Libby Daultrey, Head of Family Law at Marsden Rawsthorn, explains the implications of an important change to the Children Act, which could lead to financial penalties and even unpaid labour for non-compliant parents.
Approximately 200,000 couples with children separate each year. Most of these couples are able to make satisfactory arrangements between themselves for their children. Approximately 10% however cannot agree arrangements and are obliged to seek court assistance.
The family courts have a range of powers including making orders requiring the resident parent to allow the other contact with a child, a Contact Order.
What happens if the resident parent does not comply with a Contact Order?
Fathers' groups as well as many within the legal profession have been critical that family courts have been unable or unwilling to enforce Contact Orders.
Previously the powers available to the court were very limited. Where a parent was in breach the court could find that parent to be in contempt of court and impose a fine or imprisonment. The court could also consider transferring a child's residence from the parent in breach to the other parent. But these extreme sanctions have been used very sparingly as they are likely to impact adversely on the welfare of the child at the centre of the dispute.
New provisions came into force on 8 December 2008. The Children and Adoption Act 2006 added a new Section 11 to the main legal framework relating to children, the Children Act 1989. These new provisions include the introduction of “realistic and usable” new sanctions for breach of Contact Orders.
The family court now has power to impose unpaid work on anyone in breach of the Contact Order up to a maximum of 200 hours for each breach.
The court can also order one party to compensate the other for any financial loss that has occurred as a result of that party’s breach.
Perhaps the most interesting new provisions are the "contact activity" directions and conditions. These are activities specified by the court which include "programmes, classes and counseling or guidance sessions" and which aim to facilitate meaningful contact.
The intentions behind the new provisions are laudable. Family life must go on after the court proceedings are ended and arguably therefore sanctions for breach of Contact Orders need to balance punishment with support and guidance.
What remains to be seen is how these new sanctions will be used and whether they are sufficiently effectual and robust strong enough to provide a deterrent effect.
There is little doubt that children benefit most when their parents can agree the arrangements for them.
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