| Promoting Contact With the Child: Part 1 |
| Written by Criminal Law and Justice Weekly |
| Saturday, 06 December 2008 11:24 |
Applications for contact are the staple diet of the family courts. Although the private law programme encourages an early resolution of issues about contact, particularly through the first hearing dispute resolution appointment, there frequently continue to be bitterly contested cases. Against this background, radically new provisions on the law on contact will be introduced into the Children Act 1989 on December 8, 20081. The amendments to the 1989 Act will be supplemented by both new and amended subordinate legislation, practice directions, new forms2 and new fees3. The aim is to make contact orders more effective by promoting contact with the child.4 It is a sad axiom of family court life that there are frequent complaints about disobedience of contact orders. Such issues can be dealt in a number of ways under the current law: transfers of residence, orders under s.34 of the Family Law Act 1986, pecuniary penalties and committal orders under s.63(3) of the Magistrates' Courts Act 1980. Unfortunately, from a practical perspective, the new provisions are complex and are not to be found in one piece of legislation. Because complaints about non-compliance are likely to continue to be frequent, lawyers will have to become very familiar with the new provisions and be able to quote the relevant provisions accurately. It is already possible to make extended family assistance orders under s.16 of the 1989 Act and such orders should not be overlooked. It remains to be seen how effective the new provisions will be in practice. There will also be extra workloads for the CAFCASS, CAFCASS CYMRU5, the Probation Service and the courts' administrative and legal staff. Court time is not an unlimited resource. It may be that some enforcement proceedings may be avoided by courts, when making contact orders, by exercising discernment and warning parties about there being more enforcement powers with more teeth, including monetary compensation to any disadvantaged party. It is interesting that a contact activity direction or condition (below) “may, by addressing a person's violent behaviour, enable or facilitate contact with a child”.6 Enforcement proceedings may also be discouraged by fees. Case-law has discouraged orders for costs in family cases, but it remains to be seen whether courts will be more willing to order costs where breaches have occurred by drawing an analogy with unnecessary appeals.7 Locating the Law Since the law on contact is not to be found in one instrument8 and covers different factual scanarios, this article aims to deal with different practical situations and their different remedies as they are likely to arise. All Contact Orders Made/Varied on/after December 8, 2008 Whenever on/after December 8, 2008 a court makes a contact order it must attach a “warning notice” to the order. This is a judicial act and should therefore be announced in court. It might be diplomatic in some cases to explain that this warning must be given. The notice warns of the consequences of failing to comply with the order and is in these terms on the amended Form C43:
Contact Orders Already in Existence Thousands of contact orders under s.8 of the 1989 Act have been made since 1991 and before December 8, 2008 and so provision has been made in s.8 of the 2008 Act to enable such orders to take advantage of the new provisions. The “trigger” for engaging the new provisions is to attach to the order a “warning notice” under the new s.11I of the 1989 Act. A warning notice is to be attached (a) where an application is made for such a notice to be attached by a person within the new s.11J(5)(a) to (d) of the 1989 Act (qv) or (b) where, in any new family proceedings, a question arises with respect to the contact order. Those advising courts and advocates must be alive to the latter situation. Extra care must be taken in circumstances where the potential applicant is the child concerned, because reference must be made to the new s.11J(6) and (7).10 Application shall be made ex parte for a warning notice using Form C78. The matter may be heard by a single family justice.11 However, a hearing could be ordered and this might be wise where it is considered appropriate to explain the effect of the warning and so reduce animosity. If then there is a failure to comply with the contact order ss.11K(1) and 11P(1) of the 1989 Act apply.12 New Terms Practitioners will need to become familiar with a number of new terms and phrases. “Contact activity direction'” (s.11A) “Contact activity condition'”(s.11C) “Contact condition under s.11(7)(b)”13 “Government financial assistance (s.11F)” “Request to monitor and report on a contact activity direction (s.11G)” “Request to monitor and report