7 March 2005
In early February the Government published the Draft Children (Contact) and Adoption Bill. It proposes new measures to address some of the shortfalls in the Children Act 1989, specifically issues of how to promote contact between a child and both parents and effective enforcement remedies.
It has long been apparent that reform is necessary. The Making Contact Work consultation paper was published back in March 2001. However, in the intervening period, the much-publicised campaigns by fathers' pressure groups, most notably Fathers 4 Justice, have ensured that this issue has remained in the media spotlight. So much so that this issue has now become one of the items on the agenda of the mainstream political parties in the run-up to the general election.
The 2004 green paper 'Parental Separation: Children's Needs and Parents' Responsibilities' was followed by a consultation process that resulted in the Government producing a 'Next Steps' document in January this year. The document restates the existing principle that the child's welfare is paramount, as well as the role that parental contact plays in this. It looks at improving the current system for enforcing parental contact, but falls short of the 50-50 contact split many campaigners were seeking.
Using these guiding principles, over the coming months the Government has stated that it intends to implement the following series of measures:
This was clearly a dash to the hopes of those groups who had been pushing for a fundamental shift in emphasis towards a legal presumption of contact, and a bill of rights for families. It is clear that the Government has no intention of carrying out a fundamental overhaul of the Children Act 1989 and its underlying principles. Most of the document's key principles will already be familiar to those who have experience of the family courts.
The Conservative Party has attacked the Government's response, calling for a legal presumption of "reasonable contact", as well as compulsory mediation, with parents being given information as to the kind of contact orders the court is likely to impose in a range of scenarios. Under its proposals, Cafcass would be abolished.
The Draft Children (Contact) and Adoption Bill, if it were enacted in its present form, would amend the Children Act 1989 by giving the courts greater control over contact, by allowing it to attach "contact activity directions" or "contact activity conditions".
Contact activity directions may be attached where the court is considering making, varying or discharging a contact order to the parent that is opposed by another party. Contact activity conditions may be attached to a contact order even if it is unopposed. In addition to the contact with the child itself, the parent seeking the contact may be required, as an "activity", to take part in an information session, to provide information or advice regarding contact, as well as a programme, class, counselling or guidance session to assist a person in establishing, maintaining or improving contact to a child.
In both cases the court must be satisfied that the proposed activity is appropriate, that the provider of the activity is suitable, and that it will take place near to where the parent lives or somewhere where they can reasonably be expected to travel. The court must also consider the impact of the proposed order on the person to be made subject to it.
The court may order that the activity be monitored by Cafcass with a view to providing a report. As well as monitoring the activity itself, the court may request that Cafcass facilitate compliance with the contact order, monitoring compliance by the parties and report to the court for up to 12 months. The court may order any party to take steps to enable Cafcass to comply with its request.
In the past it has been difficult to force parents to allow contact with their child, so under the new proposals the court will have more wide-ranging powers to enforce contact orders where parents have failed to comply without a reasonable excuse. If the court feels it is necessary in order to ensure compliance, they will be able to impose up to 200 hours community service or a curfew proportionate to the breach itself.
The courts will also have the power to make an order for financial compensation where one party has, without reasonable excuse, failed to comply with the contact order and the other has suffered financial loss as a result - for example, where a holiday has had to be cancelled.
The future course of reform is dependant on the outcome of the forthcoming general election. However, it is generally recognised across the political spectrum as well as by those whose lives are touched by the family justice system, that reform is long overdue. The present system, which so often fails children and families, must be changed.