Promoting Contact with the Child: Part 2 | Analysis

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Promoting Contact with the Child: Part 2 | Analysis

Written by Criminal Law and Justice Weekly

Saturday, 27 December 2008 00:00

  http://www.criminallawandjustice.co.uk/index.php?/Analysis/promoting-contact-with-the-child-part-2.html

A previous article, Part 1 at p.798 ante, addressed the court's task of making contact orders effective by attaching warning notices, imposing contact activity conditions and making requests to CAFCASS^1 to monitor compliance with both conditions under s.11 and contact activity conditions under s.11C of the Children Act 1989. It finished on the positive note that the order would, with such assistance, be complied with! This article takes a more pessimistic note and comments on the situation where the order is not complied with.  Lack of Precision in Terms It is usual for contact to be defined where there has been a dispute. Problems will continue to occur if precision was not employed in drafting an order. Where there is a lack of precision or where, unusually, the order is for “reasonable” contact, it would be wise to seek a variation of the order. Where the order is precise in its terms, the dissatisfied party is left with a number of options. All involve a fee!  1. Seek a Warning Where the contact order was made before December 8, 2008, he may apply for a warning notice to be attached.^2 This serves two purposes. It may solve the problem and the notice serves as a sine qua non to other remedies.  2. Financial Compensation Orders (ss.11O & P) Although at first sight, an application may be made to an ordinary magistrates' court, the President has directed that such applications are to be listed before family proceedings courts and are to be ordered to be treated as family proceedings.^3 The proceedings are governed by the FPC (CA 1989) Rules 1991 as modified by SI 2008/2859. The new statutory instrument should be consulted before making an application. There are some new forms.^4  There is a £175 fee.^5  This could be recovered in an order for costs under r.22 of the 1991 Rules. If the court is satisfied that:   1.     the respondent has failed to comply with a contact order, before the failure occurred the respondent had been given a warning notice under s.11-i (or otherwise accordingly informed of the consequences of a breach),    2.     the respondent has not satisfied the court that he had a reasonable excuse, and;     3        the applicant has suffered financial loss by reason of the breach, it may make an order requiring the respondent to pay to the applicant compensation for his financial loss.  It should be noted that this is not punitive damages and compensation is limited to measured financial loss.  Applicants are limited to: (a) the person with whom the child concerned lives (or is to live), (b) the person granted contact, (c) any individual subject to a condition under s.11(7)(b) or a contact activity condition imposed by the contact order; or (d) with leave, the child concerned.^6 ** It is interesting to note that the person (M) with whom the child lives may seek compensation,  - [but is the person (F) who has been granted contact strictly in breach if he simply fails to turn up?]    -  This is a potential moot point. ** It remains to be seen what will amount to a reasonable excuse. This issue may arise where there have been allegations of domestic violence, particularly where they were not admitted but found proven, because there may be continuing fears about the consequences of complying with contact orders that are subsequently made. Other anticipated excuses are sickness on the part of the respondent or child, where reasonable efforts were made to notify the applicant. It is suggested that these problems are anticipated and covered by requirements under s.11(7) of the 1989 Act.                                                                                                                           The amount of compensation is determined by the court, but may not exceed the amount of the applicant's financial loss and the court must take into account the individual's financial circumstances. Any amount ordered may be recovered as a civil debt, so s.58 of the Magistrates' Courts Act 1980 applies. Further proceedings for nonpayment would be by complaint and sum.ons.^7  The proceedings are regarded for the purposes of s.11(1) and (2) as proceedings in which a question arises with respect to a s.8 order, so there is an obligation for effective timetabling and management of the application. The court must take into account the welfare of the child concerned.^8 A court cannot make an order in relation to an “excepted order” ^9 nor against a person  in respect of any failure to comply with a contact order occurring before he attained the age of 18.  3. Seek a Punitive Order There are three punitive orders:          (i) He may make a complaint and apply for a summons under s.63(3) of       theMagistrates' Courts Act 1980 and,        (ii)  seek a pecuniary penalty or a committal order ^10       There is a fee: £75.^11       Thirdly;       (iii)  he may apply for an enforcement order.  