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.
What do I do if my ex breaks the court order?
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What do I do if my ex breaks the court order?
- Introduction
- What counts as breaking an order?
- What can I do when a court order is broken?
- When should I apply for enforcement?
- When shouldn’t I apply for enforcement?
- Conclusion
Introduction
Orders are black and white.
Or at least, they should be. A good one will give you structure, rules and guidance when trust with your ex is at a low ebb and you want a little certainty for yourself and more importantly – your children. It should mean that in most situations you can look at the order and say `Yes – this is what should happen’ or `No – this should not happen’ and take things from there.
A good order takes the guess work out of it all.
Of course, a bad order will do the opposite. And there are out there. poorly drafted, ambiguous, self-contraidictory and woolly ones that only add to confusion as opposed to reducing it. Bad orders that increase the chance you’re back in court because no one really knows what they mean. Don’t be shocked if some of them have been produced by solicitors, barristers or even judges.
It does happen – they are only human.
If you have a badly-drafted order you may well find yourself arguing with your child’s other parent about how to intepret it. And if one of you is being unreasonable – i.e. not following the order in the spirit of what was intended – you can find yourself faced with situations that aren’t child-focused, balanced, fair or practical even while the other says `But I’m following the order’ while you’re convinced they aren’t.
Examples of this include contact taking place over `weekends’ with one party claiming a weekend means collection from school on a Friday and back on a Monday morning – with the other saying it was collection at Saturday afternoon and handing back Sunday teatime. Or ones that rely on words /phrases like `reasonable’, `where possible’ or `any additional contact that can be agreed between parties’.
In cases like this, the Welfare Checklist is a good way to intepret the situation. A good example is routine:
Routine is in the best interests of your children (and one of the factors the court will consider in the Welfare Checklist in the Children Act). Rightly so too – children will get disappointed when a parent seems to break their promises or seeing the most important people in their lives not work together. Stability and routine is specified in the Welfare Checklist and orders by their nature usually detail a schedule of regular contact, holidays, etc.
A good court order can make a huge difference – especially if all parties honour it. They can mean that while you and your ex partner still aren’t seeing eye to eye in various ways you are reasonably sure that the piece of paper that has been sent to you gives you a reasonable amount of certainty.
What counts as your ex breaking an order?
Strictly speaking – anything that goes against what the order says. This includes:
- Turning up for a handover 2 minutes late.
- Missed contact because the children are sick.
- Not returning to the handover point because your car has broken down.
- The children wanting to do something other than what the order says.
- Any departure from the order even if the parents agree to it and the children want it.
So technically speaking your ex is breaking the court order if they’re handing the children over even a minute late and can technically speaking consider it a breach.
But…life is not black and white. As i mentioned above – it’s possible to stick to the letter of the law of the order but not the spirit.
Sometimes things do come up that mean an order is `broken’ even with the best will in the world. `Reasonable’ people understand this. Sometimes there’s a traffic jam, the car breaks down, the kids get sick or they’d prefer to do something else or similar. Things that can happen to anyone – your ex, you or even the judge who you’re sitting in front of who may ask you if you feel that applying for enforcement because someone was 2 minutes late a) would inflame or defuse a tense situation b) was a good use of your time and money c) was a good use of the court’s time d) demonstrates a reasonable attitude to your children.
What can I do when a court order is broken?
If a court order is broken – for whatever reason – you have a number of options open to you. These include:
- Doing nothing.
- Finding out what has happened.
- Asking the children’s `lost’ time to be made up.
- Taking the matter to court for enforcement.
- Taking the matter to court for something else related.
Ask yourself `What do you want to happen?’
It could be that you have genuine and good grounds to take the matter to court but still decide it’s not worth doing. Ask yourself `What will my decision achieve long term?’ Or even better `What is in the best interests of the children?’
If you’re saying something along the lines of `It’s my right to see the kids’, `It’s the principle’ or `My ex deserved to be punished for what he/she has done’ – think again.
