Category Archives: Children Act

The Children Act 1989 is intregrated into out Family Law Procedure. It came into our statutory legislation to protect Children & Families alike. Includes case allocation and management regulations to conform to both the Law ofthe England & Wales Judiciary and the Children’s Human rights Convention

Don’t Fuck Up Your Children


Image of LJ Wall
Lord Justice Wall to Retire December 2012

In one of the sternest judicial warnings to warring parents I have come across, Lord Justice Wall (left) quoted from Philip Larkin in the case of R (A Child), Re [2009] EWCA Civ 358 yesterday. The case involved a highly acrimonious residence application, part of a dispute between the parents that had been on-going since they separated in 2003. Judge Everall QC at Luton County Court had found that it was no longer possible for the parents and the child to work together, and so made a residence order in favour of the paternal grandparents. The mother’s appeal against that order was granted but Lord Justice Wall in the Court of Appeal gave a warning to the parents of the serious harm that their actions were causing to their child. “I hope this case has given the mother a fright. I hope it has also given the father a fright.” He said. “They have come within a whisker of losing their child.” In a postscript to his judgment he then quoted from Larkin’s poem This Be The Verse:

They fuck you up, your mum and dad.

They may not mean to, but they do.

They fill you with the faults they had

And add some extra, just for you.

These four lines” he said “seem to me to give a clear warning to parents who, post separation, continue to fight the battles of the past, and show each other no respect.”

Let us hope that more parents heed the warning.

Posted by John Bolch at 11:56 AM

Care Proceedings Advice


Care Proceedings Advice.

Contact Activities: Parenting Information Programmes


Family Law journal 7 October 2010

Article Link on Family Law:           http://www.familylaw.co.uk/articles/flj1010MARTINDANCEY

Home > Journal Articles > Contact Activities: Parenting Information Programmes – Family Law Journal

07 October 2010

DISTRICT JUDGE MARTIN DANCEY, Bournemouth Combined Court and RONI JONES, Chief Executive Officer of Relate Bournemouth, Poole and Christchurch

The new ss 11A-P of the Children Act, introduced with effect from 8 December 2008 by Part 1 of the Children and Adoption Act 2006, are intended to expand the powers available to the court to promote, monitor and enforce contact. This article looks at the first of those purposes – the promotion, or facilitation, of contact, embodied in the provision of contact activity directions or conditions under ss 11A-G and, specifically, Parenting Information Programmes(PIPs) (or co-parenting programmes).

The Government’s Green Paper Parental Separation: Children’s Needs and Parents‘ Responsibilities Cm 6273 (2004), the report of responses to the Green Paper Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps Cm 6452 (2005) and the Government’s Response Cm 6583 (2005) recognised that court is not the ideal place to resolve children arrangements following separation. In fact only 10% of contact arrangements are underpinned by contact orders; 82% of resident parents and 88% of non-resident parents making their own arrangements reported satisfaction with those arrangements, while the satisfaction rate under court orders fell to 61% (resident parents) or 35% (non-resident parents). Unsurprisingly therefore, much of the consultation and recommendations were about ways of avoiding court proceedings including in particular mediation and better provision of information to separating parents. But for those cases that do go to court widespread concern was expressed by a number of groups, including the judiciary, that the court’s powers to promote and enforce contact orders were too restricted.

To read the rest of this article, see October [2010] Family Law journal (link for online subscribers who have logged in). To log on to Family Law journal Online or to request a free trial click here.

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Home | Analysis| Promoting Contact With the Child: Part 1

Promoting Contact With the Child: Part 1

Written by Criminal Law and Justice Weekly

Saturday, 06 December, 2008  11:24 hrs

Children Act 1989

Applications for contact are the staple diet of the family courts. Although the private law programme encourages an early resolution of issues about contact, particularly through the first hearing dispute resolution appointment, there frequently continue to be bitterly contested cases. Against this background, radically new provisions on the law on contact will be introduced into the Children Act 1989 on December 8, 20081. The amendments to the 1989 Act will be supplemented by both new and amended subordinate legislation, practice directions, new forms2 and new fees3. The aim is to make contact orders more effective by promoting contact with the child.4

It is a sad axiom of family court life that there are frequent complaints about disobedience of contact orders. Such issues can be dealt in a number of ways under the current law: transfers of residence, orders under s.34 of the Family Law Act 1986, pecuniary penalties and committal orders under s.63(3) of the Magistrates’ Courts Act 1980. Unfortunately, from a practical perspective, the new provisions are complex and are not to be found in one piece of legislation. Because complaints about non-compliance are likely to continue to be frequent, lawyers will have to become very familiar with the new provisions and be able to quote the relevant provisions accurately.

It is already possible to make extended family assistance orders under s.16 of the 1989 Act and such orders should not be overlooked. It remains to be seen how effective the new provisions will be in practice. There will also be extra workloads for the CAFCASS, CAFCASS CYMRU5, the Probation Service and the courts’ administrative and legal staff. Court time is not an unlimited resource. It may be that some enforcement proceedings may be avoided by courts, when making contact orders, by exercising discernment and warning parties about there being more enforcement powers with more teeth, including monetary compensation to any disadvantaged party. It is interesting that a contact activity direction or condition (below) “may, by addressing a person’s violent behaviour, enable or facilitate contact with a child”.6 Enforcement proceedings may also be discouraged by fees. Case-law has discouraged orders for costs in family cases, but it remains to be seen whether courts will be more willing to order costs where breaches have occurred by drawing an analogy with unnecessary appeals.7

Locating the Law

Since the law on contact is not to be found in one instrument8 and covers different factual scanarios, this article aims to deal with different practical situations and their different remedies as they are likely to arise.

