Friend or foe?

The Children and Adoption Act 2006 (the Act) entered the statue book nearly a year ago but is yet to come into force. So it was with mounting interest that practitioners noted the recent announcement that a commencement order had finally been made. Along with the order came the intriguing mental picture of implacably hostile mothers undertaking community service and of absent fathers suing resident mothers for money compensation in respect of broken contact arrangements.

On closer inspection, however, it turned out that the commencement order applied to only s 9 of the Act '“ a section relating to adoption and only to Scotland. Nevertheless, the false alarm gave pause to the thought that this quite limited and short piece of legislation may yet cause more controversy and satellite litigation than the legislative draftsman intended. And apart from that, when will it come into force so far as the principal provisions are concerned?

What is the purpose of the Act?

In short, the Act is in two parts:

1) The first half contains provisions intended to enhance the powers of the courts when dealing with cases involving contact; and

2) The second half of the Act principally deals with inter-country adoptions and contains provisions for the Secretary of State to suspend adoptions from a country in respect of which there are concerns about the adoption practices.

The second part of the Act will be of interest to adoption specialists but is not the subject of this article. (See Simon Musharrif, 'Foreign Adoptions', (2002) 146 SJ 886 15.09.06) In any event (at least to the non-specialist eye) the provisions appear uncontroversial and administrative.

The first part of the Act, dealing with powers of enforcement in relation to contact are much more controversial and of interest to all family practitioners. The Act received Royal Assent on 21 June 2006 and was intended to implement a number of the recommendations in the Green Paper Parental separation: children's needs and parents' responsibilities (CM 6273), July 2004.

What does the Act do in relation to contact?

At present, if the terms of a contact order are breached, the courts have only limited options. The court may hold the person breaching the order in contempt of court (or, in the case of a magistrates court, may use the powers in s 63 of the Magistrates Courts Act 1980) resulting in a fine or imprisonment, neither of which is likely to be in the best interests of the child. If appropriate the court may alter the residence or contact arrangements regarding the child (although the authorities show that this will only be done as a last resort and often it is not done at all). The purpose of the Act is to offer the court a wider range of powers including:

• the power to direct parties prior to final order in a contact case to attend information meetings, meetings with a counsellor, or parenting programmes/classes and other activities designed to deal with contact disputes. Such activities may include anger management programmes and/or information sessions about mediation. However, the new s 11(A)(6) to be inserted into the Children Act 1989 specifically provides that a contact activity direction cannot be used to require mediation or medical or psychiatric treatment; and
• power to attach conditions to contact orders which may require attendance at such a meeting, class, or programme.

The intention of the Act is to help minimise the development of intractable cases by providing additional support to parents (as per the consultation paper Separate Representation of Children). Some of the Act's provisions may not, however, feel very supportive to some parents.

Section 11(b) to be inserted into the 1989 Act provides that a contact activity direction may only be made where there is some dispute about the contact arrangements that the court is considering imposing and further provides that the court cannot order a child to take part in an activity unless that child is the parent of the child concerned (i.e., the parent is under 18). The court cannot order an individual to take part in an activity unless they are habitually resident in England and Wales for obvious reasons.

Section 11(e) provides that before making a contact activity direction or imposing a contact activity condition to a contact order the court must be satisfied as to a number of matters including that the person proposed to be specified as the provider of the activity is suitable to provide the activity. One can foresee that a parent who does not wish to be forced into parenting classes or other similar arrangements (e.g., anger management classes) will spend time attacking the proprietary of the body providing the relevant service. At the moment it is contemplated that classes will be provided by Relate and the Parent Education and Support Forum. Relate has significant budgetary constraints and might well be an easy target for an argument that it was not providing the service needed. Alternatively some individuals might argue that certain bodies were inappropriate because of the special problems arising within their family (e.g., that they were members of an ethnic minority and needed counsellors from the same background, etc.). Because of the high number of litigants in person in this field and the wealth of information available on the internet any institution which does volunteer to provide activities is likely to find itself the subject of scrutiny by prospective recipients of a contact activity direction/condition. This may well deter some institutions from having their services placed under the microscope particularly if family proceedings are to become more open and easily reported.

In the meantime it will be interesting to see which other bodies may volunteer themselves for running programmes in such an individual and sensitive area. It seems likely that members of some ethnic minorities may wish to have activities provided by their own community and in some cases judges may find themselves trying to decide between competing institutions. Parents who are unable to agree whether a child should be returned at 6.00pm or 7.00pm are perhaps even less likely to agree which of a number of providers would suit their case best.

