Parents Against Injustice
Article Link on Family Law: http://www.familylaw.co.uk/articles/flj1010MARTINDANCEY
DISTRICT JUDGE MARTIN DANCEY, Bournemouth Combined Court and RONI JONES, Chief Executive Officer of Relate Bournemouth, Poole and Christchurch
The new ss 11A-P of the Children Act, introduced with effect from 8 December 2008 by Part 1 of the Children and Adoption Act 2006, are intended to expand the powers available to the court to promote, monitor and enforce contact. This article looks at the first of those purposes - the promotion, or facilitation, of contact, embodied in the provision of contact activity directions or conditions under ss 11A-G and, specifically, Parenting Information Programmes (PIPs) (or co-parenting programmes).
The Government's Green Paper Parental Separation: Children's Needs and Parents' Responsibilities Cm 6273 (2004), the report of responses to the Green Paper Parental Separation: Children's Needs and Parents' Responsibilities: Next Steps Cm 6452 (2005) and the Government's Response Cm 6583 (2005) recognised that court is not the ideal place to resolve children arrangements following separation. In fact only 10% of contact arrangements are underpinned by contact orders; 82% of resident parents and 88% of non-resident parents making their own arrangements reported satisfaction with those arrangements, while the satisfaction rate under court orders fell to 61% (resident parents) or 35% (non-resident parents). Unsurprisingly therefore, much of the consultation and recommendations were about ways of avoiding court proceedings including in particular mediation and better provision of information to separating parents. But for those cases that do go to court widespread concern was expressed by a number of groups, including the judiciary, that the court's powers to promote and enforce contact orders were too restricted.
Written by Criminal Law and Justice Weekly
Saturday, 06 December, 2008 11:24 hrs
Children Act 1989
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:
“if you do not comply with this contact order — (a) you may be committed to prison or fined; and/or (b) the court may make an order requiring you to undertake unpaid work ('an enforcement order' and/or an order that you pay financial compensation.”9
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
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)”
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
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:
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.
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:
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
Has been made for England.
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 Below (following Footnotes):
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).
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.
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)  2 FLR.
Robert Stevens, LLB, ADPTD, MA, Barrister.
Home | Analysis | Promoting Contact With The Child Part 2
Written by Criminal Law and Justice Weekly
Saturday, 27 December 2008 00:00
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),Applicants are limited to:
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.
(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
(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.
“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.
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)  1 FCR 59 is revoked.
Two statutory instruments have been made relating to financial assistance: SI 2008/2940 and SI 2008/2943.
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.
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