All Contact Orders Made/Varied on/after December 8, 2008

Whenever on/after December 8, 2008 a court makes a contact order it must attach a “warning notice” to the order. This is a judicial act and should therefore be announced in court. It might be diplomatic in some cases to explain that this warning must be given. The notice warns of the consequences of failing to comply with the order and is in these terms on the amended Form C43:

“if you do not comply with this contact order — (a) you may be committed to prison or fined; and/or (b) the court may make an order requiring you to undertake unpaid work (‘an enforcement order’ and/or an order that you pay financial compensation.”9

Contact Orders Already in Existence

Thousands of contact orders under s.8 of the 1989 Act have been made since 1991 and before December 8, 2008 and so provision has been made in s.8 of the 2008 Act to enable such orders to take advantage of the new provisions. The “trigger” for engaging the new provisions is to attach to the order a “warning notice” under the new s.11I of the 1989 Act. A warning notice is to be attached (a) where an application is made for such a notice to be attached by a person within the new s.11J(5)(a) to (d) of the 1989 Act (qv) or (b) where, in any new family proceedings, a question arises with respect to the contact order. Those advising courts and advocates must be alive to the latter situation. Extra care must be taken in circumstances where the potential applicant is the child concerned, because reference must be made to the new s.11J(6) and (7).10 Application shall be made ex parte for a warning notice using Form C78. The matter may be heard by a single family justice.11 However, a hearing could be ordered and this might be wise where it is considered appropriate to explain the effect of the warning and so reduce animosity. If then there is a failure to comply with the contact order ss.11K(1) and 11P(1) of the 1989 Act apply.12

New Terms

Practitioners will need to become familiar with a number of new terms and phrases.

“Contact activity direction’” (s.11A)

“Contact activity condition’”(s.11C)

“Contact condition under s.11(7)(b)”13

“Government financial assistance (s.11F)”

“Request to monitor and report on a contact activity direction (s.11G)”

“Request to monitor and report on a contact activity condition (s.11G)”

“Request to monitor and report on a contact order (s.11H)”

“Not being a contact activity direction or condition”

“Request to monitor and report on an enforcement order (s.11M)”

“Warning notice (s.11I/11N) — note not a ‘penal notice’”

“Enforcement order (unpaid work only) (s.11J-N, sch.A1)”

“Financial compensation order (limited to financial loss) (ss.11O and P)”

Limitations

The new provisions do not extend to people who are not habitually resident in England or Wales and they automatically cease to have effect if they cease to be so habitually resident.14 Also, broadly speaking, they do not apply where there has been an adoption or adoption is being contemplated.15 Indeed, s.26(1) of the Adoption and Children Act 2002 has been amended to provide that when an adoption agency is authorized to place a child for adoption etc, any provision for contact under the 1989 Act ceases to have effect and any contact activity direction relating to contact with the child is discharged.

Anticipating a Breach

On-Going Proceedings

If a court is considering whether to make a contact order or an order varying or discharging a contact order, it may make a direction requiring a party to take part in an activity that promotes contact with the child. This direction is a “contact activity direction”. Note that an order has not yet been made in those particular proceedings. It must be also noted that there must actually be a dispute about contact. (These directions cannot be made because help is attractive to the court.16) The direction must specify the activity and the person providing the activity. Clearly, before such a direction can be made, investigations will have to be made about what is available and in this respect CAFCASS will fulfill a vital role17. The Act does not give a comprehensive list of activities, but there are useful pointers about what to look out for in s.11A(5) (qv) and amongst them are programmes that may assist a person in establishing, maintaining or improving contact with a child and in addressing violent behaviour. The other parent might be ordered to take part in an information session on the psychological need of a child to establish relationships with both biological parents. Consent by the party to take part is not required. However, there are limitations: no one may be required to undergo medical, or psychiatric examination, assessment or treatment or to take part in mediation. Almost for the avoidance of doubt, it is prescribed that when considering whether to make a direction, the welfare of the child is the court’s paramount consideration.18

Usually it will be the parents who are the subject of directions, but the Act prohibits children being involved unless the parent of the child is actually a child!19

Before making a direction the court must consider information about the individual and the likely effect of the direction on him, which may include information about any conflict with his work, education or religious beliefs.

A number of criteria must be satisfied and it is advisable that these be clearly stated and justified in any report20 to the court and in the justices’ reasons:

  •    The activity must be appropriate in the circumstances of the case.
  •    The named provider of the activity is suitable to provide the activity.
  •    The activity is provided in a place to which the person concerned can reasonably be expected to travel.21

Monitoring Compliance

Having made the direction, the court will want to ensure that it is obeyed!

The court may on making the direction ask CAFCASS to arrange for the monitoring of compliance with the direction and to report to the court on any failure to comply.22 If there is a failure, a report should be made to the court and the court can make further directions under r.14 of the 1991 Rules or under s.11A of the 1989 Act. If a direction is not complied with, it is not possible to get compensation for any financial loss because s.11O does not extend to this situation.

Financial Support

Provision will be made by regulations to authorize the state to assist those who are required by a contact activity direction or condition23 to take part in an activity with fees or charges. However, travel, subsistence and loss of earnings are not covered.24

Contact Order Made25

If a contact order or an order varying a contact order is made, the contact order may include a condition, known as a “contact activity condition”, requiring certain people to take part in specified activities that promotes contact provided by specified persons. The people concerned are the person with whom the child lives/is to live, the person granted contact or someone upon whom there is imposed a condition under s.11(7)(b). Again, the Act does not give a comprehensive list, but there are useful pointers about what to look out for in the new s.11A(5), which is applied to these conditions. (Examples are given above.) Consent by the party to take part is again not required. Again, there are limitations: no one may be required to undergo medical, psychiatric examination, assessment or treatment or to take part in mediation. Also, the Act prohibits children being involved unless the parent himself is a child.26 A contact order may not impose a contact activity condition on someone unless he is habitually resident in England and Wales; and a condition ceases to have effect if he ceases to be so habitually resident.27 A condition cannot form part of an “excepted order”, that is an order related to an adoption.28

Before making a condition the court must consider information about the individual and the likely effect of the condition on him, which may include information about any conflict with his religious beliefs and any interference with his work or education.

A number of criteria must be satisfied29 and it is advisable that these be clearly stated and justified in any report30 to the court and in the justices’ reasons:

  •    The activity must be appropriate in the circumstances of the case.
  •    The named provider of the activity is suitable to provide the activity.
  •    The activity is provided in a place to which the person concerned can reasonably be expected to travel.

