(or Children and Adoption Act 2006)
On 8th December 2008 the remaining provisions of Part 1 of The Children and Adoption Act 2006 came into force. The Act enhances the Court’s power to encourage contact between children and non-resident parents and introduces a range of new powers. In summary these include powers to make:
- a contact activity direction;
- an enforcement order imposing an unpaid work requirement; and/or
- order compensation for financial loss caused by breach of a contact order;
- monitoring of the order by CAFCASS;
Furthermore whenever a court makes or varies a contact order it must attach a notice warning of the consequences of failing to comply with a contact order , some of which are listed above: others include penalties for contempt of court which can include imprisonment or a fine.
Naturally, before the court can impose penalties it must be satisfied that there has been a breach; a penalty cannot be imposed if there was a reasonable excuse for breaching the order.
If ordering the payment of compensation the court must consider the welfare of any child concerned and the financial circumstances of the person in breach.
The Children and Court Advisory Service (CAFCASS) will be involved in implementing these orders and work will be provided under the supervision of the Probation Service.
What does it all mean?
A contact activity direction is not defined in the legislation but it requires the person who is the subject of the direction to take part in an activity that promotes contact with the child concerned and it is envisaged that this may involve attendance at classes on child development or counselling or similar guidance. It might involve attendance at an anger management course so as to facilitate contact; however it cannot be used to require mediation or medical or psychiatric treatment. It can only be made if there is a dispute about contact.
A parent with whom the children reside may apply for an enforcement order, as may the person whose contact is provided for in the order, or any individual subject to a contact condition or activity or the child concerned.
Breach of an order can result in a parent or carer being required to work for up to 200 hours in unpaid work for each instance of a breach.
CAFCASS may be asked to monitor the behaviour of either party that is for example a resident parent who creates difficulties for the non-resident parent in having contact, or the non-resident parent who for example fails to keep arrangements.
How will it work in practice?
It is already clear that the new act will give lawyers plenty to argue about in court at least until it has been in operation for a while. For example must the court automatically apply a warning notice? Are courts going to have to change the usual form of wording on contact orders from setting out a ‘declaration’ as to how much contact there should be to instead ordering certain levels of contact – one form of wording may constitute an enforceable order and the other may not and will not therefore be susceptible to enforcement under the CAA 2006. Will penalties be applicable only in relation to the resident parent or may they be applied to either parent?
Family lawyers are only too well aware of the heartbreak caused to children and non-resident parents when contact does not take place and particularly where as is often the case, there is a clear campaign by one carer to prevent contact. Clearly this was brought to national attention by the activities of various impersonators of Superman, Batman and Spiderman However we are also aware of the myriad different circumstances which apply in family life. It will be interesting to see how these changes will help or hinder in for example cases where a parent consistently fails to exercise contact or fails to keep to contact arrangements; where teenage children refuse to meet a parent, or more commonly where they have a busy social life in which their parents either resident or non-resident are marginal players for a time (it changes eventually!); where a parent suffers from drug or drink addiction which makes them unreliable or unsafe, or where the non-resident parent drives dangerously when the children are with him or her; and how will it work where grandparents are the primary carers with all the complicated relationships which this can often imply? These are the sort of issues which we will now be working through with our clients and the courts.
This article was written by Mary McEvoy, head of the Family Law Department. For more information on this or any other family problems please contact Mary McEvoy (Harpenden / Luton), John Walsh (Luton), Beth Woodward (Milton Keynes) or James Harvey (Milton Keynes) or click here to request a call back.
