Breach of contact order

[postmanpatscat]

Do you know whether you can apply for enforcement when you are aware of the other party's intention to breach the order, but it has not yet happened? DP's ex has refused to let him have DSS for the week specified in the court order as she has booked a holiday Does he have to wait until the week has passed before he can apply for enforcement? If so, that means not seeing DSS for nearly two months as DP has a business trip abroad in the interim, preventing EOW contact.

OP how old is DP's son? I think you are maybe jumping ahead a bit. It is perfectly possible that the boy has got the dates wrong? A bit mixed up? Before you and DP go off contacting the courts about a breach that has never happened, could you not check with DSS's mum?

Sorry some NRPs use the RP as their free childcare to still control their Exs life that and everything else theydeserve said.

Yes and some don't.

The RP in this case is allegedly going to break a court order. That is serious. Everything else about being able to move his trip, did they have anything booked, sarcastic comments about how awful she is to take the child on holiday are irrelevant. No matter how crap one parent is, that not does give the other parent the legal right to break a court order.

Yes Mary Poppins - and the NRP has already broken the contact order by not having them for the weekend - so who was wrong int he first place?

OP though should butt out - can we get an order to stop her doing what we have already done - control control control

What has the OP done exactly?

You do not know that the NRP has broken the order. You are assuming that.

And - again - even if the NRP didn't attend for contact (A) this wouldn't be a breach and (B) this does not allow the RP to breach further!

Not sure why people are struggling to grasp that.

WE can see it - just really do not need some sanctimonious new partner being so inflammatory - asking for orders against orders.

2 wrongs do not make a right - we do not have the whole picture but the OP posts on lone parents looking for an answer - in a highly inflammatory manner. Why not post it on steps.

Agree totally with Biblio and Summer.

When the NP gets involved with contact, things become frayed beyond belief. You have assumed the worst of the RP based on what a child has said? Shows you're on the attack already. If this has worked well For 18 months, then the best thing you can do is step back, allow them to talk like adults, and let it continue to work well. To start banding about legal rights over what a child has said is utterly ridiculous.

Perhaps the RP thought that with all the business trips, NRP wasn't having them at Easter?

So many incorrect assumptions made here. I appreciate that this is inevitable when posting a limited amount of information, but no need for such vitriol.

I posted at the request of my partner. We have been together for four years and live together. When DSS stays here, I play a large part in making his stays enjoyable and meeting his needs, as DP does for my own children. I have never met his ex, nor spoken to her, and have no plans to do so.

His ex was very well aware of the requirement for her to make DSS available for contact in the first week of the Easter holiday. Three weeks ago DP confirmed pick up/drop off times (he is the one that makes the journeys, travelling over 500 miles each time) but received the response that they would be away on holiday then. He has tried to reason with ex and remind her of her legal obligation but she is having none of it. She has not offered the second week as an alternative, only the Easter weekend which was already his contact time.

No legal action has been taken. The question was merely asked as I thought other lone parents (I don't live with the father of my children either, so I've been through the mill myself and don't merit the response received from some on here) might know the answer. If it was possible to pre-empt the court order being ignored, DP and DSS would be able to spend the time together that they both enjoy so much.

I don't see why one unavoidable business trip, resulting in two nights of missed contact, makes DP an unfit parent.

Thanks mary for being the voice of reason.

So what is your partner going to do ? Given that all the advice suggests that there will be no enforcement until at least 3 breeches of the order ?

Sorry but I think you need to look at this from the childs point of view..From the sounds of it DSC misses lots of contact due to DP travel through work...Yes that happens to be his job...but DC has a chance to go on holiday...

You have no idea why this week..No idea how old DC is but assuming he is school age as you have been together 4 years so holidays can only be taken term time, can she only get certain weeks, is this a chance to go with friends .....

What ever the law I don't know but morally he can cancel but you are considering taking her to court to stop he taking child on holiday?

I agree, from the child's pov, the adults having little fits about right and wrong is ridiculous. I think for the NRP to cancel the child's holiday, which obviously the child has spoken about and is excited about, is petty. Particularly if the NRP has just stood the child up and abandoned them to fly abroad.