Monitoring Compliance

There are two distinct provisions for monitoring compliance with the terms of a contact order. In respect of monitoring compliance with contact activity conditions, s.11G applies — see above. However, in respect of other provisions of a contact order, s.11H applies. In those latter circumstances, the court may ask CAFCASS to monitor whether someone complies with the contact order and to report to the court on such matters relating to his compliance as the court may specify in the request. The person must be the person granted contact, required to allow contact or someone who is subject to a condition under s.11(7)(b). Problems may occur some time after the contact order is made and so, as well as being able to make a monitoring request when making the order, the court may do so “at any time during the subsequent course of the proceedings as they relate to contact with the child concerned”. The court must specify the period for which there is to be monitoring and in these latter circumstances it must not exceed 12 months. The court may order the person concerned to take such steps as may be specified in the order with a view to enabling CAFCASS to comply with the monitoring request. Monitoring does not apply to “excepted orders” and children unless the children are themselves the parents.31

Financial Support

Has been made for England.

Conclusion

This article finishes on a positive note, but on the assumption that there will be sufficient provision of activities to address all the social and relational problems occasioned by breakdowns in relationships. The parties have taken heed of the warning notice. Contact activity directions or conditions have addressed domestic violence, “the corrosive effect” of being negative about the other parent32, the importance to the child of the other parent and better communication skills. The next article will be more negative and costly.

To Be Concluded Below (following Footnotes):

Footnotes

1 Children and Adoption Act 2006 (Commencement No.3) Order 2008 (SI 2008/2870).

2     The most significant is Form C100 (applications for s.8 orders) inserted into the Family Proceedings Courts (Children Act 1989) Rules 1991 by the Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2008 (SI 2008/2858). Similar provision is made in the Family Proceedings (Amendment No.2) Rules 2008 (SI 2008/2861). Forms are also in SI 2008/2859.

3     See SI 2008/2855.

4     See ss.11A(3) and 11C(2).

5     Henceforth “CAFCASS” for both organizations

6     See ss.11A(5)(ii) and 11C(5).

7     FPC (CA 1989) Rules 1991 apply (as modified by SI 2008/2859) to certain enforcement applications.

8     2006 Act; SI 2008/2861; SI 2008/2858; SI 2008/2859; SI 2008/2836; SI 2008/2855.

9     Section 11I. The form of warning prescribed is not comprehensive: transfers of residence and s.34, Family Law Act 1986 orders are not covered.

10     2008 Act, s.8(3). Proceedings must be started in a county court: SI 2008/2836, art.6.

11 SI 2008/2859. Fee: £40.

12     See later article.

13     Technically not new, but it is likely that this provision will be used more frequently. It has gained additional significance by virtue of the 2008 Act.

14     Sections 11B(7), 11D(3), 11K(4).

15     See s.11B(4)-(6).

16     Section 11B(1).

17     FPC (Children Act 1989) Rules 1991, r.11AA has been extended by the FPC (CA 1989) (Amendment) Rules 2008 (SI 2008/2858) to cover the information and monitoring requests (below) applying to CAFCASS. Such personnel are included within the directions and statements provisions of rr.14 and 17 of the 1991 Rules.

18     Section 11A.

19     Section 11B(2).

20     The court may ask CAFCASS to provide the required information.

21     Section 11E.

22     Section 11G.

23 Infra.

24     Section 11F see SI 2008/2940

25     This includes an “interim contact order” which is technically an order limited in time under s.11 of the 1989 Act.

26     Section 11D(1).

27     Section 11D(3).

28     See s.11B(4).

29     Section 11E.

30     The court may ask CAFCASS to provide the required information under s.11E.

31     Section 11H.

32 Re H (Contact:Domestic Violence)[1998] 2 FLR.

Robert Stevens, LLB, ADPTD, MA, Barrister.

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Home | Analysis | Promoting Contact With The Child Part 2

Promoting Contact with the Child Part 2

Written by Criminal Law and Justice Weekly

Saturday, 27 December 2008 00:00

http://www.criminallawandjustice.co.uk/index.php?/Analysis/promoting-contact-with-the-child-part-2.html

A previous article, Part 1 at p.798 ante, addressed the court’s task of making contact orders effective by attaching warning notices, imposing contact activity conditions and making requests to CAFCASS^1 to monitor compliance with both conditions under s.11 and contact activity conditions under s.11C of the Children Act 1989. It finished on the positive note that the order would, with such assistance, be complied with! This article takes a more pessimistic note and comments on the situation where the order is not complied with.

Lack of Precision in Terms

It is usual for contact to be defined where there has been a dispute. Problems will continue to occur if precision was not employed in drafting an order. Where there is a lack of precision or where, unusually, the order is for “reasonable” contact, it would be wise to seek a variation of the order. Where the order is precise in its terms, the dissatisfied party is left with a number of options. All involve a fee!

1. Seek a Warning

Where the contact order was made before December 8, 2008, he may apply for a warning notice to be attached.^2 This serves two purposes. It may solve the problem and the notice serves as a sine qua non to other remedies.

2. Financial Compensation Orders (ss.11O & P)

Although at first sight, an application may be made to an ordinary magistrates’ court, the President has directed that such applications are to be listed before family proceedings courts and are to be ordered to be treated as family proceedings.^3 The proceedings are governed by the FPC (CA 1989) Rules 1991 as modified by SI 2008/2859. The new statutory instrument should be consulted before making an application. There are some new forms.^4
There is a £175 fee.^5  This could be recovered in an order for costs under r.22 of the 1991 Rules. If the court is satisfied that:

1.     the respondent has failed to comply with a contact order, before the failure occurred the respondent had been given a warning notice under s.11-i (or otherwise accordingly informed of the consequences of a breach),
2.     the respondent has not satisfied the court that he had a reasonable excuse, and;
3        the applicant has suffered financial loss by reason of the breach, it may make an order requiring the respondent to pay to the applicant compensation for his financial loss.  It should be noted that this is not punitive damages and compensation is limited to measured financial loss.

