The remaining provisions of the Children & Adoption Act 2006 (Part I) finally come into force tomorrow (8 December 2008). They amend the Children Act 1989 to enable the court to make contact activity directions and conditions and to enforce breach of a contact order by way of and enforcement order which imposes an unpaid work requirement (community service) or by compensation order (where the breach has caused a financial loss such as a missed holiday). Contact activities will include things like parenting classes and domestic violence prevention programmes.
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Because the idea is that the court will exhaust all other avenues prior to making an enforcement order, which will usually include trying contact activities first, it seems unlikely that many enforcement orders will be made over the next few months, particularly since it is unclear what contact activities will be available nationally or locally.
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It remains to be seen how much these new powers enhance the ability of the court to progress contact within a sensible timeframe in those ‘stuck’ cases, and realistically it is unlikely to become clear for some considerable time. It is possible that the provisions will, whilst giving the court a broader range of powers, do little to speed things up in the implacable cases that we hear so much about.
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Our experience is that the HMCS guidance on the attachment of warning notices (for contact orders that pre-date the changes on 8th December 2008) is not being followed by the courts.
The guidance (CB5) sets out that the court has no discretion regarding the attachment of a warning notice such a notice is applied for.
What was anticipated as primarily an administrative exercise (you apply for a warning notice, it’s attached, and then if there are further breaches you then have the option of returning to court) is not happening.
In practice, those applying for a warning notice are experiencing courts revisiting the existing order and reconsidering its viability, often with CAFCASS present at the first directions hearing to mediate between the parties.
It seems somewhat a waste of court time, if, when the court had already decided the appropriateness of the ordered arrangements, the merry dance starts all over again.
The resident parent is then, on occasion, seeing this as an opportunity to overturn the contact order by making a cross-application, with the non-resident parent being doubly depressed as they stumped up the application fee.
Were the court and CAFCASS not struggling due to resourcing and funding issues, it would be arguable that mediation and a review are worthwhile in the first instance. Given the current delays for hearings and CAFCASS reports, I’m not sure that it’s in anyone’s interests.
Michael Robinson
I don’t have experience of this happening but I suppose its inevitable that it may provoke further applications to reopen contact orders – this is always open to the parties and the courts regardless of the question of a warning notice. I suppose that once the warning notice is raised it is an indication that the beneficiary of contact is thinking about trying to enforce, so that is the sensible time to try and vary contact if it is not working well. I can see that it would be frustrating, and not at all what the rules appear to anticipate – and particularly frustrating in light of the delays at court and with CAFCASS. However, as a rule of thumb, unless there is very good and urgent reason to vary immediately the court ought to be attaching the warning notice and leaving the existing order in place pending full hearing or CAFCASS report.
My experience of this is the same, i applied for the attachment of the notice, which i thought was going to be more of an administrative exercise. A hearing was then scheduled, at the hearing the judge was very unclear as to what his position was and has now scheduled a further full hearing 6 weeks later to determine whether or not he will apply the notice. During this time he has requested both parties to construct statements to establish if contact has been breached. I am representing myself and wasn’t 100% sure at the time of the rules and that i didn’t even need to estalish lack of compliance with the order. I am having to subsequently write a letter to the judge to outline the guidelines given for applying the notice. At the recent hearing we also agreed some minor wording changes to the order as it is flawed in its construction, it is my understanding that if this happens that the warning notice is automatically applied anyway?
Yes, the attachment of a warning notice should be a straightforward administrative matter, unlike an application to enforce which is rather more convoluted. But as you say, any variation of the order which results in it being redrawn by the court staff will (should) automatically result in the attachment of the warning notice in any event.
After reading the CHILDREN AND ADOPTION ACT 2006 – EXPLANATORY NOTES – Section 8 – Transitional provision
The section provides for two ways in which warning notices can be attached to such contact orders.
(a) Either a specific application can be made for a warning notice to be attached to the contact order, or
(b) the court must attach a warning notice to the contact order if the contact order is in issue in any family proceedings.
Wouldn’t a contested hearing to decide whether a notice should be applied will result in the order being “in issue” and according to the above guidance will result in attachment of a warning notice. The hearing would therefore have an inevitable outcome and become a self fulfilling process, as it were, so it would be logical to omit the hearing and apply the warning notice as per reason (a)