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Contact Disputes - The Children (Contact) and Adoption Bill and the President's Private Law Programme

Mike Hinchliffe, Deputy Legal Director of CAFCASS, looks at the Draft Children (Contact) and Adoption Bill and its impact on the management of contact cases

Contact Disputes - The Children (Contact) and Adoption Bill and the President's Private Law Programme

picture of mike hinchliffe

Mike Hinchliffe, Deputy Legal Director, CAFCASS

Introduction

The Children (Contact) and Adoption Bill is a short piece of draft legislation which divides neatly into two halves. I will not attempt in this article to cover the provisions relating to adoption at all.

I do want to look in connection with the provisions about contact at the present and possible future roles of CAFCASS and to try to reflect on the President's Private Law Programme ("President's Programme") introduced in January and the Family Resolutions Pilot Project ("Family Resolutions").

The Joint Parliamentary Committee on the Draft Children (Contact) and Adoption Bill ("the Committee") has just (12 April) published its report so it is convenient to see what is now likely to change following what the committee describe as a "brief but intensive enquiry". I have never known a time when issues in family law have been so publicly contentious. Let us examine the wider context for a moment.

Some figures
The vast majority of parents manage to resolve their differences in relation to the children without recourse to the courts. About a quarter of the 12 million children in the UK live with parents who have separated or never lived together. Only around 10% of parents apply to court to resolve contact issues yet this resulted in 40,000 applications to court in 2003-4, 7,000 of which resulted from alleged breaches of contact orders.

Contact orders: benefits and risks
The Committee has recommended (para 121) an amendment to the welfare checklist to ensure the courts have regard to the importance of sustaining a relationship between the children and the non resident parent. This would send out a clear message to the courts, parents and their legal advisers. But it is worth noting the social context. The Committee (at para 36) quotes research from the University of East Anglia demonstrating that in the cases of many of the families whose contact cases come before the family courts, there is poverty, domestic violence, quite commonly children protection concerns as well as dysfunctional relationships:

'The parents' ability to communicate with one another was limited and the relationships were characterised by a lack of trust, empathy, or flexibility, with high levels of anger.' (1)

CAFCASS welcomes the Committee's recommendation that before making an enforcement order for contact the courts should be required to consider the safety implications for each parent as well as for the child of making such an order, and should not make such orders unless it is safe to do so. In a 2004 study on domestic violence and contact (2), Women's Aid found evidence of domestic violence in 11 out of the 13 families where the children were killed due to contact arrangements. They draw attention to the dilemma of cases where children wish for contact with abusive or dangerous parents. They call for all family court professionals to assess risk carefully and be aware of the need to protect children as well as giving effect to their right to be heard.

Contact activity directions and contact activity conditions
Clause 1 inserts new provisions in s11 of the Children Act 1989. Of course s11 already empowers the court to impose conditions when making s8 orders. The existing law has not been as widely used as it might have been, given the breadth of s11(7):

"A section 8 order may (a) contain directions about how it is to be carried into effect;…..(b) impose conditions which must be complied with by any person (i) in whose favour the order is made; ….(iv) with whom the child is living"

New s11A will empower courts to impose "contact activity directions" when considering opposed applications to make, vary or discharge contact orders. New s11B introduces "contact activity conditions" which are to be available to the court whenever making a s8 contact order. The Committee wants these measures to be deployed before the court moves to consider measures of enforcement (para 84).

Contact Activities are defined as:

- attending information sessions
- taking part in programmes, classes, counselling or guidance sessions or other activities devised to assist in establishing maintaining or improving contact with a child.

It may take clients a while to grasp the difference between a contact activity direction and a contact activity condition. The former is designed to direct parents and other parties to appropriate resources and activities to help deal with contact disputes. The latter is designed to underpin the contact order itself. As such it is spelling out more explicitly what is already available under s11 of the Children Act. Contact activity directions are a more radical concept, to be seen in the context of the government's push to encourage more dispute resolution as an alternative to court proceedings. Let us look at this in more detail.