Applicants are limited to:

(a) the person with whom the child concerned lives (or is to live),

(b) the person granted contact,

(c) any individual subject to a condition under s.11(7)(b) or a contact activity condition imposed by the contact order; or

(d) with leave, the child concerned.^6

** It is interesting to note that the person (M) with whom the child lives may seek compensation, [but is the person (F) who has been granted contact strictly in breach if he simply fails to turn up?]   – This is a potential moot point. **

It remains to be seen what will amount to a reasonable excuse. This issue may arise where there have been allegations of domestic violence, particularly where they were not admitted but found proven, because there may be continuing fears about the consequences of complying with contact orders that are subsequently made. Other anticipated excuses are sickness on the part of the respondent or child, where reasonable efforts were made to notify the applicant. It is suggested that these problems are anticipated and covered by requirements under s.11(7) of the 1989 Act.

The amount of compensation is determined by the court, but may not exceed the amount of the applicant’s financial loss and the court must take into account the individual’s financial circumstances. Any amount ordered may be recovered as a civil debt, so s.58 of the Magistrates’ Courts Act 1980 applies. Further proceedings for nonpayment would be by complaint and sum.ons.^7
The proceedings are regarded for the purposes of s.11(1) and (2) as proceedings in which a question arises with respect to a s.8 order, so there is an obligation for effective timetabling and management of the application.

The court must take into account the welfare of the child concerned.^8
A court cannot make an order in relation to an “excepted order” ^9 nor against a person
in respect of any failure to comply with a contact order occurring before he attained the age of 18.

3. Seek a Punitive Order

There are three punitive orders:
(i) He may make a complaint and apply for a summons under s.63(3) of
theMagistrates’ Courts Act 1980 and,
(ii)  seek a pecuniary penalty or a committal order ^10
     There is a fee: £75.^11

Thirdly;
(iii)  he may apply for an enforcement order.
IT IS A MATTER OF CHOICE FOR THE AGGRIEVED ^.12

Enforcement Order (ss.11J-N, sch.A1)

Although at first sight, an application may be made to an ordinary magistrates’ court, the President has directed that such applications are to be listed before family proceedings courts and are to be ordered to be treated as family proceedings.^13 The proceedings are governed by the FPC (CA 1989) Rules 1991 as modified by SI 2008/2859.
Again, the new statutory instrument should be consulted. There are new forms.^14 Notice is to be given to a CAFCASS officer where an officer was monitoring the order. [Where the child was a party to the proceedings, in which the contact order was made, notice also has to be served on the guardian (or legal representative where there was no guardian). The minimum number of days for service prior to the hearing is 14.

An enforcement order is a requirement to do unpaid workno other requirements can be made. It will look like a criminal community order with an unpaid work requirement because the probation service will have oversight and a modified version of ch.4 of Pt.12 of the Criminal Justice Act 2003 will be applied, but technically it will be a civil order and the range of hours will be from 40 to 200 hours within a 12-month period.^15 Unlike a community order, it may be suspended for such period as the court thinks fit.

An important Practice Direction has been issued (November 2008) to cover information giving between CAFCASS and the Probation Service. The Direction states:

“in order to ensure that the officer of [CAFCASS] will not potentially be in contempt of court by virtue of … discussions, the court should, when making a request under s.11L(5) or s.11Mgive leave to that officer to disclose to the National Probation Service such information (whether or not contained in a document filed with the court) in relation to the proceedings as is necessary”.

The court cannot make an order of its own motion and so care needs to be taken when adjourning to monitor contact.
Only the following may apply:
(a) the person with whom the child concerned lives (or is to live),
(b) the person granted contact,
(c) anyone subject to a condition under s.11(7)(b) or a contact activity condition; or
(d) with leave, the child concerned.^16

A court cannot make an enforcement orderin relation to an “excepted order”^17 nor against a person in respect of any failure to comply with a contact order occurring before he attained the age of 18. An order cannot be made against someone unless he is habitually resident in England or Wales andsuch an order ceases to have effect if he ceases to be so habitually resident.

There is a £175 fee.^18 This could be recovered in an order for costs under r.22 of the 1991 Rules.

Proceedings in which any question of making an enforcement order, or any other question with respect to such an order arises, are to be regarded for the purposes of s.11(1) and (2) as proceedings in which a question arises with respect to a s.8 order.

Before a court can enforce a contact order by making an enforcement order, the following criteria must be satisfied:

  1.   Before the failure occurred the respondent had been given a warning notice under s.11I (or otherwise accordingly informed of the consequences of a breach), and
2.  Beyond reasonable doubt that the respondent has failed to comply with the contact order, and
3.    The respondent has not satisfied the court on the balance of probabilities that he had a reasonable excuse, and,
4.  The order is necessary to secure the person’s compliance with the contact order or any contact order that has effect in its place, and
5.   The likely effect on the person of the order is proportionate to the seriousness of the breach of the contact order.
If the above are satisfied, inquiries will need to be made of CAFCASS because the court will also need to be satisfied of the following:

6.   That provision for the respondent to work under an unpaid work requirement can be made in the local justice area in which he resides or will reside, and
7. The court has considered information about the respondent and the likely effect of the enforcement order on him which may, in particular, include information as to any conflict with the his religious beliefs and any interference with his work or education, and
8.   The court has taken into account the welfare of the child concerned.^19
The court must attach to the order a notice warning of the consequences of failing to comply with the order.

Also, with a view to encouraging compliance with the enforcement order, the court may ask CAFCASS to arrange for the monitoring of the respondent’s compliance, to report to the court if a breach report is made^20, to report to the court on such other matters relating to compliance as may be specified in the request and to report to the court if the person is, or becomes, unsuitable to perform work.

Breach of an Enforcement Order

There are effectively four stages in the breach of an order.

