The Children and Adoption Act 2006 is designed to minimise conflict and encourage mediation between warring parents. Miranda Fisher assesses its provisions


Every year 150,000 to 200,000 parental couples separate; there are around 3 million children in England and Wales who have been affected by their parents' marital breakup.



Arrangements for residence (where the child lives most of the time) and contact (the amount of time the child spends with the non-resident parent) are generally agreed, but disputes between around 10% of separating parents end up in court, particularly in relation to contact.

The current legal position is that the child's welfare is paramount and this will usually be best secured through a continuing meaningful relationship with both parents, as long as it is safe. Where agreement cannot be reached to secure the child's relationship with the non-resident parent, the courts will make orders for contact.





Historically, contact proceedings have suffered from delay, lack of judicial continuity and the characteristic judicial response when difficulties emerge of reducing the level of contact and replacing unsupervised with supervised contact.



Applicants for contact orders, usually fathers, have been frustrated and disappointed by the court system, resulting in highly publicised campaigns by campaigning groups. Pro-active case management and judicial guidance for early finding-of-fact hearings have assisted but the real difficulties of enforcement and making contact work in the long term remain, particularly where one parent is implacably hostile to contact.



The court's enforcement powers have previously been limited to:



l Committing a parent to prison or making a suspended imprisonment order that may well not achieve the reinstatement of contact;



l Imposing a fine that may deprive a parent on a limited budget and be inconsistent with the welfare of the child;



l Transferring residence that is not necessarily available because the other parent may not have capacity to care for the child full time or may not know the child;



l Giving up, which is the worst option and results in the public blaming judges for failing to deal with defaulting parents.

The new provisions for enforcing contact orders in the Children and Adoption Act 2006, which received royal assent on 21 June 2006, are designed to remedy this problem and add to the existing powers of committal, fine or transfer of residence. The timescale for commencement and implementation will be notified.

The Act assists in the implementation of the July 2004 Green Paper, 'Parental Separation: Children's Needs and Parents' Responsibilities' and the following report 'Next Steps' (see www.dfes.gov.uk/ childrensneeds), which made proposals for:



l Minimising conflict and supporting good outcomes for children and their parents, preferably without recourse to the courts;



l Improving access for parents to services that will enable them to reach agreements; and



l Improving legal processes and service delivery for the 10% of parents who go to court.

'Next Steps' emphasised the importance of conciliation and mediation and the need for the new enforcement powers for the courts in the 2006 Act, which inserts new sections to, or amends, the Children Act 1989, including:



l Contact activity directions and conditions - sections 11A to 11G of the 1989 Act. The court can direct a parent to take part in an activity that would promote contact with a child or make it a condition of granting a contact order that the parent undertakes such an activity. Contact activities include programmes, classes and counselling or guidance sessions that assist a parent to establish, maintain or improve contact or address a parent's violent behaviour to enable contact, or advise a parent on making or operating arrangements for contact. Contact activities can also include mediation information sessions but not obligatory mediation.



l Enforcement orders - sections 11J to 11N and schedule A1. Where it is satisfied beyond reasonable doubt that a contact order or a condition attached to a contact order (including failing to attend an activity that is a condition of contact) has been breached, the court can punish a parent with an unpaid work requirement. Probation officers will determine the type of work to be undertaken through the community service scheme operated by the National Offender Management Service, taking into account details of the breach of the order and the personal circumstances of the parent. Enforcement orders will not be made where a parent has reasonable excuse for any breach and the court must be satisfied that the imposition of such measures are necessary and proportionate to secure future compliance with the order. Plans for electronic monitoring ('tagging') or curfews on parents were abandoned as inappropriate purely as punishment. Instead, a 'time and place requirement' as a condition of a contact order will, if breached by a parent who fails to turn up for contact on time, be punishable by an enforcement order.



l Compensation for financial loss - sections 11O to 11P. One parent can be ordered to pay the other compensation for financial loss caused by the breach of an order. Potential applications familiar to many family law practitioners will be for the cost of a holiday or pre-arranged outing where one parent refuses to allow the children to go at the last moment, without reasonable excuse. However, it may prove difficult to make financial compensation orders against resident parents with little, if any, income to spare beyond meeting basic needs as such measures may well be incompatible with the welfare of the children concerned.



l Monitoring contact - section 11H. Children and Family Court Advisory and Support Service (CAFCASS) officers can monitor one or both parents' compliance with contact orders, activities and enforcement orders for up to one year, without the parents' consent. Written reports by CAFCASS officers will reduce to enable them to focus more on new problem-solving roles and involvement in the facilitation of contact, for example, preparing parents and children for contact and actually being present to make sure the handover for contact takes place.



l Family assistance orders (FAOs) - amendment to section 16. These orders can be made for a period of up to one year (previously six months only) and require a CAFCASS officer or social worker to advise, assist and befriend a parent in encouraging and/or maintaining contact. FAOs will no longer be made 'only in exceptional circumstances' and are likely to become more common. They will only be used with the consent of the parent named in the FAO as there would be little point in attempting to advise, assist or befriend a parent against that person's will.



The provisions in the 2006 legislation, particularly the increase in the practical involvement of CAFCASS officers, should help to ensure a continuing meaningful relationship with both parents for the children and young people at the heart of every contact application.



Implementation of the proposals for opening the family courts and building confidence in the family justice system should bring the extent to which the provisions in the 2006 Act are successful in achieving this aim under full public scrutiny.



Miranda Fisher is a solicitor at City-based law firm Charles Russell and, with fellow Charles Russell lawyer Sarah Whitten,

is co-author of Child Contact: Law And Practice, published by Law Society Publishing. The book

can be ordered direct from Marston Book Services, tel: 01235 465 656