on a contact activity condition (s.11G)” “Request to monitor and report on a contact order (s.11H)” “Not being a contact activity direction or condition” “Request to monitor and report on an enforcement order (s.11M)” “Warning notice (s.11I/11N) — note not a 'penal notice'” “Enforcement order (unpaid work only) (s.11J-N, sch.A1)” “Financial compensation order (limited to financial loss) (ss.11O and P)” Limitations The new provisions do not extend to people who are not habitually resident in England or Wales and they automatically cease to have effect if they cease to be so habitually resident.14 Also, broadly speaking, they do not apply where there has been an adoption or adoption is being contemplated.15 Indeed, s.26(1) of the Adoption and Children Act 2002 has been amended to provide that when an adoption agency is authorized to place a child for adoption etc, any provision for contact under the 1989 Act ceases to have effect and any contact activity direction relating to contact with the child is discharged. Anticipating a Breach On-Going Proceedings If a court is considering whether to make a contact order or an order varying or discharging a contact order, it may make a direction requiring a party to take part in an activity that promotes contact with the child. This direction is a “contact activity direction”. Note that an order has not yet been made in those particular proceedings. It must be also noted that there must actually be a dispute about contact. (These directions cannot be made because help is attractive to the court.16) The direction must specify the activity and the person providing the activity. Clearly, before such a direction can be made, investigations will have to be made about what is available and in this respect CAFCASS will fulfill a vital role17. The Act does not give a comprehensive list of activities, but there are useful pointers about what to look out for in s.11A(5) (qv) and amongst them are programmes that may assist a person in establishing, maintaining or improving contact with a child and in addressing violent behaviour. The other parent might be ordered to take part in an information session on the psychological need of a child to establish relationships with both biological parents. Consent by the party to take part is not required. However, there are limitations: no one may be required to undergo medical, or psychiatric examination, assessment or treatment or to take part in mediation. Almost for the avoidance of doubt, it is prescribed that when considering whether to make a direction, the welfare of the child is the court's paramount consideration.18 Usually it will be the parents who are the subject of directions, but the Act prohibits children being involved unless the parent of the child is actually a child!19 Before making a direction the court must consider information about the individual and the likely effect of the direction on him, which may include information about any conflict with his work, education or religious beliefs. A number of criteria must be satisfied and it is advisable that these be clearly stated and justified in any report20 to the court and in the justices' reasons:
Monitoring Compliance Having made the direction, the court will want to ensure that it is obeyed! The court may on making the direction ask CAFCASS to arrange for the monitoring of compliance with the direction and to report to the court on any failure to comply.22 If there is a failure, a report should be made to the court and the court can make further directions under r.14 of the 1991 Rules or under s.11A of the 1989 Act. If a direction is not complied with, it is not possible to get compensation for any financial loss because s.11O does not extend to this situation. Financial Support Provision will be made by regulations to authorize the state to assist those who are required by a contact activity direction or condition23 to take part in an activity with fees or charges. However, travel, subsistence and loss of earnings are not covered.24 Contact Order Made25 If a contact order or an order varying a contact order is made, the contact order may include a condition, known as a “contact activity condition”, requiring certain people to take part in specified activities that promotes contact provided by specified persons. The people concerned are the person with whom the child lives/is to live, the person granted contact or someone upon whom there is imposed a condition under s.11(7)(b). Again, the Act does not give a comprehensive list, but there are useful pointers about what to look out for in the new s.11A(5), which is applied to these conditions. (Examples are given above.) Consent by the party to take part is again not required. Again, there are limitations: no one may be required to undergo medical, psychiatric examination, assessment