the parent was required.to do within the terms of the order and.that's why it's so important that the.part of the order that you're seeking to.enforce is sufficiently clear once the.court has ascertained what the parent.was expected to do well then look the.court will ask itself whether the parent.could do that thing so if a parent is.expected to make a child available for.contact can the parent do that if the.parent could do that but didn't do that.then the question is why what is the.reason that they say they were unable to.do that and is that reason sufficient to.be a reasonable excuse I appreciate that.many of you may well already have had.clients contacting you to ask about the.enforcement of orders during this covert.19 health crisis and you may well end up.still receiving questions about the.enforcement of orders that given the.current circumstances the family courts.have issued guidance on the 24th of.March and you may well have read through.that already but really the key message.to take from that is the the court is.saying and where the restrictions.arising from coronavirus caused a court.order to have to be varied that the.spirit of the order should nevertheless.be followed and parents should be.looking to make alternative arrangements.so that contact with a child is not lost.the court wants parents to communicate.with each other the court wants it to be.a sensible discussion and where the risk.and assessment of the circumstances are.considered when the parents are looking.at alternative ways for contact to.continue during the current restrictions.and certainly during the current em.health crisis.within that guidance the court has.stressed that the courts expect.alternative arrangements to be made so.that contact can be continued to be.regular and certainly the court has.given an indication and a strong.indication towards video contact and.being facilitated either through Skype.resume face FaceTime or whatsapp and.where that's not possible then for.telephone contact to take play to take.place instead you'll note on the first.bullet point the underlying provisions.there is that where a parent makes a.unilateral decision to withhold contact.or to stop contact altogether and the.court is being asked to look at whether.or not a parent has acted reasonably so.the reasonable excuse the court will.look at the official guidance that's in.place at the time the rules will the.stay at home rules and what they look.like at the time and any specific.evidence relating to the child and the.family so where you're looking at covert.19 and the reasonableness of an excuse.it needs to be taken and in a much wider.context and the court will be looking at.the stay at home rules any public health.England guidance any vulnerabilities in.the home and and other matters that.bring a much wider circumstance into.consideration and where parties are.looking at the viability of alternative.contact method methods and certainly the.reasonableness of those methods the.court may well be looking to whether or.not to the very nature of the contact.and which the parties are seeking to.find alternative measures for certainly.if contact under the child arrangements.order was meant to be supervised door.supported well there has to be.consideration to how much that can be.facilitated over video contact and how.safely that can be facilitated over.video contact certainly in the early.stages of the stay at home rules and the.restrictions on on outside time and.there was no scope.very little scope for any contact to.take place outside in the community we.are seeing a gradual loosening of the.rules and at some point there may well.be permission that and it may well be.permissible to have contact out in the.community again but until that happens.we're contact a supervisor or supported.it maybe that video contact is not.appropriate equally consideration needs.to be given to the resources available.to each parent for example the ease at.which and the safety at which parents.can travel between houses the devices.parents have access to not all parents.will have access to phones tablets or.laptops so it may be that they can't.facilitate video contact because they.just don't have the device to be able to.do so and equally they may have very.limited or very unreliable access to.Internet so video contact may not be.possible it's also important to look at.the vulnerability of a party for example.where there are issues or concerns about.domestic abuse where they where there.are health considerations which make.certain recommendations for contact.unsafe and also where there may well be.a normalization order in place which.means that video contact can't be.facilitated or telephone contact can't.be facilitated these are all things that.need to be borne in mind when looking at.the reasonableness of a party's actions.so the powers available to the court.where a breach has been found and I say.that a breach has been found and the.court has not found that there is a.reasonable excuse for that breach I.touched earlier on their court having.powers to put in place measures that are.are to be lesser measures or less.extreme measures than an enforcement.order and indications of that are for.example a referral to an S PIP or.mediation and it may well be that CAF.casters found that actually this might.be the most beneficial and the most.suitable measure to ensure compliance.with the order again as I indicated.earlier.you may well the court may well deem.that a variation of the order or a.clarification of the order is sufficient.to ensure compliance with it it may be.that actually an enforcement order is.not necessary because the lack of.compliance has arisen as a result of a.misunderstanding of the terms of the.order itself you'll see that I've put in.brackets reconsideration of residence.provision in very exceptional.circumstances only and really that's the.point and the court can in very very.exceptional very rare cases make an.order transferring residents from the.resident parent to the non-resident.parent really when absolutely everything.else has been tried and it's been.unsuccessful and I stress the very.exceptional nature of that being an.order the court may seek to make the.court may well make an enforcement order.and it may well be that that order is.suspended the court may feel that the.threat of an enforcement order is.sufficient to ensure compliance and then.the court may make in addition to any.enforcement order or in place of an.enforcement order an order for.compensation for financial loss and I'll.touch on that in a moment you'll see at.the very bottom of this slide mention of.committal for contempt of court and a.fine were these again are measures that.are generally regarded as remedies of.very very last resort the court will.ordinarily have made attempts