Further to my post yesterday, there is a piece in The Times today about the new provisions and John Bolch at Family Lore has posted the new court forms which are in use as of today. Resolution are quoted in the article by Frances Gibb, their full press release is here.
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The quote in The Times’ article from ‘a family judge’ seems to me to be a bit misleading – it seems to suggest that the new provisions are giving a ‘go directly to jail’ card to courts – but in fact the courts have the power to imprison already, and the new provisions are clearly intended to be a precursor to committal to prison, which is now only likely to be used if contact activities and community service orders have failed. And before the court makes an enforcement order it must not only be satisfied beyond reasonable doubt that there has been a breach of a contact order AND have dealt with any defence of ‘reasonable excuse’, but must ALSO first obtain a raft of information and satisfy itself that the order is really necessary and proportionate – they will not be made in every case of breach, in fact I venture to suggest these orders will be made very rarely and will probably make committals to prison even more infrequent because they provide and alternative sanction.
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The other inaccuracy in the article is the suggestion that parents will be criminalised by the provisions – although the penalty of community service is drawn from the criminal law, a person subject to an enforcement order will NOT get a criminal record and their details will not be entered on the national offenders register – they will be punished for what is effect a contempt of court (although the orders are intended to be an ‘encouragement’ to compliance rather than punitive for the sake of punishment) but they will NOT be criminalised. What is absolutely right is the concern raised by Chris Goulden at Resolution about the funding of contact activities and the lack of clarity about who will provide them. I am trying to finalise the details of a seminar on this topic for Thursday and am still waiting for the promised publication on the DCSF website of the list of contact activity providers.
There is also the point that certain jurisdictions have no abilities to impose any form of community penalties as they have had no monies made available to set these schemes up. Therefore in effect this renders the order as unenforcable, as judges are extremely reluctant to go down the penal route.