Key points
This case in 30 seconds
- Situation
- The client is the parent the child does not live with, and has a child under 18 with the parent the child lives with. The earlier access order set out which days each week, which time slots, where handovers take place and how the long holidays are shared. In recent months, access has not gone ahead as ordered.
- Approach
- Keep records first. Where there is an order, you can apply to the court to enforce it; where there is none, you can apply for access arrangements to be set.
- Result
- Later, access mostly went ahead at the times set out in the order. For the child, the arrangements became stable again and daily routines were no longer disrupted.
Three points for handling this well
- Keep records first, noting the days when access did not go ahead as ordered.
- Where there is an order, you can apply to the court to enforce it; where there is none, you can apply for access arrangements to be set.
- As the child grows or life changes, you can apply to change the arrangement.
Background
The client is the parent the child does not live with, and has a child under 18 with the parent the child lives with.
The earlier access order set out which days each week, which time slots, where handovers take place and how the long holidays are shared.
In recent months, access has not gone ahead as ordered.
He wanted to keep up his relationship with his child, but had not been able to see the child at the agreed times.
- Not sure what to do when there is no order
- Worried that keeping records may not be enough
- Don’t know whether you can apply for a variation if circumstances change
He had searched online himself, but different websites said different things, and he was not sure whether to keep records first or ask the court directly.
He wanted to understand what he could do before things got more complicated.
When access is not going ahead as ordered, the first thing to do is record what is happening clearly.
Why organise records first, then apply for enforcement or variation?
In this case we chose to organise records first, because although the situation was not ideal, there was still a clear next step to follow up.
What did the access arrangements originally say?
Unless there is a reason to protect the child, the court will generally let the other parent have access.
Every arrangement puts the child’s daily life and feelings first.
If you can agree, you can make the agreement yourselves; if not, the court decides.
How can you apply for enforcement or variation?
Keep records first.
| Applying for enforcement | Applying for variation | |
|---|---|---|
| When it applies | An order exists, and the other parent is not complying | The child has grown older or circumstances have changed |
| Purpose | Access at the times set out in the order | Set new arrangements to suit the new circumstances |
| Step 1 | Organise records of access that did not go ahead | Organise a record of what has changed |
| We help | Organise records and prepare documents | Explain the procedure and prepare documents |
Where there is an order, you can apply to the court to enforce it; where there is none, you can apply for access arrangements to be set.
If the other parent does not comply, you can apply to the court to enforce the order.
As the child grows or life changes, you can apply to change the arrangement.
If there is a major change in the child’s or the parents’ circumstances, either side can apply to the court for a variation.
What else can be done if the situation is different?
Access arrangements are often discussed together with the child’s living costs; see the related service at the foot of the page.
Similar situations may also relate to “Children and a disagreement over arrangements: mediate first” or “A child’s wishes change: applying to vary a custody order”, which you may read alongside.
Once you have settled on keeping records first and then considering enforcement or variation, what remains is knowing how each stage works in practice.
How we helped
From the first consultation until the arrangements are restored, the same dedicated consultant follows your case, and our help comes in three stages.
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Organising records stage
From the first consultation
At the first consultation, the dedicated consultant first finds out how access has not gone ahead as ordered.
We help the client first organise a record of access that did not go ahead, including the originally scheduled handover days and time slots.
Keeping records is the key first step.
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Application stage
Once everything is in order
We explain the difference between applying for enforcement and applying for variation, and help prepare the documents.
The documents are filed together only once they are ready.
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Arrangements restored stage
After the court deals with it
Next, we remind the client to hand over at the times set out in the order, and keep following up if needed.
Following the times set out in the order reduces the chance of access falling through again.
Throughout, the client could phone the dedicated consultant at any time, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
Later, access mostly went ahead at the times set out in the order; for the child, the arrangements became stable again and daily routines were no longer disrupted.
Because the access arrangements were already set out in the order, the application followed up on the existing order, with no need to renegotiate the arrangements.
For the child, the biggest difference is that meetings are no longer changed at short notice; with handovers at the times set out in the order, daily life settled down again.
Throughout, the dedicated consultant prepared documents from the existing order and reminded the client of the handover times and places.
Without keeping records first, explaining what happened often takes longer.
The two parents now hand over at the times set out in the order, and the child’s life has not changed much, which was what he cared about most at the start.
How does the procedure change if your situation is different?
The approach in this case follows from an order already setting out the access arrangements; if the situation differs, the approach will change too.
No order, only a verbal agreement: Where there is no order, you can apply for access arrangements to be set.
Circumstances have changed and I want to apply for a variation: When circumstances change, you can also apply to vary the access arrangements.
A third party is needed at handovers: If necessary, you can also first find out about arrangements for a third party to accompany handovers.
Three things you can do first in a similar situation
- Keep records first, noting the days when access did not go ahead.
- Check the access times and handover place set out in the order.
- If the situation continues, find out the difference between enforcement and variation.
FAQ
The access order sets out times, but access is not going ahead as ordered. What can you do?
Keep records first.
Where there is an order, you can apply to the court to enforce it; where there is none, you can apply for access arrangements to be set.
There is a court order and the other parent is not complying. What can you do?
If the other parent does not comply, you can apply to the court to enforce the order.
There is no court order, only a verbal agreement on access. Can you still apply?
Where there is no order, you can apply for access arrangements to be set.
If circumstances change, can access arrangements be varied?
As the child grows or life changes, you can apply to change the arrangement.
Can a custody order be varied once it has been made?
If there is a major change in the child’s or the parents’ circumstances, either side can apply to the court for a variation.
Is the parent the child does not live with always entitled to see the child?
Unless there is a reason to protect the child, the court will generally let the other parent have access.
Who usually decides access arrangements?
If you can agree, you can make the agreement yourselves; if not, the court decides.
Do access arrangements put the child’s feelings first?
Every arrangement puts the child’s daily life and feelings first.
Do you give legal advice or represent clients in court?
We are divorce consultants. We help you gather information, prepare documents and understand the procedure.
If your case needs legal advice or court representation, we will tell you honestly and help you make other arrangements.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