1.  The responsible officer of the Probation Service gives the respondent a warning as per sch.A1, para.8 (1)–(4).
2.  Following a further perceived unreasonable failure, probation notify CAFCASS as per sch.A1, para.8(1), (5)–(6).
3. The person aggrieved under the contact order will have to be contacted, because the court may only exercise its enforcement powers at stage 4 (below) on the application of (a) the person with whom the child concerned lives (or is to live), (b) the person granted contact, (c) anyone subject to a condition under s.11(7)(b) or a contact activity condition; or (d) with leave, the child concerned.^21
4. Proceedings are taken pursuant to the FPC (CA 89) Rules 1991, as modified by SI 2008/2859 for the court to take action under sch.A1, para.9.
There is a £80 fee.^22 This could be recovered in an order for costs under r.22 of the 1991 Rules.

The enforcement order must be in force. The court has to be satisfied that before the failure occurred the respondent had been given a warning notice under s.11N (or otherwise accordingly informed of the consequences of a breach). If the court is satisfied beyond reasonable doubt that the respondent has failed to comply with the unpaid work requirement and the respondent has not satisfied the court on the balance of probabilities that he had a reasonable excuse, the court may (a) amend the order so as to make the requirement more onerous by increasing the number of hours (but not exceeding the 200 hour maximum), or (b) make a second enforcement order and (if the first order is still in force) provide for the second order to have effect either in addition to or in substitution for the first order.

The above is without prejudice to s.63(3) of the Magistrates’ Courts Act 1980 as it applies in relation to enforcement orders. It is not quite clear what is intended effect of as it applies in relation to enforcement Orders.

The court must be satisfied that, taking into account the extent to which the person has complied with the unpaid work requirement and the effect on the person of the proposed exercise of those powers:

(a) is no more than is required to secure his compliance with the contact order or any contact order that has effect in its place, and (b) is no more than is proportionate to the seriousness of his failures to comply with the contact order and the first order. Where the court makes a second enforcement order, the usual residence, warning notice and monitoring provisions and the criteria for making enforcement orders apply again.

Conclusion

Will adequate resources in terms of court time and staff, CAFCASS and Probation resources be made available? Assuming they will be available, the writer concludes with the following scenario.:
A defined contact order is made with a contact activity condition. The order is not obeyed. He seeks a financial compensation order for £20 lost in travelling expenses and pays the £175 fee. The application is contested and he wins, but the mother is of little means, has many commitments and so the court orders £10 compensation but declines to order costs, having regard to those factors and the impact on an order will have on the child hearing about further parental battles. There is a further breach and the applicant seeks an enforcement order and pays a further £175 fee. An enforcement order is made, but is subsequently breached. The applicant decides to take breach proceedings and pays a further £80. The respondent is represented and persuades the court that she had a reasonable excuse. The applicant is ordered to pay the respondent’s legal costs of £450.

The 2006 Act should have had a s.1Q: Where the court concludes that, whatever requirements are made in a contact order the order will not be effective, it should “throw in the sponge” and accordingly the rule in Re H (A Child)(Contact: Mother’s Opposition) [2001] 1 FCR 59 is revoked.

Two statutory instruments have been made relating to financial assistance: SI 2008/2940 and SI 2008/2943.

Footnotes

1     Inclusive of CAFCASS CYMRU.

2     See earlier article.

3    SI 2008/2859, r.2, but President’s Practice Directionof November 6, 2008.

4     C 79: Application; C82 order for financial compensation”.

5    SI 2008/2855.

6     Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6.

7     £75 (.SI 2008/1052)

8     All of these factors should be covered in the Justices’ Reasons.

9     See s.11B(4).

10     Note that a committal order may not be suspended in the magistrates’ courts for failure to comply with contact orders. Caveat: extensive case-law, see Stone’s Justices’ Manual.

11    SI 2008/1052.

12     Section 11J(13).

13    SI 2008/2859, r.2, but President’s Practice Direction of November 2008.

14    C79 Application related to enforcement of a contact order; C80 Enforcement order, C81 Order Revocation of enforcement order.

15    2008 Act, s.4, sch.1; 1989 Act, ss.11J-N, sch. A1. Consecutive orders may be made but 200 hours must not be exceeded.

16     Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6.

17     See s.11B(4).

18     SI 2008/2855.

19     All of these factors should be covered in the Justices’ Reasons.

20     See sch.A1, para.8.

21     See sch.A1, para.9(5) & (6). Where the child applies, proceedings must start in a county court: SI 2008/2836, art.6

22     SI 2008/2855.

Robert Stevens

Children in care – The Department for Education


Children in care – The Department for Education.

About children in care

Children in the care of local authorities are one of the most vulnerable groups in society. The majority of children in care are there because they have suffered abuse or neglect. At any one time around 60,000 children are looked after in England (of whom some 59 per cent are subject to care orders). Some 90,000 children are looked after at some point in any one year.

The Government wants every child in care to grow up safe, happy, healthy, secure and loved. This is the only way they will be able to fulfill their potential.

The term ‘looked after children’ includes:

  • Those children who are in care through a care order under section 31 of the Children Act 1989
  • Those accommodated on a voluntary basis through an agreement with their parents under section 20 of that Act, or agreement with of the child if they are over 16.
  • Children placed away from home under an emergency protection order
  • Children on police protection/remand/detention (section 21 of the Children Act)

How are they cared for?

  • Most looked after children are in foster care (73 per cent)
  • Some 10 per cent are in children’s homes
  • The rest are cared for in a number of different settings including residential schools and placement with parents.

Young Person’s Guide to Being in Care

The Who Cares? Trust, working with the Department, has produced a guide for young people on being in care.

This is available as a series of pages on Who Cares? Trust, a website for young people

General article
Updated: 22 March 2011               [click on title above for direct link]

Safeguarding and promoting the welfare of children is defined as:

  • protecting children from maltreatment
  • preventing impairment of children’s health or development
  • ensuring children are growing up in circumstances consistent with the provision of safe and effective care.

Child protection is a part of safeguarding and promoting welfare. It refers to the activity that is undertaken to protect specific children who are suffering, or are likely to suffer, significant harm.

Effective child protection is essential as part of wider work to safeguard and promote the welfare of children. However, all agencies and individuals should aim to proactively safeguard and promote the welfare of children so that the need for action to protect children from harm is reduced.

Child protection: Role of LA Children’s Social Care

[click on title above for direct link]

The Director of Children’s Services, under section 18 of the Children Act 2004 has responsibility for ensuring that a local authority meets their specific duties to organise and plan services and to safeguard and promote the welfare of children.

