Changes to Child Contact Law – a positive step forward or more of the same?
Almost five years ago in a high profile Child Contact case, Justice Munby felt obliged to apologise to a father who had been forced to abandon his five year campaign for contact with his daughter because of the mother’s reluctance to make the child available. The hostility on the part of the mother, coupled with the toothless and inappropriate powers available to the Court, saw a parent effectively denied the chance to build a relationship with his own flesh and blood for no good reason.
In a direct plea to Parliament Justice Munby felt obliged to point out the failings of the system, adding that it was time to face up to these failings or risk forfeiting public confidence in the legal system.
It was around this time that Fathers 4 Justice was set up, and other organisations whose aim were to highlight the battle that non-resident parents have in overcoming the inadequacies of the law.
On December 8th 2008, part one of the Children and Adoption Act 2006 came into force giving the Courts more power to aid Child Contact and to enforce the 67,000 Child Contact Orders made annually. It remains to be seen whether the detail of the statute will see a practical improvement in an area of law which has in the past been open for justifiable criticism. With more non-resident parents wishing to have closer and more active relationships with their children it is vitally important that the practical results of the law are that more children spend quality time with both parents.
Prior to the 8th December 2008, the Courts’ enforcement powers where one party does not adhere to a Court Order providing for defined contact to the non-resident parent, had previously been limited to:
Committing the parent to prison or making a suspended Imprisonment Order.
Imposing a fine.
Transferring residence of the child.
This limited trio of powers in many cases did not achieve the result sought i.e. the reinstatement of contact. Committing a parent to prison was rarely if ever, to the benefit of the child or indeed a practical consideration at all, and imposing fines on parents with care on a limited budget is never consistent with promoting the welfare of the child. Transferring residence of the child to the care of the other parent was also rarely a practical option, given that the other parent did not always have the capacity to care for the child full time because of unavoidable work commitments.
Recent case law has seen the ludicrous situation of a court stating that “continuing efforts to persuade the mother to agree contact are having a disproportionately adverse effect upon the child………..and the court may find it necessary, however reluctantly, to stop trying to promote contact”. It is hoped that the new measures see the Courts come to more positive conclusions.
The new powers of the Court seem, on the surface, to provide more discretion and creativity in promoting contact between children and non resident parents.
The Court can make a free standing Contact Activity Direction, which means an Order that a particular activity is undertaken during the period of contact which promotes contact with the child concerned. Such a Court Direction can range from something as simple as a particular leisure activity, to something more tailored to the parent and child such as programmes designed to facilitate and encourage contact. A course of non-compulsory mediation can also be prescribed, as can parenting information group workshops. The discretionary test before the Court is that the child’s welfare is the paramount consideration in deciding on what activity would be beneficial.
Another power now available to the Court is ordering that a court welfare officer monitors whether there is compliance with the terms of the Order and to report to the Court accordingly. In practical terms such monitoring will take the form of telephone contact with all parties and may involve further meetings. This may put the parent with care on notice that the terms need to be adhered to, but it will not in itself guarantee that contact is maintained.
A further power of the Court is that a party who has not complied with the terms of an Order can be ordered to pay compensation to the other who has suffered financial loss through the non compliance. In practical terms this is likely to take the form of petrol and travel costs, and the loss of earnings incurred through attending contact sessions to which the child is not made available.
The new legislation also requires the Court to attach a Warning Notice to a Contact Order when it is first made, meaning that the Court can enforce the terms following the first breach of those terms. Prior to the 8th December last year the practice was to place a Penal Notice on the Contact Order only after the first breach.
The final power given to the Courts following the recent legislation is an Enforcement Order. The Order would include an unpaid work requirement in much the same way as a Community Order is imposed in the Criminal Courts following a conviction. The work requirement would be not less than 40 or not more than 200 hours to be completed within a 12 month period. This power is over and above any existing enforcement powers the Court has such as committal or fines. The Court can make such an Enforcement Order if satisfied beyond reasonable doubt that there has been non compliance. In practical terms, and ironically so, there may be occasions when such a sanction is not suitable because the non compliant parent struggles to find the time due to childcare commitments. It may offer however a good opportunity for a period of contact between the child and the non-resident parent.
There have been concerns voiced as to what these measures will mean in practice. Just how contact activities will either be funded or provided remains to be seen – the idea in principle is surely a creative one, but the reality may be different.
Another worry is that some parents will be criminalised by receiving an unpaid work requirement as part of an enforcement Order. This is not strictly the case as the offending parent will not receive a criminal record, but the perception will be otherwise, and may serve to crank up the tension between warring parents.
The new sanctions may also put undue stress on children who will come to understand that if they do not go and see Dad when arranged that Mum will be punished – this may put a whole new light on a child’s outlook, especially as they enter their teens and can, to a degree, decide for themselves.
If a mother has booked a holiday that has to be cancelled due to the father’s inability to see the children for a pre-arranged outing, then the relevant compensation claim could be extremely high. How can this be effectively enforced where means are limited?
As the statute starts to be interpreted by the Courts we will see whether these new measures serve their purpose, or whether the law remains inadequate. The hope is that a wider scope of tools available to the Court will see the ultimate goal reached – more children having meaningful contact with both parents on a more regular basis.
For further information please contact:
andrew.perryman@morrlaw.com or phone me on 01483 215359