No one is struggling to grasp the rights of NRP vs RP in contact orders, however, it sucks. It is incredibly one sided and biased towards the NRP's "rights of freedom". They are both parents with responsibilities. And using that as a weapon is going to cause antagonism and anger (assuming that normally things run smoothly and are adhered to). And the person who suffers is the child, who will sit around the NRP's house upset because s/he is not somewhere exciting as planned. And it would not look good in court either I should imagine as neither parent is whiter and white here.

It has taken me ages to work this out OP, as you said that your DP thought they are taking a hol in the UK based on info from the child, I thought meant all info regarding the hol had come from the child. Now I see they have actually spoken, here is what I would do.

Send a strongly worded email/ letter, cc solicitors if involved. State that you are very unhappy with this breach of contact, but as you wish to keep relations amicable for DSS and you understand he will now be looking forward to hol, that this time you will rearrange and have your week with DSS the second week of hol, state exact dates and hand over times. Make it clear though that any repeat of this and you will complain to court of order being breached. Then when hand over time comes just hand over at the newly stated date, you have it all there, black and white. You can have your full week too. I see no point in going in all guns blazing, see how the land lies, keep calm, does it really matter which week. Surely a fairer split of hols would have been to alternate Easters anyway?

And I also think it is very cheeky to be considering court action when your DP misses weekends because of work. I know he has to work, but it still does not seem right. Your order can't be cast in stone if DP does not stick to it too. And so the NRP's non attendance to access is fine and legal, but not in reverse for the RP? Ok, that may be the law, but what about the morals of this? Have you and your DP really thought about all of this? Especially as it has worked for 18 mths.

If the NRP cancels a contact weekend (for business trips or any other reason) IT iS a breach of the order. The courts won't force father to have contact, but it is legally a breach of the order. If it continued to happen, RP could go to court to get the contact reduced/changed.

No judge is going to entertain any NRP who cancelled two consecutive weekends and then tried to prevent a child going on holiday. That does not sound like a man with a child's best interests at heart.

OP as you have said you haven't even talked to your DPs ex "and have no intention" to, it would seem that you are intent on battling. Drop the battle, agree that the child and mother have been messed around with 2 cancelled weekends, and re-arrange Easter contact for another time.

Move on from your refusal to talk - this will inevitably be picked up by the child who is stuck in the middle of this toxic situation. There is a child there who just wants all parties to get on. How hard can it be?

Move on from your refusal to talk

Why the hell should the OP get involved in the parenting of her DHs DCs by talking to their mum?

Given the tone and attitude of most of the posts on the LP board about new wives, it's unlikely that many would be brave enough to run that particular gauntlet!

If the NRP cancels a contact weekend, it is a breach of the order

No, that’s not the case. You may argue that it’s a breach in moral terms, but it’s not a legal issue. A contact order is made in the NRP’s favour, which means the RP is legally obliged to make the child available for contact, but the NRP is not legally obliged to have the contact (if that makes sense).

OP - by limiting the amount of info, you don't allow any of us any scope for realistic advice.

You've also asked legal question in an incorrect topic. Neither you, your DP or the ex are lone parents and this is not a question for lone parents. Apart from the fact most of your audience on this topic are more likely to be the RPs

Either, specify what the order says w.r.t

1. Holidays
2. the schedule
3. Under what circumstances missed time can be made up

...and post it in the legal topic.

Or just suck this one up, document your attempts to agree alternative arrangements.

For all those banging on about NRPs missing contact are beaching the order, you'd be hard pressed to find a judge finding against a parent when the reason is work. More likely he'd want to know why the NRP has been obstructive in allowing the child to see the parent on alternative days - it will be they who will be seen as not being child focused.

I think there are a few things at play here. The language you use in your OP is "that means not seeing DSS for nearly two months" which paints the picture that it is all about "his right" to see them.

Maybe you didn't mean that and maybe he doesn't see it like that. But added to that you seem quite casual about how he can't keep to his commitment because of work. It does sound a bit like double standards. The purpose of the contact order (or the agreement to joint residency if that what there is) is to protect the childrens right to time with both parents.

