Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
Ex not sticking to the court order? What can you do?
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Ex Not Sticking to the Court Order? Here’s What to Do
- Introduction
- What counts as a broken order (part 1)?
- What counts as a broken order (part 2)?
- When you have grounds to do something about a broken order
- What will the court do about a broken order?
- What is the point of an order if the court won’t enforce it?
- Conclusion
Introduction
You’ve paid a lot of money for the order you have so it’s reasonable to think it will provide you with some certainty.
Certainty about when your children going to be with you and with your ex partner. Details that say when, where and how. But I hate to break it to you – orders made in the Family Court are broken reasonably often. And even worse – they’re very seldom enforced. So you could be forgiven for having the view that they aren’t worth the paperwork they’re written.
But like most things legal – it’s not black and white.
If an order is broken, there are things you can do. What you do depends on a whole host of factors. This blog post will go into:
- What counts as a broken order?
- When you have grounds to do something about.
- What your options are when it happens.
- What the court is liable to do about it.
Every situation is different. It’s said by some that Family Law is more an art than a science. It’s a fair point – it’s all about (pardon the pun) the judgement of those concerned.
What counts as a broken order (part 1)?
Simply put it’s when an order isn’t followed.
Sometimes it’s very, very clear when that happens. Examples include:
- Someone saying `You’re not seeing the kids again until you take me to back to court’.
- Not showing up at all to handover the children.
- Leaving the country with the children despite there being an order for that not to happen.
- Leaving the children in the care of someone named in the order shouldn’t be doing that.
But it can get a little…hazy. Examples include:
- Turning up for a handover 5 minutes later because traffic has caused delays.
- Not handing the children over because they’re ill and need to stay in bed.
- Saying the child is upset and doesn’t want to go.
- Having new severe safety concerns.
A good order will cover as many eventualities as possible. It can be used as a framework to help two parents who don’t trust each other know where they stand in most situations. But they can’t cover every eventuality that real life throws at people though.
A well drafted order will help avoid this. A badly drafted order will cause more problems than it solves: For example that specifies `weekend contact’ and doesn’t go into details. What does that mean? Collection from school on a Friday and return to on a Monday? Or after lunch on a Saturday until the next day Sunday `so the children can settle down before school on a Monday’?
I’ve seen both examples. People can and will misunderstand orders. Whether that is a result of simple differences of opinion or `creative misinterpretation’ is a topic for another day.
What counts as a broken order (part 2)?
The truth is that children do get sick. Traffic jams do happen. Children do get upset.
If an order is broken occasionally for reasons like this you are unlikely to get far in any enforcement application you make. More likely you’re going to be told off for wasting the court’s time, being inflexible and possibly for attempting to use as a court as a weapon against your ex partner. If you keep doing that you potentially face being told you’re going to have to pay your ex’s legal costs and/or barred from making future applications for a while.
Courts understand that sometimes, there are problems. You should understand that too while being reasonable, child focused and not doing stuff to inflame a possibly fragile situation between you and your ex. Besides…you may be the one stuck in a traffic jam or the children get ill while they’re with you at some point and you wouldn’t want to be taken to court for that, would you?
However.
People do use these reasons (and more) as excuses to attempt to frustrate orders however. i.e.:
- Children being `sick’ every time contact is scheduled.
- Persistently late handovers due to `traffic’.
- Parents saying they can’t `make’ the children go if they don’t want to.
In each of the above there are remedies – it’s unlikely children are sick each time they’re due to be handed over; if traffic is always a problem this should be taken into account by the parent or the court; children are subject to orders (and their views are taken into consideration in Court as part of the Welfare Checklist).
The devil is in the detail. You may feel you have good grounds to go back to court…or you may not. The next paragraph says this…
When you have grounds to do something about a broken order
As always, you should avoid making an application if you can. Once a matter is in the hands of the court, it is out of your hands. And the only reason you should go there is if you are acting in the best interests of your children and you think it is likely the court will be more likely to do what you think is best for them than your ex partner.
Regardless of this, you should probably not go to court if your ex has breached the order for a first time for being late, saying the children were sick before contact. Because like I said before, traffic is a thing, as are sick children. You may know for a fact they have broken the order. Even if they have been blatant about it and said something like `I’m breaking the order this week but we’re going to go back to it after that’. If this happens they are likely to get away with it if you make an application – expect a mild ticking off for them at most.
But as a general rule I’d say that once you have established a pattern of missed contact (3 strikes and you’re out?) you should consider whether it is worth applying for enforcement. In addition to this – if someone says `You’re not seeing the kids until you take me to court’ it’s worth considering this as the next step.
The problem with doing nothing? Like a rabbit in the headlights, the longer you procrastinate, the longer the new status quo is in place, the more a new routine is in place and the stronger the argument will be that if you really felt something was in the best interests of the children you would haven’t waited around and done nothing.
The appropriate remedy in this scenario is often an enforcement application.
What will the court do about a broken order?
What can a court do when faced with an enforcement application. The options are:
- Do nothing.
- Tell your ex to stick to the order.
- Change the order.
- Threaten to penalise your ex partner.
- Penalise the ex partner.
Out of the above options? Options 4 and 5 are unlikely. The Children Act provides for parents who break orders to be fined, ordered to do community service and even to be imprisoned for breaking orders. But this is almost unheard of. The Family Court, tasked with acting in the best interests of the children seldom thinks a child seeing Dad being responsible for Mum being put in prison as being likely to help. Sometimes the threat of this is made – but that’s it.
What is far more likely is options 1, 2 or 3. The truth is that the vast majority of enforcement applications fail.
The most likely scenario is your ex partner will be told to stick to the order and/or your ex partner will use the hearing as an opportunity to say the existing order isn’t working and the enforcement application you’ve made should be replaced with a variation. Which basically means the existing order should be changed – and in this context that typically means reducing contact because the existing order `isn’t working’. The more cynically minded would claim this represents a hijack of the application and the parent who has broken the order has decided to force the hand of their ex partner so they don’t have to pay the fee for going back to court (the application is C79 by the way – with a fee of £215 in January 2024).
What is the point of an order if the Court won’t enforce it?
This is a good question. But there is no good answer. It’s the worst kept secret in the Family Court – the Court won’t enforce it’s own orders.
But there is no other option. It’s either make the application or don’t make the application. That’s it. If you do nothing, no one else will. The new arrangement – imposed by your ex partner – will rapidly become the new one and you doing nothing shows you agree with it. And if you do eventually take it back to court, you could be told that the children are now settled with the new arrangement so it be wrong for them to be subjected to even more change. Or that there is no point making any further orders because neither you nor your ex stick to them anyway…
But the system is all we have.
If you are in the position of having to make application after application you may find yourself in the position of being to argue that your ex partner has demonstrates on countless occasions they won’t abide with orders or that a different solution such as making you the primary carer because you can be trusted to promote a relationship with both parents even if they won’t.
It’s tricky. And possibly unfair. But all there is.
Conclusion
There’s no easy answer here. You should only make an application for enforcement if you think you have a good chance of the court agreeing that the existing order has been broken and it needs to intervene (somehow – because we’ve already discussed how the court is unlikely to do that much).
But doing nothing? That’s the worst of all options even if doing something seems pretty pointless…
Hopefully, your now planning to do something. If that `something’ involves getting some help, book an Ask Me Anything online session with us next and we’ll tell you everything you need to know to deal with things.
This post is for informational purposes only and does not constitute legal advice.
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