Each local authority is responsible for establishing a Local Safeguarding Children Board (LSCB) in their area and ensuring it is run effectively. An LSCB can cover more than one local authority area.

Social workers take a lead role in:

  • responding to children and families in need of support and help
  • undertaking enquiries following allegations or suspicion of abuse
  • undertaking initial assessments and core assessments as part of the Assessment Framework
  • convening strategy meetings and initial and subsequent child-protection conferences
  • court action to safeguard and protect children
  • coordinating the implementation of the child protection plan for children on the child protection register
  • looking after and planning for children in the care of the council
  • ensuring that looked-after children are safeguarded in a foster family, children’s home or other placement.

 

MOJ: Care Proceedings Reform (Effective April 2010)


FamilyWe are committed to reducing unnecessary delay in care proceedings, bringing together all the agencies involved in the care proceedings system with local accountability. 

Local performance improvement groups

A new system-wide approach to reducing delay in care proceedings came into force on 1 April 2010. An element to this approach has been the establishment of local performance improvement groups bringing together local decision makers from all the agencies across the care proceedings system to develop local solutions to local problems. This approach is in line with the government’s shift towards local accountability.

Practice direction public law proceedings guide to case management: April 2010

The Judiciary for England and Wales and the Ministry of Justice have issued a new case management Practice Direction, which comes into force on 6 April 2010, and replaces the Public Law Outline Practice Direction (April 2008).

New court forms

To support the new Public Law Practice Direction (April 2010), we have introduced a new application form C110 for care and supervision orders. The form C1 has also been revised to reflect these changes.

Others new forms for Standard Directions are the PLO 8 and the PLO 9.

Preparing for care and supervision proceedings

A best practice guide for professionals working in child care and supervision proceedings.

The guide is for use by all professionals involved with childen and their families before proceedings and in preparation for applications made under section 31 of the Children Act 1989.

The guide has been produced by the Ministry of Justice in cooperation with the Department for Children, Schools and Families, the Welsh Assembly Government and the Judiciary of England and Wales.

Revised statutory guidance for local authorities

The Department for Children, Schools and Families and the Welsh Assembly Government have issued revised statutory guidance to assist local authorities.

This sets out all the steps local authorities need to take before they apply to court for a care or supervision order. The revised guidance came into force in both England and Wales on 1 April 2008.

Parent’s Pack – information for parents about care proceedings

This is a booklet for parents who may be about to be taken to court by a local authority because of concerns over the safety and welfare of their child. It gives parents information in a clear and straightforward manner about what is involved in court proceedings and the various stages in the process. It is intended that parents should receive this information from local authorities at the stage at which a Letter before Proceedings is issued.

Public Law Outline

The Judiciary for England and Wales and the Ministry of Justice have issued a new case management practice direction, the Public Law Outline.

The Public Law Outline streamlines the court process and requires that the case timetable is focused around the needs of the individual child involved.

The Public Law Outline replaced the Public Law Protocol and came into force on 1 April 2008.

Evaluation of the Public Law Outline

Early research on the impact of implementing the Public Law Outline and the level of compliance with the new procedures was commissioned by the Ministry of Justice, DCSF and the Welsh Assembly Government.

The research involved a small sample of cases as well as a range of practitioner perspectives, and was conducted by the National Centre for Social Research (Natcen), in partnership with Dr Julia Brophy (Centre for Family Law and Policy, University of Oxford).

Experts practice direction

The President of the Family Division issued a new practice direction on the use of experts to replace the guidance in the Public Law Protocol. The new experts practice direction came into effect on 1 April 2008.

Pre-proceedings legal advice

The Legal Services Commission provides non-means and non-merit publicly funded legal advice for parents and those with parental responsibility. Access to this service is triggered when the local authority gives written notice of the potential to issue care proceedings.

The aim of the service is to work with the family to help resolve issues or avoid the need for court proceedings, if the necessary improvements can be agreed.

Full details about Family Help (Lower) Level 2 are in section 20 of the LSC Funding Code: Decision Making Guidance – Family.

Lord Laming’s report

Lord Laming was commissioned to prepare an independent report on the arrangements to safeguard children in England. His report was published on 12 March 2009, with a total of 58 recommendations. The government responded immediately and accepted all the recommendations in full, followed by a detailed action plan on 6 May 2009.

Chief Adviser on the Safety of Children

The government has appointed Sir Roger Singleton to be its Chief Adviser on child safety in England. Sir Roger will play a key role in ensuring that the government delivers the pledges made in the government’s action plan.

Directgov

BBC News 27/02/2011 Children in care far from home ‘at risk


Gov intends to reduce the number of children sent away

Charities are warning that thousands of children placed in care far from home are more vulnerable to criminality, drug abuse and sexual exploitation.

A third of the 64,000 children in local authority care in England and Wales live outside their local area.

The charities say long-distance placements often traumatise children who are already damaged and vulnerable.

From April, councils are due to be forced to have sufficient accommodation for children in their care.

Thousands of children are currently being looked after in foster or children’s homes hundreds of miles from their local area.

Charities – including Barnardo’s, the Who Cares Trust and Voice – say uprooting an already vulnerable child can be highly traumatic.

Children in care are often deeply damaged from past abuse, neglect, or growing up with addict parents, the charities say.

A shortage of local authority children’s homes stems from child abuse scandals in the 70s and 80s, they say.

Private care homes have cropped up, but often in rural locations where property is cheaper.

Local authorities, which pay the private homes, remain responsible for the children, but social workers can struggle to maintain contact with them if they are accommodated far away.

The government plans to enforce a “sufficiency duty” on local authorities from April.

Intended to cut the number of children being sent away, councils will have to increase care provision for children in their local areas.

 

Practice Direction: Allocation & Transfer of Proceedings


Practice Direction: Allocation & Transfer of proceedings issued on 3 November 2008

1.1 This Practice Direction is given by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under paragraph 2(2) of part 1 of Schedule 2 to the Constitutional Reform Act 2005 and is agreed by the Lord Chancellor.