IT IS A MATTER OF CHOICE FOR THE AGGRIEVED ^.12  Enforcement Order (ss.11J-N, sch.A1) Although at first sight, an application may be made to an ordinary magistrates' court, the President has directed that such applications are to be listed before family proceedings courts and are to be ordered to be treated as family proceedings.^13 The proceedings are governed by the FPC (CA 1989) Rules 1991 as modified by SI 2008/2859.   Again, the new statutory instrument should be consulted. There are new forms.^14 Notice is to be given to a CAFCASS officer where an officer was monitoring the order. [Where the child was a party to the proceedings, in which the contact order was made, notice also has to be served on the guardian (or legal representative where there was no guardian). The minimum number of days for service prior to the hearing is 14.   An enforcement order is a requirement to do unpaid work — no other requirements can be made. It will look like a criminal community order with an unpaid work requirement because the probation service will have oversight and a modified version of ch.4 of Pt.12 of the Criminal Justice Act 2003 will be applied, but technically it will be a civil order and the range of hours will be from 40 to 200 hours within a 12-month period.^15 Unlike a community order, it may be suspended for such period as the court thinks fit. An important Practice Direction has been issued (November 2008) to cover information giving between CAFCASS and the Probation Service. The Direction states: “in order to ensure that the officer of [CAFCASS] will not potentially be in contempt of court by virtue of … discussions, the court should, when making a request under s.11L(5) or s.11M … give leave to that officer to disclose to the National Probation Service such information (whether or not contained in a document filed with the court) in relation to the proceedings as is necessary”. The court cannot make an order of its own motion and so care needs to be taken when adjourning to monitor contact.  Only the following may apply:  (a) the person with whom the child concerned lives (or is to live),  (b) the person granted contact, (c) anyone subject to a condition under s.11(7)(b) or a contact activity condition; or (d) with leave, the child concerned.^16 A court cannot make an enforcement order in relation to an “excepted order”^17 nor against a person in respect of any failure to comply with a contact order occurring before he attained the age of 18. An order cannot be made against someone unless he is habitually resident in England or Wales and such an order ceases to have effect if he ceases to be so habitually resident. There is a £175 fee.^18 This could be recovered in an order for costs under r.22 of the 1991 Rules. Proceedings in which any question of making an enforcement order, or any other question with respect to such an order arises, are to be regarded for the purposes of s.11(1) and (2) as proceedings in which a question arises with respect to a s.8 order. Before a court can enforce a contact order by making an enforcement order, the following criteria must be satisfied:   1.   Before the failure occurred the respondent had been given a warning notice under s.11I (or otherwise accordingly informed of the consequences of a breach), and   2.  Beyond reasonable doubt that the respondent has failed to comply with the contact order, and   3.    The respondent has not satisfied the court on the balance of probabilities that he had a reasonable excuse, and,   4.  The order is necessary to secure the person's compliance with the contact order or any contact order that has effect in its place, and   5.   The likely effect on the person of the order is proportionate to the seriousness of the breach of the contact order. If the above are satisfied, inquiries will need to be made of CAFCASS because the court will also need to be satisfied of the following:   6.   That provision for the respondent to work under an unpaid work requirement can be made in the local justice area in which he resides or will reside, and   7. The court has considered information about the respondent and the likely effect of the enforcement order on him which may, in particular, include information as to any conflict with the his religious beliefs and any interference with his work or education, and   8.   The court has taken into account the welfare of the child concerned.^19 The court must attach to the order a notice warning of the consequences of failing to comply with the order. Also, with a view to encouraging compliance with the enforcement order, the court may ask CAFCASS to arrange for the monitoring of the respondent's compliance, to report to the court if a breach report is made^20, to report to the court on such other matters relating to compliance as may be specified in the request and to report to the court if the person is, or becomes, unsuitable to perform work.  Breach of an Enforcement Order There are effectively four stages in the breach of an order.   1.  The responsible officer of the Probation Service gives the respondent a warning as per sch.A1, para.8 (1)–(4).   2.  