The question to ask yourself is `What is in the best interests of my children?’
Of course – that can be tricky and subjective. It can be hard to predict what action/inaction will do down the line but you only do what you think is right at the moment.
When should I apply for enforcement?
If you do want a court to deal with it, you usually need an enforcement application (or possibly a new application if the whole thing really isn’t working). As always you’ll need to convince the court that what you are seeking is in the best interests of your children.
Before you do so though, it’s worth asking for lost time to be made up, understanding why the order has been broken and possibly mediation to avoid returning to court. If not – it’s time to consider an application.
Sadly, enforcement applications almost always fail.
That is to say that what usually happens is that the application changes into one seeking a variation. Often that’ll be because the party breaking the order will argue that they did so because the current arrangement wasn’t working and needed to change – with them usually seeking to reduce the amount of contact. Conversely the other party will argue that the solution is to increase the amount of contact.
As always, it’s important to be clear about what you would like the court to do about it – being clear about what you would like ordered and remaining child-focused.
With the very high probability that the enforcement application will fail it’s fair to ask `What’s the point of making an application if the court isn’t going to do anything about?‘
The answer is that doing nothing is effectively agreeing with the `change’ your child’s other parent has imposed. From the view of the court you’ve agreed to it – presumably because you believed it was in their best interests and would have made an application if that wasn’t the case. Worse still? The court may take a view that making any future order is pointless because you/the other party won’t stick to it in any case.
There are ramifications if you choose to do nothing for a while too – you’ll be arguing against a new `status quo’ and your child’s other parent saying the children are now settled with the new arrangement and you only seek to disrupt it.
The take home from this is clear – if you have a good, child-focused reason for making an enforcement application you should do so at the earliest opportunity – or not at all.
When shouldn’t I apply for enforcement?
In short, you shouldn’t generally apply for `one offs’. If the children don’t come to contact because their other parent says they’re ill you should usually accept it. If it’s twice within a short period…maybe. If it’s three times within a short period it’s worth looking at. Because while children do get ill, if it’s only on – for example – Tuesday afternoons when they’re due to see you – things start to get a little `fishy’. You can verify things of course by speaking to their doctor – also because if they have a medical condition you need to be involved. And of course…if they have a persistent medical condition that the doctor is not aware of, it could be cause for alarm. Or it could be a case of the car `breaking down’ once a week when it is time for contact, constant traffic jams that always been handovers/collections are later or something similar.
By way of contrast a `one off’ with an ex partner saying `You’re not seeing the children next week’ is unlikely to go very far (unless it involves something like a prearranged holiday, etc.) however.
You will need to demonstrate there is an established pattern of the order being broken to stand a real chance of an order in your favour (as opposed to being told you’re wasting the court’s time).
If you do keep returning matters to court for what it sees as trivial matters you risk a `barring order’ (also known as a 91(14) order) which prevents you from making further applications without prior permission – as well as leaving you appearing hostile, seeking to the use the court to punish and control your ex partner.
Conclusion
Like everything else in family law, there are few `hard and fast’ rules. It’s hard to know what the best course of action is because there are multiple factors to consider when it comes to these sorts of situations. Once you factor in the different attitudes of different judges, courts, recent events, caselaw and the court having `a wide ambit of discretion’ there is very little certainty.
This lack of certainty means that you always need to look at the `big picture’ of what you’re doing. Sometimes you’re ahead. Sometimes, behind. It’s quite possible to go to a court hearing and being sure you have a strong case only to see it dismissed. Or vice versa – feeling that things aren’t going your way, only to feel the judge has decided in your favour before you have had a chance to present your side of things.
This means that all you can do is be child-focused at all times, focus on the big picture and not be distracted by the situation, your feelings or the other side’s argument which may leave you feeling angry, upset or both.
This post is for informational purposes only and does not constitute legal advice.
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