A Monitoring Order may be an option if the contact and residence arrangements for a child is set out in a Child Arrangement Order, and someone then breaches a term in this order without a justifiable reason for doing so.
What are the Repercussions if the Child Arrangement Order is Breached?
A Child Arrangement Order (set out within section 8 Children Act 1989) determines a child’s living arrangements, particularly who the child is to live with, spend time with and when. These were previously known and ‘residence’ or ‘contact’ orders.
If the other parent or carer is not complying with the Child Arrangement Order, it is advised that this be resolved amicably in the first instance, i.e. via mediation. However, if these processes have been tried but were unsuccessful or they are not appropriate in the circumstances (for example, where domestic abuse is a factor) then there are multiple options available; namely:
- Referral to a Separated Parenting Information Programme (SPIP) or Planning Together for Children group.
- Enforcement of the existing Child Arrangement Order. An application needs to be made to the Court and the existing order must contain warning notice (section 11J Children Act 1989).
- Varying the Child Arrangement Order. This could lead to more defined order or allows for the opportunity to reconsider the child’s living arrangements (section 8 Children Act 1989).
- The Court imposing the breaching party to complete unpaid work (section 11J(2) Children Act 1989).
- Compensation for financial loss (section 11O Children Act 1989).
- Fine or custodial sentence for the breaching party, depending on the seriousness of the breach
In the alternative, there are also Monitoring Orders (set out within section 11H Children Act 1989) which can assist.
What are Monitoring Orders?
- This is when the Court appoints a CAFCASS officer, Social Worker or Welsh family proceedings officer (known as ‘an Officer of the Service’) to:-
Monitor whether the party is complying with the order, and - Report to the Court relating to said party’s compliance (or lack thereof)
The Officer of the Service is under a duty to perform these obligations for the Court, and an Officer of the Service is appointed because they act in the welfare of the child and would be seen as an impartial party.
When are Monitoring Orders made?
Monitoring Orders are made either:
- During the course of existing family proceedings if there are concerns about non-compliance, or
- A period not exceeding 12 months since the conclusion of proceedings.
The difference between Monitoring Orders & Family Assistance Orders
Family Assistance Orders (set out within 'Section 16 Children Act 1989') are deemed similar in nature to Monitoring Orders due to their involvement of an external agency, i.e. CAFCASS officer, Social Worker or Welsh Family Proceedings Officer.
The difference, however, is that:
a) Family Assistance Orders are made when the Officer of the Service ‘assists, advises and (where appropriate) befriends’ the parents/carers – as opposed to simply monitoring and reporting compliance, and
b) Family Assistance Orders only apply if all the parties named in the order, except the child, consent to it being made. This is not required of Monitoring Orders.
Please see our separate ‘What is a Family Assistance Order and Why is it Required’ blog written by Fiona Moffat for further information.
Things to Consider…
It is at the Court’s discretion as to whether they order the making of a Monitoring Order. These orders do not exist as a freestanding order, and so Court proceedings for the making of a Child Arrangement Order must have already commenced or concluded before this becomes an option.
In addition, a Monitoring Order may have implications for the officer of the Service, as it is widely agreed that these orders should not be sought if there is a measure of agreement between parties.
Lastly, like all options listed above, there is no guarantee if the Monitoring Order is made that the breaching party will go on to abide by the order moving forwards, despite the repercussions, and in fact this can create further animosity between the parties.
Conclusion
Monitoring Orders may provide a useful tool for cases where there is a disputed transition from supervised to unsupervised contact or where there has been a real reluctance for any contact to take place. Nonetheless, it is worth discussing with a solicitor which action is most appropriate to pursue according to your specific circumstances.
Next Steps...
If you would like further information regarding Monitoring Orders, please contact our Family Law team on freephone 0800 011 6666 or via email legal@timms-law.com.