1.2 The objective of this Practice Direction is to ensure that the criteria for the transfer of proceedings are applied in such a way that proceedings are heard at the appropriate level of court, that the capacity of magistrates’ courts is properly utilised and that proceedings are only dealt with in the High Court if the relevant criteria are met.

1.3 This Practice Direction will come into effect on 25 November 2008. Where practicable, it applies to proceedings started before but not concluded by 25 November. The Practice Directions of 5 June 1992 (distribution of business) and 22 February 1993 (applications under the Children Act 1989 by children) are revoked except that they will continue to apply to any proceedings to which it is not practicable to apply this Practice Direction.

1.4 A reference to an article is a reference to the article so numbered in the Allocation and Transfer of Proceedings Order 2008.

Part 1
2 This Part of this Practice Direction applies to all family proceedings (whether or not the Allocation and Transfer of Proceedings Order 2008 applies to such proceedings).

Timing and continuing review of decision on appropriate venue

3.1 The issue as to which court is the most appropriate hearing venue must be addressed by the court speedily as soon as there is sufficient information to determine whether the case meets the criteria for hearing in that court. This information may come to light before, during or after the first hearing. It must then be kept under effective review at all times; it should not be assumed that proceedings will necessarily remain in the court in which they were started or to which they have been transferred. For example proceedings that have been transferred to a county court because one or more of the criteria in article 15 applies should be transferred back to the magistrates’ court if the reason for transfer falls away. Conversely, an unforeseen late complication may require a transfer from a magistrates’ court to a county court.

3.2 Where a court is determining where the proceedings ought to be heard it will consider all relevant information including that given by the applicant either in the application form or otherwise, for example in any request for proceedings to be transferred to another magistrates’ court or to a county court under rule 6 of the Family Proceedings Courts (Children Act 1989) Rules 1991.

Timeliness
4.1 Article 13 and paragraph 12.1 require the court to have regard to delay. Therefore the listing availability of the court in which the proceedings have been started and in neighbouring magistrates’ courts and county courts must always be ascertained before deciding where proceedings should be heard.

4.2 If a magistrates’ court is considering transferring proceedings to a county court or a county court is considering transferring proceedings to the High Court but that decision is finely balanced, the proceedings should not be transferred if the transfer would lead to delay. Conversely, if the High Court is considering transferring proceedings to a county court or a county court is considering transferring proceedings to a magistrates’ court but that decision is finely balanced, the proceedings should be transferred if retaining them would lead to delay.

4.3 Transferring proceedings may mean that there will be a short delay in the proceedings being heard since the papers may need to be sent to the court to which they are being transferred. The court will determine whether the delay is significant, taking into account the circumstances of the case and with reference to the interests of the child.

4.4 While there is no express reference in the Allocation and Transfer of Proceedings Order 2008 or in Part 3 of this Practice Direction to the length of the hearing or to judicial continuity such issues may be relevant.

Transfer of proceedings to or from the High Court

5.1 A court will take into account the following factors (which are not exhaustive) when considering whether the criteria in articles 7 or 18 or paragraph 11.2 or 12.3 apply, such that the proceedings ought to be heard in the High Court-

(1) there is alleged to be a risk that a child concerned in the proceedings will suffer
serious physical or emotional harm in the light of –

(a) the death of another child in the family, a parent or any other material person; or
(b) the fact that a parent or other material person may have committed a grave crime, for example, murder, manslaughter or rape,
in particular where the essential factual framework is in dispute or there are issues over the causation of injuries or a material conflict of expert evidence;

(2) the application concerns medical treatment for a child which involves a risk to the child’s physical or emotional health which goes beyond the normal risks of routine medical treatment;

(3) an adoption order is sought in relation to a child who has been adopted abroad in a country whose adoption orders are not recognised in England and Wales;

(4) an adoption order is sought in relation to a child who has been brought into the United Kingdom in circumstances where section 83 of the Adoption and Children Act 2002 applies and

(a) the person bringing the child, or causing the child to be brought-
(i) has not complied with any requirement imposed by regulations made under section 83(4); or
(ii) has not met any condition required to be met by regulations made under section 83(5) within the required time; or
(b) there are complicating features in relation to the application;

(5) it is likely that the proceedings will set a significant new precedent or alter existing principles of common law;

(6) where periodical payments, a lump sum or transfer of property are an issue-

(a) the capital value of the assets involved and the extent to which they are
available for, or susceptible to, distribution or adjustment;
(b) any substantial allegations of fraud or deception or non-disclosure;
(c) any substantial contested allegations of conduct.

5.2 The following proceedings are likely to fall within the criteria for hearing in the High Court unless the nature of the issues of fact or law raised in the proceedings may make them more suitable to be dealt with in a county court-

(1) proceedings involving a contested issue of domicile;

(2) applications to restrain a respondent from taking or continuing with foreign proceedings;

(3) suits in which the Queen’s Proctor intervenes or shows cause and elects trial in the High Court;

(4) proceedings in which an application is opposed on the grounds of want of jurisdiction;

(5) proceedings in which there is a complex foreign element or where the court has invited submissions to be made under Article 11 (7) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility;

(6) proceedings in which there is an application to remove a child permanently or temporarily from the jurisdiction to a non-Hague Convention country.

(7) interlocutory applications involving-

(a) search orders; or
(b) directions as to dealing with assets out of the jurisdiction.

5.3 Proceedings will not normally be suitable to be dealt with in the High Court merely because of any of the following-

(1) intractable problems with regard to contact;

(2) sexual abuse;

(3) injury to a child which is neither life-threatening nor permanently disabling;

(4) routine neglect, even if it spans many years and there is copious documentation;

(5) temporary or permanent removal to a Hague Convention country;

(6) standard human rights issues;

(7) uncertainty as to immigration status;

(8) the celebrity of the parties;

(9) the anticipated length of the hearing;

(10) the quantity of evidence;

(11) the number of experts;

(12) the possible availability of a speedier hearing.

