Enforcing contact to benefit children, not punish the parents

first_imgDo not think that the amendments to the Children Act (CA) relating to contact orders made by the Children and Adoption Act 2006 (the 2006 act), with effect from 8 December 2008, are about punishing parents for failing to comply with contact orders. Rather, the reforms are to ensure that contact orders are performed by all concerned for the benefit of children. The 2006 act has amended section 11 of the CA by adding sections 11A to 11P, enabling the courts particularly to make contact activity directions (CADs) and/or conditions (CACs). Section 11A CADs are ordered when the court is considering making a contact order. But, section 11B: the court may not make a CAD when it is also considering an adoption order or, where post-adoption, the court is considering making, varying or discharging a contact order relating to someone who, but for the adoption, would have been the child’s relative, unless the adoption is or was by a partner of one of the child’s parents alone, or as one of a couple – an ‘excepted order’. Section 11A(5) CADs include programmes, classes and counselling or guidance sessions to assist in establishing, maintaining or improving contact, for example programmes addressing violent behaviour. They do not include referrals to mediation, but could include referral to an information meeting about mediation. Before making a CAD or CAC, the court must be satisfied that:The court cannot make a CAD:unless it is considering making a contact order;directing a child, unless that child is the parent of the subject child; unless the person directed is a habitual resident of England and Wales.Section 11C CACs are ordered at the same time as a contact order. it is satisfied that the party in breach had a reasonable excuse for the breach (section 11J(3)). The burden of proof is on the person claiming the reasonable excuse and to the civil standard; the person to be subject to it is under 18 years of age; the contact order is an excepted order; the person who is to be the subject of the order is not habitually resident in England and Wales. The 2006 act amends the Criminal Justice Act 2003 so that that act applies to enforcement orders. Thus, the maximum hours of unpaid work which can be ordered under the 2006 act is 200, and the Cafcass officer can instruct the probation officer (‘the reporting officer’) to inform him if there are breaches of the enforcement order, or any other relevant information. Section 11M: on making an enforcement order, the court must ask Cafcass to monitor compliance and to report to the court on such matters that the court may request. Section 11N: on making an enforcement order, the court must attach a warning notice warning of the consequences of failing to comply with the order, that is: contempt of court; an amended, more onerous enforcement order; or a second enforcement order. The reporting officer must warn a party in breach of an enforcement order without reasonable excuse. He may also report first-time breaches to Cafcass. If the breach is not the first within the previous 12 months, he must report it to Cafcass. If the enforcement order is breached, the case may only come back to court on the application of one of the other parties. If in the substantive proceedings the child was represented by a rule 9.5 guardian, the guardian is not automatically served with such an application. However, an application for a fresh 9.5 appointment may be made to the court. Section 110 enables a party who has suffered financial loss as a result of a breach of contact order to apply for an order that the party in breach pays financial compensation. Enforcement of financial compensation orders is through usual county court procedures. However, section 11P states that there can be no compensation order: The new powers are welcome and laudable. However, they involve substantial participation from Cafcass. In many parts of the country, Cafcass is not yet able to participate in the way parliament envisaged. Will it ever be? the activity is appropriate in the circumstances; the activity provider is suitable; the activity is at a place to which the person ordered can reasonably travel. Section 11I requires the court to attach to a contact order a notice warning of the consequences of breaching the order. Both the person making the children available and the person having contact should be served with the contact order with a warning notice. It is essential that a contact order is drawn in clear terms, so that the parties are in no doubt how to comply with it and will be aware if they are in breach of it. Moreover, the order should be in injunctive terms to all parties. From 8 December 2008, a party can apply to the court for a warning notice to be attached to an order made before (see sections 11(5)(a)-(d)). Of course, if appropriate, the court can discharge an old contact order and reproduce it with a new one, with a warning attached. Section 11J enforcement orders: an order made in response to a breach of a contact order requiring the party in breach to perform unpaid work. Section 11K: the court must be satisfied: of the alleged breach to the criminal standard; that the enforcement order will secure the parties’ compliance with the contact order; and the likely effect of the enforcement order on him/her is proportionate to the seriousness of the breach. that the activity is local to the party and does not have an adverse effect on the attendee (such as exposing a party to domestic violence); the activity does not cause any conflict with religious beliefs or interfere with work or education commitments. The court must not make an enforcement order if: Section 11E: the court must ensure:The court may ask Cafcass: to provide information it needs to satisfy statutory requirements (section 11E(7));to monitor compliance with a CAD or CAC and to report to the court on any failure to comply (section 11G);to monitor compliance by an individual with a contact order, unless it is an excepted order (section 11H), for a specified period not exceeding 12 months. The court may order the individual to help Cafcass to comply with the monitoring order unless the individual is a child who is the parent of a subject child.Sections 11K(1) and 11P(1): contact orders are not enforceable unless the person in breach received or was otherwise informed of the terms of a warning notice when the contact order was made. where the relevant contact order has not been properly served; if it relates to failure by anyone under 18; if it relates to an accepted order. District Judge Duncan Adam sits at Swindon County Courtlast_img

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