The President's Private Law Programme
The President provided this new guidance in January. It is a framework designed to lead to the roll out of local models (already happening in many areas) across all courts in England and Wales over the next year. The essential elements are:

(i) An early First Hearing Dispute Resolution Appointment in every case within four to six weeks of an application

(ii) CAFCASS dispute resolution at the outset

(iii) Judicial case management to identify the issues in dispute and timetable the cases

(iv) Judges being specific in what they ask CAFCASS reports to address

(v) Continuity of judges and CAFCASS officers

(vi) Where contact is ordered and does not take place, there must be urgent (within 10 working days) reviews by the allocated judge at the request of CAFCASS or any party

On 9 March 2005 the President and Anthony Douglas, Chief Executive of CAFCASS, issued a memorandum about the implementation of the President's Programme. They commended the work already done to establish similar schemes throughout England and Wales, and urged CAFCASS service managers, and the judiciary and court staff to work collaboratively to ensure there are schemes in place in all courts by March 2006.

The Family Resolutions Pilot Project
Family Resolutions is just one of the schemes for alternative dispute resolution. It is now running in Brighton, London and Sunderland. The result of the evaluation is expected in March 2006. In three stages, parents are invited through group work to discuss and learn about listening to their children, working on conflict management and planning post separation parenting. After the parent planning session the CAFCASS officer will write a one page report for the court. Some cases settle at this stage and others are referred on for full s7 reports. The general feeling in CAFCASS is a positive one. Numbers of cases coming into the pilot have been low but are increasing.

Enforcement orders
The Committee is concerned at the lack of linkage with existing enforcement provisions. The draughtsman may be forgiven since current remedies are scattered through RSC Ord 52 (High Court) and CCR Ord 29 (county courts)(See schedules 1 and 2 of the CPR). There are also provisions in part VII of the Family Proceedings Rules 1991. Work on the harmonisation of the FPR and the CPR is likely to come before the Family Procedure Rule Committee next year. There has been debate about the weight to be given to the child's welfare in applications to enforce contact orders, but clearly although relevant, the child's welfare cannot be paramount when for instance the liberty of the subject may be in issue. Essentially the concern is that existing remedies of imprisonment, fines and transfer of residence are insufficient. Turning to the new proposals:

(i) Time and Place requirement: The Committee wants (para 86) to see the proposed curfew orders replaced by a time and place requirement. This would simply empower the court to require a parent to be at a specified place at a specified time so as to permit or not frustrate contact. Tagging is rejected as a means of enforcing contact orders.

(ii) Unpaid work: there is clearly merit in a kind of community service order if it can address the action of the parent unreasonably blocking contact. The idea that it might include work with children will naturally provoke anxiety, but just because a resident parent is implacably hostile towards his or her former partner does not mean he or she would display similar attitudes towards other people's children. (para 96)

(iii) Monitoring contact: clause 2 of the Bill would introduce new s11F into the Children Act. This would give the court new power to give directions for the deployment of CAFCASS officers (or Welsh Family Proceedings Officers in Wales) to monitor and facilitate compliance with contact orders and report back to court. The Committee wants to see in respect of Family Assistance Orders the removal of the requirement for exceptional circumstances and consent of those to be named, as well as an extension of the time period from 6 to 12 months. There does not seem to be much difference between Family Assistance Orders and the new Monitoring Orders, especially if local authorities are taken out of the equation for FAOs; both orders can be used to provide assistance with the working out of contact orders.

(iv) Orders against non resident parents: The courts have already exposed the non resident parent whose lack of reliability or persistent undermining of the resident parent imperils their own relationship with the child (3). The Committee is now proposing (para 38) that resident parents should be allowed to apply to court where the non resident parent was failing to discharge their responsibilities to the child. It is immediately open to the objection that is it difficult if not impossible to compel a non-resident parent to attend for contact. But in itself the issue of enforceability should not be allowed to be determinative. In the right case the exposure of the non-resident parent might have the desired effect. In at least one case the courts have exposed a father who was a persistent contemnor by publicising the parties names (4). One also recalls the initiative a few years ago in the USA whereby parents who defaulted on child maintenance payments had their details published on an "offenders list". There might be an unexpected benefit in terms of children contact in exposing the family courts (and certain parents!) to more public scrutiny. The Department for Constitutional Affairs recently published a consultation paper about broadcasting courts.(5)

(v) Financial compensation: clause 4 would insert a new s11I into the Children Act. It would empower the court to order compensation for losses caused by breach of a contact order. The Committee want the onus to be on the court to ensure the debt is paid or if not that other measures are substituted for the compensation order.