or treatment or to take part in mediation. Also, the Act prohibits children being involved unless the parent himself is a child.26 A contact order may not impose a contact activity condition on someone unless he is habitually resident in England and Wales; and a condition ceases to have effect if he ceases to be so habitually resident.27 A condition cannot form part of an “excepted order”, that is an order related to an adoption.28 Before making a condition the court must consider information about the individual and the likely effect of the condition on him, which may include information about any conflict with his religious beliefs and any interference with his work or education. A number of criteria must be satisfied29 and it is advisable that these be clearly stated and justified in any report30 to the court and in the justices' reasons:
Monitoring Compliance There are two distinct provisions for monitoring compliance with the terms of a contact order. In respect of monitoring compliance with contact activity conditions, s.11G applies — see above. However, in respect of other provisions of a contact order, s.11H applies. In those latter circumstances, the court may ask CAFCASS to monitor whether someone complies with the contact order and to report to the court on such matters relating to his compliance as the court may specify in the request. The person must be the person granted contact, required to allow contact or someone who is subject to a condition under s.11(7)(b). Problems may occur some time after the contact order is made and so, as well as being able to make a monitoring request when making the order, the court may do so “at any time during the subsequent course of the proceedings as they relate to contact with the child concerned”. The court must specify the period for which there is to be monitoring and in these latter circumstances it must not exceed 12 months. The court may order the person concerned to take such steps as may be specified in the order with a view to enabling CAFCASS to comply with the monitoring request. Monitoring does not apply to “excepted orders” and children unless the children are themselves the parents.31 Financial Support Has been made for England. Conclusion This article finishes on a positive note, but on the assumption that there will be sufficient provision of activities to address all the social and relational problems occasioned by breakdowns in relationships. The parties have taken heed of the warning notice. Contact activity directions or conditions have addressed domestic violence, “the corrosive effect” of being negative about the other parent32, the importance to the child of the other parent and better communication skills. The next article will be more negative and costly. To be concluded next week. Footnotes 1 Children and Adoption Act 2006 (Commencement No.3) Order 2008 (SI 2008/2870). 2 The most significant is Form C100 (applications for s.8 orders) inserted into the Family Proceedings Courts (Children Act 1989) Rules 1991 by the Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2008 (SI 2008/2858). Similar provision is made in the Family Proceedings (Amendment No.2) Rules 2008 (SI 2008/2861). Forms are also in SI 2008/2859. 3 See SI 2008/2855. 4 See ss.11A(3) and 11C(2). 5 Henceforth “CAFCASS” for both organizations 6 See ss.11A(5)(ii) and 11C(5). 7 FPC (CA 1989) Rules 1991 apply (as modified by SI 2008/2859) to certain enforcement applications. 9 Section 11I. The form of warning prescribed is not comprehensive: transfers of residence and s.34, Family Law Act 1986 orders are not covered. 10 2008 Act, s.8(3). Proceedings must be started in a county court: SI 2008/2836, art.6. 11 SI 2008/2859. Fee: £40. 12 See later article. 13 Technically not new, but it is likely that this provision will be used more frequently. It has gained additional significance by virtue of the 2008 Act. 14 Sections 11B(7), 11D(3), 11K(4). 15 See s.11B(4)-(6). 16 Section 11B(1). 17 FPC (Children Act 1989) Rules 1991, r.11AA has been extended by the FPC (CA 1989) (Amendment) Rules 2008 (SI 2008/2858) to cover the information and monitoring requests (below) applying to CAFCASS. Such personnel are included within the directions and statements provisions of rr.14 and 17 of the 1991 Rules. 18 Section 11A. 19 Section 11B(2). 20 The court may ask CAFCASS to provide the required information. 21 Section 11E. 22 Section 11G. 23 Infra. 24 Section 11F see SI 2008/2940 25 This includes an “interim contact order” which is technically an order limited in time under s.11 of the 1989 Act. 26 Section 11D(1). 27 Section 11D(3). 28 See s.11B(4). 29 Section 11E. 30 The court may ask CAFCASS to provide the required information under s.11E. 31 Section 11H. 32 Re H (Contact:Domestic Violence) [1998] 2 FLR. |
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