Family & Separation: What happens when one party breaks a childcare handover agreement?
When parents separate and arrangements are made for the children to spend time with each party, it is common for there to be a handover agreement. What happens when one party breaks this?
What are childcare handover agreements?
Childcare handover agreements establish the location the handover takes place, whether the handover is facilitated by the parents or a third party and what information is to be shared during the handover. Childcare handover agreements can be court ordered, agreed at mediation or drawn up in a separation plan.
What are the typical examples of agreements reached between parties and what are handover agreements likely to consist of?
The handover agreement could include neutral venues, for example, at school, at a family members home, a public place or a contact centre facility. It is also necessary to include the timings of the handover.
Where there is a risk of a child witnessing parental conflict, or a risk of domestic abuse between the parties’, then a third party or professional contact centre is likely to be considered as beneficial to facilitate the handover.
Information about the child could be shared during the handover, or, where there is a risk of domestic abuse, a third party facilitator could share required information directly. Alternatively, information can be shared within a parenting app or by way of a handover book.
The type of information required to be shared, could include but not limited to, what the child has eaten, how much the child has slept, any accidents or injuries that have occurred during contact and whether the child has been well during contact.
It may be beneficial to include in the agreement how belongings are managed and transferred, for example, car seats, clothes, medication and toys.
Is there a difference between intentional and unintentional breaking of an agreement?
In order to determine whether a breach of the agreement is intentional or unintentional a number of factors should be considered. For example:
- Is there a court order in place?
- How often has the breach occurred?
- Is there a complicating factor which may be causing the breach making it unintentional or providing a reasonable excuse?
- Is one party purposely breaching the agreement in order to cause distress to the other party?
- Are the arrangements working generally?
- Has it impacted on the welfare of the child?
- Do the arrangements need to be reviewed in order to make sure they are effective?
What does the law say about the potential consequences of breaking an agreement?
If the childcare handover agreement is ordered within a Child Arrangements Order, then warning notices are included advising of the consequences of non-compliance.
The consequences include:
- Being in contempt of court
- Being committed to prison or fined
- Ordered to undertake unpaid work and pay financial compensation.
If the handover agreement is not court ordered, then it is not legally binding, and therefore has no legal consequences.
What is the course of action for the non-breaking party?
If the agreement is court ordered and one party is in breach, the other party could make an application to court to enforce the order. The applicant would need to prove beyond reasonable doubt that the other party has breached the order without reasonable excuse. Beyond reasonable doubt means that the court must be satisfied that the failure to comply was not due to mere negligence or mistake. The court will take into consideration the following:
- The timing and frequency of the breaches
- The reasons for the breaches
- The impact on the child’s welfare
If the agreement is not court ordered, then parties are encouraged to resolve matters through a mediation service. Should this not be successful, then parties are able to make an application to court, if this is necessary in the circumstances.
If you are unsure about your next step, contact Brearleys Solicitors today to arrange an initial discussion with a member of our Family Law Team.
This article is for general information only and does not constitute legal advice.