Contact activity directions and conditions: preconditions

Not only must the court consider before making a contact activity direction or condition whether the provider of the activity is suitable but also:

• whether the activity proposed is appropriate in the circumstances;
• whether the activity is at a reasonably convenient location; and
• the effect on the person who is likely to be required to undertake the activity of the direction/condition upon him including consideration of any conflict with the individual's religious beliefs or interference with his work or study.

In common with a number of sections which appear later in the Act, CAFCASS can be asked by the court to provide this information. One of the aims behind the Act is to redirect resources (i.e., CAFCASS) away from the court process to other non-judicial (and impliedly more effective) intervention. However this provision and the others referred to later in this article require CAFCASS to acquire a number of extra duties under the terms of the Act without necessarily having any additional funding.

Contact activity directions and conditions: financial assistance

Section 11(f) to be inserted in the 1989 Act enables the Secretary of State (or the National Assembly for Wales) to make payments to assist some of those required to undertake contact activities in paying the charges or fees of those providing the activities. Regulations may provide (and seem likely to) that the activity provider must have been approved by the Secretary of State in order for financial assistance to be provided in respect of that provider's activities.

In other words it appears that there will be means testing for financial assistance. Some parents who are deemed to be financially able will find that not only are they required to attend an activity but also to pay for the privilege. One can imagine that an angry father who does not accept that he has an anger problem might, when he learns that he not only has to attend an anger management course but also pay for it, need a few extra sessions!

Contact activity directions and conditions: monitoring

On the making of a contact activity direction/condition, the court can ask CAFCASS to monitor the individual's compliance with the direction/condition and to report to the court on any failure in compliance. The feeling that 'Big Brother' is not only directing how the individual should behave, but also watching carefully, increases.

Monitoring contact

In addition, in any case where the court makes a contact order or varies a contact order, CAFCASS can be asked to monitor compliance with the contact order and to report on that compliance. Once again this is an effort to use CAFCASS's resources in a more long-term and less court-focused way. As practitioners will know, however, disputes about what is happening at contact are extremely time-consuming to investigate and a huge amount of CAFCASS's resources could be eaten up in trying to report to the court on petty disputes between warring parents.

The monitoring period may not exceed 12 months and is separate from the monitoring of contact activity directions/conditions. Potentially the monitoring of contact could be ordered in any s 8 contact case regardless of whether or not a contact activity was deemed necessary.

Contact orders: warning notices

On the making or variation of any contact order the court is to attach a notice warning of the consequences of failing to comply with a contact order. As with much else in this Act, this provision has clearly been driven by the high-profile success of the campaigns of Families Need Fathers and others in drawing attention to the plight of absent parents (mainly fathers) who are unable to see their children due to the hostility of the resident parent.

To date practitioners have taken the view that you cannot force a reluctant absent parent to have contact. One question that arises is whether this Act changes that balance. It is careful in its drafting at various points to make it clear that the individuals to be monitored by CAFCASS includes those named in a contact order who are required to allow contact as well as those named as having contact with the child concerned. This suggests that penalties may arise for absent parents (typically fathers) who fail to show up for contact. If right, a rather different approach will arise in proceedings under the Children Act 1989.

Enforcement orders

As mentioned above, the Act introduces two new enforcement methods both of which are likely to have a significant impact and effect on those in breach of contact orders. The court has the power to impose either an unpaid paid work requirement (i.e., community service through the scheme operated by the National Offender Management Service) or the court can order compensation for financial loss. Enforcement by either method can be sought, once the Act is in force, in respect of any s 8 contact order including those already existing subject only to ensuring that the person in default has seen a warning notice (and the Act contains provisions for the attaching of warning notices to old orders).

Somewhat bizarrely, enforcement by either unpaid work or compensation can be made on the application of either parent or anyone subject to an activity condition or the child concerned. It is difficult to see circumstances in which it would be appropriate for a child to apply (albeit leave is required) for an order against one of his or her parents requiring them to undertake unpaid work or pay compensation to the other parent. Quite why the child concerned is included amongst the list of potential applicants remains a mystery.

Bearing in mind that most children will be eligible for free public funding of litigation there must be some possibility of a very embittered parent cajoling/encouraging a child to take action against the other parent.

Before either type of enforcement order is made the court needs to be satisfied that there is no reasonable excuse for failing to comply with the contact order and the court needs to be satisfied that a warning notice was properly served and seen. Finally the person against whom an enforcement order is to be made needs to be habitually resident in England and Wales.

Paragraphs 2 and 3 of schedule A1 to the 1989 Act modify chapter 4 of part 12 of the Criminal Justice Act 2003 to include, amongst other things, a specification that the maximum number of hours of unpaid work that may be required is limited to 200 rather than 300 which is the maximum that may be required by a criminal court.