5.4 A substantial reason for starting proceedings in the High Court will only exist where the nature of the proceedings or the issues raised are such that they ought to be heard in the High Court. Where proceedings have been started in the High Court under article 7(c) or paragraph 11.2(4) and the High Court considers that there is no substantial reason for them to have been started there, the High Court will transfer the proceedings to a county court or a magistrates’ court and may make any orders about costs which it considers appropriate.

Part 2
6 This Part of this Practice Direction applies to family proceedings to which the Allocation and Transfer of Proceedings Order 2008 applies.

Transfer of proceedings from one magistrates’ court to another or from one county court to another
7 Where a magistrates’ court is considering transferring proceedings to another magistrates’ court or a county court is considering transferring proceedings to another county court, the court will take into account the following factors (which are not exhaustive) when considering whether it would be more convenient for the parties for the proceedings to be dealt with by the other court-

(1) the fact that a party is ill or suffers a disability which could make it inconvenient to attend at a particular court;
(2) the fact that the child lives in the area of the other court;
(3) the need to avoid delay.

Transfer of proceedings from a magistrates’ court to a county court
8.1 Where a magistrates’ court is considering whether one or more of the criteria in article 15(1) (except article 15(1)(g) and (h)) apply such that the proceedings ought to be heard in the county court, the magistrates’ court will first consider whether another magistrates’ court would have suitable experience to deal with the issues which have given rise to consideration of article 15. If so, the magistrates’ court will then consider whether the proceedings could be dealt with more quickly or within the same time if they were transferred to the other magistrates’ court rather than a county court. If so, the magistrates’ court will transfer the proceedings to the other magistrates’ court rather than a county court.

8.2 A magistrates’ court may only transfer proceedings to a county court under article 15(1 )(a) if it considers that the transfer will significantly accelerate the determination of the proceedings. Before considering a transfer on this ground, the magistrates’ court must obtain information about the hearing dates available in other magistrates’ courts and in the relevant county court. The fact that a hearing could be arranged in a county court at an earlier date than in any appropriate magistrates’ court does not by itself justify the transfer of proceedings under article 15(1 )(a); the question of whether
the determination of the proceedings would be significantly accelerated must be considered in the light of all the circumstances.

Transfer of proceedings from a county court to a magistrates’ court
9.1 A county court must transfer to a magistrates’ court under article 16(1) proceedings that have previously been transferred under article 15(1) where the county court considers that none of the criteria in article 15(1) apply. In particular, proceedings transferred to a county court by a magistrates’ court for resolution of a single issue, for example, use of the inherent powers of the High Court in respect of medical testing of a child or disclosure of information by HM Revenue and Customs, should be transferred back to the magistrates’ court once the issue has been resolved.

9.2 Subject to articles 5(3), 6, 8 and 13 and paragraphs 4 and 12.1, straightforward proceedings for-

(1) a residence order;
(2) a contact order;
(3) a prohibited steps order;
(4) a specific issue order;
(5) a special guardianship order; or
(6) an order under Part 4 of the Family Law Act 1996 which are started in a county court should be transferred to a magistrates’ court if the county court considers that none of the criteria in article 15(1 )(b) to (i) apply to those proceedings.

Part 3
10 This Part of this Practice Direction applies to any family proceedings to which the Allocation and Transfer of Proceedings Order 2008 does not apply.

Starting proceedings
11.1 Subject to paragraph 11.2, family proceedings must be started in a county court.

11.2 Family proceedings may be started in the High Court only if-

(1) the proceedings are exceptionally complex;
(2) the outcome of the proceedings is important to the public in general;
(3) an enactment or rule requires the proceedings to be started in the High Court; or
(4) there is another substantial reason for starting the proceedings in the High Court.

Transferring proceedings
12.1 When making any decision about the transfer of proceedings the court must have regard to the need to avoid delay in the proceedings.

12.2 A county court will take into account the following factors (which are not exhaustive) when considering whether to transfer proceedings to another county court-

(1) whether the transfer will significantly accelerate the determination of the proceedings;
(2) whether it is more convenient for the parties for the proceedings to be dealt with by another county court; and
(3) whether there is another good reason for the proceedings to be transferred.

12.3 A county court will take into account the following factors (which are not exhaustive) when considering whether to transfer proceedings to the High Court-

(1) whether the proceedings are exceptionally complex;
(2) whether the outcome of the proceedings is important to the public in general;
(3) whether an enactment or rule requires the proceedings to be dealt with in the High Court; and
(4) whether there is another substantial reason for the proceedings to be transferred.

12.4 The High Court will also take into account the factors in paragraph 12.3 when considering whether to transfer proceedings to a county court.

Mark Potter
The Right Honourable
Sir Mark Potter
The President of the Family Division

By authority of the Lord Chancellor
Bridget Prentice MP
Parliamentary Under Secretary of State, Ministry of Justice

Issued on 3 November 2008

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Child grooming: “There is still much to do” says new CEO of Barnardo’s


NIH Child_sexual_abuse disorders graph

Image via Wikipedia

Anne Marie Carrie urges Michael Gove to appoint minister for child protection

Anne Marie Carrie, the new chief executive of Barnardo’s, has said that  child sexual exploitation is a child protection issue and the Secretary of State for Education should appoint a minister to take forward a national action plan without delay.

The Chief Executive of the UK’s largest children’s charity has used her first day in office to call for urgent action to protect the thousands of young girls and boys who are being preyed upon and then abused, raped and exploited for sex. The charity, which has been supporting these children for 16 years and runs 22 specialist services across the UK, worked with more than 1,000 sexually exploited girls and boys last year.

Although Barnardo’s welcomes CEOP‘s investigation into child sexual exploitation, it believes that without a minister with overall responsibility the Government response is likely to remain inadequate.

Anne Marie Carrie said:

“I have a lifetime of experience working in children’s services, but there is nothing more shocking than child sexual exploitation. These vulnerable defenceless girls and boys, who crave love and attention, are groomed then abused in the most callous and calculated way, leaving them deeply traumatised and scarred for life.

Although I thoroughly welcome the recent attention around the issue, the children at the heart of this crime have been forgotten as discussion has focused on the ethnicity of perpetrators in high profile cases.”