Within the public law category, cases are brought by local authorities or what is known as an “authorised person”. According to a government website, this is currently only the NSPCC.
Private law cases are cases that are taken to court by private individuals, usually due to divorce or unmarried parents with children deciding to separate and needing to make arrangements for how the children’s care arrangements will work.
In this article, we will mainly be talking about family court orders used within the private law category. For those going through a divorce, these are the ones you are most likely to come across.
It is worth noting here that family court orders regarding child arrangements, for example, may only be necessary if parents cannot agree on issues, such as where their children will live after divorce or separation, and need to ask the family court for help.
The dictionary defines a court order as:
“a direction issued by a court or a judge requiring a person to do or not do something”.
Family courts are able to make a range of different orders, depending on the circumstances and needs of a specific case. For example, this could be a Child Arrangements Order or a Consent Order. We’ll go into more detail about both of these orders below.
The form/s that you will need to fill in vary, depending on which type of court order you would like to apply for. Additionally, how much it costs to file your form, depends on what type of order you want a court to make. It is important to fill in the form correctly, otherwise the courts may not be able to process it.
A complete list of forms is available on this government website. You may be able to apply for a court order without the help of a legal processional. However, it may be a good idea to get independent legal advice from a solicitor about your particular circumstances and how a specific court order may impact upon your/your child’s life.
In the past, family courts utilised what were called ‘residence orders’ and ‘contact orders’ to make arrangements, for example, on where a child would live and what type of contact would take place with the other parent.
Now, Child Arrangements Orders replace contact orders and residence orders. However, you may still hear this type of order referred to by its previous names. If you and your spouse/partner are unable to agree what will happen to the children after you separate, it may be necessary to ask a court to make an order with regards to this. Depending on the circumstances, parents may need to attempt mediation (where an independent third party can help couples who are splitting up to come to an agreement about a variety of issues) before it’s possible to go to court to get a Child Arrangements Order.
A Child Arrangements Order may deal with issues such as:
Unfortunately, not all family court orders are complied with.
If possible, it can be helpful to sit down and talk to the other party to discuss why contact is not happening as it should under the order and what you could both do about it. If you can’t speak to the other party directly, it may be helpful to write them a letter about your concerns.
If you and the other party attempt to resolve things in this way, it can be helpful to keep copies of any correspondence, as this could be used to show the court that you have attempted to resolve the issues yourselves.
Although going to family court is usually only a last resort, it may be necessary to ask a judge to enforce the order, if the other parent is regularly breaching it.
If your ex-spouse is stopping you from seeing your child and not complying with the terms of the order, it can be helpful to keep a record of these instances as evidence to show the family court, should you need to go back in front of a judge in the future.
All Child Arrangements Orders that were issued on or after 8th December 2008 will contain a warning notice. This notice includes details of what will happen if the order is not complied with. For orders made before this date, it could be necessary to apply for a warning notice to be attached to the order. Your solicitor should be able to help you with this.
If a parent refuses to comply with a Child Arrangements Order, they could be held in contempt of family court (more on this below). The consequences for failing to adhere to a Child Arrangements Order should not be underestimated. Although rare, family courts can and do send people to prison for breaching an order. Alternatively, judges could decide to impose a community service order, where the party in breach could have to undertake a specified number of hours of community service. Family courts can also fine parents who breach Child Arrangements Orders.
If a parent had to, for example, cancel a holiday, which led to a financial loss, because of the breach of a Child Arrangement Order by the other party, the family court could require the party who breached the order to pay financial compensation to the parent who had to cancel the holiday.
It is possible to appeal a Child Arrangements Order in certain circumstances. If you want to appeal a Child Arrangements Order, it is important to get legal advice from a solicitor.
A family court will always have the welfare of the child/children involved as its primary concern. It may be possible to apply to a family court to vary a Child Arrangements Order. Again, family court is usually seen as a last resort. Attempting to discuss the issue between yourselves or attending mediation can be useful, so that you can work towards reaching an agreement without the expensive and sometimes time-consuming intervention of a court.
Speak to your solicitor if you want more information about varying a Child Arrangements Order.
A Consent Order, usually drafted by a solicitor, is the legal document that confirms what two people have agreed will happen to their assets when they divorce. It could include things such as how any property or investments will be divided up after divorce and information regarding any maintenance payments. Once your solicitor has drafted the agreement and you and your spouse have signed it, this draft Consent Order should be sent to the Family Court, where a judge can approve the order (as long as they think that the order is fair).
Despite the fact that the Consent Order has been voluntarily agreed by the two parties involved, it is still legally binding (after a court has approved it).
If someone breaches the order (for example, by not making the agreed maintenance payments), then a family court can be asked to enforce the order.
Depending on your circumstances, it may be a good idea to try and discuss the issue with the other party first, to see if they can rectify the situation. Alternatively, just like with a Child Arrangements Order breach, you could write the other party a letter informing them of the breach and asking them to fulfil their responsibilities under the order. It can be helpful to speak to a solicitor for advice first.
If the order is still being breached, you may have to report the breach to a family court and ask them to enforce the order. Again, although it is possible to do this without the help of a solicitor, it can be a good idea to get independent legal advice.
If the family court agrees that a breach of the order has occurred, the family court could then enforce the order. If the breaching party still fails to do what they are required to, after a family court has enforced the order, there could be serious consequences.
Just like a breach of Child Arrangements Orders, a breach of a Consent Order could result in a prison sentence. A judge could also choose, for example, to fine the breaching party. If your ex-partner is breaching the terms of a Consent Order or you are breaching them yourself, it is recommended that you seek advice from a solicitor as soon as possible.
Depending on the circumstances, a court may not make the breaching party fulfill their responsibilities under the order. For example, if a person who was required to pay maintenance under a Consent Order loses their job, the family court may decide not to make them pay the required maintenance until they find work. This is known as a supervening event (something that has happened since the judge approved the Consent Order).
Consent Orders can be appealed or set aside under certain circumstances. For example, if one party didn’t fully disclose their finances when the order was approved or if one party used undue influenced to persuade the other to enter into the agreement, the Consent Order may be able to be appealed or set aside.
Your solicitor should be able to give you more information about when a Consent Order could be appealed.
The dictionary defines contempt of court as:
“the offence of being disobedient to or disrespectful of a court of law and its officers.”
Almost anyone involved in family court proceedings can be held in contempt of court. Being found to be in contempt of court could result in a prison sentence. Not complying with family court orders could result in you being found to be in contempt of court.
The family courts have the discretion to make a number of different orders.
These can include:
This type of order is known as a ‘negative’ order, as it is an order made by a family court which is telling a person what they cannot do with regards to how a child is brought up. For example, this type of order may be used when one party wants to stop the other from taking their child abroad. Failure to comply with this type of order could result in a prison sentence.
If you and your ex-spouse/partner cannot agree about specific issues with regards to your child/children, you could ask the court for a Specific Issue Order. This could include anything from where your child should go to school to whether they can change their name.
Failing to comply with an order made by the family courts, could ultimately result in you being ordered to do community service, fined or even given a custodial sentence. If you are unable to comply with a court order, it is important to seek legal advice regarding your particular circumstances as soon as possible.
Likewise, if your ex-spouse is breaching the terms of a court order, it can be helpful to speak to a solicitor experienced in this area of law, before applying to a court to have the order enforced.
Our expert divorce solicitors can help you with a range of legal issues, including:
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