But I can't believe the comment about someone not understanding how someone with children could have a job that involves a lot of away time. On what planet does that make sense? A high percentage of business is international these days so if a person has a career (and presumably NRP is happy with the income that comes with that), chances are there will be travel involved.

I can't understand why in the world the RP, who has followed the order for 18 months, who just book a holiday without communicating with the NRP. It makes no sense and is highly inflammatory. She is in breach of the order, and no, he isn't in breach himself because as others said - it doesn't work both ways. With very good reason of course because you can be inflicting penalties on people for not seeing their children as you'd have unwilling and resentful parents in charge of children which wouldn't be fair.

Is there any reason you can see why she is suddenly doing this without discussion? I hope there's more to it. It infuriates me when people fail to communicate things they would naturally communicate with other people in their lives just because they "don't have to" or "why should they". It creates such a vile resentment between all parties that is completely unnecessary.

My advice would be for your husband to put in writing his proposal for making up the time, and see if she will agree to that. The children will enjoy the holiday and it seems very mean spirited to put barriers in the way of them going. Chances are, Mum will tell them that is what their Dad did and that contact time will not be very joyful at all! It's not right, but it seems the kindest thing for the children.

And of course document everything because if it happens three times then your husband may need to go back to court. Of course, if he regularly can't stick to his contact times then mum might ask for a review anyway.

Petal02 Fri 07-Mar-14 12:58:58 wrote;

*If he has EOW and doesn’t take it up, isn’t he also breaking the contact order

I looked into this a while ago: apparently an EOW arrangement is made in the NRP’s favour, meaning that whilst the RP is legally obliged to ‘release’ the child as per the order if the NRP wishes, the NRP doesn’t have a legal obligation to fulfil the access. Although obviously there are CSA implications if a NRP repeatedly doesn’t fulfil his access.*

That isn't entirely correct. Contact Orders are served on both parties with a warning notice attached and either parent can apply for enforcement. However when making an order the paramount consideration is given to children's welfare and it's unlikely no/reduced contact will be seen to be in the interests of the child and there are other ways the courts can deal with the problem.

e.g. when there is independent evidence that irregular and inconsistent contact is damaging the children emotionally the courts may direct the parents attend classes for separated parents to encourage them to put the needs of the children or vary the order reducing contact.

I don't agree with this. DH went through a period of working away, and the ex tried to insist that he came back on Weds nights to fulfil the "one midweek night per week" contact arrangement (in addition to EOW). It would have been insane and impossible for DH to return on Wedbesdays to do his "overnight", and we checked things with his solicitor, who advised that the RP was legally obliged to allow contact, but the NRP wasn't legally obliged to have the contact.

Which seems sensible, otherwise heaven knows what would happen to shift workers or those in the forces.

Before you do anything, just double check which weeks the school holiday is this year. Some schools have the two weeks before Easter, others have one week before and one after Easter weekend.

we checked things with his solicitor, who advised that the RP was legally obliged to allow contact, but the NRP wasn't legally obliged to have the contact.

I think it depends on the order - a change to legislation a few years ago gave courts the power to place warning notices on Court Orders applicable to both parties. Some courts seem to add them as standard phrases on the end of orders, whereas others seem very reluctant - my DHs solicitor had to insist.

I don't think the courts can insist a NRP spends time with their children! Although that would be a sad state of affairs.

The courts won't insist any parent spends time with their children against the parent's wishes because it's not in the interest of children to be cared for by someone who doesn't want to look after them. Sadly when neither parent wants to spend time with their children the children go into care.

Since December 2008 all contact orders should have have a warning notice attached warning of the consequences of failing to comply with the order;

"Section 11I requires the court to attach to a contact order a notice warning of the consequences of breaching the order. Both the person making the children available and the person having contact should be served with the contact order with a warning notice." - District Judge Duncan Adam

www.lawgazette.co.uk/law/enforcing-contact-to-benefit-children-not-punish-the-parents/51682.article

Statute law makes provision for either parent to apply for an enforcement order;

"The court may make an enforcement order in relation to the contact order only on the application of—
(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)the person whose contact with the child concerned is provided for in the contact order;…." -s11J(5) Children Act 1989

However under s11J(3) of the Act the court must not make an enforcement order if it is satisfied there was a reasonable excuse for a breach.