Following a further perceived unreasonable failure, probation notify CAFCASS as per sch.A1, para.8(1), (5)–(6).   3. The person aggrieved under the contact order will have to be contacted, because the court may only exercise its enforcement powers at stage 4 (below) on the application of (a) the person with whom the child concerned lives (or is to live), (b) the person granted contact, (c) anyone subject to a condition under s.11(7)(b) or a contact activity condition; or (d) with leave, the child concerned.^21   4. Proceedings are taken pursuant to the FPC (CA 89) Rules 1991, as modified by SI 2008/2859 for the court to take action under sch.A1, para.9.  There is a £80 fee.^22 This could be recovered in an order for costs under r.22 of the 1991 Rules. The enforcement order must be in force. The court has to be satisfied that before the failure occurred the respondent had been given a warning notice under s.11N (or otherwise accordingly informed of the consequences of a breach). If the court is satisfied beyond reasonable doubt that the respondent has failed to comply with the unpaid work requirement and the respondent has not satisfied the court on the balance of probabilities that he had a reasonable excuse, the court may (a) amend the order so as to make the requirement more onerous by increasing the number of hours (but not exceeding the 200 hour maximum), or (b) make a second enforcement order and (if the first order is still in force) provide for the second order to have effect either in addition to or in substitution for the first order. The above is without prejudice to s.63(3) of the Magistrates' Courts Act 1980 as it applies in relation to enforcement orders. It is not quite clear what is intended effect of as it applies in relation to enforcement Orders. The court must be satisfied that, taking into account the extent to which the person has complied with the unpaid work requirement and the effect on the person of the proposed exercise of those powers: (a) is no more than is required to secure his compliance with the contact order or any contact order that has effect in its place, and (b) is no more than is proportionate to the seriousness of his failures to comply with the contact order and the first order. Where the court makes a second enforcement order, the usual residence, warning notice and monitoring provisions and the criteria for making enforcement orders apply again.  Conclusion Will adequate resources in terms of court time and staff, CAFCASS and Probation resources be made available? Assuming they will be available, the writer concludes with the following scenario.: A defined contact order is made with a contact activity condition. The order is not obeyed. He seeks a financial compensation order for £20 lost in travelling expenses and pays the £175 fee. The application is contested and he wins, but the mother is of little means, has many commitments and so the court orders £10 compensation but declines to order costs, having regard to those factors and the impact on an order will have on the child hearing about further parental battles. There is a further breach and the applicant seeks an enforcement order and pays a further £175 fee. An enforcement order is made, but is subsequently breached. The applicant decides to take breach proceedings and pays a further £80. The respondent is represented and persuades the court that she had a reasonable excuse. The applicant is ordered to pay the respondent's legal costs of £450. The 2006 Act should have had a s.1Q: Where the court concludes that, whatever requirements are made in a contact order the order will not be effective, it should “throw in the sponge” and accordingly the rule in Re H (A Child)(Contact: Mother's Opposition) [2001] 1 FCR 59 is revoked. Two statutory instruments have been made relating to financial assistance: SI 2008/2940 and SI 2008/2943. Footnotes 1     Inclusive of CAFCASS CYMRU. 2     See earlier article. 3     SI 2008/2859, r.2, but President's Practice Direction of November 6, 2008. 4     C 79: Application; C82 order for financial compensation”. 5     SI 2008/2855. 6     Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6. 7     £75 (.SI 2008/1052) 8     All of these factors should be covered in the Justices' Reasons. 9     See s.11B(4). 10     Note that a committal order may not be suspended in the magistrates' courts for failure to comply with contact orders. Caveat: extensive case-law, see Stone's Justices' Manual. 11     SI 2008/1052. 12     Section 11J(13). 13     SI 2008/2859, r.2, but President's Practice Direction of November 2008. 14     C79 Application related to enforcement of a contact order; C80 Enforcement order, C81 Order Revocation of enforcement order. 15     2008 Act, s.4, sch.1; 1989 Act, ss.11J-N, sch. A1. Consecutive orders may be made but 200 hours must not be exceeded. 16     Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6. 17     See s.11B(4). 18     SI 2008/2855. 19     All of these factors should be covered in the Justices' Reasons. 20     See sch.A1, para.8. 21     See sch.A1, para.9(5) & (6). Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6 22     SI 2008/2855. Robert Stevens