So far as a financial compensation order is concerned, the amount ordered must not exceed the amount lost and any order will be subject to the means of the errant parent to pay. This power may be effective in helping to prevent a number of the abortive holidays and other trips which occur as a result of one parent failing to comply with a contact order. However an over-arching duty to ensure that any orders made are in the best interests of the child may mean that some deserving parents will not receive the compensation which they ought from the errant parent.

In determining the amount of compensation payable, the court must take into account the individual's financial circumstances. It would appear the court will conduct an inquisitorial investigation (rather like an oral examination). This power could be abused by a resident parent if he/she were wondering if the absent parent:

1) Can afford more maintenance under a court order; or

2) is misleading the CSA.

For such a resident parent, the temptation to have a swift and (relatively compared with Form E, etc.) cheap assessment of means by a judge on adjudication of a compensation application might be considerable if undesirable.

Family assistance orders

Although not in the original draft Bill, an important amendment was introduced to the Act so as to enable family assistance orders (in respect of which see s 16 of the 1989 Act) to be used more often and for a longer duration. Section 16 is amended to remove the requirement that the circumstances of the case be exceptional before an order is made and to increase the maximum duration of an order from six to 12 months. Once again a duty will be placed on CAFCASS to undertake risk assessments and to monitor by way of family assistance orders on an ongoing basis. The purpose will be to encourage CAFCASS officers to focus more on problem-solving roles and on easing the contact process rather than purely on providing one-off reports for the court. Such an involvement on the part of CAFCASS will, however, be extremely time-consuming and unless their resources are increased, the officers will be hugely stretched. A fortiori this will be the case during the early stages of the Act coming into force when CAFCASS will not only be carrying a full workload of traditional reports to undertake but will also be shouldering an expanded role so far as family assistance orders, monitoring, and assessment of activities is concerned under the Act.

When will the Act come into force?

The Act has serious funding implications. The government believes that the cost of providing activities will be less than the cost of the litigation which would take place but for the activities. However, this conclusion is questionable. It is based on a course of parenting classes, for instance, being of four hours' duration. That seems a remarkably short period for an unhappy (let alone a dysfunctional) parent to learn how to parent better and/or resolve a contact dispute. One suspects that the cost of approving activity providers (particularly remembering that some additional providers may be keen to be involved in addition to Relate and the Parent Education and Support Forum) will be more than expected. Although there will be savings in litigation costs there may well be expensive interlocutory litigation about which provider should prevail and abortive litigation for leave for a child to pursue a parent or one parent to pursue the other. In a case where one party is publicly funded and the other is a litigant in person one could see embittered parents wasting a lot of court time trying to get the other parent involved in an activity which the respondent parent believed to be totally inappropriate or, worse, seeking an unpaid work or compensation order.

The Act entered the statute book nearly a year ago. Why the delay in commencement? Possibly these funding difficulties may be causing the delay in commencement or there may be other reasons. The DCA expects the Act to be brought into force in October 2007 but the state of readiness regarding activity providers seems uncertain and there may be a lot of work to be done between now and commencement.

Although it appears it will be about five months until the Act is brought into force, in appropriate cases, practitioners will want to warn clients who are the subject of existing contact orders of the new powers of enforcement that will soon apply to them.

Whilst parenting programmes and anger management courses (which appear to be the principal recommendations of the Green Paper and the Children Act sub-committee's report Making contact work) are known to be excellent, it is a significant step from self-referral to compulsory attendance at such courses. The Act has been careful to avoid compulsory mediation in contact disputes, but there is no such sensibility in relation to attendance at activities.

The aims of the Act are laudable, but its detractors are likely to be highly critical of the 'nanny state' approach. Such interference on the part of the state with parental behaviour and child-rearing is quite extreme and arguably more invasive than in many other areas of the law. This curtailment of individual freedom is, from the legislature's point of view, no doubt justified by child protection/welfare concerns and some judges and practitioners would probably say from long experience that there are a substantial number of parents who simply do not know what is best for their children and the Act's draconian powers are needed to provide a better future.

Innovative legislation

Despite the concerns and criticisms set out earlier in this article the Act is an extremely imaginative and innovative piece of legislation. Its closest relatives lie in the field of criminal law and it takes a very different approach to other family legislation.

The Act has the potential to be a ground-breaking piece of legislation/social engineering in an area where traditional legislation has failed. However, to serve our children properly, implementation of the Act will need to be well resourced. Proper resources and thorough, well-taught activities are likely to be expensive. For the sake of the next generation let us hope that the funds will be there.