On 8 December 2008, the Children and Adoption Act 2006 (Commencement No 3) Order 2008 came into force.

It contains various provisions intended to give the courts new powers to promote contact and enforce contact orders made under section 8 of the Children Act 1989. It is likely that Superman, Spiderman, Batman and Robin, who have hung perilously from tall buildings during the preceding decade, will applaud the implementation of this provision.

Some family lawyers and judges are sceptical about whether the provision of stiffer sanctions against parents who do not abide by contact orders will be truly effective in ensuring that the relationship between a child and a non-residential parent endures. Only time will tell how successful the policy proves to be, but the government should be applauded for taking a step that hopefully will make a recalcitrant residential parent think twice before adopting an implacably hostile attitude.

The underlying aim of the new legislation is to encourage compliance with contact orders and to enforce those orders where there is no voluntary compliance. To achieve these ends the act has added two important new concepts to the powers of the court – a contact activities direction or condition, and an enforcement order. The primary aim of these provisions is to encourage and educate parents in order to facilitate contact rather than to penalise parents for non-compliance. Nonetheless the enforcement order provisions provide an extra incentive for parties to comply with contact orders rather than to face sanctions which go beyond merely altering the terms of a contact order.

The main provisions are as follows, while references to statutory provisions are to the Children Act 1989 as amended.

Family proceedingsThe main body of changes relate to part 1 of the 2006 act: orders with respect to children in family proceedings.

A court now has power to direct a party to take part in an activity which may promote contact. In the event that the court does not make a contact order at a hearing, it may still make a contact activity direction. If a contact order is made, the court is empowered to make participation in such an activity a condition of contact.

What an appropriate contact activity might be is not comprehensively defined by the statute. The basic requirement is simply that it should require the person who is the subject of the direction or condition ‘to take part in an activity that promotes contact with the child concerned’. The legislation does, however, provide some guidance on the sort of activities that could be required under such a direction or condition. These can include programmes, classes and counselling or guidance sessions that may assist with establishing, maintaining or improving contact with a child. Other possible activities are programmes designed to address a person’s violent behaviour in order to facilitate contact, and information sessions about arrangements for contact, including sessions on mediation. It is important to note, however, that section 11a(6) prevents a contact activity direction being used to require mediation or medical or psychiatric treatment.

Contact activity directions and conditions apply not to the child but to the individual who is the subject of the direction or condition. Such an order cannot be directed to a child unless the individual is the parent of the child concerned in the application.

Section 11b of the 1989 act provides that a contact activity direction may only be made where there is a dispute concerning the provision about contact that the court is considering making in the proceedings.

The court cannot order an individual to take part in an activity, whether under a direction or condition, unless that individual is habitually resident in England and Wales. If an individual who is subject to a contact activity direction or order ceases to be habitually resident in England and Wales, the contact activity order will cease to have effect.

The court has no power to make a direction in circumstances where an adoption order is being considered at the same time as a contact order, or in cases where, post-adoption, a court is considering, varying or discharging a contact order in relation to someone who, but for the adoption, would have been a relative of the child.

Other considerationsUnder section 11E of the 1989 act the court must ensure, before it makes a contact activity direction or condition, that the activity is appropriate in the circumstances of the case; that the provider of the activity concerned is suitable to provide it; and that the activity is available in a place which it is reasonable to expect the person in question to travel.

The court is also required to consider the likely effect of the contact activity and the person who would be required to undertake it. The court must take into account, in particular, any conflict with that person’s religious beliefs and the time when he or she works or attends an educational establishment. The court may ask a Children and Family Court Advisory Support Service (CAFCASS) officer or Welsh Family Proceedings officer to provide information on these matters of suitability. A court may also ask a CAFCASS officer to monitor compliance with contact activity directions or conditions and to report to the court if there is a failure to comply.

The utility of the contact activity provisions is enhanced by the fact that the court, in making such an order, must specify the activity and the person providing the activity. This is a potentially vital provision to a vulnerable or inarticulate party who might find difficulty in accessing suitable resources without the very specific assistance of the court. So often in the past courts, when reaching conclusions on contact applications, have identified problems that an individual needs to address if contact is to move forward, but the court has shrugged its shoulders when it has come to identifying not only the specific help required to address the problem, but also a resource which is actually available to the party. The simple refrain ‘go and speak to your GP about this’ has been repeated with depressing frequency by the courts. The consequence has been that, in some cases, parents have simply not had sufficient focus and direction to enable them to obtain help which could enable, in time, both parent and child to enjoy good quality contact. It is to be hoped that an actively interested and vigorous judicial application of the contact activity provisions might mark the beginning of the end for such cases.

Part 1 also includes provision to reform the court’s existing power to make family assistance orders and imposes a duty on CAFCASS and Welsh family proceedings officers to carry out risk assessments where they suspect a child is at risk of harm.

The court’s powers in cases involving a breach of a contact order are increased by adding:(a) a power to make an enforcement order imposing an unpaid work requirement; and/or(b) a power to order one person to pay compensation to another for a financial loss caused by a breach.

These powers are in addition to the court’s powers as to contempt and the court’s ability to alter the residence and contact arrangements concerning a child or children.

Section 3 of the Children and Adoption Act 2006 inserts a new section 11I into the 1989 act, which provides that, whenever a court makes or varies a contact order, it must attach a notice warning of the consequences of failing to comply with a contact order. These consequences may be an enforcement order, an order for compensation, or use of the court’s existing sanctions for contempt.

Section 4 of the 2006 act inserts a provision into the 1989 act for a court to make an enforcement order (sections 11J-11N of the 1989 act). An enforcement order imposes an unpaid work requirement on the person who has breached a contact order. The court must be satisfied beyond reasonable doubt that the person was in breach of the contact order. A breach of a contact activity condition, or of a condition attached to a contact order under section 11(7) of the 1989 act, constitutes a breach of a contact order. The court may not make an enforcement order if it is satisfied that the person in breach of the contact order had a reasonable excuse for breaching the order. The burden of proving that there was reasonable excuse for breach falls upon the person who claims to have had reasonable excuse, and the standard of proof is the balance of probabilities.

Section 11K of the 1989 act provides that a court may not make an enforcement order against a person unless the person has received a copy of a notice under section 11I of the 1989 act, or has been otherwise informed of its terms. It also provides that an enforcement order cannot be made against anyone under the age of 18 at the time of the breach in question, or in relation to a breach of an ‘accepted order’.

Sections 11O and 11P of the 1989 act, inserted by section 5 of the 2006 act, allow the court to require a person who has caused financial loss to another person as a result of breaching a contact order to pay compensation up to the amount of the loss. The court must take into account the welfare of any child concerned, and the financial circumstances of the person in breach, when making such an order.

CAFCASS will provide important assistance. The concept of the unpaid work scheme is not new to the judicial system – within the criminal sector it is well established. It remains to be seen how well the scheme can be adopted in the family arena. The unpaid work schemes will be organised and managed by the National Probation Service, although it will be the responsibility of CAFCASS to monitor compliance. Undoubtedly these new provisions will place significant potential burdens on CAFCASS in particular, and the resources of CAFCASS are already overstretched and finite. It may be that this potential remedy for breach of section 8 contact orders will be little used by the judiciary, as the judges will be mindful of the burgeoning work pressure already placed on the excellent but exhausted CAFCASS service.

Will the implementation of these new provisions be sufficient to bring Superman and his cohorts down from the dizzy heights? Let us hope so.

Gillian Rivers, Collyer Bristow, London