CAFCASS – early work and post order work
At a CAFCASS National Conference on Contact on 14 April the Chief Executive Anthony Douglas spoke of the need for even more working across boundaries in the family justice system to ensure that the right support is in place for children whether provided by families, volunteers or professionals. Judges have paid tribute to the dedication of professionals, whether officers of CAFCASS, the National Youth Advocacy Service or other organisations (6). The Committee Report notes (para 72)

"the importance of ensuring that CAFCASS is appropriately resourced and organised to take on the new roles, including the facilitation and monitoring of contact, envisaged for it under the draft Bill."

There are lots of different local schemes ranging from in court conciliation where the CAFCASS officer sits with the district judge to referrals to external mediation. CAFCASS is now calling all the various forms of dispute resolution work its officers perform CAFCASS Dispute Resolution. It is encouraging that judges are already applying the President's Private Law Programme and ordering swift reviews where contact orders are not complied with, the ideal being to have the matter back in court on the Monday after failed weekend contact. That way, problems can be nipped in the bud.

But it is essential that the judiciary and CAFCASS work closely together to define the nature and extent particularly of post order support work given the inevitably limited resources available to CAFCASS. It is important for courts to signal clearly to parents when the point has been reached that the court has no further role to play (7). The Memorandum issued by the President and the CAFCASS Chief Executive. encourages judges to be clear about what they are asking for in CAFCASS reports, and for CAFCASS to file shorter s7 reports confined to the issues identified by the court unless more serious issues arise. The ability of CAFCASS to deliver under the President's Programme depends also on its ability to manage the frontloading of its input to cases through a shift of emphasis from report writing to dispute resolution. But this will be a real challenge particularly until the large number of current requests for reports has been disposed of.

Delay
I firmly believe improvements in practice and especially case management are as important as any of the statutory reforms. Although Dame Elizabeth Butler-Sloss, the former President, made it clear that the President's Programme is not the equivalent of the Public Law Protocol, it is a highly significant initiative designed to front load cases and reduce delay. Regional roll out must happen quickly, underpinned by more proactive interdisciplinary activity driven by the local committees of the Family Justice Council.

The merging of the Magistrates Courts Service and the Court Service on 1 April 2005 should lead to quicker transfer of cases and more efficient use of judicial resources. But there have been in private law children cases a depressingly high number of judicial expressions of concern about delay. I would like to cite Hansen v Turkey (8) for two reasons. It is a case about enforcing a contact order and an example of delay. It is also a case about breach of human rights, namely article 8 right to family life and also article 6 right to a fair hearing within a reasonable time. The applicant mother achieved a pyrrhic victory in the European court. It was held that Turkey, as a state, had taken insufficient measures to ensure contact took place between her and the children. By the time of the decision the children had already attained their majorities. Although Hansen is an instance of really very extreme delay and consequently the complete loss of contact for children and the non-resident parent, some English reported decisions have revealed situations almost as bad.

Are things going to get better?
Family law is, as we all know, constantly having to adapt to changing social circumstances and other developments. The Children Act as amended ought to be good for another ten to fifteen years. So the challenge is to get a network of local schemes established that will reduce parental conflict and speed up the resolution of particularly contact disputes to enable children and their significant adults to get on with their lives. Let us hope this package of reforms really will effect a shift away from the courts (and lawyers!)

Listen to the child
I wanted to end with something about contact itself, and the best thing is to let a child say it. Ellie is 20 and is describing arriving at university:

"It was the nicest thing. Like for once I had everything in one room, like all my clothes in one room. I was settled for the first time in, like, 10 years, I actually felt settled. I actually felt like I was just settled, do you know what I mean?….Not living out of a bag. I lived out of bags for 10 years. I've never, I just used to. I lived out of four carrier bags, do you know what I mean?….I would not want to put any kid of mine through what I've been through." (9)

Notes

1 - A profile of Applicants and Respondents in Contact Cases in Essex, Liz Trinder et al, University of East Anglia, DCA Research Series 1/05, January 2005

2 - Twenty-nine Child Homicides: Lessons still to be learnt on domestic violence and child protection: Hilary Saunders: Women's Aid 2004

3 - Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam): Wall J

4 - Harris v Harris; Attorney General v Harris [2001] 2 FLR 895; Munby J at para 388

5 - Broadcasting Courts: Consultation Paper CP 28/04: November 2004: www.dca.gov.uk

6 - A v A (Shared Residence) [2004] EWHC 142 (Fam): Wall J at paras 131-133

7 - A v A (above) at paras 127-130

8 - [2004] 1 FLR 142

9 - Drifting towards shared residence: Neale, Flowerdew and Smart: December [2003] Fam Law 904.