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Contact order rules may strain family justice

30 June 2006

Although the Children and Adoption Act 2006 increases courts’ power to ensure effective compliance with contact orders, it remains to be seen whether it will lead to any improvement, a family lawyer has cautioned.

The premise of the original Children Act in 1989 was to manage contact wherever possible, but it left the courts powerless when dealing with intractable hostility cases. “The courts’ only enforcement powers were prison orders, which are quite drastic measures,” said Vanessa Priddis, head of the family law department at Foot Anstey. “The 2006 Act will give the courts more leverage in terms of enforcement by allowing them to issue contact activity directions to assist with effective implementation of contact orders.”

Such contact activity directions may include sending the parents to parenting classes and counselling sessions. Section 11F further provides that the Secretary of State can authorise payments to meet the costs of these activities – but the Act fails to provide for a funding mechanism.

The introduction of financial assistance represents a new departure in the Act, which even provides for compensation in certain circumstances. “Typically,” said Priddis, “the parent who was granted a contact order would organise a holiday in the sun with the child, but at the last minute the resident parent would refuse to hand over the passport; the holiday will have to be cancelled and the first parent might lose the deposit or even the whole amount if paid out in full. Now the new provisions will allow the courts to order compensation.” Again, however, no details are given in the Act as to how this will be funded.

For all the good intentions behind the Act, Priddis has yet to be convinced that it will deliver in practice. “Parents who prevent contact from happening – usually the resident parent (those who are granted contact orders want them to work, so they would rarely do anything that endangers their positions) – can be ordered to do unpaid work. But the Act doesn’t say who should monitor the order or what type of work is being considered.”

The Children and Family Court Advisory and Support Service (CAFCASS) will be responsible for many of the new monitoring provisions, including risk assessment, which raises further concerns. The organisation is already over-stretched, short of cash and staff, and has little experience of private law proceedings.

Until these issues are resolved, it is likely that there will be many hiccups. As with the introduction of all new rules, the contact provisions in the Children and Adoption Act 2006 will present new opportunities for legal challenges.

“A lot of people involved in these cases are represented through legal aid, so this will put further pressure on the system,” said Priddis. And as the government is unlikely to provide further resources, the result could be that justice is hampered rather than improved.

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