to secure.compliance through suitable referrals.through variations of the order through.enforcement orders through other means.before it's going to look at a committal.and certainly when it is looking at.committal that may well be that.committal just for one or two days is.enough to really send the message home.so important to note that committal.really is a remedy of last resort and.equally important to note that where an.application has been made for an.enforcement order the court would not.ordinarily be looking at committal and.it would be looking at committal where.for example the enforcement water has.been breached.just some additional information and.provisions about enforcement orders more.generally as I said earlier an.enforcement order is an order imposing a.requirement undertake unpaid work the.order may be suspended for such period.as the court thinks fit it may well be.that the court suspends it for five 10.15 years although that would be unusual.the court can make more than one.enforcement order in relation to the.same person so it may be that the Court.finds that helped there have been.multiple breaches of the child.Arrangements order though there's no.except there's no reasonable excuse for.those breaches and the court makes an.enforcement order in respect of each of.the preachers or each of the provisions.for that person on that same occasion as.with the child arrangements order the.court must attach a warning notice to.the enforcement order warning of the.consequences of the non-compliance of.the enforcement order calf cows will be.the body responsible for monitoring.compliance with the order and the court.will report will ask calf cast a report.on that individuals compliance with the.order as I said I touch on compensation.for financial loss and this is an order.that the court can make alongside in.place of or in addition to a enforcement.order you'll see it has the same.requirements that the court needs to.find that the respondent has failed.without a reasonable excuse to comply.with a child arrangements order but the.court also needs to be satisfied that.the applicant party has suffered.financial loss by reason of that breach.and it's important to note that a.compensation order is not a punitive.order it is a compensation order so the.court will only make an order for any.amounts that it finds a party has lost.as a result of the breach of the order.some examples might be for example the.costs arising in a holiday that couldn't.be refunded or moved travel costs per.contact didn't take place the cost of a.contact center well that contact didn't.take place.all examples of the types of.compensation that individuals may seek.to it to wish to seek an order for there.is provision within the c79 form to say.that you or a party intends to make an.application for compensation for.financial loss and certainly if you are.intending to make an application for.compensation that will need to be.supported with evidence so receipts and.any other supporting evidence that you.might have lastly and this is just a.point to note the cost provisions where.there is an application for enforcement.don't carry the the use of presumption.that you find in child arrangement.proceedings that there is a no order for.costs and the court does have the.discretion to make kasam to cpr rule 44.point 3 I'm now going to open up the.floor for any questions so please do use.your Q&A function and I will do my very.best to answer any questions that come.in.and so seeing a question come in if.breach is found could an order for cos.be granted along with financial loss.and/or variation etc and well arguably.yes a COS order would be separate from.the enforcement order any other orders.the court would make as I've touched on.at the very end of this webinar and the.court does have the discretion to make.more difficult the an order for.financial loss would be a compensation.order and that is an order of its own.type and therefore that court could make.that order separate to an order for.costs because it is an order for.compensation for loss as opposed to.costs incurred in making the application.and/or an order for variation well as.I've said if the court feels or deems.that the most appropriate way to secure.attendant the engagement of a party with.a child arrangements all day is by.making the variation well then the court.may well make that order for variation.and in addition to recognizing that a.party has lost has suffered a loss and.therefore make an order for compensation.and I can see a question here about the.enforcement of a protective order and.can I just clarify when you say.protective order are you talking about a.normalization order and I just wait for.a response to that and if it is an.application I mean if we are talking.about a protective order by way of a.normal of stationed then it is a.different process that you would be.following you wouldn't be following the.enforcement order process the.enforcement process and that I've.discussed or touched on today is the.process which you would use for a child.arrangements order before I finish.there's just one more question if the.respondent fails to comply with a child.arrangements order with the applicant.need to send a warning letter and before.issuing a claim for an enforcement order.well really if the outcome that you're.seeking is to say right we need to find.a way to make this work it may well be.that you find that the parties might be.one of those cases where there is a.misunderstanding about the terms so if.it.going to assist the parties by writing.to them in advance to say look we have.these concerns what is the reason for.for non-compliance do we need to make an.application to there or do we need to.vary this order do you understand this.order appropriately then that may well.be a way of avoiding the need to issue.enforcement proceedings if you feel that.that is not going to get you much.further than it may well be appropriate.to issue an application for enforcement.so that any delays in contact on and any.cessation in contact is not going to be.extended unnecessarily right I think.that looks like all of the questions are.going to come in for now obviously if.there are any other questions that I.didn't have a time a chance to get round.to by all means please send an email to.my Clark and she'll be able to direct it.to me and I will do my very best to.address it thank you again very much for.dialing in today on our lovely sunny.Friday afternoon as I said the slides.and a copy of this recording will be.made available on the Goldsmith chambers.website and I will circulate information.for how you would be able to access that.and download them in due course and so.thank you very much and I hope you enjoy.the rest of your weekend.

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